Where have I been for the last month? What happened to practice, practice, practice? I'm sure there are a host of factors - laziness, distraction, premature spring making me want to be outside - but the one worth talking about is disenchantment, disillusion, however you want to call it. The events of the last month tend to inspire me to something more akin to crawling under a rock than to the critical engagement that writing requires. Shall I count them? Let's see, there was the Trayvon Martin shooting, with the less-than-inspiring conversations it begat of Florida gun laws, seemingly-backwards law enforcement, President Obama's reaction, and ... ahem... hooded sweatshirts. There has been the GOP primary, with its plethora of depressing candidates and discussion topics apparently trying to distract voters from the dismal economic situation. (Reproductive rights becoming a priority during the Great Recession? Really?) And...steeling myself...the health care arguments at the Supreme Court.
Question: What is a clear signal that you have been feeling disillusioned?
Answer: When the most refreshing voice you've heard in weeks belongs to John McCain.
So I'm listening to this week's This American Life episode and it is uber-depressing (enlightening in a "now I know about the pink slime in my hamburgers" kind of way. Oh yeah, I forgot to put that one on the list of uninspiring news topics). First they talk about how lobbying has worked in Congress in recent years, with choice facts like: Nancy Pelosi attended 400 fundraisers in 2011, typical lobbyists dodge phone calls from Congress members who are calling them to ask for fundraising and contributions (not the other way around), and the return on investment for lobbying over the American Jobs Creation Act was 22,000 %. And this is only Act I. After the break, the show goes on to discuss how Citizens United makes all of this even worse. How it ups the ante - exponentially - for Congress members' fundraising goals. How Karl Rove's super PAC is expected to spend $300 million on the various races of 2012. How Rove's Super PAC's ad-buy of $700,000 in a 2010 congressional race single-handedly increased the Republican campaign's spending by 1/3 in a single day - and of course, the Democratic was defeated.
So, into this morass comes this really great - but too brief! - interview with John McCain and Russ Feingold, sponsors of the legislation evicerated by Citizen United. After the antagonism I have felt toward John McCain since the 2008 election, it was such a surprise to feel like this guy was on my side of this dismal issue. John McCain, saying that Citizens United was "beyond ridiculous." John McCain, saying that Scalia's "arrogance" and "sarcasm" was "stunning." John McCain, calling the Supreme Court "clueless."
Ok, I realize that McCain is really the representative of a dying breed of Republicans, being pushed aside by the Tea Partiers and their Santorums. But it's refreshing to remember that it is not entirely an us-against-them world, that there are some folks on the right that have the same critiques of the Supreme Court that I have. And not just critiques, but anger, frustration, dismay.
Feingold then said something that gives a glimmer of hope to all of this. He said, "One thing that John and I experienced was that sometimes the corporations that didn't like the system would come to us and say, you know, you guys, it's not legalized bribery, it's legalized extortion. Because it's not like the company CEO calls up to say, gee, I'd love to give you some money. It's usually the other way around. The politician or their agent who's got the Super PAC, they're the ones that are calling up and asking for the money." - this quote was entirely consistent, by the way, with the reporting in part 1 of the episode - "So a lot of businesses, I think, are going to help us rebel against this and say, you know, we don't want to be a part of this mess."
Let's stop and think about that for a minute. Amidst all the cynicism I have felt that corporations will just buy government and destroy any semblance of democracy, Feingold suggests this alternate reality: businesses don't want to buy government - not at these prices anyway! - and they will become allies in the fight against the new reality. Could it be, even just a little bit, possible?
So this brings me back to the Affordable Care Act. I could devote pages to this - along with the attendant agonizing - but I'll try to be brief here.
As a lawyer, my belief in the legal system is an article of faith, a core value that I thought I shared with the other members of the legal community, and especially our leaders at the pinnacle of the profession, the Supreme Court: separation of powers, federalism, stare decisis, judicial restraint, constitutional avoidance, deciding only cases and controversies and avoiding "advisory opinions", avoiding political questions. In law school, I had the privilege of taking "Federal Courts" with Professor Shapiro, a student of the original authors of the seminal textbook on this study, Hart & Wechsler. Thinking about all I learned there makes me feel the roots of my disenchantment acutely. Fed Courts, as it is known to law students, is a notoriously "gunner" class, taken by everyone on law review, by anyone who aspires to a federal appellate clerkship, and was the most challenging class I've taken since AP calculus in high school. It is always hard to explain what makes it so challenging, but what makes it challenging is exactly what makes it so crucial to my faith in the legal system. The point of Fed Courts, as I learned it, is about how the Supreme Court has shaped the role of the federal judiciary in the American system, and much of it is about the limits on that power - deferring to the political branches on political questions, deferring to the states on state questions, not rendering opinions on constitutional questions unless absolutely necessary to deciding a case (this is the doctrine of "constitutional avoidance"), not rendering opinions on anything unless necessary to deciding a "case or controversy" before it (this is the doctrine of avoiding "advisory opinions). In recent years, the Supreme Court seems to have turned all this on its head. (I realize in my quick "research" for this blog post that for many years now scholars have been arguing that the "Hart & Wechsler paradigm" "no longer serves us well either as an account of what the Supreme Court does in Federal Courts cases or as a guide to what the Court ought to do." Perhaps I am coming to agree with that view, or the first part of it, anyway.)
These principles are part of the outrage amongst lawyers over Bush v. Gore - that the Supreme Court would ignore the centuries-old "political question doctrine" in that decision. Citizens United continues this trend. To me, steeped in the law of the Hart & Wechsler fed courts paradigm, it is the constitutional avoidance problem that has me most baffled: the statute at issue could have been construed far more narrowly to avoid the constitutional question of whether corporations have free speech rights. There was just no need to reach that issue, except to flex the Supreme Court's muscle in a manner that had been studiously avoided for, again, centuries.
And now comes the Affordable Care Act. (What is that case called, anyway? . .[quick search] . . It is two consolidated cases, the easier of which is HHS v. Florida.) In this case, precedent appears to dictate - as Obama recently noted - upholding Congress's commerce clause authority. Congress's enactment of economic laws has not been questioned since the Court's review of New Deal legislation about 75 years ago. And then there are the questions. Argh...the questions! Asking about Congress's other options, why Congress chose this method of dealing with the health care problems, asking about the costs of the program. When your understanding of the federal court is shaped by an intense study of doctrines created by the Court itself to limit its power, these questions feel like nails on a chalkboard. They are not the kind of questions the Justices are supposed to ask; they are precisely the questions they are supposed to avoid. (Click here for a good article on the Supreme Court arguments.)
The entire basis of these doctrines is that this small, unelected, tenured-for-life group - without the power of the purse or the military - secures its legitimacy only by the citizenry and the rest of government maintaining a kind of faith or trust in its legitimacy, and it maintains that respect by limiting its powers. The 5 members of the current conservative wing seem to have a different set of principles at work, and I fear that they are taking a knife to their own legitimacy. Oh what a great relief it will be if they uphold Obamacare! But based on what I've seen so far, from Citizens United to the oral arguments in HHS v. Florida, the wound has been inflicted, and whether the knife is turned remains to be seen.
And as a lawyer, as a lawyer with a tremendous faith in the deepest principles of the federal judicial system, the carving away at those tenets causes me greater disillusion than all of those other events.
