Author Archives: weeklysift

Doug Muder is a former mathematician who now writes about politics and religion. He is a frequent contributor to UU World.

The Monday Morning Teaser

July 22, 2013 – 7:46 am

The national conversation this week was still being dominated by the reaction to the Zimmerman verdict that came out a week ago Saturday. On Friday, President Obama made a surprise appearance at the daily White House press briefing to comment about what the Trayvon Martin case means to the black community and to him personally. So then we had another round of commentary on what the President had said.

I still haven’t decided whether some part of the Zimmerman/Martin commentary comes together into a theme that belongs in a separate article, or if I just have a lot of short notes for the weekly summary.

Race is one of those issues that is always present in America but is seldom news, so everybody has a lot of pent-up things to say about it. Those things came out this week. Some are very insightful and others amazingly clueless. I’ll link to examples of both. Stand Your Ground laws and racial profiling also got a lot of discussion.

Some other important things were also happening. Detroit tried to go bankrupt and a court stopped it. The Senate reached a compromise that maintained the filibuster but broke the logjam on presidential appointments.

And a particularly clumsy bit of marketing by Fox pundit Erick Erickson gave me a hook to look at a continuing issue: the porous boundary between right-wing advocacy and money-making cons. There’s nothing like it on the left, and it’s interesting to consider why.

Probably posts will come out a little later than usual today, but I’ll try to have everything up by noon.

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License to Kill

July 15, 2013 – 1:21 pm

Carrying a deadly weapon in public should carry unique responsibilities. In most cases someone with a gun should not be able to escape culpability if he initiates a conflict with someone unarmed and the other party ends up getting shot and killed. Under the current law in many states, people threatened by armed people have few good options, because fighting back might create a license to kill.

— Scott Lemieux

This week everybody was talking about the Zimmerman verdict

Back when I was refusing to pay attention to the trial, I wrote that everyone who doesn’t have a personal stake in trials “should just wait to see how they come out.”

Well, it came out. Zimmerman was acquitted. Slate’s Emily Bazelon, the trial-watcher whose reaction is closest to mine, finds fault with Florida’s legal code:

Maybe people like George Zimmerman should be held responsible for provoking the fight that they then fear they’ll lose. … But you can see the box the jurors might have felt they were in. Even if they didn’t like George Zimmerman—even if they believed only part of what he told the police—they didn’t have a charge under Florida law that was a clear fit for what he did that night.

Here’s what seems clearest to me about the killing: George Zimmerman was looking for trouble that night and Trayvon Martin wasn’t. I’m not sure exactly how the law should account for that, but I have a hard time believing that if Martin had killed somebody under similar circumstances, he wouldn’t be convicted of something. Various cases have been proposed as analogs, like this one.

Weaponry and the law. At the American Prospect, Scott Lemieux points out widespread concealed-carry of weapons combines very badly with stand-your-ground laws. A person with a concealed weapon should bear a special responsibility to avoid violent confrontations, knowing that such a confrontation may well lead to someone’s death.

Race. A year ago, Frontline ran some numbers about homicides. Juries are more likely to believe white-on-black killings are justified, particularly in stand-your-ground states.

[As much as I suspect the overall impression created by the graph is correct — background story here — the mathematician in me has to point out that the white-on-black color breakdown can’t be right. The “All” percentage ought to be somewhere between the SYG and non-SYG percentages, not lower than both.]

Zimmerman’s future. Zimmerman’s attorney is pushing the notion that his client has suffered a great wrong, and faces a difficult future.

Seriously? If he wants to, Zimmerman can have a lucrative career as a symbol for the NRA and other conservative groups. I’d be amazed if a book wasn’t already being ghost-written for him. I wonder who will play Zimmerman in the movie of his persecution by scary black people.

Fearmongering. Again and again, right-wing pundits have raised the specter of a violent black response, but Trayvon Martin continues to be the only casualty here. Post-verdict demonstrations across the country were peaceful, with the lone exception of Oakland, where some windows were broken but no one hurt.

I noted the same pattern in the weeks after the killing: Conservative sites like Glenn Beck’s The Blaze devoted article after article to speculation about black violence, while showing little empathy for the only person who actually died.

In short, the conservative media has presented the killing of a black teen-ager primarily as a reason for whites to be afraid.

but I wrote about zombie voters and how to change conventional wisdom

or, more accurately, The Myth of the Zombie Voter and To Succeed, Fail Boldly.

and you also might be interested in

Last week I denounced the Religious Right misusing “religious freedom” as an excuse to control other people. Well, this week there’s more.

The House has attached a Religious Liberty amendment to the annual National Defense Authorization Act, one of those omnibus bills that has to go through somehow. It extends protection of soldiers religious “beliefs” to “beliefs, actions, and speech” and restricts commanding officers’ options for avoiding religious conflicts within their units.

Chris Rodda sums up:

No longer will name-calling and harassment be prohibited if these “sticks and stones” merely pose a threat to good order and discipline; they will have to result in actual harm to good order and discipline. In other words, a commander will no longer be able to head off a potential breach of good order and discipline in their unit … they will have to wait until such name-calling escalates to a point where … the unit cannot function efficiently.

The foreign press continues to spank the American press for its lapdog coverage of the NSA scandal. Germany’s Spiegel throws a spotlight on a false Walter Pincus column that embarrassed the Washington Post.

Here’s why you need to have a woman in the room when important decisions are being made: The seven guys on the Iowa Supreme Court ruled that it wasn’t gender discrimination when a dentist fired his assistant for being so irresistibly attractive that his wife got jealous. (The link includes video of an interview. She’s cute, but give me a break. Men need to be able to function in the presence of cuteness.)

The 32-page opinion is full of legal precedents and so forth, and without a whole more study I can’t offer an opinion on whether the judges got the law right. (The outcome is unjust, but maybe the law is unjust and the Court’s hands are tied. As Oliver Wendall Holmes is supposed to have said: “This is a court of law, young man, not a court of justice.”) But wouldn’t this decision be a whole lot more credible if there were at least one woman on the Court?

Here’s something I can say without further study: The dentist is a jerk. Not only did he fire this 10-year employee without warning for no fault of her own, but he gave her only one month’s severance, which even the Court called “rather ungenerous”.

A bipartisan coalition of senators have introduced “The 21st Century Glass Steagall Act”. It would restore the New Deal’s separation between commercial banks (which ordinary people count on to store their money safely) and investment banks (which can deal in complex derivatives that nobody really understands). “Banking should be boring,” Elizabeth Warren explains.

Coming out of the Great Depression, Congress passed the Glass Steagall Act to separate risky investment banking from ordinary commercial banking. And for half a century, the banking system was stable and our middle class grew stronger. As our economy grew, the memory of the regular financial crises we experienced before Glass-Steagall faded away.

But in the 1980s, the federal regulators started reinterpreting the laws to break down the divide between regular banking and Wall Street risk-taking, and in 1999, Congress repealed Glass Steagall altogether. Wall Street had spent 66 years and millions of dollars lobbying for repeal, and, eventually, the big banks won.

Our new 21st Century Glass Steagall Act once again separates traditional banks from riskier financial services.

The symbol of Glass Steagall’s success was the separation of the Morgan Bank (now J. P. Morgan Chase) from the Morgan-Stanley Investment Bank in 1935. But today J. P. Morgan Chase owns Bear Stearns, and Bank of America owns Merrill Lynch, just to name two obvious examples.

Of all the bad abortion bills going through state legislatures lately, Ohio’s takes the cake. It doesn’t just humiliate women seeking an abortion and impose restrictions that will close abortion clinics. It also cuts funds for contraception services in family-planning clinics that merely inform women about abortions. And welfare cuts will make it harder for poor women to keep the babies that the state is making them give birth to. What gets more funding? Services that encourage pregnant women to give their babies up for adoption. Slate’s Amanda Marcotte pulls it together:

Taken together, the cuts to contraception funding, the cuts to welfare, the restrictions on abortion, and the money flowing to crisis pregnancy centers paint a very grim view of how Ohio Republicans see women—and low-income women especially: as baby factories that need to dramatically increase production. You can call that “pro-life” if you want, but it’s increasingly clear that it’s just anti-woman.

Why oh why do Ron and Rand Paul keep running into these problems with their Neo-Confederate and white supremacist associations? Josh Marshall has an irreverent answer.

and let’s end with something fun

Everybody knows that different parts of the country speak have different words for things and pronounce them differently, but it’s fun to see where the boundaries are. So how come St. Louis and Milwaukee are little islands of red in this map, but nearby Chicago and Des Moines aren’t?

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To Succeed, Fail Boldly

July 15, 2013 – 12:25 pm

Five doomed proposals for changing the national conversation

From one point of view, it all came to nothing.

Two weeks ago, liberals around the country thrilled to the story of Wendy Davis’ filibuster. With a few minutes of help from a raucous gallery of protesters, Texas State Senator Davis’ 11-hour speech ran out the clock on the special session of the legislature that Governor Rick Perry had called to pass a draconian anti-abortion bill.

Victory!

For two weeks, anyway. But Perry was still governor, so he called yet another special session. And the Republicans still had majorities in the legislature, so Friday the same bill passed the Senate and was on its way to Perry’s desk. In spite of massive protests, in spite of a viral video that made another new heroine out of Sarah Slamen, the legislative result is the same as if everyone had just stayed home.

Soon we’ll probably be able say the same thing about Moral Mondays in North Carolina. The Republicans have a supermajority in the legislature and they’re not afraid to use it, so they’re going to pass whatever they want, no matter how many religious leaders protest, no matter how many Carolinians they have to arrest.

So it’s pointless, right?

In the long term, no, it’s not pointless. This is the only way things change.

Losing my shrug. Let’s start with the obvious, even if it doesn’t seem all that consequential. A few months ago I’d have shrugged if you told me Texas and North Carolina were about to pass a series of laws that would impose real hardships on women and the poor. “The South,” I’d probably have said, “what can you expect?”

Well, Wendy Davis and William Barber have taken away my shrug. Like lots of other blue-state folks, I have been reminded not to write off Texas and North Carolina. Red states are not monolithic blocks of small-minded people. Progressive forces may be losing there right now, but they’re fighting. And people who keep fighting just might win someday.

If you don’t believe that, recall how the Religious Right and the Tea Party got where they are today. For decades, right-wing extremists rallied for proposals they couldn’t hope to pass into law, and mostly still haven’t: human life amendments, balanced budget amendments, the gold standard, defunding the U.N., and so forth. They failed and they failed again. And sometimes they succeeded when no one had given them a chance. (When the Equal Rights Amendment passed the Senate 84-8 in 1972, its ratification seemed a foregone conclusion.) But today their point of view has to be dealt with, and in some states is dominant.

Before you can win, you have to change the conversation. And the only way to do that is to fight battles the conventional wisdom says you can’t win. You’ll lose most of them. For a while you’ll lose all of them, because the conventional wisdom isn’t stupid. But that’s how things change.

The only way to change the direction of the wind is to keep spitting into it.

How conventional wisdom shifts. I have written in more detail elsewhere about how conservatives manipulate the supposedly liberal media. Journalism is not a conspiracy, but there is an unconscious group process that decides what news is, what can be stated as a simple fact, and what has be covered as controversial. Partisan groups can pressure that process and get their desired response, independent of whether most individual journalists agree or disagree with their views.

In that article I focused on how outside pressure can make known facts seem controversial. So, for example, global warming is almost always covered as if it were in dispute, when in a scientific sense it is well established. But powerful voices will argue with journalists who say global warming is a fact, so instead they write he-said/she-said articles, or leave the global-warming angle out of a story entirely.

Today I want to focus on the opposite side of that same unconscious media groupthink: Anything that is stated forcefully by one side and not contested by the other will be covered as if it were a fact.

So: Texans are all conservatives. Only people on the right care about “morality” or “the family”. “Moral issues” are the ones about sex — abortion, contraception, homosexuality — and the moral position is the conservative position. Feeding the hungry, caring for the sick, making sure workers get a fair wage — all that sermon-on-the-mount stuff — those aren’t “moral” issues.

If you don’t regularly and loudly contest those notions, they’ll get reported as facts. They’ll provide the background assumptions that frame the coverage of everything else.

Wolf Blitzer’s evangelism. The clearest recent example of this principle was Wolf Blitzer’s embarrassing interview with an atheist mother after the tornado in Moore, Oklahoma in May. Blitzer badgered the woman to “thank the Lord” for her and her child’s survival until she finally had to confess her atheism.

So is Blitzer is an evangelical Christian trying to push his religion on CNN? Nope. Wikipedia says Blitzer is a Jew, the son of Holocaust survivors. I can’t say from that precisely what he believes about God, but he was almost certainly not pressuring this woman to proclaim her Judaism.

Instead, Blitzer was applying two seldom-contested stereotypes:

  • Oklahoma is in the so-called Bible Belt, so everybody must be some kind of conservative Christian.
  • There are no atheists in the foxholes. When life and death hang in the balance, everybody becomes religious.

Probably Wolf had been hearing loud proclamations of Christian faith all day, and no voices on the other side. (This is another kind of groupthink. It’s not considered rude to thank Jesus in these circumstances — even in the presence of people whose loved ones Jesus apparently chose not to save. But conservative Christians would take offense if you said, “Stuff like this just shows that everything’s random and you can’t take it personally.”) So it became a background “fact” of his reporting that the people of Moore were having an evangelical Christian response to their survival.

Candle-lighting vs. darkness-cursing. We can wish for harder-working more-objective journalists who will seek out the truth and cover it fairly, regardless of the power dynamics. But in the meantime journalism is what it is, and we’re just being stupid if we let conservatives manipulate it and don’t fight back.

The facts on the ground today are that the media will challenge a pro-choice Catholic to reconcile the contradiction between his politics and his faith, but not an Evangelical who votes to cut Food Stamps or reject Obamacare’s Medicaid expansion. (Matthew 25:35-36: “For I was hungry and you fed me. … I was sick and you cared for me.”) Want to change that? Join the Moral Mondays protests in Raleigh, or start something similar in your own state capital.

In the short term, you may not change any votes in the legislature. But if enough people contest the previously uncontested “facts”, those “facts” leave (what Jay Rosen and Daniel Hallin call) “the Sphere of Consensus” and enter “the Sphere of Legitimate Controversy”. The conventional wisdom changes.

From defense to offense. So far the big progressive protests have been efforts to resist conservative aggression: rollbacks of women’s rights in Texas, unemployment insurance in North Carolina, workers’ rights in Michigan and Ohio.

It’s time to go on offense. In addition to resisting the regressive agenda of the right and timidly putting forward small proposals like universal background checks for gun buyers, progressives need a blue-sky positive agenda that we keep making people notice. Just because we can’t pass it in this term of Congress doesn’t make it impractical. (When have conservatives ever been constrained by that?) You have to keep proposing it until people get used to hearing it; only then will they look at it seriously.

So here are five bold proposals that are “doomed” according to the conventional wisdom. Their complete impracticality is a “fact” and will continue to be so until loud voices move them into the Sphere of Controversy, from which they can get serious consideraton.

  • The Equal Rights Amendment. The ERA passed Congress in 1972 and fell three states short of ratification when the ratification deadline passed in 1982. Supporters of the three-state strategy claim the deadline doesn’t count and in 2011 got ratification through one house of the Virginia legislature. But the ERA gets re-introduced in every session of Congress, most recently in March. Only the fact that the conventional wisdom says it can’t pass, protects politicians from explaining why they disagree with “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
  • Single-payer health care. Of all the existing plans to help the 50 million Americans who lack health insurance, Obamacare is the most conservative. (It’s Romneycare, after all.) Conservatives opposing Obamacare have offered no plan to fulfill the “replace” part of their “repeal and replace” slogan. And yet, if you watch Sunday morning political shows on TV, Obamacare is the “liberal” position. It’s better than the status quo, and I support it on those terms. But single-payer is what gives Europe, Japan, and the industrialized parts of the British Commonwealth lower costs and higher life expectancies than we currently have. It would do the same for the United States.
  • End corporate personhood. Few actual humans defend the idea that corporations should be people with full constitutional rights. A variety of constitutional amendments have been proposed to reverse this piece of conservative judicial activism (which in particular has no basis whatsoever in the originalist constitutional interpretation conservatives claim to favor). Bernie Sanders’ Saving American Democracy Amendment says: “The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations.” Everybody who runs for office should be challenged to state a position on that.
  • A federal Reproductive Rights Act. The current reproductive-rights situation in states like Texas resembles Jim Crow: Women’s constitutional rights are not repealed directly, but are made impractical by a series of restrictions transparently introduced for that purpose. In the same way that the Voting Rights Act protected minorities’ right to vote (until recently), a federal Reproductive Rights Act should impose federal oversight on states that have a history of infringing women’s rights.
  • Replace the Second Amendment. The overall situation of weapons and society has changed so much since 1787 that it’s hard to attach any meaning at all to the full text of the Second Amendment. I don’t have a revised text in mind yet, but I think the amendment should defend the right of individuals to procure appropriate tools to defend their homes, while giving Congress the power to control military hardware.
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The Myth of the Zombie Voter

July 15, 2013 – 9:09 am

If you ever argue with conservative friends about voter-ID laws, invariably they will bring up the threat of “zombie voters” — fraudulent votes cast in the name of people who were already dead on election day.

In truth, zombie voters are as much of a myth as zombies in general. But you’ll never convince your friends of that, because they’ve seen countless segments on Fox News in which some Republican official announces — in terms that seem too specific to be made up — that dead people have voted. It’s a very convincing technique that goes back to Joe McCarthy’s list of 205 known Communists in the State Department in 1950. (If he’d just said generally that there were some Communists in the State Department, people might have thought he was exaggerating for effect. But a list of 205 of them! He couldn’t make that up, could he?)

The story always goes like this: A computer search produces a list of possible zombie voters, and the right-wing media goes wild with calls for voter ID laws (always conveniently designed to make voting harder for Democratic-leaning blocs of marginal voters like college students, the disabled, and the urban poor). If anybody investigates further, though, a few months later they’ll have discovered that none of the cases pan out. No actual zombies are found. But because that outcome is boring, nobody covers it — least of all Fox.

The most recent example of this pattern comes from South Carolina. In January of 2012, SC Attorney General Alan Wilson was making the tour of conservative media outlets, saying stuff like this:

we found out that there were over 900 people who died and then subsequently voted. That number could be even higher than that, Bill. So this is just an example.

and this:

We know for a fact that there are deceased people whose identities are being used in elections in South Carolina.

More specifically, the state DMV had compared its death data against the voting records for the previous six years and found “953 ballots cast by voters listed as dead“!

At least that was the story until they started showing those 953 names to people who actually know something about elections. Testifying to the legislature, State Elections Commissioner Marci Andino explained the six names she had seen from one county:

one had cast an absentee ballot before dying; another was the result of a poll worker mistakenly marking the voter as his deceased father; two were clerical errors resulting from stray marks on voter registration lists detected by a scanner; and two others resulted from poll managers incorrectly marking the name of the voter in question instead of the voter above or below on the list.

This kind of stuff happens all the time — poll workers are mostly volunteers, after all — and explains why the zombie-voter story is itself impossible to kill: You could do a similar records search after any election anywhere, and come up with a similar list of possible zombie voters. The existence of such a list sounds horrifying, but it says nothing about the integrity of the election.

So OK, 953 is an exaggeration. But if you went through all the names, you’d find some zombie voters, right? By April, the State Election Commission had gone through all 207 cases from the 2010 election and had explained all but 10 of them, with no clear zombie-voter evidence even in those 10. State police later whittled those 10 down to 3, and recommended no further investigation.

I expect we’ll wait a long time for Fox to bring Alan Wilson back to comment on this, but fortunately Columbia, S.C.’s weekly Free Times stuck with the story and made an open-records request to get the South Carolina Law Enforcement Division’s final 500-page report on the 953 zombie voters. On July 3, FT reported:

a state police investigation found no indication that anyone purposefully cast a ballot using the name of a dead person in South Carolina. … SLED found no indication of voter fraud.

That result probably didn’t surprise election expert Richard Hasan, who told Bill Moyers last September:

It’s no surprise that the numbers [of prosecutions] are so low, because voter impersonation fraud is an exceedingly dumb way to try to steal an election.

Why is it dumb? You have to steal votes one-by-one, in a time-consuming way, and you face the constant possibility that you might be caught by a poll worker who knew the person you’re claiming to be, or saw the obituary in the local newspaper. To swing an election that way, you’d need a large conspiracy. Somebody would get caught, and somebody would talk. It’s not worth the risk.

So has anybody ever successfully voted more than once by impersonating a dead person? Maybe, somewhere. It’s not impossible. But does anyone organize such efforts to produce enough zombie votes to sway an election (even a very close election)? Pretty conclusively, the answer is no.

Just look at South Carolina in 2010. Around 1.3 million votes were cast in a moderately close governor’s race that year, which Nikki Haley won by 60,000. How many of those votes came from dead-person impersonators? Possibly zero, but after extensive investigation we can be sure that there were no more than 3.

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The Monday Morning Teaser

July 15, 2013 – 8:18 am

Welcome to any new readers who are checking out the Sift because they liked last week’s featured post “Religious Freedom” means Christian Passive-Aggressive Domination, which is now the sixth most popular post since the blog moved to weeklysift.com two years ago. Posts appear on this blog every Monday between mid-morning and early afternoon (New Hampshire time).

This week will have two featured posts: “If You Want to Succeed, Start Failing” begins with the women’s-rights protests in Texas and Moral Monday protests in North Carolina — neither of which can prevail in the short term over Republican majorities in the legislature — and explains why this kind of spitting-into-the-prevailing-wind is the only way the wind ever changes. I’ll close by listing some doomed proposals that progressives should put more energy into.

“The Myth of the Zombie Voter” is one to email to your conservative friends who are sure dead people are voting, because they’ve heard reputable-sounding state officials tell them so on Fox News. Eighteen months ago, the South Carolina attorney general was making the tour of conservative media outlets with a claim that he had found 953 zombie voters in his state. But Columbia, S.C.’s Free Times did the follow-up Fox never does, and got hold of the state police investigation of that list. Let’s just say it returned the zombies to their graves.

This week’s summary post will discuss the Zimmerman verdict and the riots-that-didn’t-happen in response, that strange Iowa case where the state supreme court affirmed an employer’s right to fire a woman for being too attractive, the increasing dysfunction of the House Republican majority and the renewed effort for filibuster reform in the Senate, and yet another push by the Religious Right to use “religious freedom” as an offensive weapon.

“Zombie Voters” is almost ready to go and should be out shortly.

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Turning Pages

July 8, 2013 – 1:12 pm

The first change that takes place is in your mind. You have to change your mind before you change the way you live and the way you move. So when we said that the revolution would not be televised, we were saying that the thing that’s going to change people is something that nobody will ever be able to capture on film. It’ll just be something that you see, and then all of a sudden you realize “I’m on the wrong page.”

— Gil Scott Heron

This week everybody was talking about Egypt

and nobody knew what to think. Was it a revolution? A coup? The start of a civil war? Should we be happy because a popular movement for democracy succeeded in getting rid of an unresponsive government, or is that mob rule? Unhappy because the trash-canned government had been elected and was not replaced by constitutional means? Happy/unhappy because we fear/like the Muslim Brotherhood that won the election that formed the government? Unhappy/happy because we distrust/trust the Egyptian military that is setting up the provisional government? At times it’s best just to admit that you don’t understand and keep watching.

and the San Francisco plane crash

which is the kind of breaking news the Sift doesn’t cover very well. Turn on your TV.

and the 4th of July

Some patriotic videos never get old. I enjoy this 2002 celebration of the Declaration of Independence by Morgan Freeman and an all-star cast.

and a lot of stuff I’m studiously not paying attention to

like the Zimmerman trial and the chase after Snowden. I explained why last week.

because other stuff deserves a lot more attention than it’s getting

Some establishment liberals haven’t been taking the NSA leaks seriously, because who is this Snowden guy and why did he leak through Glenn Greenwald, who isn’t a “serious” journalist anyway. Well, the NYT’s Pulitzer-winning Eric Lichtblau has a new set of revelations. Listening yet?

Lichtblau has gotten access to classified documents from the secret FISA Court, and finds that it’s doing a lot more than just signing search warrants. It’s issuing sweeping legal opinions about the meaning of the Fourth Amendment (which protects us from “unreasonable searches and seizures”). Those opinions come out of a star-chamber process which only hears the government’s side of a case. The judges themselves are appointed by Chief Justice Roberts, and almost all were originally appointed to the judiciary by Republican presidents.

The FISA Court’s opinions have the force of law for the people who are cleared to read them — mostly the NSA, CIA, and others who would like to know what you’re doing. Its interpretation of the Fourth Amendment could be overruled by the Supreme Court, but since the unrepresented non-government side never finds out that it lost, who is going to appeal the case?

So in summary, your constitutional rights are at the mercy of a secret court that is far more authoritarian than the American judiciary as a whole. And you have no right to know what that court is doing to your rights, because Catch-22 says they don’t have to tell you what Catch-22 says.

Meanwhile, House Republicans are working on their ransom letter for the fall, when they once again plan to take the full-faith-and-credit of the United States hostage by provoking a debt-ceiling crisis. (“Nice country you’ve got there. It’d be a shame if something happened to it.”) The National Journal says they’re willing to extend the debt ceiling for the rest of Obama’s term in exchange for, say, privatizing Medicare — a highly unpopular concession they could never get through any legitimate democratic process.

The debt ceiling, you may recall, didn’t exist until 1917, and while extending it has often been an occasion for the out-of-power party to make pious speeches about fiscal responsibility, never in history had it been used to extract concessions until 2011. Until the Tea Party, nobody was so committed to an unpopular agenda that it was willing to threaten that much damage to the country.

and I wrote about the misuse of “religious freedom”

in “Religious Freedom” Means Christian Passive-Aggressive Domination.

and you also might be interested in …

Bill Keller explains why liberals should be happy with the Senate immigration bill. Not that it matters, because that bill has washed up on the rocky shore of the House.

In related news: Remember November, when Republicans had learned the importance of the Hispanic vote and figured they had to do something to appeal to it? Never mind about that. The new line coming out of conservatives is that they just need to do a better job appealing to whites.

At some point, the Republican efforts to sabotage ObamaCare turn into active disloyalty. For example, interfering with the administration’s efforts to tell the public how to use the new program. Democrats didn’t like Bush’s Medicare Part D, or the strong-arm tactics used to pass it, but they didn’t try to make it not work.

More debunking of the IRS “scandal”.

What if gun rights were treated the way abortion rights are?

Or if we thought about mass shootings the way we think about terrorist attacks?

Here’s another great visual of Republican men signing away women’s rights. After all, why should there be any women in the room?

I don’t know whether this guy scares the government or not, but he scares me.

And I guess it really shouldn’t be surprising that the KKK has a show for (white) kids.

or that Colorado preachers are blaming local wildfires on abortion, civil unions, and women’s breasts.

Student loan interest rates doubled on July 1. But don’t worry. Congress will get to it sometime. It’s not like the issue affects people’s lives or anything..

Now that there’s practically no competition, Amazon isn’t discounting books like it used to. Who could have foreseen that? I wonder what will happen when all of retail comes down to Amazon or WalMart?

Gil Scott Heron explains what “The revolution will not be televised” meant.

And something fun to end with:

If you’ve ever envied those fantasy worlds where place-names actually mean something, take a look at this real-world map, which traces current names back to their linguistic roots, like “Navel of the Moon” and “Abundance of Fish”.

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“Religious Freedom” means Christian Passive-Aggressive Domination

July 8, 2013 – 11:37 am

In an Orwellian inversion, “freedom” is now a tool for controlling others.

It’s over. Try something else.

For many anti-gay activists, the recent Supreme Court decisions on DOMA and Proposition 8 were the handwriting on the wall.

It wasn’t just that they didn’t get the result they wanted, but that in DOMA the Court’s majority simply didn’t buy the argument that homosexuality represents a threat to society. Neither does the general public, which supports that decision 56%-41%. (The margin under age 40 is 67%-30%, with 48% approving strongly.) The big post-DOMA public demonstrations expressed joy, not anger.

Just a few years ago anti-marriage-equality referendums were winning in states all over the country, but in 2012 one failed in Minnesota, while referendums legalizing same-sex marriage won at in Washington, Maryland, and Maine. Ten years ago, the first legislatures to make same-sex marriage legal were dragged by their state courts, but this year Delaware, Rhode Island, and Minnesota went there voluntarily, bringing the number of states where same-sex marriage is legal (as of August 1) to 13, plus the District of Columbia. (I’ll guess Oregon and Illinois will go next.)

It’s even clear why this is happening: Because gay millennials are not in the closet, everybody under 30 has gay and lesbian friends who dream about meeting their soulmates just like straight people do. To young Americans, laws blocking that worthy aspiration are pointlessly cruel and ultimately will not stand — not in Alabama, not in Utah, not anywhere.

So the generational tides run against the bigots of the Religious Right. Some still aren’t admitting it, but wiser heads are recognizing that it’s time to switch to Plan B.

The new face of bigotry: “freedom”. Fortunately for them, there’s a well-worked-out back-up plan: religious “freedom”.

Accept the inevitability of gay rights, advises Ross Douthat, but “build in as many protections for religious liberty as possible along the way.” Here’s the idea: If your disapproval of certain kinds of people can be rooted in church doctrine or a handful Biblical proof-texts, then forbidding you to mistreat those people violates the “free exercise” of religion you are promised by the First Amendment.

To make this work, conservative Christians need to divert attention from the people they are mistreating by portraying themselves as the victims. And that requires cultivating a hyper-sensitivity to any form of involvement in activities they disapprove of. So rather than sympathize with the lesbian couple who gets the bakery door slammed in their faces, the public should instead sympathize with the poor wedding-cake baker whose moral purity is besmirched when the labor of his hands is used in a celebration of immorality and perversion.

There’s a name for this tactic: passive aggression. It’s like on Sanford & Son when Fred would clutch his heart and start talking to his dead wife because Lamont planned to do something he disapproved of. Passive aggression is the last resort of people who have neither the power to get their way nor any reasonable argument why they should.

In fact the baker will be fine, as Willamette Week demonstrated by calling two such religious-liberty-defending bakeries and ordering cakes to celebrate a variety of other events conservative Christians disapprove of: a child born out of wedlock, a divorce party, a pagan solstice ritual. The bakers did not object, because their hyper-sensitive moral purity is an invention, a convenient excuse for treating same-sex couples badly.

But Jim DeMint insists that

A photographer in New Mexico, a florist in Washington, and a baker in Colorado have already been victims of such intolerant coercion.

And Matthew Franck is horrified that religious universities will have to provide same-sex married-student housing; religious “schools, universities, hospitals, hospices, and clinics; social service agencies, retirement homes, eldercare and childcare facilities, food pantries, and soup kitchens” who employ “teachers, doctors, nurses, psychologists, counselors and clinicians, caregivers, food-service workers, housekeeping and grounds staff, even pool lifeguards” won’t be able to refuse employment to people with same-sex spouses. Adoption services, marriage counselors, divorce lawyers, artificial insemination clinics etc. will have to deal with gay and lesbian couples … as if they were real human beings or something.

The race parallel. We worked this stuff out during the civil rights movement, because all the same ideas show up with regard to race.

Plenty of people claim a sincere religious belief in white supremacy, and root it in Biblical texts like the Curse of Ham. (This goes way back: American slave-owners found Biblical license for keeping their “property”.) But the law does not honor these claims, and somehow religion in America survives.

Here’s the principle that has served us well: In private life, you can associate with anybody you like and avoid anybody you don’t like. But if you offer goods or services for sale to the public, you don’t get to define who “the public” is. So when you’re making lunch at your house, you can invite anybody you like and snub anybody you don’t like, but if you run a lunch counter you have to serve blacks.

We’ve been living with principle for decades, and (other than Rand Paul) no one worries much about the racists’ loss of freedom.

That should apply to same-sex couples now: If your chapel is reserved for members of your congregation, fine. But if you rent it to the public for wedding ceremonies, same-sex couples are part of the public just like interracial couples are. You don’t get to define them away.

If that makes you reconsider whether you want to be open to the public, well, that’s your decision.

The sky will not fall. We just went through this with the Don’t Ask, Don’t Tell repeal, which supposedly would violate the religious “freedom” of evangelical military chaplains (who apparently had never before needed interact respectfully with people they believed were sinners). The Family Research Council’s Tony Perkins predicted:

You have over 200 sponsoring organizations that may be prevented from sponsoring chaplains because they hold orthodox Christian views that will be in conflict with what the military says is stated policy.

That stated policy was: “All service members will continue to serve with others who may hold different views and beliefs, and they will be expected to treat everyone with respect.”

AP went looking for chaplains who couldn’t live with that and found “perhaps two or three departures of active-duty chaplains linked to the repeal.” A Catholic priest overseeing 50 other chaplains reported “I’ve received no complaints from chaplains raising concerns that their ministries were in any way conflicted or constrained.”

If any of Perkins’ 200 religious organizations has stopped sponsoring chaplains because DADT is gone, I haven’t heard about it. The chaplains’ hyper-sensitivity to openly gay soldiers was imaginary, and went away when the government refused to take it seriously.

The abortion parallels. The reason the Religious Right believes their passive-aggressive “religious freedom” approach will work on same-sex marriage is that the same approach is already working on reproductive rights.

It all started with a reasonable compromise: After the Religious Right lost the battle to keep abortion illegal, laws guaranteed that doctors who believe abortion is murder can’t be forced to perform one. This is similar to letting pacifists be conscientious objectors in war, and I completely support it.

But from there, Religious Right “freedom” has become a weapon to beat down the rights of everyone else. Since 1976, Medicaid has not paid for abortions — at a considerable cost to the government, since birth and child support are far more expensive — because pro-life taxpayers shouldn’t have to fund something they think is immoral. There’s no parallel to this anywhere else: The taxes of pacifist Quakers pay for weapons; the taxes of Jews and Muslims pay the salaries of federal pork inspectors.

Conservatives like to accuse gays and blacks of claiming “special rights”, well this is a special right: The conservative conscience gets considerations that nobody else’s conscience gets.

And conservative special rights keep growing. The argument for defunding Planned Parenthood is that public money not only shouldn’t pay for abortions, it shouldn’t even mix with money that pays for abortions. (“Giving taxpayer funds to abortion businesses that also provide non-abortion services subsidizes abortion,” says one petition.) I had a hard time imagining a parallel, but I finally came up with one: What if Jews were so sensitive to violations of the kosher rules that Food Stamps couldn’t be used (by anyone, for anything) in groceries that sold pork?

That would be absurd, wouldn’t it?

In some states, medical “conscience” laws now protect anyone in the medical system who wants to express their moral condemnation: If the pharmacist disapproves of your contraceptives, he doesn’t have to fill your prescription. One of the examples cited by the model conscience law of Americans United for Life as something that needs to be fixed is “an ambulance driver in Illinois being fired for refusing to take a woman to an abortion clinic”.

Clearly that ambulance driver’s immortal soul was at risk. The hyper-sensitive pro-life conscience needs to be protected from any contact with women making use of their constitutional rights.

Religious “freedom” and contraception. The other front in the religious “freedom” battle is contraception.

The Obama administration has had a lot of trouble finding the proper religious exemption to the contraception provisions of the Affordable Care Act. That’s because it’s hard to find the “right” version of something that shouldn’t exist at all. Contraception coverage does not violate any legitimate notion of religious freedom for any religious organizations, religious affiliated organizations, or religious individual employers. Their claims should be rejected without compromise.

The principle here ought to be simple: The employer isn’t paying for contraception or any other medical procedure; the employer is paying for health insurance. Health insurance is part of a worker’s earnings, just like a paycheck. And just like a paycheck, what the employee chooses to do with that health insurance is none of the employer’s business. If I’m the secretary of an orthodox rabbi, his religious freedom isn’t violated when I cash my paycheck and buy a ham sandwich. Ditto for contraceptives, health insurance, and the secretary of the Archbishop of Boston.

Religious organizations’ hyper-sensitive consciences are pure passive aggression. The classic example here is Wheaton College, which couldn’t join other religious organizations in their suit against the ACA because it discovered that it had inadvertently already covered the contraceptives that the tyrannical ACA was going to force it to cover. This was such a huge moral issue for the college that nobody there had noticed.

Worst of all is the Hobby Lobby lawsuit, which got a favorable ruling on an injunction recently. The Hobby Lobby case is the mating of two bad ideas — corporate personhood and employers’ right to control the medical choices of their employees — to produce something truly monstrous. HL’s case hangs on its claim that it is a “person” with regard to the Religious Freedom Restoration Act of 1993, and so its corporate “religious freedom” allows it to restrict its employees’ access to contraception.

Persecution or Privilege? Here are the kinds of sacrifices I make for my readers: I listened to the full half-hour of James Dobson’s post-DOMA radio show, where Dobson, Perkins, and Bill Becker threw around phrases like “the collapse of Western civilization in one day” and “the whole superstructure … can come down”. They described Christians as “an oppressed minority” and agreed that “persecution is likely in the days to come”.

But what is “persecution” exactly?

Tony Perkins expresses the challenge like this:

Do you believe God’s word is true and therefore you’re going to live your life based upon that truth, or are you going to shrink back in the fear of man and of them calling you bigots.

Whenever Christians discuss their “oppression”, fear of being called bigots plays a central role. According to CNN’s Belief Blog,

[Peter] Sprigg and other evangelicals say changing attitudes toward homosexuality have created a new victim: closeted Christians who believe the Bible condemns homosexuality but will not say so publicly for fear of being labeled a hateful bigot.

In other words: Christians are oppressed unless they can express their moral condemnation of others without being subject to moral condemnation themselves.

Why would anyone imagine the existence of such a one-sided right? Simple: In practical terms, that’s a right they have had until recent years. Not so long ago, the James Dobson types were so intimidating that they could preach any kind of vicious nonsense about gays and face no response.

So what they are experiencing now isn’t persecution, it’s privileged distress, the anxiety a privileged class feels as its privileges fade and it slides towards equality with others. And rather than try to get over their distress and soothe their anxiety, they are intentionally pumping it up in a passive-aggressive attempt to claim victimhood and control the rest of us.

That bubble needs to be popped.

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The Monday Morning Teaser

July 8, 2013 – 7:51 am

The Sift’s featured article this week will be a look at the Religious Right’s fallback position as it loses its ability to dictate the law on issues like same-sex marriage: redefining “religious freedom” to mean that their values should continue to dominate. By cultivating a passive-aggressive hyper-sensitivity to anything they disapprove of, the traditional-values crowd can claim persecution whenever they are forced to recognize that other people have rights.

In the weekly summary, I punt on the Egyptian revolution/coup/civil war because I have no idea what’s really going on. (Wouldn’t you love to hear Wolf Blitzer admit that sometime?) I also punt on the SFO plane crash, because other sources cover breaking news much better than I do. And I’m still ignoring Zimmerman and Snowden for reasons I explained last week.

So what’s left? Well, the NYT’s Pulitzer-winning Eric Lichtblau pulled back the FISA Court’s curtain of secrecy, and what he found should worry you. Also, the National Journal told us about the ransom demands the House Republicans plan to make in the fall, when they take the debt ceiling hostage again. I found both of those stories far more consequential than the Zimmerman trial.

The best patriotic 4th of July clip I found was still a 2002 recitation of the Declaration of Independence led by Morgan Freeman. And there’s some fun stuff going around. I really enjoyed the world map that takes all the place-names back to their roots, so that Panama becomes “Abundance of Fish” and Australia “Land of the South Wind”.

 

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Making Lives Better

July 1, 2013 – 12:12 pm

You guys for a generation have argued that public policy ought to demean gay people as a way of expressing disapproval of the fact that we exist. But you don’t make any less of us exist, you are just arguing for more discrimination. And more discrimination doesn’t make straight people’s lives any better.

— Rachel Maddow to Jim DeMint on Meet the Press yesterday

This week everybody was talking about the Supreme Court

The Supreme Court is like a college student who gets his term papers done at the last minute. The Court’s term ended this week, so Tuesday it overturned the part of the Voting Rights Act that forces states with a history of discrimination to pre-clear their voting laws with the Justice Department, and Wednesday it released two major same-sex-marriage decisions: The federal government has to recognize all marriages blessed by the states, even the same-sex marriages DOMA was designed not to recognize; and same-sex marriages can be performed again in California, because a lower court ruling overturning Proposition 8 stands.

The texts of the decisions are here: Voting Rights Act, DOMA, Prop 8.

Because I agreed with the DOMA decision and disagreed with VRA, reading them back-to-back put me in a good position to write a calm, thoughtful analysis of the quality of the Roberts Court’s jurisprudence: This Court Sucks.

Within 48 hours of the VRA decision, Republicans in Texas, Mississippi, Alabama, Arkansas, South Carolina, and Virginia all moved forward with plans designed to make it harder for blacks, Hispanics, and college students to vote. This tactic backfired on Republicans in 2012, and I think it will continue to backfire. Why? Seeing how hard it is for people-like-you to vote really convinces you that people-like-you need to vote. And Republican outreach to youth or Hispanics is doomed as long as the GOP targets those voting blocs as the Enemy.

The Prop 8 decision also had immediate effects: Plaintiffs Kris Perry and Sandy Stier got married Friday.

As a liberal, I love the optics of all this. Conservative decisions lead to angry people stopping other people from voting. Liberal decisions lead to happy people celebrating a new chapter in their lives.

BTW, those anti-same-sex-marriage arguments you’ve been hearing on the talk shows are all bogus. ThinkProgress goes through them one-by-one so I don’t have to.

and immigration reform

The Senate passed a bill. Unfortunately, we have a bicameral system and the dysfunctional House still has to weigh in, so what happens next is anybody’s guess.

and massive demonstrations overseas

Egypt is the latest, but it’s not over yet in Brazil or Turkey either. In each country the demonstrations seem to be about something different, but the similarities of form are striking.

When I reviewed David Graeber’s The Democracy Project in the previous Sift, I was impressed by his observation that revolutions should be judged as “planetwide transformations of political common sense”, not by whether or not they take over the government. I wonder if that’s what we’re seeing here. If so, the first people to grasp the new common sense will have a huge advantage.

and a lot of stuff that wasn’t worth your time

These last two weeks had such a large concentration of addictive stories-that-aren’t-really-news that simply ignoring them (as I usually do) didn’t seem sufficient. Instead, in Are You a “News” Addict? I explain why you shouldn’t waste your time on the Zimmerman trial, the search for Edward Snowden, Paula Deen, or Aaron Hernandez.

More people should have been talking about President Obama’s climate speech

Like so many things President Obama does, it was half a loaf. You could hope for more, but thank God we’re at least getting this much: He said clearly that climate change is happening and it’s time to act rather than argue with deniers. (“We don’t have time for a meeting of the Flat Earth Society.”) He instructed the EPA to regulate the carbon pollution from existing power plants, rather than just new ones. (The Devil’s in the details there: What will the new regulations say?) He hinted something about the Keystone Pipeline, but didn’t say anything you could take to the bank. And he announced a number of smaller initiatives that look really good, but (you know) they’re small.

The text of the speech is here. Slate has a good article laying out what it means.

and this stuff is also worth a look

The IRS “scandal” isn’t quite dead yet, but it’s definitely on life support. The Benghazi “stand down” myth is also pretty well debunked at this point.

A fascinating study shows that when people are shown another person’s picture and asked to estimate how much pain that person would feel from a variety of mishaps (getting shampoo in their eyes, stubbing their toes, etc.) they consistently estimate black people’s pain lower than white people’s.

Why? First guess was racism, but then it turned out that blacks also imagine whites suffer more from similar events.

A better explanation seems to be a princess-and-the-pea theory: If you think someone has had a hard life, you believe they can “take it”, while more privileged people are seen as more sensitive. It’s like: “You’ve suffered? Then it’s no big deal if you suffer some more.”

Things I learned while driving from New Hampshire to Kentucky/Tennessee/North Carolina and back during my week off:

  • Louisville is a way cooler, more cosmopolitan city than my New-England-centered worldview had led me to believe. Check out the museum-hotel 21C or the NuLu district. (The 21C souvenir t-shirt says “I Slept With Art”.)
  • Another surprise about the upper South: good local Mexican restaurants close to the interstates. I never had to resort to McDonalds or Cracker Barrel.
  • The absolute best way to avoid boredom on a long drive is Public Radio Remix, which collects quirky human-interest stories (like this one) from public radio stations all over the country. XM channel 123, and also available on the web.

Let’s end with something fun

This online test measures how well you see color. I got a 15.

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This Court Sucks

July 1, 2013 – 11:15 am

Whatever you think of the results, the majority opinions in both the Voting Rights Act and the DOMA cases are unworthy of the highest court in the land.

Sometimes I imagine that a judge is brilliant just because he or she agrees with me, or that judges are idiots when they don’t do what I want. That’s what made this week’s Supreme Court decisions so interesting for me.

On Tuesday the Court announced a decision whose result I thought was terrible (Voting Rights Act) and on Wednesday one I thought was great (Defense of Marriage Act). Reading the two back-to-back qualifies me to make the following non-partisan judgment: This Court sucks. Whether you love or hate the consequences, both decisions are awful pieces of legal reasoning.

Justice Kennedy’s DOMA decision. Let me start with the decision whose conclusion I like: DOMA. I’ve read all the major same-sex marriage decisions since 2003, and they are all structured the same way because they all hang on the same two issues:

  • Do laws discriminating against gays and lesbians deserve heightened scrutiny? Laws that single out a class of citizens for better or worse treatment can’t be arbitrary; some rational thought process needs to connect the discrimination to some legitimate goal of government. How good that reasoning needs to be depends on how likely it is that the law is based on simple bigotry. If a history of bigotry against the singled-out group makes that explanation seem very likely (as in race or gender cases), then the law faces some form of heightened scrutiny. At the lowest level of scrutiny, the law just needs to have some rational connection to some legitimate goal. At the highest level (strict scrutiny) the government has to have a very important goal, and the discrimination in the law has to be the minimal amount necessary to achieve it.So in a same-sex marriage case the first thing a judge needs to do is announce a standard of scrutiny: Does a history of bigotry against gays and lesbians make a law restricting their rights inherently suspect? How much so?
  • Do the justifications of the law in question meet that standard? If you want to uphold a law discriminating against same-sex couples, you announce a low standard of scrutiny and argue that the law’s justifications meet that standard. Conversely, a decision overturning a discriminatory law will announce a high standard and say that the law’s justifications don’t meet it. Really sweeping decisions, like the original 2003 Goodridge decision establishing same-sex marriage in Massachusetts, say that the law can’t even meet the lowest standard, because treating same-sex couples differently has no rational relationship at all to any legitimate government goal.

For ten years, lower courts have been practically begging the Supremes to settle the level-of-scrutiny issue with respect to gays and lesbians. With that in mind, Justice Kennedy’s majority opinion on DOMA reads like mush. When the decision was released, the initial commentary said he had defined a new standard, careful consideration. But that turned out to give him too much credit. Kennedy used the phrase, but when analysts had time to read more closely they saw that he must have meant it in its everyday sense, because he never defined it as a legal term. He just meant that he was considering carefully.

Gay-rights advocates (among whose ranks I count myself) love quoting from Kennedy’s opinion, because it is full of polemic sound-bites about “second-tier marriage” like:

The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples.

Now that sounds really bad, but legally it amounts to nothing, because governments demean and humiliate people all the time. (I feel demeaned and humiliated when I have to take off my belt and shoes at the airport, and then let them blast me with radiation to make an image of my naked body.) The question is why they do it and how their reasons stack up against our rights.

Kennedy never lays that out. He lists many ways that DOMA disadvantages same-sex married couples, and then concludes:

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State [of New York], by its marriage laws, sought to protect in personhood and dignity.

That’s exactly the result I want, Justice Kennedy, but how did you get there? The purposes Congress imagined DOMA serving — whatever they were; you don’t list them or examine them — don’t “overcome”, but are they failing to overcome a high standard or a low standard? Or are you saying that Congress didn’t have a legitimate purpose at all, or even that none can be imagined after the fact? That would be really sweeping … if that’s what you’re saying. But who can tell?

As my high school algebra teacher used to say: “Show your work.” You’re an effing Supreme Court justice! You can’t just list a bunch of facts and then state a conclusion, as if the logic connecting them must be obvious to everybody.

Justice Roberts’ VRA decision. I was primed to find fault with Kennedy’s decision because just the day before Justice Roberts had published a similarly mushy decision tossing out Section 4 of the Voting Rights Act, and so making Section 5 meaningless. Roberts’ failures jumped out at me, because I disagree with his conclusion and think his decision will lead to major injustices.

Some quick background: After the Civil War, black men’s right to vote was established by the 14th and 15th amendments. (Black women got the right to vote at the same time white women did, with the 19th amendment in 1920.) During Reconstruction, blacks were a majority in several southern states, and many were elected to office. But after federal troops left the South in 1877, white paramilitary groups like the KKK intimidated black voters sufficiently for whites to regain control of state governments. That led to a series of laws and practices that effectively disenfranchised blacks.

The Supreme Court initially upheld such laws (to the shame of otherwise great justices like Oliver Wendell Holmes Jr.), but started over-ruling them in 1915. The legislative process works faster than the judicial process, though, so for half a century new disenfranchising laws were passed faster than courts could throw them out. Justice Roberts notes that at the time the Voting Rights Act was passed in 1965, only 6.4% of the black population of Mississippi was registered to vote.

The VRA [text] has two key provisions: Section 2 concisely restates the rights implied by the 15th amendment:

No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.

And Section 5 says that areas with a history of disenfranchisement have to  pre-clear any changes in their voting laws with the Justice Department. Section 4 spells out how those areas are defined. Mostly that turns out to be southern states, but a few other places (including parts of my state of New Hampshire) have had to endure the Justice Department looking over their shoulders whenever they change voting laws.

But in essence, the VRA puts the South on probation. Initially that was for 5 years, but the term keeps getting renewed; most recently it was renewed for another 25 years in 2006.

That’s what Roberts has a problem with. Section 4 is based on evidence that was current in 1965, and the basic formula has barely changed since. In the same way that laws need to have a reason to discriminate between citizens, they have to have really good reasons to discriminate between states, which are assumed to have “equal sovereignty”.

Past Supreme Courts have weighed the VRA’s justifications and found them sufficient. Jim Crow was an exceptional problem that required an exceptional solution. (My personal opinion: If you’re going to make an exception, voting rights is a good place to make it, because once voting gets screwed up all the non-judicial ways our system corrects itself are screwed up too.) But Roberts notes that:

Nearly 50 years later, things have changed dramatically.

This is a point you’ll hear often in conservative circles. Nobody wants to explicitly defend Jim Crow any more, but that’s all ancient history. The Age of Obama is post-racial. Things have changed.

Roberts goes on at some length about how things have changed. Minority voter-registration rates are close to parity with white Anglos, and in some elections minority turnout is above average. Minority candidates now get elected to Congress in section-5 states like Texas or South Carolina.

In 1965, the States could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were. … Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions.

Of course, Robert’s characterization of the VRA is not exactly true, because it has a bail-out provision: States and counties can permanently escape section 5 by convincing a court that they’ve stopped trying to discriminate. Parts of Virginia, North Carolina, and New Hampshire have all successfully used that procedure. So a state’s failure to bail out is itself a “current condition”. The plaintiff, Shelby County, could not meet that condition, because it continues to try to disenfranchise blacks. (During oral arguments, Justice Kagan summed it up: “You’re objecting to the formula, but under any formula Congress could devise, it would capture Alabama.”)

But never mind all that, because even making that point draws us down the rabbit hole Roberts has dug. Here’s what’s important: “Things have changed” is not a legal argument. It’s a fine point to make on a blog or at a dinner party, but a Supreme Court justice has to do better than that.

If Roberts were being a real judge here, he’d spell out what “equal sovereignty” has and hasn’t meant in American legal history. He’d enunciate an abstract standard by which Jim Crow was “exceptional” in 1965 and which justified the steps taken then. He’d explain how that standard was violated by the renewal of the VRA in 2006. And he’d lay down a set of conditions that Congress would need to satisfy to make the VRA acceptable today. (If you want to see what a real legal opinion looks like, read Justice Ginsburg’s dissent. Whether you agree with her or not, she is clearly doing something far more rigorous than what Roberts is doing.)

Roberts doesn’t do any of that. The VRA was vaguely justified in 1965 and is vaguely unjustified now, because “things have changed”. If I were a congressman, I would have no idea how to revise the VRA so that it passes constitutional muster. If Congress does revise it, lower court judges who rule on it will just be guessing about its constitutionality. It will have to go back to the Supreme Court before anyone knows whether it’s really a law again, because there are no standards in Roberts’ opinion by which a revision can be judged.

This isn’t law. It’s politics. It’s mush.

So after “careful consideration” of how “things have changed”, this is my judgment: Whether you agree with its conclusions or not, this Court sucks.

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