Public Policy and Governance – Page 40

Arrogance Is Never Having To Say “Sorry”

Linda Greenhouse is one of my favorite Supreme Court reporters, and she recently published a commentary in the New York Times, titled “Is There Any Twinge Of Regret Among Anti-Abortion Justices?”

Marking the one-year anniversary of the decision in Dobbs, Greenhouse noted that the decision has propelled a crisis in reproductive health care that is “acute and growing,” leading to alarming consequences.

Greenhouse first shared the history of another case that had generated “alarming consequences”–consequences that, in that case, led to a speedy reversal.

Because Jehovah’s Witnesses believe that saluting the flag or reciting the Pledge of Allegiance amounts to worshiping secular authority, they prohibit their school-age children from engaging in the practice. In 1940, with war raging in Europe and patriotic fervor rising at home, the Supreme Court ruled that the Constitution provided no religious exemption from what many public schools deemed an essential civic duty. The decision upheld a Pennsylvania school district’s expulsion of a Jehovah’s Witness brother and sister. A single member of the court dissented.

A mere three years later, even though the United States itself was now at war, the court reversed itself. In a new flag-salute case from West Virginia, three members of the original majority switched sides and two justices who had joined the court since 1940 voted with them. One of those two, Robert Jackson, wrote the new majority opinion, strategically avoiding the contested question of religion in favor of an eloquent defense of free speech.

“Compulsory unification of opinion achieves only the unanimity of the graveyard,” he wrote in West Virginia State Board of Education v. Barnette.

The first decision, in Minersville School District v. Gobitis, had unleashed a wave of violence against Jehovah’s Witnesses: in the wake of a ruling that many saw as evidence that Witnesses were anti-American, mobs attacked individuals and destroyed their churches. Some 2,000 Witness children were thrown out of school, and some of their parents were criminally prosecuted.

Greenhouse then enumerated some of the dire medical consequences of Dobbs, and then asked her question:

A year after sowing so much chaos and misery, are any of the five members in Justice Samuel Alito’s Dobbs majority sorry? Even a little? I’m not so naïve as to think there is even a slim chance they would reverse themselves. I just wonder whether they feel even a twinge of regret.

As she points out, the immense harm to women couldn’t have come as a surprise. “Valuing fetal life over the lives of women and girls was no doubt a feature, not a bug, in the majority’s view; that was, after all, the point of Dobbs.”

Greenhouse then proceeds to answer her own question, saying she doesn’t think the Dobbs Justices are sorry. As she notes, a difference between Barnette and Dobbs is that the justices who changed their minds after Gobitis were motivated by facts, not by ideology. These Justices were chosen because facts would not sway them: Trump announced during his presidential campaign that his Supreme Court appointees would overturn Roe, and all three of his nominees– Gorsuch, Kavanaugh and Barrett– did just that..

Although Greenhouse doesn’t explore the psyches of the anti-Roe justices, Jesse Wegman took a long, hard look at the author of the convoluted decision in Dobbs, focusing on the recent disclosures of Alito’s unethical behaviors. Wegman’s analysis of Alito’s personality and character–especially his arrogance– are equally applicable to other examples of the Justice’s disdain for settled constitutional analysis.

Wegman points to Alito’s decision to “devote time and energy to a newspaper essay defending himself against charges of ethical and legal violations that had not yet been published”–an essay that “epitomizes the bitterness and superciliousness that he has demonstrated in regular doses throughout his years on the Supreme Court.

Most judges, whether by temperament or fidelity, avoid the spotlight. They prefer to follow rules and let their opinions do the talking. That has never been Justice Alito’s way. For most of his 17 years on the court, he has appeared to relish playing the role of bare-knuckled partisan soldier, standing athwart history in loyal service to a vengeful, theocratic right-wing movement that elevates religious liberty for some over basic freedoms for all.

Wegman notes that one reason public trust in the court is in free fall is demonstrated by Justice Alito’s “smug, defensive reaction” to criticism.

The moral of this story is not that the highest court in the land should issue decisions consistent with public opinion. As legal scholars often note, the Bill of Rights is counter-majoritarian. The moral is that –in the absence of compelling evidence (a la Barnette)–Justices should respect precedent, and resist confusing their idiosyncratic, psuedo-religious commitments with constitutional principles.

Tune in tomorrow for the second lesson– the need for Supreme Court reforms.

Comments

What Is Government For?

As readers of this blog know, I spent 21+ years teaching Law and Public Policy, mostly to students intending to go into either public management or the nonprofit sector. The faculty of our school was heavily engaged in imparting skills–budgeting, planning, human resource management, policy analysis.. But my classes tended to be different, because these practical subjects didn’t emerge from a void; they are inextricably bound up with our constitutional system, and that system in turn is the outgrowth of great philosophical debates about the proper ordering of human communities.

The great questions of political theory involve the nature of government. What should government do? What actions by the state are legitimate? What is justice? What is public virtue?

The American experiment was heavily influenced by the philosophy of the Enlightenment and emerging theories about the proper role of the state, especially the principle that Individuals are entitled to live their lives as they see fit, until and unless they are thereby harming the person or property of another, and so long as they are willing to extend an equal liberty to others.

The primary role of government so conceived is to prevent some citizens from harming others. (Granted, there are inevitable arguments about what constitutes harm to others, and what degree of harm is needed to justify governmental intervention.)

The Bill of Rights expressly limits the ability of government to regulate activities that are purely personal. What we read, whether we pray, our politics and beliefs and life goals are matters for individual decision.

It is that basic American principle of governance that is now at issue.

The decision in Dobbs wasn’t simply about abortion; it attacked a jurisprudence that had become increasingly protective of maintaining that line between individual rights and the legitimate exercise of government authority.

What too many Americans fail to understand is that the question posed by Dobbs isn’t whether a woman should or should not abort. It’s also whether citizen A should be able to marry someone of the same gender, or whether citizen B should bow her head and participate in a public prayer.

The issue is: who gets to make such decisions?

We are properly concerned these days about the functioning of democracy, and whether our lawmakers are reflecting the will of their constituents when they vote on the numerous matters that government must decide. But the arguably radical Justices on today’s Supreme Court have raised a more fundamental issue, because the Justices are authorizing government to legislate matters that government in our system is not supposed to decide.

The Bill of Rights draws a line between state power and individual rights. Legislators don’t get to vote on your fundamental rights: to free speech, to pray to the God of your choice (or not), to read books of your own choosing, to be free of arbitrary searches and seizures, to cast votes in elections…

Even when lawmakers are reflecting the will of the majority, in our constitutional system they don’t get to deprive people of fundamental rights.

Ever since Griswold v. Connecticut, in 1965, the United States Supreme Court has acknowledged that personal autonomy–the individual’s right to make “intimate” personal decisions–is one of those fundamental rights. The doctrine of substantive due process, often called the right to privacy, is shorthand for the recognition that in a free society, certain decisions are not properly made by government. The doctrine answers the question “Who decides?” by drawing a line between the myriad issues appropriate for resolution by majorities acting through government, and decisions that government in a free society has no business making.

As I’ve argued before, the ruling in Dobbs didn’t simply mischaracterize history in order to impose a minority religious belief on all Americans. It attacked the rule that restrains government’s intrusion into all aspects of our private lives. Its “reasoning” would allow other fundamental rights–to bodily autonomy, to the choice of a marriage partner, to decisions about procreation– to be decided by legislatures chosen by “democratic” majorities.

Unless you are prepared to argue that an individual’s right to make those very personal decisions is not a fundamental constitutional right, allowing abortion and contraception and same-sex marriage to be decided by government is no different from giving lawmakers the right to dictate my choice of reading material, or your choice of religion.

The issue isn’t what book you choose–it’s your right to choose it. It isn’t whether you’ll marry person X or Y, it’s your right to choose your marriage partner. And it isn’t whether you abort or give birth–it’s about who has the right to make that decision.

Government paves streets, issues currency, imposes taxes…it has plenty to do without upending America’s foundational philosophy.

Comments

Hooray For Washington State

You don’t have to be a “leftist” or a socialist to support higher taxes for the very wealthy and obscenely rich, but the GOP remains steadfastly–even hysterically–opposed to proposals to tax those they misleadingly call “job creators.”

(Actually, jobs are created by increasing demand–if no one is buying your widgets, you aren’t going to hire more people to make more of them, which is why putting more money into the hands of the poorer folks who will spend it rather than hiding it in some tax haven, is what boosts employment. But I digress.)

A reader recently sent me a fascinating article about Washington State lawmaker’s decision to raise taxes on the state’s wealthiest residents.

The article began by quoting a 1933 Washington State lawmaker named Wesley Lloyd, who had proposed to “bring up the poor and bring down the rich into the class of the average man, where all may find real happiness and where we may know a widespread national prosperity.”

It then noted that–over the ensuing dozen years or so–FDR’s New Deal had caused “unprecedented progress” toward greater equality. One measure that helped achieve that equality was a 94 percent marginal tax rate on income over $200,000.

But Lloyd’s tax-the-rich spirit lives on, especially today in his home Washington State. Earlier this year, 19 of the state’s senators and 43 state reps introduced legislation that would fix a first-ever 1 percent annual tax on stocks, bonds, and other forms of “intangible personal property” worth over $250 million. The Evergreen State currently hosts over 700 grand fortunes that top this quarter-billion mark.

That legislation failed, but as the article noted,

that failure hasn’t left Washington’s deepest pockets feeling like celebrating. The reason? They’ve just become subject to another new tax, a measure that Seattle Times columnist Danny Westneat is describing as the state’s first-ever “wealth-related levy.”

The levy–a 7-percent tax on asset-sale profits over $250,000– has turned out to be a windfall for state coffers. Analysts had predicted that the tax would raise $440 million dollars. Instead, it has so far raised $849 million, almost double the take originally anticipated.

I hardly need point out that the mega-rich who paid a 7% tax on massive profits were hardly impoverished by them.

The Center for Budget and Policy Priorities–based in that other Washington–has been working to produce a package of tax reforms that would prioritize “equity and fairness; it has pointed to the experience of Washington State.

The Center is now hoping to nudge state lawmakers nationwide further in that direction with a new online tool for developing “State Revenue Options for Advancing Equity and Prosperity.” State policymakers, the Center notes, don’t always understand “how much revenue different policies might raise, whether a tax will fall more on families with low incomes or people at the top.” The new Center tool aims to build that understanding.

Understanding, of course, only takes lawmakers so far. They still have to overcome the opposition of the richest among us to paying anything close to their fair tax share. Lawmakers can certainly do that overcoming — if enough of us push them. And if we do enough of that pushing, maybe our lawmakers will start sounding like Wesley Lloyd back when he proposed to limit the personal wealth of our super richest.

“I do not seek to destroy wealth or industry,” Lloyd told his fellow members of Congress, “but I do propose to place the burden of public expense and national development upon the shoulders of those best able to bear that burden and those who have profited most. I would have the strong help the weak rather than have the weak forever carrying the strong.”

There are seemingly two fundamental questions that all American lawmakers confront: what should government do and how should government pay for doing it? We aren’t doing very well answering either question.

This blog–among many others–tends to focus on the first question, because so many of our current government policies are arguably counter-productive (or, in the case of our ongoing culture wars, insane). But the second question is inextricably entwined with the first, because the way we decide to pay for the decisions we make has an enormous effect upon how (and whether) those chosen policies work as intended.

Do we want the strong to help the weak? Or do we want to deepen the already massive divide between the haves and have-nots? Do we want to build and maintain a physical and social infrastructure that serves all citizens, or do we want to see only to the comfort and prosperity of the fortunate few?

Wesley Lloyd was asking the right questions, and Washington State is (slowly, incrementally) moving toward the right answers.

Comments

Florida Man

I am constantly confounded by the evident belief of Republican presidential candidates that the way to GOP hearts is be overtly autocratic, bigoted and/or “in your face” corrupt.

Which brings me–once again–to “Florida Man,” aka Ron DeSantis. (I am hopeful this will be the last time I focus on DeSantis, since my reading of his trajectory suggests he will not be the nominee…but hey! I was equally certain that no sane political party would nominate Trump, so my prognostication skills aren’t great…)

As we’ve seen with TFG, this particular breed of politician exhibits what a friend used to insist was a prime motive for seeking political power: to help your friends and f**k your enemies. We’ve seen this dynamic in DeSantis’ petulant efforts to punish Disney for daring to criticize His Majesty’s anti-gay bigotry.

An even more recent–and telling– exhibit, courtesy of Robert Hubbell:

Like other red states, Florida is doing its best to prevent car manufacturers from selling electric vehicles. This week, DeSantis signed legislation prohibiting “direct to consumer” sales of electric vehicles, a marketing approach that bypasses automobile dealerships. Elon Musk pioneered the “direct-to-consumer” approach and uses it exclusively to sell Tesla cars.

So, one would think that the Florida legislation banning direct-to-consumer sales of cars would be bad news for Tesla. But you would be wrong—because the legislation exempts Tesla from the ban.

As a result, large auto manufacturers like Ford, GM, and Chrysler are prohibited from selling electric vehicles directly to the consumer, while Tesla is free to do so. It is amazing what a presidential endorsement can buy in Florida!

DeSantis’ has declared war on anything he considers “woke”–evidently, any effort to ensure equal treatment of, or information about, previously marginalized Americans. A recent post to Daily Kos shed light on DeSantis’ animus toward New College, a small liberal–“woke”– institution in the state.

The narrative has been that this is a small college that DeSantis is trying to take over for his culture war and leave it at that. It is true that DeSantis is effectively destroying Florida’s universities with the help of his supporters’ openly hostile resentment of higher education. And yes, he’s making Florida toxic to not just out-of-state students, but Florida’s own students and professors who are deciding it’s best to leave the state and go somewhere less oppressive. Not to mention the medical students who are canceling their residencies in Florida due to abortion laws. But there’s so much more than that.

To begin with, no outlet has even described the unique way New College operates. It’s modeled after the New College of Oxford University in England. There are no grades: all courses are pass/fail. The student is responsible for his or her entire course planning, and there are no required courses. There’s few organized sports, and no fraternities or sororities. This school is only for the most highly motivated students who have the maturity and intellect to chart their own path and create their own approved course structure. New College has always scored at the top of national rankings, such as The Princeton Review and Forbes; and has ranked fifth in U.S. News & World Report’s annual review of public schools for higher learning. It is a very small school, with under 1,000 students, but has produced more Fulbright scholars than either Harvard or Yale.

The post attributed DeSantis’ determination to transform New School “into a sham school catering to bigoted yokels” to something that occurred on its campus 10 years ago, and ties it into “the resurgent white nationalist movement in Florida.”

For a school that has produced some notable alumni, one of the ones they tend not to feature is a young man by the name of Derek Black. He is the godson of David Duke and the son of Don Black, the grand wizard of the Ku Klux Klan. Don Black founded the first neo-Nazi online forum and world’s most prominent white nationalist website, Stormfront.

When Derek Black came to New School, he was a committed neo-Nazi. The experience changed him.

In 2013, Derek sent a letter to the Southern Poverty Law Center that rocked the white supremacist movement to the core, and outraged the hate communities in Florida. The key phrase was this: “I do not believe advocacy against ‘oppression of whites’ exists in any form but an entrenched desire to preserve white power at the expense of others. I am sorry for the damage done by my actions and my past endorsement of white nationalism.”

DeSantis candidly admits he targeted the school for its “progressive culture.” That culture dealt a blow to Florida’s white supremacist movement, and that movement is a core part of DeSantis’ base.

And the core of today’s GOP.

Comments

Speaking Of Bad Choices

One of my sons lives in Amsterdam, so when I come across a headline featuring that city, I generally take more than a cursory interest in the report that follows–especially when that report confirms my own impressions.

And especially when the implications confirm my policy conclusions.

A recent article by Jennifer Rubin in The Washington Post hit both of those targets. Rubin began by recounting how, on a recent visit to Amsterdam, she’d walked back to her hotel late on a weeknight. It was a pleasant evening, and a relatively long walk, yet she never felt nervous or unsafe. She acknowledged that there are many New York neighborhoods in which she also feel safe, but unlike her Amsterdam experience, her feeling of security there was largely “because police are everywhere. Visible on the street, in cars, on horseback.”

The experience led her to consider the very different approaches to crime chosen by policymakers in the Netherlands and the U.S.–beginning with gun ownership.

In the Netherlands, there are roughly 2.6 guns for every 100 people; there are more than 120 guns per 100 people in the United States. In the Netherlands, it is very, very hard to get a gun; in the United States, it is ridiculously easy to get guns. In fact, according to a report by Mariel Alper and Lauren G. Beatty in the Bureau of Justice Statistics, roughly “21% of state and 20% of federal prisoners said they possessed a gun during their offense. … About 29% of state and 36% of federal prisoners serving time for a violent offense possessed a gun during the offense.

In the Netherlands there are about 27 gun homicides a year. Not 27 per 100,000. Total. In the United States, the Pew Research Center reports, 48,830 people died from gun-related injuries in 2021. (The U.S. population is about 20 times that of the Netherlands; U.S. gun homicides are more than 1,777 times the number in the Netherlands.)

The differences go well beyond gun policy; Rubin reports that the Dutch don’t incarcerate people for drug addiction, for example, a decision that has allowed them to lock up far fewer people. She cites a report from the Guardian,

“Since 2014, 23 prisons have been shut, turning into temporary asylum centres, housing and hotels. … The number of prison sentences imposed fell from 42,000 in 2008 to 31,000 in 2018 — along with a two-thirds drop in jail terms for young offenders. Registered crimes plummeted by 40% in the same period, to 785,000 in 2018.”

By contrast, a report from the Prison Policy Initiative found that in the United States, “Drug offenses still account for the incarceration of over 350,000 people, and drug convictions remain a defining feature of the federal prison system…. As a result, “Drug arrests continue to give residents of over-policed communities criminal records, hurting their employment prospects and increasing the likelihood of longer sentences for any future offenses.” In short, the United States has 163 times the number of incarcerated people as the Netherlands, more than eight times as many per 100,000 people.

And–just as with our other policy choices (health care comes immediately to mind) our choices have been and continue to be expensive. The United States spends some $300 billion annually on policing and incarceration. And as Rubin points out, that’s just the tip of the iceberg. Overpolicing and over-incarceration costs include lost earnings, adverse health effects, and damage to the families of the incarcerated. Those social costs are estimated to be three times the direct costs.

And none of those fiscal consequences include the ongoing, negative social effects of disproportionate policing of Black and White citizens…

The public safety choices we’ve made might be defensible, if the result was to make Americans safer than the Dutch. But–you knew this was coming, didn’t you?–that clearly isn’t the case. As Rubin says, “Our choices have not made us safer and have cost us dearly.”

In real terms, the U.S. criminal justice system and ubiquitous guns require an industry — ambulances, emergency room personnel, police, courts, judges, prisons, lawyers, private security and more — that the Dutch system does not. As I walked down the streets of Amsterdam, I imagined what we could have bought with the money we spend on the criminal justice system: universal college education, universal medical care, a strong social safety net.

Bottom line: American policy choices feed a “criminal justice industry”–without doing much to eliminate crime. As Rubin writes, different criminal justice policies “very likely could allow us to spend less money, lower incarceration rates, reduce the human and opportunity costs, and increase personal safety.” She says we have the system we do because we’ve “fetishized guns, criminalized addiction, neglected mental and emotional health, and resisted addressing social factors driving crime.”

We could make better choices–but that would require a clear-eyed look at the consequences of the choices we’ve made.

Comments