May It Please the Court: Social Change and SCOTUS

Ms. Maud pointed out one of the most fascinating aspects of the rulings of this past week: The apparent contradiction of Chief Justice Roberts, who sided with the liberals on Obamacare and issued a bitter dissent on gay marriage.

Mad Dog spent a worthwhile hour reading the actual texts of the Chief Justice's opinions and the text of Justice Kennedy's decision.

In the case of Obamacare, Roberts saw clearly past the clever arguments which convinced Justice Scalia: The Supreme Court's job is to clarify what the law is, especially when the Congress, which has the power to write the law is inept enough to leave something ambiguous. The clear intent of Congress was to improve and extend medical care,  not to destroy it, a simple observation Roberts used to destroy all the machinations of Justice Scalia who fastened on a few inelegant words to suggest what the Congress really had said was more important than what it clearly had meant to say.

"Words no longer matter," Scalia fumed, as if what is really important is the game rather than the effects of law on the lives and health of millions.

When you read Roberts on Obergefell, the gay marriage case, it's all about the court being humble and not legislating from the bench, not imposing on those states where the majority disapprove of gay marriage the will of "lawyers" i.e., the Supreme Court justices.  Until and unless the majority of people in a given state will gay marriage into being by voting for it, the Court has no business imposing a new definition of marriage upon them.  You cannot tell people who hold different opinions what to think. Roberts is profoundly uncomfortable with becoming the agent of change. He is, in that sense, one of the most conservative members of the Four Horseman. In that sense, he is entirely consistent and predictable, and siding with the intent of Congress on Obamacare is the conservative thing to do, while voting against gay marriage is the conservative thing.

Kennedy is more interesting.  Ms. Maud has suggested we might save a lot of time and effort if we simply presented cases to Justice Kennedy, since you know where the other eight justices are going to go before the votes. Kennedy is always the wild card.

In his opinion, Kennedy lays down his arguments carefully and forcefully and with great clarity. Injustice, he notes, is often unrecognized at the time; it is only once change has occurred how clear injustice had been. Thus was it with "separate but equal" when Black school children were bused to inferior schools. Brown vs the Board of education changed that and that change came from the Court after decades, generations of Congresses failed to right that injustice.

As Kennedy pointed out, the rate of change is important when it comes to injustice--justice delayed can be justice denied.  If we wait for the citizens of each state to come around, many lives could be lived and ended before justice is done and all those who were not given justice would suffer their whole lives. 

Kennedy builds his case by noting the fundamental attitude toward homosexuals underlies the resistance to allowing them to claim the "benefits" of marriage. Homosexuality was considered a disease, a deformity of character and homosexual acts were criminalized. It is not really that the Bible tells us homosexuals should be stoned to death that motivates the refusal to allow gay marriage but a fundamental revulsion to what homosexuals are and what they do. Kennedy claims this attitude has changed and laws should change with attitudes.

Tracing the history of the Court in cases involving intolerance and marriage, Kennedy notes state laws once forbid inter racial marriage and this was clearly an example of how hate found expression in marriage laws. The same can be said of hate and homosexuality and marriage law. Some people simply hate the idea of allowing other people to do what they want to do, to love who they want to love. As if it is any of your business who I love and how I express that love.

Kennedy asserts attitudes have changed across the country and the Court is  not really imposing a new attitude but reflecting that change.

This is is weakest argument. Attitudes have changed across the country, but not in all parts of the country. In Mississippi, Alabama, South Carolina, Gerogia, Louisiana attitudes have not changed and likely will not change among enough citizens to ever allow gay marriage. Even in Black churches, perhaps especially in Black churches, the very people who were hurt by the intolerance of others when it came to race, refuse to tolerate homosexuals.  Justice Roberts would say, well until those people have a change of heart, it's not up to the Supreme Court to force them to change their hearts and minds. Just Kennedy looks to past racism and says, "Oh, yes it is. There are times we have to bring people along and tell them their attitudes are unacceptable not as Alabamans or Baptists but as Americans."

When it comes to state laws, we must appreciate state borders are, after all, pretty much artifacts of history and they are anachronisms.  We told people in these states they could not do as they pleased, could not live in an antebellum world of delusion and hate and had to come along with the rest of the country into a new world of tolerance and justice, and, not entirely, but for the most part, forcing White Southerners to accept the humanity of Black Southerners was good for both.  As James Baldwin once noted, slavery hurt the master as well as the slave--it may have hurt the slave a lot more, but it did hurt the master.

The fact is, the White Dixiecrat South was a dark, festering abscess of hate and ignorance and the sunlight of enlightened tolerance, while it did not root out all the pockets of disease, did succeed in cleaning up most of it, and the country was the better for it.

From the Civil War onward, we have had the temerity to tell people in the South and elsewhere that what they do locally affects us all nationally. As Thoreau once observed, injustice anywhere is an affront everywhere; tolerating injustice and allowing it to burn in the basement or the attic threatens the entire house.

Something very similar is true for the hate and intolerance directed at homosexuals in the Bible belt. Once formal, legal protections are extended to this reviled underclass, the haters and their children will see tolerating those they find repellent does not harm them. They can live with people they may detest on one level and yet function and even find things they like about those nasty people.

Kennedy unabashedly embraces the idea that sometimes the Court, when it sees one group being oppressed by another simply has to take the lead in righting that wrong. It cannot allow the playground bully to subjugate and intimidate; it must act to protect those who are being beaten up.

For Roberts, the playground bully must be tolerated until he has a change of heart or enough of his classmates persuade him to behave more in a more civil manner. For Kennedy, there is a reason for a higher authority, namely the Court, to exert it's authority to intervene.

Obamacare and the Court

"Obviously, Congress acted to improve health care not to destroy it."
--Chief Justice Roberts

Just when you thought those four horsemen of the Conservative apocalypse on the Court would wrest complete control of the government and the commonweal of the nation from Congress and from the White House, Chief Justice Roberts actually acted like a grown up rather than an ideologue and voted with Justice Kennedy and the liberal wing to smack down opponents of Obamacare, who were smirking over their own cleverness, trying to play "Gottcha" with the wording of the law.

The Republic may survive another day.

More important, millions who have benefited from Obamacare and there are far more than expected, will actually live better lives because the Court (not Scalia, Thomas, Alito) voted to protect those who need protection rather than sneering at them.

Confederate flags: The Significance of Symbols

"Shoot, if you must, this old gray head,
But spare your country's flag," she said.
A shade of sadness, a blush of shame,
Over the face of the leader came;
The nobler nature within him stirred
To life at that woman's deed and word;
"Who touches a hair of yon gray head
Dies like a dog! March on!" he said.....

Barbara Fritchie to Stonewall Jackson
Poem by John Greenleaf Whittier

My fellow citizens of Hampton, New Hampshire will likely be mystified by the flap over confederate license plates in the South, which has boiled to the surface after the Charleston, South Carolina church murders by a white supremacist who draped himself in the Confederate flag.


Personally, I was always attracted to flags: They are colorful; they have design; they are like visual music--they can evoke emotion.  When Albert Speer designed the staging of rallies at Nuremberg and elsewhere throughout the Third Reich, he always included waves of bright red Swastika flags. They are festive, and inspire "pride."

Flags played a practical purpose in battle during the 19th century, when troops could look to the flag to figure out where the front of the line was. 
In Frederick Maryland, during the Civil War, a 95 year old woman (likely an apocryphal story), Barbara Fritchie, hung a flag outside her window as the invading Confederate troops marched by and they shot it full of holes, and Stonewall Jackson rode by and ordered the flag taken down and she leaned out the window and supposedly admonished him to shoot her but leave his country's flag alone. He posted a guard to be sure the flag would remain unmolested. Such was the significance of that symbol of loyalty. Winston Churchill, passing through Frederick, in 1943 recited the Whittier poem about this to Roosevelt. Such was the affection Churchill, a militarist, had for flags and their symbolism.

But during the 1960's people like Joan Baez said they did not like flags, which often were used to inspire intolerance, war and mayhem.  Many of my cohort refuse to fly flags even today, because they remember how flags were waved to stoke blind obedience to "fighting for your country" during Vietnam, when, in fact, American boys were not fighting for their country but for somebody else's country and for their own lives.

The argument from Southerners who like the rebel flag is that it is not a symbol of racism but of "States Rights" whatever those may be, and of "Heritage" and of "History."  That history is one of slavery, of a fundamentally racist state and time and of loyalty to a fundamentally brutal and deeply immoral institution.

If Germans today flew the Nazi flag and claimed they were not in favor of gassing Jews or invading their neighbors but were simply proud of their fathers who died serving their country valiantly, how would we react? 

Some day, maybe in another 150 years, Americans can see the rebel flag and think of it as a brightly colored reminder of a distant and harmless past, but today I do not think that is possible. It conjures up memories of treason, violence, enslavement and racism. 

What is there, in all that to be proud of? Can you not admit these brave hearts sacrificed themselves for the wrong cause, not the "Lost Cause?"  That Lost Cause should have been lost. It was and remains profoundly evil.

Obamacare and True Believers

It's always nice when a "study" or "polling" confirms what you believe, or when it comports well with your own experience on a "micro" level and extends that validity to a "macro" world.

In my case, it's the observation that people who hate "Obamacare" have no direct personal experience with it. This is actually true of most of America. Most people still get their insurance from sources other than Obamacare. And those who do get their insurance from Obamacare, like the good citizens of Kentucky, refuse to believe that their policies (Kynect) are actually part of the Obamacare, ACA law--because they know they don't like Obama or anything connected to him. So they simply choose to believe their health insurance is coming from the state of Kentucky, unrelated to Obamacare.

These same people descend from ancestors who believed slaves were happy in bondage.

The Huffington post recently commissioned an analysis of polling data which showed the chances someone hates Obamacare do not track at all with any personal experience with it: What that hatred tracks well with is party affiliation: If you listen to Rush Limbaugh and vote Republican, you think Obamacare is a "train wreck."

How many times have I heard a patient in my office rant on and on about how terrible Obamacare has been for the country  and I then ask, "Well, do you have Obamacare yourself?"  
Well, no.  
"Have your own premiums gone up?"
Well, no. 
And so, how do you know this law has been such a failure.  
Look of utter hostility. 

It's another case of don't confuse me with the facts: I know what I BELIEVE!

Taking the Pulse of the Nation: Polling Foibles

Stepping outside the Constitutional Convention  Benjamin Franklin was confronted by a woman who asked  what sort of government the delegates had chosen for the new American nation. "A Republic," Franklin replied. "If you can keep it."

Franklin knew, although we sometimes forget, we do not have a democracy; we have a republic. The public votes for representatives but the public does not vote on every issue. (Except, sometimes, in New Hampshire.)

How could we?  From treaties about nuclear armaments and nuclear test bans to the complexities of health care legislation, to knotty problems like the line between abortion and infanticide to whether or not we should build the Keystone pipeline, to immigration rules to the trade agreement with the far East, to questions about restrictions on guns, the public is either insufficiently informed, insufficiently attentive or simply confused.

Senators and Congressmen, TV pundits--David Brooks and Mark Shields come to mind--all rely heavily on polls when they say, "Eighty two percent of the American public believe..." 

But, as Clif Zukin points out in today's New York Times, polling ain't what it used to be. As recent votes in Britain and Israel demonstrated, polling predictions of close races turned out to be blow outs instead, and none of the polls predicted the Republican sweep in the midterms here in the USA. And this is just election polling; opinion polling may be even more inaccurate.

But polls are all we've got when a Senator Ted Cruz claims Americans believe this or that--we can say, "Well, that's what you'd like to believe." If he can cite  a poll, some number he can quote, well then he speaks the Truth.

But two big shifts have wreaked havoc on what can be determined by polling:  1. A new resistance on the part of citizens to respond to polls.  2. Cell phones.

Gone are the days when pollsters went door to door; the telephone offered a convenient, less labor intensive, inexpensive way to grab someone and ask questions.  The advent of answering machines and then caller ID made that more difficult--who wants to stop watching the Patriots to answer a call from Gallup or Pew? And then came cell phones, which magnified the problem, because you could no longer know where a person lived by the area code (making predicting elections more problematic) and people don't answer cell phones the way they once answered landlines, so even opinion polling is fraught with problems. 

I took a course in college once about the science of surveying, the way you can use probability and statistics to make small numbers, thousands, speak for millions.  And one thing I learned is not only is the method of reaching people important--the techniques by which random samples are kept random, but the phrasing of questions can turn answers one hundred and eighty degrees.

So one can only sympathize with the elected representative who is trying to vote the way he thinks his voters want him to vote. How can he know what his constituents want?  Do they even know what they want? No wonder the Congress listens to lobbyists: They may not be unbiased, but at least they offer clarity.

In "West Wing" a Senator who was defeated in an election in which his support for a nuclear test ban treaty became a major issue decides to vote against the treaty in a lame duck session. He tells the President, who desperately wants the treaty passed, that as a Senator he has rarely been as sure what his constituents wanted as he was now about the test ban treaty. The Senator thought it was an essential treaty, essential to keep rogue states from getting the bomb--but in good conscience he had to vote the way his constituents had voted.  

Of course, you might ask: how did he know that one issue is what led to his defeat? How can you know when an election is a referendum on a given question?  Exit polls maybe? But can we trust them if we don't know who they selected and how and what the phrasing of the question was?

On the other hand, having suffered through the "warrant" voting in small town New Hampshire, where you are handed a ballot twenty pages long stuffed with questions like whether Mrs. Jones should be allowed to plant tulips on the far side, the town side, of the sidewalk and whether teachers should get a raise and whether the firehouse should get an addition, you realize this is no way to run a government. Somebody has to be paying attention and making informed decisions, some elected someone.

I have a friend who actually goes to the day long town meetings where these ballot questions are discussed. She is a rare and exemplary citizen, the exception who proves the rule. 

Mr. Franklin with his favorite bird

On the other hand, when you say, "Just do what makes sense to you," to an elected official, you get Fred Rice trying to build a bypass road around downtown Hampton because he thinks it's a good way to fight smog.

Rte 1 Hampton Falls headed to Hampton

The Theatrics of Politics and Every Day Life

If only real life were like "West Wing"...

One of the great pleasures of fiction is you get to see the scenes you would like to see in real life play out.  President Bartlet (of New Hampshire, no less) confronts a talk show radio host at a White House reception for talk radio stars. It is one of those occasions he is supposed to be sucking up to all the Rush Limbaughs and Sean Hannity's of the world, and he starts off with the stuff his staff has written for him to say, about the importance of talk radio, the great responsibility these radio heads have in shaping public discourse,  but he is distracted by one woman, and he cannot continue with his prepared remarks. She is a fetching blonde and at first you think he's just attracted to her, but then you realize he knows her and he's listened to her show and he slides into his remarks about what he's heard her say on her show:

JENNA JACOBS
I have a Ph.D. in English Literature.

BARTLET
I'm asking, 'cause on your show, people call in for advice and you go by
the name of
Dr. Jacobs on your show. And I didn't know if maybe your listeners were
confused by that,
and assumed you had advanced training in Psychology, Theology, or health care.

JENNA JACOBS
I don't believe they are confused, no sir.

BARTLET
Good. I like your show. I like how you call homosexuality an abomination.

JENNA JACOBS
I don't say homosexuality is an abomination, Mr. President. The Bible does.

BARTLET
Yes, it does. Leviticus.

JENNA JACOBS
18:22

BARTLET
Chapter and verse. I wanted to ask you a couple of questions while I had
you here.

I'm interested in selling my youngest daughter into slavery as sanctioned
in Exodus 21:7.
(small chuckles from the guests) She's a Georgetown sophomore, speaks fluent
Italian, and always clears the table when it was her turn. What would a good price for
her be? While thinking about that, can I ask another? My Chief of Staff, LeoO McGarry,
insists on working on the Sabbath, Exodus 35:2, clearly says he should be put to death. Am I morally obligated to kill him myself or is it okay to call the police? Here's one that's really important, 'cause we've got a lot of sports fans in this town. Touching the skin of a dead pig makes us unclean, Leviticus 11:7. If they promise to wear gloves, can the Washington Redskins still play football? Can Notre Dame? Can West Point? Does the whole town
really have to be together to stone my brother, John, for planting different crops side by
side? Can I burn my mother in a small family gathering for wearing garments made from two
different threads?

It's one of those moments we (i.e., all right thinking liberals) would just love to see, but never will, except as Aaron Sorkin can deliver them. 

And then, there's the Ann Coulter look alike, the right wing lawyer spokesman for the right, who loathes President Barlet and all who sail with him, until she gets to see them in action, and then she is won over, at least she is convinced they are not demons from hell, just well meaning, if misguided.  She arrives at a restaurant to meet two conservative friends after a day at the Bartlet White House, where she has gone to decline the offer of a job in the White House counsel's office as a lawyer, but she has seen the staff in action and seen their commitment and passion to what they do. Her unctuous, conservative friend, Bruce asks her about the people there.

BRUCE
Did you meet anyone there who isn't worthless?

AINSLEY
[quietly] Don't say that.

BRUCE
Did you meet anyone there who has any-?

AINSLEY
[more firmly] I said don't say that. Say they're smug and superior, say
their approach
to public policy makes you want to tear your hair out. Say they like high
taxes and
spending your money. Say they want to take your guns and open your borders,
but don't
call them worthless. At least don't do it in front of me.

Bruce and Harriet exchange a look.

AINSLEY
The people that I have met have been extraordinarily qualified, their intent
is good.
Their commitment is true, they are righteous, and they are patriots.
[after a moment, with tears in her eyes] And I'm their lawyer.

From Season Two, the West Wing

The fact is, people and life are not like this.  In the real world, you might think of eviscerating the right wing talk show host, but you would not bring yourself to creating such an uncomfortable scene, and in the real world, no right wing zealot who has spent years cultivating a hate and contempt for liberals would be able to see into their souls and respect them. 

But it's pretty to think it.

Do Police Prevent Crime? Do They Do More Good Than Harm?

"You know the worst thing about these statistics? They ruined this job."
--Major Howard Colvin, Baltimore City Police, Western District, "The Wire."

The New York Times today ran two separate pieces which made me think, "Oh, how far we've come."  In September, 2011, New York City police, along with fireman, were hailed by  the New York Times  as selfless heroes for their bravery, self sacrifice and clear concern for the citizens of New York City, whom they clearly tried to serve and protect on that day of horrors. 

But today there was one article about Mayor DeBlasio's efforts to reign in the "stop and frisk" tactics of the NYPD running side by side with a memoir by Gregory Orr, a white guy from New York who was savagely beaten in  several gauntlets  organized by Mississippi police to vent their hatred for civil rights demonstrators. 

In 2011, before DeBlasio took office, an astonishing 13 stop and frisks occurred every minute of every day for a year in New York City.  Can you imagine what that statistic translated into on the streets of Bed Sty in Brooklyn or in the South Bronx? Within two years of taking office, that rate was down to less than one a minute, every day of the year. 

One wonders about those statistics. Do the police actually enter into their computers each encounter? What if they don't? Who would know? But let's take the numbers as a rough index of their activity. First, we understand this activity is not typically seen along the streets of the Upper East Side or Upper West Side, or in Manhattan in general, or Staten Island, but likely in the poorer sections of the Bronx, Brooklyn and Queens. And the color of the people who live there tends to be darker than where searches are not done. And I would bet more males are frisked than females. And more younger males than older. So, for the most part, young, non white (Hispanic or Black) young men are selected as likely suspects and what does that do the life, the daily experience and the mind of young Black males?  If you wanted to condition someone into resentment, distrust and paranoia, could you think of a more effective tool?

Which is not to say frisks turn otherwise decent citizens into criminals. The police will say most crime is committed by exactly the profile of those they suspect and frisk. 

But freedom is dependent not on what the most advantaged in our society experience, but on what the most disadvantaged are subjected to.  If freedom of speech means we have to tolerate speech and ideas we find repugnant, does freedom in general not mean we tolerate those we may distrust? And who is the "we" who have to tolerate?  One might say white cops distrust young Black males and that is the scene occurring 13 times a minute. Is that really true? Or were Black cops frisking Black males in these places? Would it make a difference to know that?

Mayor DeBlasio's critics accused him of: 1/ Undermining and demonizing police  2/ Putting the public's safety at risk.  The first accusation has to do with the mayor's mindset and what might be going through his mind and cannot be judged.  But there might be some way of examining statistics to see if dialing down the number of stop and frisks resulted in miscreants keeping their guns and knives and using them to wreck havoc upon the citizens of New York. The easiest, most simplistic number to cite is the murder rate in NYC, which actually fell slightly during the year the stop and frisk tactics got dialed back.

But, of course, as any devotee of "The Wire" knows, police can have almost no effect against those who murder in the cities. The reasons murders are done have to do with impulsive behavior by young males (mostly) or because of the business of the drug trade, and neither of these groups are at all influenced by police, the existence of the death penalty or whether or not a mayor or President is "soft" or "hard" on crime. 

Whether or not a murder, once it has happened, gets solved does relate to the money and effort expended by the police force, but that is after the fact, and likely little solace to the victims. 

There are all sorts of studies investigating the effect of policing on crime, on whether "broken windows" policing makes neighborhoods safer.  Mostly, right wingers tend to believe studies which suggest tough cops laying the heavy wood on unruly minorities keep the dangerous elements under control and left wingers tend to believe they do no such thing.  Law and order vs civil rights.

I've known plenty of cops, mostly New York City cops. They tended to be either from families of cops, mostly Irish, or they tended to be explosive, edgy people who liked to carry guns and beat up people.  The cops I knew hung out in the Emergency Room. They tried to pick up the nurses. Nurses married cops in those days. Like doctors, cops saw the raw side of life and they saw people at their worst.  I can't imagine the cops I knew much enjoying stopping and frisking citizens. Of course, these cops were from the 21st precinct in Manhattan, which covered the Upper East Side, so maybe they were different from the guys who wound up in Brooklyn's tough Bed Sty area. 

The Mississippi cops depicted in Mr. Orr's article were clearly just sadists and haters.  They were more criminal than cop, sanctioned and empowered by a vicious apartheid state; they were the soul mates of Hitler's SS and concentration camp guards. 

What we have now, I suspect, is the pendulum swinging back from a public perception of cops as heroes to cops as brutes.  I doubt the average White person looks at a cop and sees Gestapo, but I can't say what the young Black male sees. 

I don't know any Hampton cops. Not particularly eager to make their acquaintance. 

The question we always have to ask ourselves, when we hire cops and put them into place: Do we really need them? Will they do more harm than good?

Resort towns are particularly vexed by this problem.  People who can afford to live in resort towns tend to be somewhat more affluent than inner city populations, but that doesn't mean they don't need police now and then.  

The question is, do they need a jail or a policeman with an attack rifle?  Are we fielding a police force looking for work, like Arlo Guthrie's police in "Alice's Restaurant?" Or, are we hiring people who can be trained and expected to behave as if force is a last resort, to serve and protect?

I'm just hoping more citizens will reach for their smart phones and start the video rolling when the police swing into action. That would be good for everyone.