Rabbit holes and sundry

I haven't gotten around to reading or even skimming the recent SCOTUS opinions, other than a few excerpts on various blogs.

I'll just say that I'm mostly content with gay marriage being available to anyone in the country. This argument has been so thoroughly debated since the early aughts, and now with the finality of that decision, I don't see it being an issue much longer.

But I'm a cynical contrarian, and I feel the rebel urge to go against the seemingly and increasingly popular majority opinion in favor of it. And my libertarian tendencies repel me away from the tired and conventional arguments. It's like there's some little-explored nuance that I've yet to discover, and it's calling my name. I'll always be for equal rights and opportunity, but the way most of the coverage has been is like "YES, we stuck it to THE MAN! Take that, anachronistic evil old white puritan who still somehow controls all the levers of society! A long-awaited win for the little guy!"

There's just something grating and disingenuous about that, and I don't think it would be particularly useful to explore why. Maybe I'm misperceiving it all?

...

I haven't been the voracious consumer of blogs, politics, and current events as I once was not long ago. But now and then I stumble onto a few things and follow them down rabbit holes to other things which I cannot help but drop everything and completely absorb.

Such as this excellent short sci-fi story from the seemingly sage polymath Scott Alexander at Slate Star Codex:  ... And I Show You How Deep the Rabbit Hole Goes. Just a very fun, well-written adventure story for all personalities.

And three blog posts about libertarians, anarchism, and utilitarianism:

Caution: nerdfight zone ahead

The Incredible Vanishing Minarchist

• This and the comments following it kind of surprised me. I simply assumed most libertarians were not anarchists, and perhaps not even "true" Minarchists. I'm sure not an anarchist. While I think that anarcho-capatalism is an unachievable utopian ideal, I think minarchism is, while slightly less utopian and ideal, still unachievable for the indefinite future. So, while I can nod my head and agree with the principles behind AnCap and Minarchism, in practice I'll support just about anything that has a realistic chance of pushing us in that direction. I guess that makes me a lINO (small 'L' libertarian-in-name-only.) I don't care what anyone says, but big 'L' Libertarians I'll always consider to mean members of the Libertarian Party.

5 Reasons Why I’m Not An Anarchist

• A generally okay argument that I mostly agree with, but feel the author is being way too disingenuous regarding what it means to follow the non-aggression principle. To me, following the NAP is like being a lawful citizen. You're not a total pacifist, but you never initiate violence, or threats thereof. You will, however, be willing to defend yourself, significant others, personal property, and perhaps even innocent people to the death from those things. Preemptive attacks are just taking things to another level. Reasonable persons would agree, that most of the time, preemption is going too far. However...
  
  There are the super scary, but totally obvious, yet still loaded with liability, exceptions where preemption feels and is compulsory. It's like there's a de facto threat, whether or not explicit, and is therefore consistent with the NAP.

Not So Hard to Argue

• A short post which I thought was interesting. Utilitarians in favor of redistribution often leave out a few important factors in their calculations.

Scalia on Roberts: There's no feud between us

Aptly timed with news of the public's declining opinion of SCOTUS, Justice Antonin Scalia was on CNN's Piers Morgan's show and had a few things to say about the rumors of internal fighting:

“No, I haven’t had a falling out with Justice Roberts,” Scalia said, when asked about press accounts that some Republican-appointed justices were angry with Roberts after he reportedly switched sides to uphold the individual mandate in the Affordable Care Act.

“Loud words exchanged, slamming of doors?” CNN host Piers Morgan asked Scalia.

“No, no. … nothing like that,” the justice replied.

He goes on to defend the Citizens United decision and Bush v. Gore.


More videos of the interview here.

Public opinion of Supreme Court drops after Obamacare ruling

I'm beginning to think that aside from the military, there isn't a single federal government branch or agency that has the support of a majority of it's citizens. With spending on an unsustainable path, entitlements nearing bankruptcy, the Post Office defaulting, unemployment, it's a wonder we function with any unity at all.

From the NYT:

The nation is now evenly divided, with 41 percent of Americans saying they approve of the job the court is doing and the same share voicing disapproval, according to a new poll conducted by The New York Times and CBS News. In a poll a few weeks before the health care decision, the court’s approval rating was 44 percent and its disapproval rating 36 percent.

More than half of Americans said the decision in the health care case was based mainly on the justices’ personal or political views. Only about 3 in 10 of them said the decision in the case was based mainly on legal analysis.

SCOTUSblog: CBS story challenges Roberts' ability to lead

A very interesting read from SCOTUSblog on the likely affects of the Sebelius decision, the CBS report, the leaks that lead to it, and who wrote what:

[T]here is the discussion of the composition of the dissent... the story says that the Chief Justice had no part in that document.  It was the joint collaboration of the four Justices who ultimately dissented, according to the account.

The story also implies that the writing of that opinion came after Roberts’s purported switch.  But there is one telltale contradiction of that possibility.  On page 25, the dissenters say that, if the ruling in favor of the mandate were based upon the Tax Clause, that ”would force us to confront a difficult constitutional question,” but it then added that “we have no need to address the point.”   The point is whether the tax was, in constitutional terms, a “Direct Tax.”  But, unaccountably from the language in the dissent, Roberts’s opinion does directly confront that difficult question, and decides that the penalty associated with the mandate is not a Direct Tax, but is a tax nonetheless.  That conflict makes the supposed sequencing of the dissent and the Roberts opinion somewhat doubtful...

[T]he prospect of lingering impact of the CBS story is not due only to the fact of the leaks.   The content itself is a public rebuke of Roberts, from inside the Court, and amounts to a direct challenge to his ability to lead the Court and to take steps — if that was what his position on the health care law was intended to do — to insulate the Court from the partisan polarization that so dominates the rest of Washington.

Read the whole thing.

Crazy stuff. But no worries Mr. Chief Justice, half the people are oblivious. Just go on writing both opinions and dissents. I hear it's good mental exercise.

Confirmed: Roberts switched his vote

It's unsettling to know a Chief Justice changes his position on such important constitutional issues. Apparently CJ Roberts originally sided with the conservatives in May, but as we all know changed his mind and joined the liberals.

Jan Crawford at CBS got the scoop:

[Roberts] changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.

Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy - believed by many conservatives to be the justice most likely to defect and vote for the law - led the effort to try to bring Roberts back to the fold.
"He was relentless," one source said of Kennedy's efforts. "He was very engaged in this."
But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, "You're on your own."

Naturally a lot of people are talking about this and I'm still skimming through all the commentary. But on page 2 of Crawford's article we're led to believe it is likely Roberts' vote was influenced by media coverage.

Rdbrewer at Ace's favorably compares French judges to Roberts, regarding potential outside influence. Roberts apparently absorbs news like a sponge. I tend to agree, at the very least, a Supreme Court Justice should avoid media coverage on the specific issue under consideration.

Randy Barnett at Volokh has more including video of Crawford on Face the Nation.

My main worry about the Obamacare ruling

I have been largely ambivalent about the Supreme Court decision. Like Krauthammer, Barnett, and Erickson, I liked the fact that this was largely a conservative/libertarian opinion in all respects save upholding the ACA. And given the public's opposition to it, I tend to think it only increased the odds of kicking Obama out this November.

However, stare decisis isn't sacrosanct. Far from it. I fear what John Yoo articulated so well:

[A]n Obama second term may see the appointment of up to three new Supreme Court members. A new, solidified liberal majority will easily discard Sebelius's limits on the Commerce Clause and expand the taxing power even further. After the Hughes court switch, FDR replaced retiring Justices with a pro-New Deal majority, and the court upheld any and all expansions of federal power over the economy and society. The court did not overturn a piece of legislation under the Commerce Clause for 60 years. [emphasis added]

I don't know why Roberts did what he did, perhaps even switching his vote at the last minute. Although I can understand rationalizing a wrong decision to save an institution, I couldn't condone it.

If it isn't the high court's "job to protect the people from the consequences of their political choices" then it is surely not your job to protect a political climate from the duty of the court.

Obamacare ruling in meme form

From ErikLundegarrd.com:

From Never Yet Melted:

And one of my own:

Update: Here's an original:

Another update: Business Insider has more.

Feel free to link your own or put out some ideas.