13 July 2018
Dear Interested Readers,
So Far So Good, and a Request
Last week the delivery process of this letter changed. The letter was also a little shorter, by design. I hope that you liked the new delivery process. Tuesday’s post was a totally new piece and not a revision of the Friday letter. So, if your routine is to skip the Tuesday posting because you think it is a redo, it is not.
Now that the new process is a week old I am making a few observations. That is what you do in a PDSA process. One thing I noticed was that there were no responses! I am not ready to abandon the new process because of that one observation. Perhaps the formality of a comment box stifles the spontaneous reflex to give feedback by just hitting reply. If that is the case, or if you do not want your comment to be public, please note that responding to me directly by email, as in the past, is still welcomed. It is also true that I review all comments before they are posted, and if you indicate that the comment is not to be posted, I will respect your wish. In case you do not have it, my email address is drgenelindsey@gmail.com. If my name is not in your contacts, please add it so that responding will be easy!
The Supreme Court Blues and Other Miseries
When Justice Anthony Kennedy finished adding his fifth vote to several disappointing decisions that were announced at the end of this session of the Supreme Court and announced his retirement on June 27, my heart sank. Like so many others, I knew that the moment that I had feared since the election results stunned us in November 2016 had finally arrived. The most succinct and straightforward statement of the significance of Kennedy’s retirement for Americans like me who call themselves “progressive” was expressed in an article written by Michael Shear that was published the next day in The New York Times.
Justice Kennedy, 81, has been a critical swing vote on the sharply polarized court for nearly three decades as he embraced liberal views on gay rights, abortion and the death penalty but helped conservatives trim voting rights, block gun control measures and unleash campaign spending by corporations.
His replacement by a conservative justice — something Mr. Trump has vowed to his supporters — could imperil a variety of landmark Supreme Court precedents on social issues where Justice Kennedy frequently sided with his liberal colleagues, particularly on abortion.
“Asleep at the Wheel” is the name of a country swing band that I enjoy, and it is also a phrase that describes what must have been the state of consciousness of many American voters that allowed this moment to occur. By failing to use their vote in the elections of 2010, 2014, and 2016 to protect hard won social progress, they contributed to the moment that has finally arrived. By failing to show up to vote in 2010 the Democrats lost the House. In 2014 they lost the Senate. The importance of getting out to the polls on “off year elections” is something that only the Republicans seem to understand.
In 2016 Democrats lost the presidency through a combination of events that no one would have believed, plus the fact that many did not vote either because they did not have warm fuzzy feelings for Hillary or because their favorite candidate, Bernie Sanders, had lost the nomination through a process that seemed unfair. It is quite possible that despite the efforts of the Russians and despite the debatable moral confusion of James Comey, Clinton would still have won if rank and file Democrats had taken seriously the possibility of years and years of a very conservative Supreme Court that could reverse or undermine many of the landmark progressive decisions of the last fifty years. Because of those elections, and the incredible audacity of Mitch McConnell who blocked Barack Obama from his Constitutional right to name Merrick Garland to the court, we will now have a solidly Conservative Supreme Court for years to come. McConnell would not have had his opportunity for mischief if the Senate had not been lost in 2014.
It is possible, though perhaps unlikely, for Democrats to regain the House and Senate in 2018 and the Presidency in 2020, but the 2018 loss of the Supreme Court will stay with us through many more expressions of the electorate’s will. The fear that I share with millions of others is that the court is about to become a barrier to our concerns about the rights of minorities. It may reverse the progress toward universal access to quality healthcare by finding all or part of the ACA to be unconstitutional. It is highly likely that Roe v. Wade will be repealed. To create that possibility, as well as the possibility of using the courts to undermine the recent gains in human rights of the LGBTQ community, is why so many Evangelicals held their nose and voted for Trump who is a walking contradiction to most of their espoused beliefs.
The list of potential losses is long and will probably include the loss of many regulatory controls protecting the environment and the fair conduct of business. Let’s just say that actualizing almost any of the progressive ideas that would move us all toward the unrealized aspiration of equality in the pursuit of life, liberty, health, and happiness is now facing a much greater challenge. It is most likely that after Judge Brett Kavanaugh is confirmed to a lifetime appointment by a narrow plurality in the Senate, the court will have a solid majority of justices with a conservative view of the Constitution that could last for more than twenty years.
The Democrats seem to lack the long view and the strategic focus of many Republicans. The Republicans spent thirty years gaining control of state and local governments enabling them to gerrymander congressional districts, erode voters’ rights in red states, and slowly build an unholy coalition of the fearful to put themselves into the position that would allow them to hold their noses, look away from previously unacceptable behaviors that damaged norms, and rationalize the election of Donald Trump. Now that Trump is in office, they are using him to their strategic advantage and seem to be willing to chance further undermining the struggling soul of America by continuing to ignore his destruction of cherished norms and his embrace of authoritarian despots. They do not flinch when he attacks the press, brags about his ability to misuse the presidential pardon, declares war on a mythical “deep” state, or suggests that his political opponents be jailed. They look the other way as he chides the leaders of our traditional allies and embraces thugs who have crushed human rights in the countries they control through fixed elections while stealing land from neighbors.
Despite the potential for long term damage to America at home and abroad, and the possibility of an illiberal society that he brings to the highest office in the world, they show no inclination to hold the president accountable as he gives them the court they want. The outcome speaks for itself. They seem certain that their Faustian deal with Trump is well worth the trade off for a Conservative court for decades to come. More than one person has told me that they gave Trump a pass on all of his flaws because he would give them the court they wanted. He has kept the bargain, and has picked his justices off a list provided by the Federalist Society.
Once again Shear nails it as he wrote about Kennedy’s disappointing behavior and the hint of things to come following his resignation:
The court’s term that just ended offered a preview of what such a lineup might mean: With Justice Kennedy mostly siding with conservatives this year, the court endorsed Mr. Trump’s power over immigration, dealt a blow to labor unions and backed a Republican purge of voter rolls in Ohio.
The thread of hope that Democrats were hanging onto as they prayed that Kennedy would delay his retirement, like Ruth Bader Ginsburg has, was because of his stance on personal freedoms and rights. He seemed always to vote in ways that enhanced personal dignity as Shear acknowledges.
He wrote some of the country’s most important gay rights decisions and helped to drastically shift the United States’ legal treatment of gays, lesbians and transgender people. In 2015, he wrote the court’s opinion that established the right for gay people to marry each other.
“Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions,” Justice Kennedy wrote of gay Americans. “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
But, as Shear goes on to imply, Kennedy has always been a “mixed” bag with goodies for both sides.
He wrote the opinion in Citizens United, which gave corporations the right to make unlimited campaign contributions. He joined the court’s conservatives in 2008 in declaring that the Constitution protects a person’s right to keep a loaded gun at home for self-defense.
Shear is a good writer who is eloquently cryptic with a style that I have not perfected. Let me outline the ways Justice Kennedy has disappointed me over the years and why those disappointments will become more certain when Judge Kavanaugh is elevated to the highest court. It has been impossible for me to forget that Justice Kennedy elected George Bush with his swing vote in December of 2000. If that was not enough, as Shear notes, he also gave us Citizens United that has enabled The Koch brothers, the Mercers, and others to use their billions to gradually turn the country rightward, despite the fact that many surveys demonstrate that a majority of Americans favor legislation that would reduce economic and social inequity. A majority of Americans also want judgements and laws that protect us from the fear of gun violence in schools, at theaters, at concerts, in nightclubs, on the street, and in the workplace. I do not thank Justice Kennedy for those decisions which also serve as a preview of even more to come as Judge Kavanaugh will surely be elevated to take his place on the Supreme Court. Shear’s analysis failed to explicitly include the fact that Kennedy also cast the deciding vote in the 2013 decision written by Justice Roberts in Shelby County v. Holder that undermined the Voters Rights Act of 1965 and enables local and state governments that want to reintroduce barriers for minority voters. You may not have noticed that Judge Kavanaugh clerked for Justice Kennedy, as did Justice Gorsuch.
Cass Sunstein, Harvard Law School professor, is a former member of the Obama administration, an author, and a behavioral economist who also writes for Bloomberg News. You might know him as the coauthor of Nudge: Improving Decisions About Health, Wealth, and Happiness, a book that he wrote with Richard Thaler, last year’s winner of the Nobel Prize in economics. Sunstein added an interesting comment about the uncertainty of this moment in a column that he published this week that was picked up in my local newspaper. Sunstein asks an important question about President Trump’s nominee, Judge Brett Kavanaugh, aged 53, who if confirmed, will most like still be with Neil Gorsuch, aged 50, on the Supreme Court on the day I die. Sunstein tries to carry the analysis beyond what liberals like me fear, and conservatives hope will be true.
Those on the left fear, and those on the right hope, that Judge Kavanaugh will prove pivotal to an assortment of new constitutional rulings: protecting gun rights, overruling Roe v. Wade, invalidating affirmative action, crippling the regulatory state, striking down the Affordable Care Act, and allowing people with religious objections to discriminate against gays and lesbians.
Sunstein tries to present a difference between a conservative judge and a judge that believes in “judicial restraint.” He contends that “conservative justices” use their position for political purposes, but so do “liberal justices.” That conservative/ liberal divide just carries the process that belongs in Congress into the Court. He calls these judges “movement” judges. He then describes what the perspective of a hypothetical conservative justice who believes in judicial restraint would be like:
Restrained conservatives have no enthusiasm for the liberal rulings of the last decades, because they think that judges intruded far too often, and far too readily, into the democratic process. They want judges to have a smaller role in American government.
For such judges, restraint is a matter of principle. They are cautious about the idea of striking down the Affordable Care Act (even if they hate it). They are hesitant about forbidding affirmative action programs. They certainly do not believe that judges should mount some kind of assault on the regulatory state.
By contrast, some judges, and some conservatives, act as if they are part of a movement.
Movement judges favor aggressive use of judicial power to bring about results that they like — striking down affirmative action programs, invalidating restrictions on gun owners, and invalidating provisions of the Clean Air Act and the Occupational Safety and Health Act.
I would include gutting the ACA in that list. Sunstein ends on a note worth considering as the Senate ponders the nomination of Judge Kavanaugh:
Whether it comes from the left or the right, judicial restraint is honorable, especially if it operates in a nonpartisan manner. But movement conservatism — like its left-wing sibling — is a major threat to democratic ideals. It is well worth figuring out whether any Supreme Court nominee, including Judge Kavanaugh, subscribes to it.
Perhaps Kennedy considered himself a practitioner of judicial restraint and that explains the strange array of his decisions. Sunstein seems to suggest that our only hope for some mitigation of the impact of the change in the court is that Judge Kavanaugh might be a practitioner of conservative restraint. It’s a slim hope, but probably more realistic than thinking that Republicans Susan Collins and Lisa Murkowski will vote against him, or that Democrats Joe Manchin and Heidi Heitkamp will ignore the majority of Trump voters in their home states.
I wish that the peril we face by Kennedy’s resignation and Kavanaugh’s nomination was the only bad news that the last few weeks have produced, but that is not the case. The Trump administration and attorney generals from many states are utilizing the fact that the mandate and associated penalty of the ACA was removed by the Trump tax cut give away. An article related to a report on NPR last month describes the situation.
It is unusual for the Justice Department to refuse to defend existing law in court challenges. In this case, 20 states sued the federal government in February claiming the individual mandate is unconstitutional after Congress zeroed out the tax penalty for not having health insurance in its 2017 tax cut law. The lawsuit, led by Texas Attorney General Ken Paxton, contends that without an individual mandate, the entirety of the ACA, commonly known as Obamacare, is unconstitutional.
If that argument prevails in the courts, it would render unconstitutional Obamacare provisions that ban insurance companies from denying coverage to people with pre-existing conditions — arguably the most popular component of the 2010 health care law.
My guess is that Judge Kavanaugh might look favorably on this analysis. Who knows, if guaranteeing the ability of those with pre-existing conditions from buying insurance is now unconstitutional then perhaps the whole thing is, even though in 2012 the Supreme Court said all of it, except forcing states to expand Medicaid did conform to the principles of the Constitution. I wonder how many people in Pennsylvania, Wisconsin, and Michigan who have pre-existing conditions and access to care they have through the ACA voted for President Trump.
But there is more. Perhaps you remember all of the discussions about the subsidies to insurers who are taking on those people with preexisting conditions who are buying coverage on the exchanges. It seems the insurers can kiss those payments good-bye. A good article in the New York Times for last Sunday by Robert Pear lays out the problem.
The Trump administration said Saturday that it was suspending a program that pays billions of dollars to insurers to stabilize health insurance markets under the Affordable Care Act, a freeze that could increase uncertainty in the markets and drive up premiums this fall.
Many insurers that enroll large numbers of unhealthy people depend on the “risk adjustment” payments, which are intended to reduce the incentives for insurers to seek out healthy consumers and shun those with chronic illnesses and other pre-existing conditions.
It has amazed many observers that despite the continuous attacks on the ACA its popularity has grown as real people have enjoyed real benefits from the better access to care that it enables. Last year the Trump administration tried to reduce the enrollment by reducing the budget of the program of advisors that help people understand and select the products that work best for them. Now we learn that the support will be essentially eliminated. Once again, the explainer of the bad news is Robert Pear of the New York Times.
The Trump administration announced on Tuesday that it was slashing grants to nonprofit organizations that help people obtain health insurance under the Affordable Care Act, the latest step in an escalating attack on the law that threatens to destabilize its insurance markets.
So in one week we learn that we will have a new Supreme Court that will be capable of ruling that the ACA and almost any other progressive social program is “unconstitutional,” but that will take a while. Judge Kavanaugh is unlikely to be confirmed before October. It will probably take a few more months, or perhaps a year, to present the court with a case that gives them an opportunity to do the deed to the ACA. In the interim Seema Verma and associates continue to take it apart piece by piece. When will it end? The midterm elections won’t solve the problem, but they will be a start. I am wondering what it will take to make a majority of healthcare providers rise up in some concerted movement in the defense of those who will suffer.
Loon Family Update
The header for this post is an exciting photo of the loon family on Little Lake Sunapee that was taken by our neighbor, Steve Wolf. It is amazing to see just how fast the chicks grow. The baby was just shy of a month old when this picture was taken. It is already learning to dive. It no longer takes rides on the parents’ backs. By late August it will be learning to take off and land in preparation for its first flight to the Maine coast.
I am on the lake a majority of the summer evenings. As I move about checking out all the places where I might find fish, I almost always see the loons. Usually they are too far away to get a picture like the one taken by Steve. I am surprised at times when they pop up just a few yards from my boat. They are usually gone again before I can get a picture. They may swim 50 to 75 yards in any direction before they pop up again.
We know a lot about our loons in this part of New Hampshire because of the work of the late Kitty Wilson. Kitty Wilson taught in the Kearsarge Regional School system for more than thirty years. She was a recipient of the Krista McAullife Award as the state’s best teacher. She was loved for her work as an innovative teacher, but was most famous locally for her beautiful photographs of loons in the wild. Her observations, photos, and research extended our appreciation and understanding of these gloriously unique creatures. I did not know her, but many of my new friends knew her well. I did have the pleasure of hearing her speak this last winter. She gave a great presentation about where our loons go in the winter. She had been tracking loons between the lakes in our region and their winter homes on the Maine coastline for several years. They return to the same lake each summer and winter in the same place. I was stunned to hear that less than four months after she spoke she had succumbed to a very aggressive tumor.
The poet A.E. Housman wrote a lovely poem about cherry blossoms when he was twenty. In the poem Housman laments that “of his three score years and ten” he probably has only fifty more springs to look at cherry blossoms. Kitty did not get 70 summers. She did not know in January that she would not see loon chicks in June. Thinking about the loons and Kitty should send a message to us all. I plan to never pass up a chance to be out and about seeing the inspiring things that are all around me because I have already cashed in three score and ten plus three and each new year is a gift not to be wasted.
Be well, take good care of yourself, let me hear from you often, and don’t let anything keep you from doing the good that you can do every day,
Gene
