Activist Court?

The New Neo Posted on by

The left is busy criticizing the Supreme Court as “activist” and biased in advance of any possible ruling against Obamacare. Oh, it’s perfectly fine for the Court to be activist when it is stretching the Constitution to fit the leftist agenda. Finding a right to privacy in order to guarantee abortion nationwide? No problem. And the left never met an extension to the Commerce Clause that it didn’t like.

But if there is a case in which the Court steps back in order to curtail the powers of the federal government and return to a former and stricter state of constitutional interpretation—well, that’s unconscionably activist. And of course the Roberts Court has been doing that more and more, right?

Nope, wrong, says Jonathan H. Adler at Volokh—and, of all things, the the NY Times is his source of information:

The problem with these characterizations of the court is that if by “judicial activism” one means a willingness to overturn precedents and invalidate federal laws, the Roberts Court is the least activist court of the post-war period. As a recent NYT analysis showed, thus far the Roberts Court has overturned prior precedents and invalidates federal at a significantly lower rate than its predecessors. Further, many of the Court’s most “activist” decisions, so-defined, have moved the law in a more liberal direction (see, e.g., Boumediene, Kennedy v.Louisiana) or were broadly supported First Amendment decisions (e.g. Stevens). This does not mean the Roberts Court’s decisions are correct and there are exceptions to every rule. Nor does the court’s past conduct necessarily predict the future. It does, however, mean that when one looks at the Court’s overall behavior (and not at a single case) it is inaccurate to say that this Court is particularly “activist” in moving the law in a conservative direction by overturning precedents and invalidating federal laws.

But people such as James Fallows, for example, don’t like to let the facts get in the way of a good argument.

The BBC criticizes itself

The New Neo Posted on by

At least a little, anyway.

I’m not sure whether this signifies a thing, really. It may just be a tiny bit of window dressing. But nevertheless:

The BBC’s coverage of the Arab Spring has been heavily criticised ”“ by the corporation’s bosses.
Head of news Helen Boaden admitted that her journalists got carried away with events and produced ”˜over-excited’ reports.

She told a BBC Trust report that in Libya, where reporters were ”˜embedded’ with rebels, they may have failed to explore both sides of the story properly.

Middle East editor Jeremy Bowen was among those criticised in the study into coverage of the uprisings, which found that ”˜excitement’ did sometimes ”˜infect’ the reporting, which some viewers described as ”˜too emotive’ and ”˜veering into opinion’.

Ya think?

The head of the BBC since 2004 has been Mark Thompson, who does seem a mite to the right of the usual—or at least, less aggressively and determinately to the left:

September 2010 Thompson acknowledged some of the BBC’s previous political bias he had witnessed early in his career. He stated: “In the BBC I joined 30 years ago there was, in much of current affairs, in terms of people’s personal politics, which were quite vocal, a massive bias to the left”. He added: “the organisation did struggle then with impartiality”, though also suggested that there was now “much less overt tribalism.”

That doesn’t mean that BBC coverage is now fair. But it does mean (perhaps; those who watch the BBC can comment more knowledgeably on this than I can) that there is an effort being made to not demonstrate quite as overt a leftist bias as before. For example, on Israel, Thompson must be doing something right if he’s garnering this sort of criticism. Remember as you read this that Britain and Europe are far more anti-Israel than anyone except the far left (and neo-Nazis) in the US:

A number of commentators have suggested that Thompson has a pro-Israeli editorial stance, particularly since he supported the controversial decision by the BBC not to broadcast the DEC Gaza appeal in January 2009. Complaints to the BBC, numbering nearly 16,000, about the decision were directed to a statement by Thompson.

Journalist Yvonne Ridley* wrote in CounterPunch that “D-G Mark Thompson might not care much for the BBC’s reputation but he should have a duty of care to his staff because it looks as if his pro-Israel stance is now endangering the safety of his own news teams, many of whom find his views repugnant in any case” and with respect to his 2005 meeting with Ariel Sharon, wrote “Never before had any BBC Director-General embarked on such a meeting and references to it are removed continually from Thompson’s biography on Wikipedia, an indication of just how sensitive the whole event remains.” Tam Dean Burn wrote in The Herald (Glasgow) “I would argue that this bias has moved on apace since Thompson went to Israel in 2005 and signed a deal with prime minister Ariel Sharon on the BBC’s coverage of the conflict.” Journalist Muhammad Idrees Ahmad wrote in CounterPunch that “the BBC’s director general Mark Thompson can hardly be described as a disinterested party: in 2005 he made a trip to Jerusalem where he met with Ariel Sharon in what was seen in Israel as an attempt to ‘build bridges’ and ‘a “softening” to the corporation’s unofficial editorial line on the Middle East.

* For those who can’t quite recall Ms. Ridley’s impressive (and I don’t mean that in a good way) bio, here it is:

Yvonne Ridley…is a British journalist, war correspondent and Respect Party activist best known for her capture by the Taliban and subsequent conversion to Islam after release, her outspoken opposition to Zionism, and her criticism of Western media portrayals of the War on Terror. Ridley currently works for Press TV, the Iranian-funded English language news channel.

RIP, Nora Ephron

The New Neo Posted on by

The news that Nora Ephron has died at 71 took me by surprise. I had no idea she was even ill, but it was more than that—she was just so funny (which is a stupid thing to say, I know, because of course the comic can’t cheat death any more than any other human being can).

Ephron’s essays were usually laugh-out-loud funny, and of course her script for “When Harry Met Sally” is justly admired. But my favorite works of hers were I Feel Bad About My Neck and Heartburn, the book in which she transformed the base metal of marital betrayal by husband Carl Bernstein of Watergate fame into the gold of a screamingly funny bestseller (and then a much-inferior movie with Meryl Streep). Bernstein learned, almost certainly to his dismay, that there can be consequences for breaking your marital vows to a writer. And perhaps Ephron got the last laugh on Bernstein’s paramour, Margaret Ann Jay, Baroness Jay of Paddington (yes, her real name), when that lady’s husband ended up having an affair and fathering a child with the Jay’s babysitter.

But where was I? Ah, yes, Ephron. Here she is, talking about the process of getting older, and about writing:

Scalia the ranting old man

The New Neo Posted on by

In yesterday’s SCOTUS decision in Arizona v. US, something about Justice Scalia’s dissent seems to have outraged quite a few commentators, including law professor Paul Campos, who wrote a piece in Salon entitled “Antonin Scalia, Ranting Old Man.”

At 76, I’m not sure Scalia qualifies as definitively “old,” at least not in SCOTUS terms. And although he may not be climbing Mt. Everest, he seems to still have his wits about him. Not according to Campos, though:

Scalia, who 25 years ago had a certain gift for pointing out the blindness and hypocrisy of certain versions of limousine liberalism, has in his old age become an increasingly intolerant and intolerable blowhard: a pompous celebrant of his own virtue and rectitude, a purveyor of intemperate jeremiads against the degeneracy of the age, and now an author of hysterical diatribes against foreign invaders, who threaten all that is holy.

What is the passage Campos gives to illustrate this intolerant, pompous, intemperate, hysterical jeremiad against the foreign invaders threatening all that’s holy? This:

As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. Thousands of Arizona’s estimated 400,000 illegal immigrants ”” including not just children but men and women under 30 ”” are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.

Now, a person may certainly validly disagree with those sentiments or with Scalia’s opinions in general. A person may think that such remarks have no place in a legal opinion written by a Supreme Court Justice. But it’s really really really difficult to see them as meeting Campos’s description of Scalia as ranting and hysterical.

Puzzled, I turned to look at Scalia’s entire dissent (which runs about 20 pages long, beginning at page 30), assuming I’d find a lot more there to justify the criticism of Scalia. But the only other passage I could found in a quick reading that could even remotely be considered to be intemperate editorializing on Scalia’s part was on page 48, when he calls Congress’s allocation of funds for federal enforcement of immigration laws “inadequate” (keeping in mind, though, that the administration itself has said it lacks the resources to enforce federal laws on the matter) and refers to Obama’s targeting of that funding as “unwise.” That last word—unwise, as applied to Obama—is probably the most incendiary passage in Scalia’s entire dissent, and it hardly qualifies as a dreadful rant, even for usually sedate SCOTUS justices.

Although Scalia has never been what you might call sedate, he’s hardly the raving and decrepit old bigot depicted by his critics, who are doing a fair amount of ranting and raving themselves. Perhaps it’s pre-Obamacare-ruling jitters.

Climb every mountain, ford every stream?

The New Neo Posted on by

Tamae Watanabe, 73, has become the oldest woman to climb Mt. Everest. According to the article, this should be an inspiration to us all.

My hat is off to Watanabe, but it makes me a bit weary. Now it’s not enough that as we age we are required to look younger, courtesy of cosmetic and plastic surgery and the relentless drive towards visual perfection. Now we are required to contemplate undertaking feats of athletic prowess that would shame the young.

I do exercise, and hope to keep doing so. It makes me feel better. But many of my activities have injured me, sometimes badly. Swimming—which is supposed to be so relatively innocuous—led to about twelve years of disability and severe chronic pain, as well as lifelong milder pain and limitations. Ballet is notorious for injury, and I sustained quite a few when I was dancing (including and especially a bad back).

Even the elite athlete runs into trouble at any age, but perhaps especially as he/she gets older. A swimmer featured in the article, Dara Torres, who at 45 is still swimming at an Olympic level, has had her share:

Torres has had multiple surgeries, including an innovative procedure after the 2008 Olympics on her left knee to regenerate cartilage. Before that, she couldn’t walk without a limp, and the muscles in her leg were atrophying.

Could it be that for most people, old-fashioned moderation is the key in this, as it is in so many other things?

[NOTE: Re the title of this post—boy, is this a static scene:

I much prefer this:

Mark Steyn eviscerates Obama the memoirist

The New Neo Posted on by

Steyn writes:

In an inspired line of argument, Ben Smith of the website BuzzFeed suggests that the controversy over “Dreams From My Father” is the fault of conservatives who have “taken the self-portrait at face value.” We are so unlettered and hicky that we think a memoir is about stuff that actually happened rather than a literary jeu d’esprit playing with nuances of notions of assumptions of preconceptions of concoctions of invented baloney. And so we regard the first member of the Invented-American community to make it to the White House as a kinda weird development rather than an encouraging sign of how a new post-racial, post-gender, post-modern America is moving beyond the old straitjackets of black and white, male and female, gay and straight, real and hallucinatory.

Read the whole thing.

Supreme Court rules on Arizona and immigration

The New Neo Posted on by

SCOTUS handed down a couple of big decisions, but not the one we were all talking about—that wily old SCOTUS.

It will take a while for everyone to chew and digest today’s decisions, which are only appetizers compared to the HCR ruling coming down the pike, perhaps on Thursday. But here’s my quick reaction to one of them.

The Court’s decision in Arizona v. US can be summarized as follows: the federal government is boss in immigration law. If the federal government wants to ignore its own federal immigration laws and refuse to enforce them, a state can’t pass its own laws that are more stringent than the federal ones on the books. But the state can ask those suspected of crimes to produce papers showing they are citizens, although that’s only allowed because the federal government already “requires immigration officials to respond to status checks from local authorities.”

Here’s an example of exactly how the reasoning works:

Although federal law already makes it illegal for someone to be in the country without proper authorization, Section 3 of the Arizona statute also makes it a state crime, subject to additional fines and possible imprisonment. The Court held that this provision was preempted and cannot be enforced. The Court held that Congress has left no room for states to regulate in this field, even to implement the federal prohibition.

Makes perfect sense if the federal government was making any sense—that is, if it was enforcing its own laws. But it’s not, so Arizona is more or less powerless.

Each side is claiming victory, although I see this as somewhat more of a victory for the Obama side. However, it’s an odd one, since it leaves the provision the Obama forces most objected to intact, and it also (if people understand what’s being said here) could easily lead a person to conclude that the only way to change this and make the government enforce its own laws would be to change administrations in November.

Of course, the overarching reality is that it has become an overwhelming and practically impossible task to effectively enforce our immigration laws—and that although it would be nice to get some sort of clarity, where our laws are in line with our policy, all suggestions to do so are pretty wildly unpopular to one faction or another, either because they are too Draconian or too lenient.

[ADDENDUM: Reports are that the federal government will just pretty much ignore what Arizona does anyway:

…[P]olice [in Arizona] can immediately begin calling to check immigration status ”” but federal officials are likely to reject most of those calls.

Federal officials said they’ll still perform the checks as required by law but will respond only when someone has a felony conviction on his or her record. Absent that, ICE will tell the local police to release the person.

As I wrote above, Arizona is powerless to make the feds enforce their own laws if the feds don’t want to. And they don’t want to.]

Waiting for SCOTUS: and by the way…

The New Neo Posted on by

…for what it’s worth, I’m made uneasy by all the assumptions that SCOTUS will declare the individual mandate unconstitutional when it issues its ruling.

Maybe it’s just my tendency towards brooding, but even though I don’t usually make predictions I’ll go on record here as saying my gut feeling is that the Court will not strike down the mandate. Why? Because the Court is exceedingly reluctant to invalidate a major act of Congress, even one passed with such shenanigans and unsupported by the American people, and so it would require a very high burden of certainty that it’s unconstitutional before declaring it so.

However, my gut feeling is that, if SCOTUS does declare the mandate unconstitutional, it will be a very narrow ruling and the Court will not rule that the entire Act is unconstitutional.

If that narrow ruling occurs, the question is what will happen next. If the Democrats still controlled Congress, they could just go back and change the mandate to a tax. Voila!

But they don’t, and so they won’t. My gut feeling (boy, despite belonging to a person who doesn’t like to prognosticate, my gut is pretty active today) is that they will just lay low and hope to change it after the 2012 election, when they might take control of the legislature again, particularly if they campaign on this issue. I don’t think they will actually succeed in taking control of the House in 2012, but they might figure that at least they’ll have a new banner around which to rally the troops for November (restore Obamacare!), plus another cause: re-electing Obama so that he can appoint a couple more SCOTUS justices and finally get a Court that will cooperate fully with the liberal agenda.

[NOTE: And then there’s always court-packing.]

[ADDENDUM: Former SCOTUS law clerks, as well as InTrade, disagree with me. And the Wall Street Journal describes four possible ways the Court could go.

And in this article about why liberal prognosticators originally pooh-poohed the constitutionality problem, when author Peter Baker writes of decades of Court precedent “affirming Congress’s authority to regulate interstate commerce,” that’s a euphemism. Those precedents have not merely affirmed Congress’s authority to regulate interstate commerce, they have expanded it beyond all recognition, beginning with Wickard v. Filburn in 1942, as I wrote in this PJ article.]