The Wall Street Journal editorial page praised another bitterly split Supreme Court decision in which the conservative justices reached beyond the questions presented to further limit injured consumers' access to justice.
The Court released its decision in Comcast v. Behrend as the historic marriage equality cases were being argued on March 26 and 27, poor timing that resulted in the media largely overlooking the case. Nonetheless, the decision is a significant one and the case is already being described as a sequel to Wal-Mart v. Dukes, another 5-4 decision in which the conservative justices significantly restricted plaintiffs' power to hold corporations accountable for wrongdoing. From the WSJ editorial:
The other news at the Supreme Court on Wednesday was another big defeat for the trial bar. The Justices put a stop to the latest attempt to revive huge legal paydays by ruling 5-4 to reaffirm their requirements for certifying a class action.
In Comcast v. Behrend, the Justices ruled that in order for a class of plaintiffs to be certified they must demonstrate adequate commonality of harm. While the plaintiffs claimed the cable company's monopoly had let it improperly raise prices, the complaints drifted among four disparate theories of liability, with a wide array of potential plaintiffs.
The Comcast and Whirlpool [v. Glazer] cases have made it this far because both the Third and Sixth Circuit Courts of Appeal ignored the Supreme Court's 2011 decision in Wal-Mart v. Dukes that set serious limits on class actions. The current Court has taken much-needed steps to rationalize class certification, and the Justices should make it clear they expect other federal courts to honor the precedents. They should keep taking cases and overturning heedless junior courts until they get the message.
As advocates prepare for oral arguments in the challenge to California's Proposition 8 and the federal Defense of Marriage Act (DOMA), the right-wing media, typified by The Wall Street Journal, is wrongly pushing the idea that ruling in favor of same-sex couples would lead to the problems they claim resulted from the Court's Roe v. Wade decision, which struck down laws banning abortions.
Perry v. Hollingsworth, which will be argued on March 26, is a challenge to a California constitutional provision that excludes same-sex couples from marriage. Windsor v. U.S., to be argued March 27, challenges a federal statute, Section 3 of DOMA, which denies married same-sex couples and their families protections and benefits provided to different-sex married couples under federal law.
Some in the right-wing media have taken this opportunity to push a parade of falsehoods about marriage equality. For example, after Sen. Rob Portman (R-OH) announced his support for marriage equality, which he attributed to having an out gay son, WND editor Joseph Farah wrote "I guess we should all be grateful Rob Portman's son didn't choose to become a polygamist or a serial killer." Fox News contributor Cal Thomas promoted the same myth that marriage equality leads to polygamy.
However, with support for marriage equality rapidly on the rise, this faulty logic is not likely to persuade a majority of Americans or of the justices. The right-wing media have pivoted to another scare tactic: if the Court strikes down democratically-enacted laws, then the country will have a political and cultural backlash similar to the one they say the Court unleashed in Roe v. Wade, which struck down abortion bans 40 years ago.
Radio host Rush Limbaugh attempted to draw this comparison between Roe and the gay marriage cases. On the March 25 edition of his radio show, Limbaugh claimed that the reason "abortion so roils our culture is that it hasn't been democratically decided. The Supreme Court, nine people in black robes just decided one day that abortion is in the Constitution, and that has led to constant acrimony."
Former federal Judge Michael McConnell invoked a similar argument when he wrote in an op-ed for The Wall Street Journal:
We learned from Roe v. Wade that the Supreme Court endangers its own legitimacy and exacerbates social conflict when it seeks to resolve moral-legal questions on which the country is deeply divided without a strong basis in the text of the Constitution. The court sometimes intervenes when the legislatures of the 50 states are approaching a consensus. When it jumps into a live political controversy, the justices look like they are acting like legislators.
A March 25 Wall Street Journal editorial states that "the two cases before the High Court are less about the institution of marriage than the sanctity of democratic institutions and the proper role of the courts." It warns against the Justices interrupting "the give-and-take on contentious moral and social issues the Constitution is designed to encourage." It compares this possibility to abortion:
The Supreme Court does not have a good record legislating cultural change. A ruling on behalf of same-sex marriage could enshrine Hollingsworth and Windsor with Roe v. Wade, the 1973 abortion decision that imposed a judicial diktat even as laws in many states were liberalizing. Instead of finding a rough consensus inside the political mainstream, abortion became an all-or-nothing combat that still rages.
This characterization of abortion laws 40 years ago is flatly inaccurate. As Linda Greenhouse, a veteran Supreme Court writer and lecturer at Yale Law School, and Yale Law Professor Reva Siegel wrote,
Before Roe, despite broad popular support, liberalization of abortion law had all but come to a halt in the face of concerted opposition by a Catholic-led minority. It was, in other words, decidedly not the case that abortion reform was on an inevitable march forward if only the Supreme Court had stayed its hand.
After Roe: The entanglement of abortion in party realignment explains how, over time, Republicans and Democrats came to switch position on the abortion issue, leaders before base, and assume their current polarized positions on abortion, an evolution that took nearly twenty years after the Court handed down Roe. Our paper argues that when you line up the evidence, political realignment better explains the timing and shape of political polarization around abortion than does a court-centered story of backlash.
To the question of whether one can avoid conflict over such issues by avoiding courts, the answer from an accurate pre-history of Roe v. Wade is: no. The abortion conflict escalated before the Supreme Court ruled.
And because a strong majority of Americans believes that Roe should not be overturned, Roe might not be a particularly persuasive cautionary tale.
The Wall Street Journal has a long record of hostility toward the regulatory authority of the Environmental Protection Agency (EPA), but its editorial board recently praised the Supreme Court's near-unanimous decision upholding EPA action in Decker v. Northwest Environmental Defense Center.
In Decker, environmental groups challenged the EPA's interpretation of its rules that regulate the proper permitting of storm water runoff, pursuant to the Clean Air Act. According to the EPA, its regulations had never intended to require logging companies to secure federal permits for the runoff from logging roads. While the case was under consideration by the Supreme Court, the EPA issued new regulations re-confirming this interpretation and exemption practice. The Court decided in a 7-1 decision, with conservative Justice Antonin Scalia dissenting, that well-established administrative law required deference to the EPA's position.
In an editorial titled "Supreme Liberal Washout: The Justices unite against the trial bar and overzealous greens" the WSJ editorial board championed the decision and the EPA. This is a stark change for the WSJ, which is typically incessantly defamatory toward the EPA's actions and legitimacy as "a politically driven bureaucracy that wants to impose by illegal diktat" environmental law. In January, the WSJ editorial board informed its readers that the EPA's interpretation of its authority in regulating storm water was so bad that "[i]f Washington gave awards for creative regulatory overreach, the Environmental Protection Agency would sweep the field." Nevertheless, in the Decker case, the WSJ applauded the EPA's judgment and the Court's opinion.
The Wall Street Journal criticized the health care reform law for limiting government subsidies that fund private health insurance for seniors -- a key aspect of the Medicare Advantage program -- while ignoring the program's failure to contain health care costs. The Journal has repeatedly called for entitlement cuts yet remains a stalwart defender of Medicare Advantage, despite the fact that economists argue that the program is inefficient.
Medicare Advantage, created in 2003, offers seniors access to private insurers that contract with Medicare to provide benefits. The government gives insurers subsidies for offering the same coverage seniors would receive under Medicare.
The Journal, which endorsed Medicare Advantage when it was founded in 2003, continued to defend the program despite the newspaper's frequent calls to contain government spending through entitlement cuts and other cuts, and despite its repeated attacks on the Obama administration's attempts at reducing government health care costs. From the Journal:
The cuts translate into lower benefits, higher premiums or both, and the liberal goal is to induce seniors and insurers to flee the program, much as Bill Clinton starved the Advantage forerunner known as Medicare+Choice in the 1990s. Yet for the past several years enrollment has climbed at an 8% to 10% clip annually, versus 3% for normal fee-for-service Medicare.
The Administration can't abide that Medicare Advantage is stealing customers from government control, while also exposing the failure of traditional Medicare's cost control. Medicare Advantage shows that more dynamic and efficient private alternatives can generate better health-care value than a room of wise men deciding how the government should pay for tens of thousands of services.
But Medicare Advantage has proven to be more costly for the federal government than Medicare. In an October 2012 New York Times Economix blog post, economist Dana Goldman explained that while Medicaid Advantage offers some savings for seniors when compared to Medicare, it costs the federal government much more than Medicare:
Similarly, a Washington Post Wonkblog post noted that since its inception in 2004, Medicare Advantage has been paying private insurers more than Medicare has had to pay for its beneficiaries. The post provided the below graph:
Health care reform attempted to reduce this cost disparity by reducing the government's excessive payments to private insurers participating in Medicare Advantage and rewarding insurers who earn high performance ratings. The Commonwealth Fund, citing the Congressional Budget Office, found that health care reform will bring the cost of Medicare Advantage down and save $132 billion over 10 years. And Factcheck.org noted that changes to Medicare Advantage would not result in its enrollees receiving fewer benefits than Medicare enrollees.
The Wall Street Journal is joining the right-wing campaign against President Obama's nominee for Secretary of Labor, Assistant Attorney General for Civil Rights Thomas Perez, by uncritically pushing the unsubstantiated claim that Perez improperly colluded with the City of St. Paul, Minnesota, to withdraw a Supreme Court civil rights case.
In reporting on President Obama's official nomination of Perez to head the Department of Labor, the WSJ repeated the claim that Perez inappropriately interfered with Magner v. Gallagher, a Supreme Court civil rights case that could have provided the conservative justices with an opportunity to strike down decades of civil rights precedent. Specifically, although the City of St. Paul has clearly stated it withdrew Magner v. Gallagher because it feared a split Court might use it to strike down the established practice of proving discrimination by showing the racial effects of challenged policies - "disparate impact" litigation - the WSJ uncritically repeated the allegation that Perez was improperly involved. From the WSJ:
The nomination of Mr. Perez as labor secretary comes as some congressional Republicans have raised questions about his alleged involvement in the Justice Department's decision to stay out of two lawsuits against St. Paul, Minn., in which private plaintiffs alleged the city defrauded the U.S. in its use of housing funds.
Republicans have questioned whether the Justice Department stayed out of those cases in exchange for St. Paul dropping an appeal pending at the Supreme Court in a case that civil-rights advocates had feared would undercut enforcement of U.S. housing-discrimination law.
President Obama has nominated Thomas E. Perez as Secretary of Labor. Right-wing media used this announcement to push false attacks about Perez based on his service in the Justice Department's Civil Rights Division and other civil rights work and advocacy.
Wall Street Journal columnist Peggy Noonan attempted to join other right-wing media in attacking a New Republic article on Republican nullification efforts, but failed to address the article's main points in her rebuttal.
Noonan skips over the substance of the article to instead misrepresent the controversy around photo voter IDs and ignores the fact that rejections of federal authority through an appeal to "states' rights" are now commonplace in the Republican Party. This increase in attempts at nullification extend from unconstitutional state laws to filibusters of President Obama's nominees.
The article Noonan criticizes, "Why The GOP Is And Will Continue To Be The Party Of White People" by Sam Tanenhaus, argues that the Republican Party has built itself on the myth that states can lawfully resist federal laws with which they disagree. Rather than engage the theory - a concept that originated with John Calhoun's resistance to anti-slavery efforts - Noonan dismisses the argument because she never hears this 19th-century originator of nullification mentioned by name in conservative circles.
Instead, Noonan completely mischaracterizes the recent Republican push for government-issued photo voter ID, which is one of Tanenhaus' examples of the GOP's embrace of nullification. Contrary to Noonan's description, which explains that "vote rigging is part of our history" and "vote fraud happens," these laws are redundant and unnecessary layers of additional identification for a problem of in-person voter impersonation that is virtually non-existent.
A Wall Street Journal editorial used a little noticed Supreme Court decision on wiretapping to attack the liberal justices for engaging in an imagined "liberal legal war against U.S. antiterror policy," while ignoring how the decision could further shut out plaintiffs from litigating against more powerful defendants.
The case, Clapper v. Amnesty International, involved a constitutional challenge to the U.S. Government's secret global wiretapping under the Foreign Intelligence Surveillance Act and the Protect America Act. This legislation, broadened as part of the past two administration's counterterrorism efforts, now enables warrantless surveillance of American citizens participating in international communications with a person of interest. However, the challenge never made it to the constitutional merits of these laws.
Instead, the courts focused on whether the collection of lawyers and journalists who worked on topics of interest to the government's counterterrorism efforts were sufficiently affected - whether they had legal "standing" - to challenge the law. From the WSJ explanation of the ensuing ideologically split opinion in which the five conservative Justices prevailed:
The liberal legal war against U.S. antiterror policy continues, most of the time out of public sight. But on Tuesday Americans were able to see how small their margin of safety really is as a narrow majority of five Supreme Court Justices rejected an especially outrageous attempt to challenge wiretapping of foreign terrorists.
In Clapper v. Amnesty International, anti-antiterror journalists and activists claimed they had legal standing to sue the U.S. government to stop the surveillance of foreign terrorists. Though they aren't the intended targets of such wiretaps, and explicitly cannot be under the language of the law, the activists claim they are nonetheless harmed because they might communicate with foreigners who are targets and so be overheard.
This isn't even a close call, as Justice Samuel Alito explained for the majority. The Supreme Court's traditional standard is that a plaintiff must show evidence of actual harm or at least that the "threatened injury must be certainly impending to constitute injury in fact." Yet the plaintiffs in this case can't even show evidence that their communications have been overheard, much less that they were harmed.
A Wall Street Journal editorial blamed the federal government for an increase in student loan debt, ignoring higher levels of college enrollment and the effects of the economic downturn.
The Journal attributed an increase in student loan debt since 2008 to the "federal student-loan explosion" following the passage of the Affordable Care Act in 2010, which replaced government subsidies to private lenders with direct loans to students from the Department of Education. The Journal cited Federal Reserve Bank of New York data to claim the high levels of debt prove this new system has created "systemic risk":
The federal student-loan explosion means that this is the one giant exception to the needed consumer deleveraging that has occurred since the financial crisis. Americans have reduced their borrowing in most consumer markets. But U.S. student-loan debt increased 11% last year to $966 billion and has skyrocketed 51% since 2008, according to the New York Fed report. According to the Wall Street Journal, 43% of 25-year-olds had student debt in the fourth quarter of 2012, up from about 33% in the same period of 2008.
Talk about creating systemic risk.
But the Federal Reserve Bank of New York data that the Journal cites reveals that total student loan debt has steadily increased since 2005, years before the passage of the Affordable Care Act. The Federal Reserve attributed this upward trend in student loan debt to increased college enrollments and higher tuition rates.
The Wall Street Journal ran an editorial praising the right-wing effort to gut the Voting Rights Act in Shelby County v. Holder and focused on the claim of Chief Justice John Roberts that Mississippi has the best African-American voter participation in the country. But the editors' claim that such turnout is evidence that Section 5 of the Voting Rights Act is no longer necessary is directly refuted by Mississippi itself.
Section 5 of the Voting Rights Act requires certain jurisdictions with a past and present history of voter suppression on the basis of race or language to submit election changes for federal review before enactment. Although the historic law overall prohibits racial discrimination in election practices across the country, Section 5's power to stop proposed voter suppression before it goes into effect originally focused on the worst offenders, since updated to reflect recent evidence of disenfranchisement. As a member of the Old Confederacy with a sordid Jim Crow history, Mississippi is one of those bad actors.
Nevertheless, ignoring the fact that jurisdictions can choose to "bail-out" of Section 5 if they prove they no longer discriminate against voters of color, the WSJ editors held up Mississippi as a bizarre example of how the best way to "honor American racial progress" is to strike down the heart of the Voting Rights Act:
Is the American South--and for that matter the South Bronx--still so uniquely racist that it requires special supervision by the federal government over its election laws? That's the nub of the Supreme Court case that, judging by Wednesday's oral argument, could be another watershed in the American march toward racial equality.
[W]hy should Mississippi be treated differently than Massachusetts if its practices show better racial outcomes? Chief Justice John Roberts made this point forcefully Wednesday when he asked Solicitor General Donald Verrilli: "Do you know which state has the worst ratio of white voter turnout to African American voter turnout?"
Mr. Verrilli: "I do not."
Chief Justice Roberts: "Massachusetts. Do you know what has the best, where African American turnout actually exceeds white turnout? Mississippi."
The Wall Street Journal published an op-ed on the Voting Rights Act by Edward Blum, founder of the in-house legal project of the right-wing's Donors Trust, but failed to disclose his ties to the Supreme Court's VRA case, Shelby County v. Holder. The op-ed, which identifies Blum as a fellow at the conservative American Enterprise Institute and director of the Donors Trust-supported Project on Fair Representation, recycles misinformation about the challenge that has been extensively and widely debunked.
China is reportedly set to impose a modest carbon tax, as well as effectively increase taxes on its coal industry. As the world's largest emitter of greenhouse gases continues to take steps to curb climate change, the oft-repeated conservative argument that the U.S. can't act until China does becomes increasingly tenuous.
In 2011, the International Energy Agency warned that unless dramatic action is taken by 2017, it will be effectively impossible to meet the international commitment to limit warming to 2 degrees Celsius (3.6°F) -- a goal that many nations said still would not be enough to guarantee their survival. Experts say that the longer we delay, the more it will cost to reach the target. In light of this, arguing that we can't work to reduce the greenhouse gas emissions until other nations agree to do the same could be seen as immoral.
But in recent years, it's also become nearly counterfactual: China has been taking steps, including investing more in clean energy than the U.S. and creating a long-term, comprehensive plan for expanding its renewable energy industries. Now this developing nation is set to put a price on carbon -- a move that most economists from across the ideological spectrum agree is one of the best ways to reduce carbon dioxide emissions (along with cap-and-trade). Yet the U.S. -- a much wealthier nation -- is no closer to making such a move.
It is true that China will play a critical role in whether we are able to limit catastrophic climate change. In 2007, China overtook the U.S. as the largest contributor to global carbon emissions (although the U.S. still emits far more per person), and its emissions are expected to grow until at least 2030. If China goes through with plans to expand coal production, it will emit more carbon than any other planned energy project in the world. However, China has recently signaled that it will take steps to limit its coal consumption.
Right-wing media have been looking to anyone for talking points about the purported "unconstitutionality" of gun violence prevention. Frequent Wall Street Journal contributor David Rivkin Jr. recently took his turn in an op-ed, and his junior associate repeated the argument on a NRA news show. But Supreme Court precedent does not support their confused generalizations and multiple legal experts have explained how current proposals are constitutional under District of Columbia v. Heller.
Former Reagan and Bush I White House official Rivkin now publishes regular attacks on the Obama Administration in the editorial pages of The Wall Street Journal. Frequently debunked, even by other conservative media, his claims of President Obama's "lawlessness" now extend to the gun violence prevention measures under consideration in response to the Sandy Hook massacre.
In a recent WSJ op-ed with colleague Andrew Grossman, Rivkin called these attempts to prevent future violence uninformed and claimed: "what government cannot do is deny the individual interest in self-defense. As a legal matter, that debate is settled. The president and his allies seem to have missed the message[.]" Grossman then appeared on the NRA's televised news show, Cam & Company, to defend this misinformation about the Supreme Court's decision in Heller and misrepresent case law on exceptions to fundamental rights. On the show, Grossman claimed a renewed assault weapons ban and capacity limits for magazines were not permitted by Heller:
Conservative media voices have insisted that an increase of the federal minimum hourly wage from $7.25 to $9 would harm the economy. However, a wealth of economic evidence disputes the claims that minimum wage hikes are job killers, that the minimum wage is already high, and that it only applies to jobs held by relatively young workers.
The Wall Street Journal ignored key parts of Senator Marco Rubio's (R-FL) Senate record to promote him as "bipartisan" and in "pursuit of legislative harmony." In fact, Rubio has a history of obstructionism, voting against major bipartisan legislation, blocking nominations, and filibustering Democratic initiatives in the Senate.