Archive
Book Review: “Young Thurgood” by Larry S. Gibson – posted 4/12/2015
My friend Paul recommended this book and with good reason. Young Thurgood by law professor Larry S. Gibson is a very enjoyable and educational read based on extremely comprehensive research. Professor Gibson did a fantastic job of sleuthing to dig up stories and information. The book presents a vivid picture of the young Thurgood Marshall long before his tenure as a justice on the U.S. Supreme Court. It succeeds in showing the world in which Marshall grew up, a world in which vigilante justice sometimes competed against the rule of law. It shows how the young Marshall got his legal career off the ground.
Although it is not that long ago, the world of Marshall’s youth is insufficiently understood today. It was a world in which lynchings of black men had not been so unusual. Gibson points out that from 1890 to 1940, 5000 black Americans were lynched in the United States. Racism defined America and rigidly circumscribed the lives of all minorities.
Marshall grew up in Maryland. He personally experienced the world of vicious segregation. Gibson says that in the period from 1882 to 1930 Maryland ranked twenty-seventh out of the 48 states in the number of lynchings that occurred within its borders. 33 lynchings had occurred in Maryland.
I mention lynchings because the 1933 lynching of a black man named George Armwood figured in Marshall’s early career. He was fresh out of law school, 23 years old, and he and ten other black lawyers sought a meeting with Maryland’s governor to see what the governor planned to do about what happened to Armwood. Marshall became a lawyer one week before the Armwood lynching.
Until 1885, Maryland had restricted the practice of law to white males only. It was still a big deal that Marshall could become a lawyer. Gibson says only 60 African Americans had been lawyers in Maryland before Marshall was admitted to the Bar. It took a legal challenge to permit Black lawyers to practice as Bar members. Many jurisdictions allowed no Black lawyers.
Gibson includes the results of a survey conducted in 1928 about the status of Black lawyers in the South. The responses are eye-opening and racist as hell. Here is one from Taylor County, Fla.: “No Negro lawyer in this county now nor as ever been. A Negro lawyer would be as much out of place here as a snowball would be in Hades.”
Marshall pointedly challenged Governor Ritchie at their meeting about the Armwood lynching and asked: “Is there an investigation taking place in the state police department?” Governor Ritchie did not directly answer and the state response was the usual do-nothing. Gibson shows how Marshall aggressively pursued the anti-lynching effort. He joined the coalition effort to pass anti-lynching legislation, the Costigan-Wagner Bill, in Congress. He repeatedly wrote Maryland’s senator, Senator Tydings to push him to support the legislation.
Marshall researched prior lynchings and showed that most lynching victims were not, in fact, rape suspects. Debunking that stereotype, he showed that Blacks accused of minor offenses had typically been the ones brutally victimized. While no one was ever held accountable for Armwood’s lynching, Gibson states that Armwood was the last person ever to be lynched in Maryland. Marshall’s efforts and the anti-lynching coalition did have some positive effect although the Costigan-Wagner Bill went down to defeat in Congress because of a filibuster by Southern senators.
I don’t think Marshall would have been surprised by all the police shootings of young Black men in the 21st century. There is a direct line from his experience to what we see today.
There are many good stories in Young Thurgood. It was interesting to see the tension between his civil rights cases and his need to support himself. He went through periods of being absolutely financially desperate. To make ends meet, Marshall worked a night job at the Baltimore City Department of Health as a clinic clerk. He had to track sexually transmitted diseases. This was at the same time as he handled major civil rights cases, tort suits, divorces, and other legal matters. Marshall said, “Nobody cares which twenty-three hours in a day I work.”
Marshall was an extraordinarily hard worker. While at law school, he was always working when he wasn’t in class. He had been too poor to live in Washington DC where his law school, Howard University, was located. He lived in Baltimore and commuted to DC six days a week on the train. After getting up at 5am, he walked a mile to the B & O station on Mount Royal Avenue, He then had to walk to law school.
Gibson recounts the different jobs Marshall held including railroad waiter, assistant law school librarian, and waiter at a fancy country club resort. Marshall was very popular and socially adept in any setting. He had a very sunny and friendly disposition.
It turned out that Marshall’s winning personality and positive disposition served him well in many different contexts. Gibson describes Marshall this way:
“A gregarious person and a natural politician, Marshall enjoyed conversing with persons of all economic levels. As a lawyer he was diplomatic and collegial, disarming adversaries and defusing tense situations with personal charm and humor. Eight summers as a waiter had cultivated tact and skill in quickly assessing people and situations, and these interpersonal skills helped him greatly during his early career.”
Marshall had a remarkable talent of being reasonable with those who disagreed with him. Gibson says that ability flowed from his experience as a competitive debater in high school and college. He was a good listener. Gibson portrays Marshall as anything but a know-it-all. He said others described Marshall as “a sponge”, soaking up the ideas of those around him. He was pragmatic.
Gibson shows how Marshall was always ready to directly approach the people who had the most authority to address situations in which he was engaged. He famously had a relationship with J. Edgar Hoover. Marshall had a great sense of humor and that also helped him. There was one story Gibson told that I cannot pass on recounting.
“When Marshall met Great Britain’s Prince Edward, His Highness asked Marshall “Do you care to hear my opinion of lawyers?” to which Marshall reportedly responded with a smile, “Only if you care to hear my opinion of princes”.
The cases Marshall handled as a young lawyer were most impressive and varied. Gibson does a good job of getting into the cases and the challenges Marshall faced. In 1935, Marshall, on behalf of a Black student and Amherst College graduate, Donald Murray, filed suit against the University of Maryland School of Law, which at the time would not allow any Black students at the school. The case ultimately went to trial and Marshall prevailed on an equal protection basis. Marshall did all the work on appeal and he again won at the Maryland Court of Appeals.
The Murray case opened the door nationally to desegregation of schools and other government facilities. If his career with impact litigation ended there that would have still been huge but it was only the very beginning. Marshall had a long career litigating before he became a judge.
Marshall also was counsel on a case that addressed racial discrimination in school teacher pay for teachers in Maryland. Using his customary careful grasp of the facts, Marshall showed how on average Black teachers were paid 53.9% of what white teachers earned for doing the same work. Marshall filed four lawsuits around the issue, including one in federal court, and he again prevailed using equal protection.
The ruling in this case provided the foundation for teacher pay litigation throughout the South.
I am not doing justice to the breadth of cases described by Gibson. He shows Marshall’s losses as well as his wins. Gibson also does a good job of showing how Marshall emerged from a tradition of courageous and effective Black attorneys in Baltimore. Marshall had great mentors who modelled how to be an effective civil rights lawyer. Gibson singles out Charles Houston who played a critically helpful role in Marshall’s life. But there was also Everett Waring, W. Ashbie Hawkins and Warner T. McGuinn. Each deserves more than passing mention. Waring was the first African American to argue before the U.S. Supreme Court. He was also the first African American member of the Maryland Bar. He was admitted to the Maryland Bar in 1885.
In reading about Marshall, it is hard not to be impressed and inspired by what one man could do. His example is genuinely remarkable and warrants close study. Both as a lawyer and a judge, he is an outstanding role model. By any measure his accomplishments were staggering. I plan to write more about Marshall.
My friend Paul did not steer me wrong. Check out the book.
Militarism and Perpetual War as a Way of Life – posted 4/5/2015 and published in the Concord Monitor on 4/9/2015
New Hampshire is now beginning to experience that riveting and recurring ritual: the migration and influx of presidential candidates. All of us in the Granite State get the opportunity to see and question all those who are trying out for that most megalomaniacal of roles. Whether at house parties or at large events, we can usually get up close and personal with the candidates. This is so New Hampshire.
In assessing the potential 2016 field on both the Democratic and Republican side, I remain concerned about the narrowness of the policy options presented by both major parties. While we often focus on the difference between Democrats and Republicans, I submit the parties have too much in common. This is especially true when it comes to foreign policy and the view of America’s role in the world.
Both parties support an utterly bloated military budget. They agree the Pentagon needs much more money. President Obama thinks the Pentagon should get $534 billion in 2016. He asked for an additional $51 billion to pay for operations in the conflicts in Iraq, Syria, and Afghanistan. This represents a roughly $38 billion increase from the 2015 base budget. It does not include separate additional programs through the Department of Energy for nuclear weapons.
The Republicans support spending even more money on the military. Senator McCain was quoted favoring $17 billion beyond what President Obama requested. The Republicans have been arguing that America under Obama is “in retreat”. They suggest ramping up the war against ISIS with possible boots on the ground. They also contemplate attacking Iran. Not surprisingly, they also oppose the recent successful negotiations limiting the Iranian nuclear program.
Sums of money like $534 billion are almost incomprehensible to grasp but I think we need to look hard at what that money would be used for. Clearly on the menu is money for a permanent troop presence in Afghanistan, money for the war against ISIS, money for a possible ground war in Iraq, money for new F-35 combat aircraft and also new ballistic missile submarines.
As one military observer, William Hartung, has pointed out, all this money amounts to a huge Pentagon slush fund. We have no idea where much of it goes. How much goes for black ops and how much goes for total electronic surveillance of god knows who? How can that be compatible with democracy? Shouldn’t we know where all that money is going?
I think it is astonishing how all the hypervigilant, tightfisted House legislators on the Republican side can want to replace Medicare with a voucher-like private insurance option while being so cavalier about profligate military spending. Need a new weapon system? No problem.
The assumptions that underlie such out-of-control military spending deserve attention. America now appears to be accepting war all the time. Wars, for the most part, used to be time-limited. The War on Terror is not like that. It is forever and always. To quote New York Times reporter, James Risen:
“America has become accustomed to a permanent state of war. Only a small slice of society – including many poor and rural teenagers – fight and die, while a permanent national security elite rotates among senior government posts, contracting companies, think tanks and television commentary, opportunities that would disappear if America was suddenly at peace. To most of America, war has become not only tolerable but profitable and so there is no longer any great incentives to end it.”
In his book, Pay Any Price, Risen exposes how the old military-industrial complex that President Eisenhower warned about has evolved into what he calls the homeland security-industrial complex. This national security state, with an expansive view of the role of the military, has embraced the role of world policeman.
The quest is for total global military dominance. Whether via drones, Special Forces, manufactured proxy armies or the use of American troops, we apparently need to be ready to intervene in any hot spot in the world on a moment’s notice. No place is off limits. The web of over 700 military installations and bases we maintain around the globe allows for the possibility of force projection almost anywhere.
I am reminded of an old essay written almost 100 years ago by the writer Randolph Bourne. He wrote a piece entitled War is the Health of the State. To a disturbing degree our economy now depends on war. The livelihood of so many depends on producing and exporting arms and munitions. There are a massive constellation of roles related to our various military endeavors. As Risen points out, management consultants and academics make no money if they determine alleged threats are overblown.
We need to be asking how much is the desire for personal profit, status, and power driving our policy?
Risen argues, and I would agree, our homeland security-industrial complex needs scary enemies to justify the expenditure of ridiculous sums of money. If Americans can be scared out of their wits, mountains of money can be thrown at contractors who fight, to use the words of George W. Bush, “the evildoers”. That is essentially what we have done. We are a nation in search of an enemy.
This is an age-old story of greed and abuse of power. Those who stand to profit from endless war have a vested interest in the promotion and constant reinforcement of fear-mongering. The fact that there is some reality to the threat (ISIS) makes it harder to see our manipulation. No doubt ISIS is horrible but it is the responsibility of Arab nations in the region to fight that battle.
By essentially deregulating national security, we opened the door to privatization and outsourcing. Risen’s book is eye-opening about the outright theft of billions of dollars that the Bush Administration lavished on Iraq. It is a story that has not been told enough. We really do not know where a ton of money transported to Iraq by the Bush Administration disappeared to. Numerous contractors stuffed money away. Risen says that billions are still squirreled away in a bunker in Lebanon. If we still had enough investigative journalists, I would think they would be looking hard at that money trail.
Post 9/11 opportunists saw a chance to make a bundle as did all the policy intellectuals who supported the second Iraq War. Many of these same folks now support a ground war against ISIS. Considering their shameless track record, it is unbelievable that anyone would buy what they are selling as if the Iraq War was not enough. These policy intellectuals, our latest incarnation of the best and the brightest, will not be doing the dying if we are foolish enough to go along with their future war plans.
I hope New Hampshire citizens ask the presidential candidates hard questions about the growth of the homeland security-industrial complex. Questions like: what is an appropriate national security strategy? What are the genuine threats to us in the United States and what are not? When is diplomacy more appropriate than military intervention? What is the strategic role for addressing poverty and climate change? Are there other ways to oppose ISIS than the use of American troops? As I mentioned, how about the role and responsibility of other Arab countries to challenge ISIS?
A powerful argument can be made for a more modest, less expensive foreign policy based on an awareness of the limits of our power. I admit to a very dark view of the results of our frequently interventionist foreign policy over the last 50 years. Both parties seem oblivious to these awful results and blindly blunder forward.
Maybe the most positive thing that could be said is that we avoided a nuclear war with the Soviet Union during the Cold War. That could easily have happened with outcomes too catastrophic to contemplate.
We did not reap any peace dividend after the Soviet Union collapsed. The demise of the Russian threat almost seamlessly led to the War on Terror with new justifications for military spending.
In a short article, I cannot hope to catalogue all the bad things that came out of our interventions in Vietnam and the more recent Iraq War. If we were going to make a list, I would include: so many needless deaths, devastating injuries including blown off body parts, traumatic brain injuries and PTSD, Agent Orange, napalm, tiger cages, return of torture, warrantless wiretaps, rendition, and domestic surveillance of everyone. And that is right off the top.
Generally speaking, we have lowered the bar on good reasons to go to war.
Among the candidates, with the exception of Senator Bernie Sanders (not yet a candidate), no one is even talking about our excessive militarism. No one is asking if the growth of the homeland security-industrial complex poses any dangers for democracy. I do not see candidates saying caution is better than military adventurism.
Since my argument could be misunderstood or deliberately misconstrued, I did want to say that in no way am I criticizing our soldiers who have served honorably and bravely in Vietnam, Iraq, and other war zones. Their sacrifices have been noble. My argument is directed at the architects of policies and the opportunists who try and profit from war. Too often they have sent soldiers to die for no good reason.
As the custodians of the still important, first in the nation primary, let’s make our questions count. Maybe our questions and the candidates’ answers can make some news.
Denise Levertov – posted 3/28/2015
Americans have a too casual attitude toward war. It is often attributed to the fact no war has been fought on American soil for a very long time. Without first hand experience, Americans lack knowledge of the awfulness of war.
In my lifetime, the Vietnam war was the big war. It was a monument to pointlessness. More recently, we have had the Iraq War which started in 2003. That war was based on lies and falsehoods cooked up by the George W. Bush – Dick Cheney administration.
How many lives have been snuffed out or irreparably damaged by these stupid wars? The mind reels thinking about that. The numbers are vast.
Now we have war-mongering politicians talking about a new war with Iran, not to mention the war against the Islamic State. Have these politicians learned anything from our wars over the last 50 years (and I am leaving smaller wars out)? It would appear not. There is the same blindness, the same uncritical acquiesence and a new generation of young and innocent soldiers to be sacrificed to the gods of war.
But not everybody is so naive.
I first became aware of the poet Denise Levertov because of her opposition to the war in Vietnam. She was outspoken and a fierce critic of American intervention in Vietnam. Levertov’s husband at the time, Mitchell Goodman, was also an activist against the war. Levertov used to speak and read her poems at anti-Vietnam war rallies. I saw her do that. I also saw her read when she visited my old school, Trinity College, in Hartford, Ct. in the early 1970’s.
I thought of Levertov when I was reading Seymour Hersh’s new article in the March 30, 2015 New Yorker about his return visit to My Lai, the scene of the most famous Vietnam massacre. Levertov did see the horror. She did not sugarcoat or lie or look away as was all too common. She would have appreciated Hersh’s piece.
Reading Hersh, I was struck by the lack of American reckoning and remorse for the crimes committed. As Hersh reported, American troops cold-bloodedly murdered 504 victims from 247 families. Among the dead were 182 women. American troops executed 173 children including 56 infants. Although an army jury convicted Lieutenant William Calley of mass murder and sentenced him to life and hard labor, President Nixon intervened and Calley was released from jail. Three months after Nixon left office, Calley was freed altogether. As Hersh points out, he was the only officer ever convicted for his role in the My Lai massacre. Where was the American price paid for this enormous atrocity?
While Levertov is much more than an anti-war poet, I wanted to recognize her for courageous and honorable opposition to the war. She used her poetry to speak out. Poets are ignored in America but I would ask where are the poets now? Where are the Denise Levertovs’ of our day? Our society is lacking moral compass.
To honor and remember Levertov, I wanted to print two of her poems.
What Were They Like? by Denise Levertov
Did the people of Vietnam
use lanterns of stone?
Did they hold ceremonies
to reverence the opening of buds?
Were they inclined to quiet laughter?
Did they use bone and ivory,
jade and silver, for ornament?
Had they an epic poem?
Did they distinguish between speech and singing?
Sir, their light hearts turned to stone.
It is not remembered whether in gardens
stone gardens illumined pleasant ways.
Perhaps they gathered once to delight in blossom,
but after their children were killed
there were no more buds.
Sir, laughter is bitter to the burned mouth.
A dream ago, perhaps. Ornament is for joy.
All the bones were charred.
it is not remembered. Remember,
most were peasants; their life
was in rice and bamboo.
When peaceful clouds were reflected in the paddies
and the water buffalo stepped surely along terraces,
maybe fathers told their sons old tales.
When bombs smashed those mirrors
there was time only to scream.
There is an echo yet
of their speech which was like a song.
It was reported their singing resembled
the flight of moths in moonlight,
Who can say? It is silent now.
Living by Denise Levertov
The fire in leaf and grass
so green it seems
each summer the last summer
The wind blowing, the leaves
shivering in the sun,
each day the last day
A red salamander
so cold and so
easy to catch, dreamily
moves his delicate feet
and long tail. I hold
my hand open for him to go.
Each minute the last minute.
Danny Schechter, Your News Dissector (1942-2015)
I had not planned to write anything this weekend but I could not ignore the death of Danny Schechter, the News Dissector. I lived in Boston during the 1970’s. Danny’s voice on Boston’s progressive rock station WBCN was absolutely unique. He was a most trusted journalist who had a very wide following that was entirely different from the relationship most journalists have with their audience. He was part of the movement for social change and he chronicled events from a decidedly partisan perspective. Boston had a very vibrant alternative culture scene. I also think of the Real Paper and the Boston Phoenix of that era. That news was not homogenized, shallow or phony. Danny always made it lively.
I know Danny had a very successful career in media including working on 20/20 after his Boston period but I will always remember his great reporting at WBCN. This was before BCN went over to all hard rock all the time.
I saw two quotes that I wanted to share about Danny. The first is from Noam Chomsky and the second is from Danny himself. Danny will be missed.
“No one who was in Boston during the days of “Danny Schechter Your News Dissector” can ever forget the exhilaration of those marvelous broadcasts, their enlightenment and insight and humor, often in dark days, a legacy that Danny left behind him when he went on to a remarkable career of critical analysis and breaking through media and doctrinal barriers.” Noam Chomsky
“All I seem to have these days is this keyboard to crank out more condemnations and calls to action, knowing full well, as I do it, that I don’t know what else to do. I am compelled to make media, compelled to do what I can, thinking modestly that perhaps somewhere, in hearts I don’t know, words or images can still stir souls to rise.” Danny Schechter
Raising the Minimum Wage is a Blow Against Economic Inequality – posted 3/15/2015 and published in the Concord Monitor on 3/21/2015
The Republican-led Legislature in New Hampshire just killed all bills introduced this session aimed at raising the state’s minimum wage. Both the New Hampshire Senate and the House voted against a minimum wage increase. The bill sponsored by Senator Donna Soucy of Manchester would have raised the state’s minimum wage from $7.25 an hour to $8.25 an hour. It also included a further increase up to $10.00 an hour by 2018.
While the actions of the legislators were not surprising, I find the Legislature’s failure to raise the minimum wage reflected a callous disregard for the needs of low wage workers. In 2015, $7.25 an hour is not remotely survivable. There is a sad cluelessness about these votes and an inability to see that stagnant wages, including at the minimum wage level, are hurting our state and nation.
The arguments that have been raised against a minimum wage increase are stale, ahistorical, and not supported by persuasive evidence. They are exactly the same arguments opponents have been making for the last fifteen years. They were made by opponents before the minimum wage was raised to $7.25. I know because earlier in my life, when I worked as a lobbyist for New Hampshire Legal Assistance, I had worked on the issue.
There is nothing new here. Opponents always argue that a minimum wage increase will hurt business, especially small business. They assert, without strong evidence, that there will be job losses. They say that the way to help minimum wage workers is to lift up the economy generally. Supposedly, some gains will trickle down although how that will happen is never clearly spelled out.
We are supposed to ignore the reality that other states in New England have already raised their minimum wage and the sky did not fall.
The minimum wage in Massachusetts is $9.00 an hour. In Vermont and Connecticut, it is $9.15 an hour. Vermont has also approved legislation which increases the minimum to $9.60 in 2016, $10.00 in 2017 and $10.50 in 2018.
These other New England states still appear to be open for business. I have seen no reports of their imminent economic demise.
Since 2014, Connecticut, Delaware, Hawaii, Maryland, Michigan, Minnesota, West Virginia and the District of Columbia have all passed minimum wage increases. A 2013 law will increase California’s minimum wage to $10.00 by 2016.
Seattle and San Francisco are phasing in $15.00 an hour and Chicago is rising to $13.00. Los Angeles is raising the city’s minimum to $13.25 over 3 years.
There will always be Chicken Littles predicting doom. Chicken Littles do not bother to explain how the minimum wage can be raised dramatically in other locations without all the predicted dire consequences.
The biggest problem I have with the arguments against raising the minimum wage is their lack of context. Opponents do not situate the minimum wage issue inside the context of our increasing economic inequality. Minimum wage workers have been losing for a long time now. They are a grim part of the picture of the rich getting richer and the poor getting poorer.
Since I think context matters, let me outline how I see the minimum wage fitting into the bigger picture. Since 1979, the wages for the vast majority of American workers, including minimum wage workers, have either stagnated or declined. At the same time, wealth of the upper one percent has skyrocketed. The one percenters have claimed a larger and larger share of the economic pie. Consider that the average CEO makes 774 times more than a minimum wage worker and 331 times more than an average worker.
Over the last 35 years, that ratio has gotten more and more extreme.
I think wage stagnation has fueled our economic inequality and minimum wage workers are a prime example. When the minimum wage does not increase for an extended period, its inflation-adjusted value erodes. It has been estimated that since 1968 the minimum wage has lost more than 40 % of its value to inflation. If it had kept pace with inflation, the minimum wage would now be around $10.38 an hour.
Taking no steps to raise the minimum wage guarantees a continuation and exacerbation of economic inequality. Workers need added income just to keep up with the costs of rent, food, heat, child care and higher education to name some typical expenses.
I would acknowledge there are more complexities than I am addressing but I stand by my argument for higher wages. Mass purchasing power can contribute to a healthier economy. Our lopsided distribution of wealth actually restricts markets.
As presidential candidates start popping up in New Hampshire like spring flowers (or weeds), they all need to be asked where they stand on the minimum wage. They also should be asked about the stagnation and decline of wages which have been central to our economic inequality.
A 2014 poll conducted by Hart Research Associates shows that 75% of Americans – including 53% of Republicans – support an increase in the federal minimum wage to $12.50 by 2020. 63% of Americans supported an even greater increase in the minimum wage to $15.00 by 2020. Gary Molyneux of Hart Research had this to say about the poll:
“The findings here are very clear: Americans, regardless of region, socioeconomic status or demographic distinction, strongly favor a very significant increase in the federal minimum wage.”
In spite of our Legislature’s short-sighted action, you can count on this issue returning.
Reauthorization and Beyond: The Medicaid Expansion Must Continue – posted 3/8/2015 and published in the Concord Monitor on 3/15/2015
When the New Hampshire Legislature passed the Medicaid expansion in 2014, there was one noteworthy wrinkle. The very creative Medicaid expansion plan had a sunset provision which meant it must be reauthorized by our new Legislature.That reauthorization, as part of the general budget discussion, is under review by legislators now.
Let’s be clear about what the Medicaid expansion has done. It uses available federal funds to offer health coverage to lower-income adults up to 138 percent of the federal poverty level. So far it has attracted 36,404 new recipients to the Medicaid rolls in New Hampshire. It is expected an additional 25,000 will enroll over the next six years, assuming the Medicaid expansion is reauthorized.
Overwhelmingly, the new enrollees are from low income working families. These are exactly the people who had been uninsured prior to the legislation because they could not afford the cost of health insurance. That lack of affordability is the major reason why so many do not have insurance.
New Hampshire must now consider whether the program will continue or whether it will throw thousands off the insurance they have newly obtained. Early program results have been promising. The New Hampshire Hospital Association just released a study showing that in 2014 there was a 17% reduction in the number of emergency room patients without insurance compared to 2013.
Failure to reauthorize would be the kiss of death for health insurance for these many thousands of newly insured. It is hard to estimate the damage if the Medicaid expansion goes away but I think it would be huge.
Realistically, there is no likelihood a Republican-led legislature would be crafting any alternative health insurance plan in 2015-2016 to insure low and moderate income New Hampshire citizens. Based on the available evidence, snow is more likely in July.
One oddity of the national debate around Medicaid expansion has been the emergence of the perspective that it is fine to be uninsured. Former Texas Governor Rick Perry has best articulated this position. With 22% of its residents uninsured, Texas holds the brutal distinction of having the highest rate of uninsured people in the country. In February, Republican presidential candidate Perry, on a campaign swing in New Hampshire, was quoted, saying:
“Texas has been criticized for having a large number of uninsured. But that’s what Texans wanted. They did not want a large government program forcing everyone to purchase insurance.”
I could be wrong but I do not believe any other major politician has spoken up for the alleged value of being uninsured. Perry is the first to brag about it like it is a golden badge to wear proudly. In Texas, Perry and his brand of extreme conservatives have denied 1.5 million low income people the chance to be insured. This is the estimated number of low income people in Texas who would benefit from a Medicaid expansion.
Only in the United States is there a serious debate about the value of insurance coverage for protecting health. That debate has been long settled in all other advanced industrial countries. All recognize the importance of being insured. Not to recognize that is almost the equivalent of being a flat earther.
So how is it that some have come to devalue having health insurance? Cynically, I think many of those who do the devaluing have plenty of money and they have good health insurance. Like Rick Perry, they advocate no health insurance for others.
I expect these liberty lovers who tout the freedom to be uninsured have never had a personal health crisis where they faced the future with no insurance or inadequate insurance. If they had had that kind of personal experience and they still believed in this “freedom”, you would have to wonder if there was a screw loose.
I had my own personal wake-up call and increased awareness about the importance of health insurance when I was 42. After going on a long, freezing winter hike, I came home and realized there was a slight swelling under my left arm. The next day I went over to New London Hospital to see my primary care physician. I do remember the look on his face when he examined me. He was as white as a sheet and he said I needed to see a surgeon for a biopsy.
I arranged for that, had it done at New London Hospital and then waited two weeks for the results. The verdict: malignant melanoma. Probably like many relatively young patients, I went through shock and disbelief. I was healthy. How could that person in the medical records be me?
Then I had to figure out what to do next. It was not that easy. Different doctors suggested different treatment. I went to see a radiation oncologist at Dartmouth Hitchcock Medical Center. He suggested radiation. Then I went to Brigham and Women’s Hospital in Boston to see a surgical oncologist. He suggested surgery. It was hard not to notice that doctors were businessmen who wanted business.
I did my own research and decided on surgery as the most effective treatment. I had been very impressed by the surgical oncologist I saw.
Meanwhile, the medical bills started cascading in. They were extremely confusing and I had insurance. It was honestly hard to tell how much you owed. I felt like I needed an interpreter to understand the bills. I was left with the impression that a cash register starts ringing the second you enter medical facilities and it keeps going while you are there.
I did end up having surgery which was successful. (I am still here.) The insurer required a Massachusetts pay rate when my insurance was New Hampshire-based. Even after my insurer paid, I still owed a sizable balance. I talked to my oncologist and asked him if he would accept the New Hampshire pay rate as payment in full. He very graciously agreed and waived the cost difference between state plans. Still, there were a raft of other bills that flooded in. It took me a while to resolve everything.
I had insurance and I can only imagine the outcome if I had no insurance. I probably would not have been able to see that fine oncologist. I am not sure I would have ever gotten out from under the avalanche of medical bills. It would have meant a financial burial.
There is a significant body of social science research about the costs of being uninsured. Maybe it is stating the obvious but when people lack health insurance, they are much less likely to go to the doctor when they have a medical issue because they cannot afford the treatment. They must pay out of pocket and that is a big disincentive. Medical expenses compete against other necessities requiring payment.
Lack of health insurance has led to thousands of avoidable deaths, poorly managed conditions, and undetected or untreated cancers. Lacking insurance is generally recognized as the sixth leading cause of death for people ages 25 to 64 behind cancer, heart disease, injuries, suicides and cerebrovascular disease.
I have not touched on the financial benefits to our state of having the Medicaid expansion. It has brought hundreds of millions of dollars into the New Hampshire economy. For the enrollees, they can spend their money on other needs. They do not have to worry about paying medical bills that were previously unaffordable. More generally, for the state and for local government, there is a significant cost-saving. These folks will not be downshifting medical costs onto city and town welfare.
Legislators need to find a way to get the reauthorization done. Even if only looked at from an economic angle, there is too much money on the table to pass up. By any rational cost benefit analysis, the cost to the state is very small compared to the benefits gained.
I do think the narrative of this story is very American. It is about inclusion and consideration for the health and well-being of more New Hampshire citizens.
Book Review: “The Black Count” by Tom Reiss – posted 3/1/2015
Tom Reiss’s book The Black Count can be read as an adventure story, a biography, or a history of slavery and the French Revolution. I confess that I did not read the book. I listened to the book on tape going back and forth to work. It grabbed me so much that I did not want to turn it off when I got to work. It was one of those rare books you did not want to end.
The book tells the story of French General Alex Dumas, the father of the writer Alexandre Dumas who wrote The Three Musketeers and The Count of Monte Cristo. General Dumas was the son of a black slave mother and a fugitive white French nobleman. I do not think it is exaggerating to say that the son worshiped the father. General Dumas was a a figure of remarkable heroism and accomplishment.
While, as I pointed out, there are different ways to look at this wonderful book, I wanted to discuss it because of the picture it presents of slavery and the French revolution. The book educated me about both. Even though I was a history major in college and have always loved reading non-fiction, there are plenty of gaps in my knowledge. Reiss does a tremendous job of recreating the French revolution through the life story of General Dumas.
With the French revolution as background, he shows the historical struggle in France and the colonies around the issue of slavery. General Dumas provides a perfect vehicle to tell the back and forth anti-slavery struggle. The General went through some very heady highs and some extremely tragic lows.
As an American, I admit to less awareness of the international dimensions of slavery. History here is so much about what happened in the U.S. only, with less curiosity about the rest of the world. Reiss’s book presents a broader, more cosmopolitan view, which allows the reader to see the American anti-slavery struggle within the context of a broader international anti-slavery struggle.
Reiss shows that in the 1750’s, during the reign of Louis XV, a generation of crusading French lawyers fought the powerful colonial sugar lobby to establish rights for people of color. Reiss calls this the world’s first civil rights struggle. I never heard about this. It is inspirational to know that there was a tradition of pioneering and creative lawyers in the 18th century who used the law to fight this most fundamental form of oppression. Reiss writes:
“Slaves taken to France from the colonies brought lawsuits against their masters and won their freedom. (Compare this with the infamous Dred Scott ruling of the U.S. Supreme Court, which – in the 1850’s – would find the Blacks were “so far inferior that they had no rights which the white man was bound to respect”. The ruling actually contains language mocking the French freedom trials of the previous century.) The French lawsuits were decades earlier than the Somerset case, which launched abolitionism in England.”
Through the Dumas story, Reiss demonstrates that the French revolution opened doors of emancipation for millions of people and greatly broadened horizons for those who had been enslaved. This is a different perspective than the one Americans typically hear with the focus almost always on the Terror. I think more than the American revolution or the British abolitionist struggle, it was the French revolution that expanded notions of freedom.
Reiss does not whitewash the Terror period of the French revolution but he puts it in a broader perspective. I am reminded of a quote from Edward Abbey:
“The “Terror” of the French revolution lasted for ten years. The terror that preceded and led to it lasted for a thousand years.”
The French had a notion that they were the land of the free. Reiss says that the French enlightenment philosophers liked to use slavery as the symbol of political oppression. He quotes Rousseau: “Man is born free but is everywhere in chains.” French lawyers nobly took up numerous cases on behalf of slaves who arrived in France.
I would not minimize this struggle. France had its own set of racist laws, the Code Noir, which applied in the French colonial empire. Reiss shows that while French lawyers won many victories inside France, there were contradictions between law inside France and in the colonies. There were also plenty of racist laws in France itself.
In 1777, King Louis XVI decreed the Police des Noirs. The goal of this code was “to extinguish the race of negroes from the Kingdom”. The Police des Noirs established “depots” – prisons, really – to hold blacks and people of color brought onto French soil. This was a strategy to try and get around the 50 years tradition of freedom trials. The King wanted the depots to be considered “extraterritorial” and not French soil. The Police des Noirs also included laws which called for rounding up all slaves who entered illegally before 1777, removing them to the depots and deporting them.
Other racist laws required colored people living in Paris to carry a special certificate, kind of like happened during apartheid in South Africa with identity cards. Whites were forbidden from marrying blacks, mulattos or people of color. Reiss says that the weak monarchy did not administer the race laws efficiently. It sounded like these awful laws only received infrequent enforcement.
Reiss then shows how in the early days of the French revolution, there was an unleashing of rights. In August 1789, the Declaration of the Rights of Man and of the Citizen, penned by Lafayette with help from Thomas Jefferson, passed the National Assembly. The Declaration was very much an Enlightenment document, recognizing rights to liberty, property, safety and resistance to oppression. It stated all citizens were equal .
In April 1792, the National Assembly extended full citizenship to free Blacks and men of color. While not the same as abolishing slavery, it did put the revolution much more on the side of people of color. Not surprisingly, General Dumas and other free blacks, felt even stronger cause to support and defend the revolution.
General Dumas was a passionate revolutionary. The revolutionary ideology of that time, French republicanism, opposed the divine right of kings and favored representative government. The revolutionaries wanted a constitution and an elected leadership. Dumas, who had had an illustrious military career, became a general during this period. He had started at the bottom. His strength, bravery, leadership, swordsmanship, and military skills earned him the high position.
In February 1794, the French government voted to abolish slavery. It was the first government in history to abolish slavery. This was 69 years before Lincoln issued the Emancipation Proclamation. Candid observers of the United States must acknowledge how far behind we have been as a country on matters of race although we like to posture about our advances.
Answering every call, General Dumas made many military contributions to France both during the Reign of Terror and during the political ascent of Napoleon Bonaparte. Reiss shows Napoleon to be an absolute scoundrel and a full fledged counter-revolutionary opportunist who hid his power hungry personal agenda. Reiss accurately described Napoleon’s rise as the replacement of a revolution with a king.
When Napoleon seized power eight years after the abolition of slavery, he proceeded to reverse all the gains of the anti-slavery movement. Napoleon received support from a coalition of slavers and exiled plantation owners. As Reiss notes:
“It’s worth repeating that the greatest emancipation in history had been initiated by the country possessing perhaps the world’s most lucrative slave empire.”
General Dumas lived to see the horror of Napoleon reinstating race laws and allowing only whites to command. Napoleon even forbade all officers and soldiers of color who had retired or been discharged from the army from living in Paris.
After not helping Dumas who had been imprisoned returning home from a military campaign, Napoleon ignored all entreaties for help from Dumas and his wife. General Dumas died in 1806. Napoleon and his government denied a military pension to the Dumas family after the General died causing them major financial hardship. Napoleon also made it impossible for Dumas’ son to be accepted in a military school or civilian college. Reiss says that this extremely shabby treatment fueled the son’s passion to write.
The French example is instructive on how battles against racism and slavery can go backward and forward. Unfortunately, neither the French nor the U.S. has figured out how to advance the anti-racist struggle in our current historical period. In the United States we are living through a blind period where we kid ourselves about being colorblind. France does not seem any better. It certainly has failed to address the issues of its underclass. Much more could be said but I will save that for another day.
This book is rich on many levels. Although in my review I focused on the history, I did want to mention that it is genuinely touching as a personal story with detailed vignettes. The son Alexandre Dumas adored his father and much of his work can be seen as a tribute to a beautiful and beloved man.
In closing I did want to note that there had been a statue in Paris of General Dumas. During the Second World War, the Nazis who were occupying the city, destroyed the statue. To this day, it has not been rebuilt.
Book Review: ” The Last Holiday A Memoir” by Gil Scott-Heron – posted 2/22/2015
When my friend Howard told me about Gil Scott-Heron’s posthumously published memoir The Last Holiday, I did not know what to expect. I had not known he had written a memoir as well as a couple of novels. I had always loved Gil’s music.
Because of Gil’s political songs, I speculated that the memoir might be a political book. While Gil’s politics figure in, the book is much more a personal reminiscence about family with vignettes from various points in his life.
The good news is that Gil writes really well. The book is not conventional. I think it has a jazzy, riff-like quality. While it is somewhat chronological, Gil does jump around and there are many gaps and unanswered questions. Early in the book, Gil says the following:
“I have not always been proud of everything that has happened or that I have done throughout my life. But I consider myself fortunate. I was raised by two women – my mother and grandmother – who were both dedicated to my well-being and did everything they could to make sure I had every opportunity to succeed in life. They were dedicated to my book learning and were examples of what I should try to be as an adult and as a gentleman. The mistakes have been due to my own poor judgment both of people and circumstances.”
He doesn’t whitewash his problems but he doesn’t discuss them either. It is hard not to think about the tragedy of his early death. I don’t pretend to understand. I know he had big substance abuse issues and he did some time for possession of cocaine,possession of a crack pipe and violation of a plea deal. The drug charges dogged him until his parole in May 2007. And this was the person who wrote Angel Dust and The Bottle.
As I mentioned, there were some questions not addressed. What steps, if any, did Gil take to address his substance abuse issues? It appeared to have totally messed him up. In his personal life, none of his relationships lasted. He had three failed marriages and three children. He does write about his difficulty loving anyone and his resulting isolation. He describes a stroke he had in 1990. The circumstances of his death remain murky. He was apparently HIV positive. That is not mentioned in the book.
The book has a positive message though. Gil writes:
“We all need to see folks reach beyond what looks possible and make it happen. We need more examples of how to make it happen. We will all face difficult circumstances along the way that will challenge our self-confidence and try to disrupt our decisions about the directions we wish to choose.
I hope this book will remind you that you can succeed, that help can arrive from unexpected quarters at times that are crucial.”
Stevie Wonder plays a major role in the memoir and I think Stevie helped Gil enormously. Gil greatly admired Stevie and he traces Stevie’s musical growth. He performed with Stevie and the book includes a lot about Stevie’s long struggle to create a national holiday for Dr. King. Gil was very much a part of that. In the 80’s he sometimes opened for Stevie and toured with him. His love for Stevie and his appreciation for the joy Stevie’s music unleashed is pretty transparent. He includes some poems about Stevie. I like this one:
“That meant the harmonica on “Fingertips”
Was no sooner settling on Stevie’s lips
Than what inevitably came to their mind
For some reason was that the brother was blind.
Which obviously didn’t mean a helluva lot
‘Cause it said what he didn’t have but not what he got.
His music hit a certain chord
And moved you like the pointer on a Ouija board
Your feet made all of your dancing decisions
And didn’t give a damn if he had X-ray vision.
So why was it that people always remarked
“He’s blind” as though Stevie was condemned to the dark?
Suppose you looked at it the opposite way:
They had 20/20 vision and still couldn’t play.
And when they danced seeing didn’t help them keep time
And things like that made me wonder just who was blind.”
Gil tells some good stories about his experiences in school and college. Gil got recruited to go to Fieldston, an elite private school in New York and he does a good job describing the distance that Fieldston was from his everyday life. His mother got very sick the day of his interview for the school. He had to leave abruptly but he handled the interview committee so impressively and respectfully that he got accepted. Later he tells a story about a a conflict he had with a music teacher who had it in for him. Gil was written up and disciplined for playing the Steinway piano at the school. Gil does a beautiful job of conveying the disciplinary meeting. His mother came to the school to participate in the meeting. She deftly defended her son in a polite but most effective fashion.
Gil had anything but a traditional academic career. He went to Lincoln University and later John Hopkins for grad school. School always seemed to come second to creative pursuits.
He was such an important voice on a wide range of issues. Racism and anti-apartheid – think “Johannesburg”. Nuclear power – think “We Almost Lost Detroit”. Ronald Reagan – think “B Movie”. My favorite may be “Winter in America” which still seems so apropos.
While he is sometimes recognized as a precursor of rap because of his eloquent use of the spoken word, I don’t see anyone around filling his unique niche. Gil was a very accessible artist and he had a great talent for communicating his politics poetically to all kinds of people.
I would also mention he tells a bunch of entertaining stories about hanging around with celebrities. He was around Bob Marley, Kareem Abdul Jabbar, and Michael Jackson. You get some sense of what they were like.
From the memoir, it sounded like his personal hero was Thurgood Marshall. Surprisingly, he mentions Marshall a number of times. He clearly believed that to change America you had to change the law.
Check out this fine book. I expect it will change and deepen your perspective on Gil. I wish we had him now to be talking and singing about the world, its contradictions and absurdities. When I heard John Legend and Common sing “Glory” at the end of the movie Selma, I thought “WOW!” We need more of that. Gil brought that kind of power. His voice is so missed.
A Sham Challenge to Obamacare – posted 2/15/2015 and published in the Concord Monitor on 2/25/2015
This piece appeared in the Concord Monitor on 2/25/2015 under the title “Just How Low Can The High Court Go?”
Probably, if you are like me, you were surprised to learn that the U.S. Supreme Court had accepted another case about Obamacare. Wasn’t that settled before when the Court ruled the law was constitutional? Isn’t this deja vu all over again?
Well apparently not. In a highly unusual move, the U.S. Supreme Court accepted the case, King v Burwell, for briefs and oral argument. The oral argument is March 4 and a decision is likely at the end of the Court’s term in June.
The reason this was unusual is that typically the Supreme Court will not hear a case unless there is a split in the federal circuit courts. That was not true in this situation.
The federal circuit courts who had addressed the issues raised have found against the plaintiffs The Supreme Court scooped the case up before the full D.C. Circuit Court had a chance to rule on it. A divided 3 judge panel on the D.C. Circuit had ruled in favor of the plaintiffs initially, but the full D.C. Circuit vacated their opinion and was widely expected to support the law.
One can only speculate on the reasons why the Supreme Court grabbed the case prematurely. It appears to be the worst kind of judicial activism, conservative variety. After a generation of people on the Right whining about liberal judicial activism, the Supreme Court is demonstrating that a right wing court can aggressively flex judicial activist muscles too.
At issue in King v Burwell is one four word phrase – “established by the State”. The plaintiffs argue that Americans who live in states, including New Hampshire, that decided to use the federally facilitated marketplace are not entitled to financial assistance. They say that Congress only intended for Americans to receive insurance subsidies through state exchanges.
Their case rests on the interpretation of an isolated phrase in the context of a much longer, comprehensive statute.
It is stating the obvious but the Affordable Care Act was designed to make health care coverage affordable for all Americans, regardless of their state of residence. Providing financial help to low and moderate income Americans is the law’s key method for making insurance premiums affordable.
Under the Affordable Care Act, every state is required to have a marketplace to help Americans shop for affordable coverage. While states can set up a marketplace themselves, the law directs the federal government to set up exchanges in states that do not.
The drafters of the law wanted the federal exchanges to be the same as the state exchanges. Regardless, these states would still get an exchange, just a federally facilitated one.
So where did the case of King v Burwell come from? A recent article by investigative reporter Stephanie Mencimer of Mother Jones Magazine sheds some light. A group of conservative lawyers hatched the legal theory behind King v Burwell at a 2010 conference sponsored by the American Enterprise Institute. The lawyers at the conference had one goal: develop a theory that could kill Obamacare.
A libertarian think tank, the Competitive Enterprise Institute, which is funded by the Koch Brothers, tobacco companies, oil and gas firms, big pharmaceuticals and conservative foundations, bankrolled the case.They also worked to recruit plaintiffs. At the 2010 conference, Michael Greve, the chair of the Competitive Enterprise Institute was widely quoted as saying the following about Obamacare: “This bastard has to be killed as a matter of political hygiene.”
The Competitive Enterprise Institute found four plaintiffs. A real problem is that it is almost impossible to show that any of them have suffered any harm as a result of Obamacare. A victory for the plaintiffs would mean they would end up with the right either to pay more for their health care coverage or to go uninsured.
It remains to be seen whether the Supreme Court will consider the matter of whether the plaintiffs do, in fact, have standing to sue. In separate investigations, the Wall Street Journal and Mother Jones have both raised serious questions about the plaintiffs and whether there is actually a case or controversy here, which is a jurisdictional requirement.
Two of the plaintiffs appear motivated by hatred of President Obama. One has called him the “anti-Christ” and said he won election by getting “his Muslim people to vote for him”. The other referred to him on Facebook as “the idiot in the White House”. When asked what he got out of this case, he replied that the only benefit he would receive from the case was the satisfaction of smashing Obamacare.
The tragedy of King v Burwell is that success for the plaintiffs could wipe out health insurance for millions. It has been estimated that over seven million people could lose their health insurance in the 34 states that did not establish their own exchanges.
New Hampshire would be one of those states. Kaiser Family Foundation has done a state by state breakdown of the number of Americans who in 2016 could be denied financial assistance to help pay insurance premiums for the plans purchased in the federal exchanges. They estimate 88,072 enrollees in New Hampshire would be adversely affected.
That damage is immense. Not to mention the chaos that would result in the aftermath. I would predict a sizable surge in the ranks of the uninsured, a hefty spike in insurance premiums and a mad scramble in the states to try and minimize the harm.
While expectations of any kind of justice coming from U.S. Supreme Court decisions have largely diminished in recent years, a decision for the plaintiffs in King v Burwell would push things to a whole different level. Never before would a Supreme Court have taken away critically important benefits from millions. That would be a tragedy for the Court, its reputation and for the millions hurt.
King v Burwell can be looked at both from a legal and political perspective. From the legal side, there is a question of statutory interpretation. Lawyers are taught to read any phrase in a statute in the context of the whole text. None other than Justice Scalia has been a strong proponent of judges not engaging in “legislation” under the guise of interpretatation. To quote Scalia:
“No interpretive fault is more common than the failure to follow the whole text canon, which calls on the judicial interpreter to consider the entire text, in view of its structure and of the physical and logical relation of its many parts.”
King v Burwell seems a prime example of the fault Scalia identified – reading an isolated section of a statute outside the context of the whole. The plaintiffs are cherry-picking.
Plus, it is unlikely that any state would have chosen the federal marketplace if they had a clue all financial help could be withdrawn. All through the creation of the Affordable Care Act and up until recently, states had no notice that such a result was even a possibility. Penalizing states that opted for the federal marketplace now would be grossly unfair. Are we to believe that Congress intended to hide consequences of opting for a federal marketplace in an isolated phrase?
As a political matter, the case is simply an ideological vehicle driven by wealthy conservative interest groups who have long been looking for a way to take down Obamacare. Since no plaintiff can show any actual harm, the case should be seen for what it is: a sham. The conservative forces who have been hell bent on killing Obamacare have offered and are offering no viable health insurance option for the millions who will be screwed if the Court rules for the plaintiffs. The mission here is purely destructive.
In the aftermath of both Citizens United , the Court’s decision on election campaign contributions,and Shelby County, Alabama v Holder , its ruling on the Voting Rights Act, another awful decision would cement the Court’s reputation as a tool of the extreme right rather than a fair arbiter of law. It is both scary and sad to watch the Supreme Court these days.
Book Review: “The Case Against The Supreme Court” by Erwin Chemerinsky – posted 2/8/2015 and published in the Concord Monitor on 2/22/2015
A shortened version of this piece appeared in the book review section of the Sunday Concord Monitor on February 22, 2015.
This fine book, written by law professor and constitutional law litigator, Erwin Chemerinsky, presents a balanced but ultimately unsatisfying view of the U.S. Supreme Court. Chemerinsky persuasively argues that the Supreme Court has largely failed as an institution. The Court has acted to protect Big Business and the rich. It has largely failed to protect minorities, workers, and victims of government abuses of power. Maybe its greatest failure has been around addressing racism.
Chemerinsky’s assessment is not just based on the Roberts’ Court. He goes back and surveys the entire history of the Supreme Court. He highlights cases that spotlight a past that is buried in the ancient volumes of United States Reports. He also does make a number of interesting and positive reform proposals.
I like the fact that he takes the Court off its pedestal. He discusses any number of embarrassingly awful decisions released by the Court over its history. These have significantly marked its long history although you rarely hear about them. The Court’s public image has been largely protected and whitewashed. The majesty of its building, the gowned tradition, a servile conventional legal community and legitimate respect for the rule of law have all acted to overly protect the court from criticism. Also, I think the public has only the dimmest awareness of the Court and its history.
In reading the book, I was reminded of a speech I once heard from a very great judge, A.Leon Higginbottom Jr., who was a federal judge on the Third Circuit. Judge Higginbottom died over 15 years ago. As I recall the speech he gave in Concord NH at then Franklin Pierce Law Center now UNH Law, he said that the judges who wrote the Dred Scott decision and Plessy v Ferguson all went to Harvard or Yale. He was not downing those schools. I think he was commenting on the class background of judges, a topic rarely discussed in polite society.
While there is no automatic correlation between class background and voting record, I do not think it is an accident that the Supreme Court is so conservative. Judges as a group come from very elite backgrounds. There are certainly exceptions but generally judges go to fancy schools and they have impeccable professional credentials. Justice Roberts is certainly an example. Many judges tend to see the world from the perspective of the 1%. They are almost invariably pro-Big Business and anti-worker. Too many judges have a Mitt Romney-like view of the 47%.
How many judges on the Supreme Court have ever represented poor and working people? Justice Ginsberg may be the only one on the court now. Even Justice Sotomayor, who was not elite, was a commercial litigator and a prosecutor. I remember a discussion in the book “The Brethren” on this point. Justice Marshall had represented people accused of murder not to mention the many cases he handled where he fearlessly represented minority clients in situations where he was in great personal danger. You do not see that kind of life experience reflected now in people who make it to the Court.
Some of the infamous cases Chemerinsky mentions are well known like Dred Scott where the Court ruled that Congress could not grant citizenship to slaves or their descendants because that would be a taking of property from slaveowners without due process or just compensation. I wanted to mention several others that I did not know about.
Chemerinsky leads off with the case of Buck v Bell, a 1927 case in which the Court upheld the involuntary sterilization of a poor white woman. At age 17, Carrie Buck, a Virginia native, was raped by a nephew. At the time she was living with foster parents because her father had fled and her mother was too poor to care for her. Her foster parents blamed Carrie for the rape. Although Carrie went through the sixth grade and was by all accounts a normal child, her foster parents involuntarily committed her to a state institution. A few months after her child was born, the state of Virginia took her daughter away. Then the state sought to have Carrie surgically sterilized. Virginia had a eugenics law that authorized the involuntary sterilization of those deemed to be of low intelligence.
By an 8-1 vote, the Supreme Court upheld the involuntary sterilization. In an opinion from Justice Oliver Wendell Holmes, the Court wrote that eugenics laws were desirable because they keep the country free from being “swamped with incompetence”. To quote Holmes:
“It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad anough to cover cutting the Fallopian tubes. Three generations of imbeciles is enough.”
As Chemerinsky notes, thousands more were surgically sterilized as a result of this utterly classist, repulsive opinion.
In the criminal arena, Chemerinsky tells the story of Thomas Lee Goldstein who spent 24 years in prison for murders he did not commit. Goldstein was an engineering student and a Marine Corps veteran with no criminal record. Chemerinsky writes:
“When Goldstein was tried, there were no eyewitnesses to the murders and there was no confession. There was no physical evidence like DNA linking him to the murder site. The primary evidence against him was the false testimony of a longtime jailhouse informant, Edward Floyd Fink.”
Fink had a long criminal record and he was a heroin addict. He testified he was briefly in a jail cell with Goldstein and he heard Goldstein admit to the murders. Fink had a long history of getting deals from prosecutors in exchange for testifying against other inmates.
The prosecutors withheld from the defense all evidence about Fink’s record of making deals to get his sentences reduced. Fink’s evidence was virtually the only evidence against Goldstein.
After 24 years in prison, the federal court granted Goldstein’s habeas corpus petition. However, when Goldstein attempted to sue the District Attorney in L.A. County claiming violation of his constitutional rights, the U.S. Supreme Court unanimously reversed lower courts and ordered Goldstein’s case dismissed. The Court ruled that prosecutors have absolute immunity from suits for money damages. In spite of all his years in prison, Goldstein was not able to sue the D.A.. He was, however, ultimately successful in settling out of court with the municipality.
The last example I will offer is the case of Hui v Castenada. This is one you probably will not read about in the law books. Francisco Castenada, a legal Salvadoran immigrant was detained in 2005 by U.S. immigration officials for possession of methamphetamines. While he was in custody, he started having health problems. He sought treatment for a lesion on his penis that was growing and frequently bleeding. Castenada repeatedly requested treatment as the lesion was becoming more painful. A lump also developed in Castenada’s groin.
A U.S. public health service physician’s assistant and 3 specialists advocated for Castenada saying he needed a biopsy to determine whether he had cancer. Corrections officials refused the procedure saying it was “elective”. Castenada was given Ibuprofen and an additional ration of boxer shorts.
For another year, his symptoms worsened. His lesion enlarged, emitted a foul odor and leaked pus. Castenada had difficulty urinating. When correction officials finally gave in and allowed a biopsy, doctors diagnosed squamous cell carcinoma of the penis. Castenada subsequently had his penis amputated leaving a two centimeter stump. But that was not the really bad part. His cancer had already metastized all over his body. He died a year after his diagnosis.
Before he died, Castenada brought suit against the Public Health Service, arguing that deliberate indifference to the medical needs of a prisoner was cruel and unusual punishment under the 8th amendment. Although lower courts had allowed this case to go forward, the Supreme Court ordered that the case be dismissed saying Public Health Service officers have absolute immunity too.
The heartlessness of this decision is mindboggling but it is quite consistent with the broader trend toward expansion of immunity for all government officials.
I cite these cases not just to point to the worst moments in Court history. The more recent ones reflect trends. Chemerinsky does a great job in fleshing out development of trends in the Court’s jurisprudence.
Earlier in this piece, I wrote that Chemerinsky ‘s analysis was ultimately unsatisfying. I wrote that because, even with the good reform ideas he proposes, we are still stuck with the same court. I have not even touched on some of their other awful decisions such as voting rights and Citizens United. I do honestly feel a degree of hopelessness about the Court because there are four justices who appear frozen in their right wing ideology. It is very rare for them to deviate from the extreme right agenda. I do not think there is anything that can be done about that. They remain until they leave the Court and are replaced by some future President.
I would concur with the reform ideas proposed by Chemerinsky. These include: changing the confirmation process and 18 year term limits for justices. The confirmation process has devolved into a farce of dishonesty. Chemerinsky mentions Justice Roberts testimony before the Senate Judiciary Committee.
“Judges are like umpires. Umpires don’t make the rules; they apply them. The role of the umpire and a judge is critical. They make sure everybody plays by the rules but it is a limited role. Nobody ever went to a ballgame to see an umpire.”
Please. Roberts was not the only one to mislead ( it was the same for Sotomayor and Kagan) but the transparent falsity of those remarks are so evident. It would be refreshing if we had a process where prospective justices could be honest and forthright about their true views. We have institutionalized a form of dishonesty.
I did want to say that Chemerinsky writes very well. Unlike so many books about the law, the book is readable and clear. Non-lawyers could read it and enjoy it. That is rare because so many lawyers are verbose, boring, and they use mystifying language when they could be simple and direct.
The book is learned and wise. I also think it is courageous. Chemerinsky appears before the Court and he really is calling them out. It is always refreshing to see a writer lay it on the line, speak the truth and take no prisoners. Chemerinsky deserves credit for taking on a sacred cow that has needed debunking. I think his book is in the best tradition of respect for the rule of law.
Jonathan P. Baird 