Anthony Kennedy And The Future Of The SCOTUS

July 4, 2018

Welcome to Iran. Iran has a Guardian Council of men in long robes. We have a Guardian Court of nine judges in black robes. Both decide who rules. The Guardian Council of Iran decides who is allowed to run. The Guardian Court decides which party wins by blessing the vote rigging that favors Republicans – by blessing gerrymandering after the Republicans rewrote voting districts to favor themselves; by blessing registration requirements that Republicans erected to block anyone likely to vote Democratic from getting or staying registered and from voting; and by removing the protections of the Voting Rights Act against discriminatory devices in the former Confederate states and wherever discrimination had been the rule.

The Guardian Court competes with Iran’s Guardian Council for political control by limiting what labor unions can spend[1] and by overruling limits on political spending by corporations.[2] It tilts the whole electoral environment toward the rich and powerful and against workers and consumers.

The U.S. Guardian Court is nearly as effective as the Iran Guardian Council, even without Russian help. And the retirement of Justice Anthony Kennedy will make it worse. He was the only conservative who understood that vote rigging is inconsistent with a democratic constitution and sometimes acted on that understanding. With a less principled replacement, the current court will present an even bigger barrier to protecting American democracy.

This isn’t about law and all about partisanship. It’s not, in Roberts famous example, like an umpire calling balls and strikes. It’s an umpire in one ball club’s pay, corrupt even as courts across the globe are gaining the confidence to insist on clean elections. To put it another way, the U.S. court system is being corrupted by the rewards of capitalism.

Still more is at stake. Roe v. Wade,[3] protecting a right to abortion, is at stake in the changes in the membership of the Court along with a panoply of labor, consumer, environmental and civil rights protections.

Discouraged? This is the worst time to be discouraged. We can take the country back. But first we must win two elections, the 2018 legislative election and the 2020 presidential election.

Winning the 2018 legislative elections on both the state and national levels can reduce the damage. Fairer state legislatures can insist on fairer elections. Congress has the power to regulate national elections to block states from using unfair rules. And it can block Trump’s plan to abuse the census to further turn the Republican minority of voters into national dominance.

Along the way, winning in 2018 can prevent any more bad nominations to our court system. It can block the Administration’s abuse of everyone from workers to women to immigrants.

Winning in 2020 will make all that easier and it will make it possible to get the Court back. Yes I said we can get the Court back; we can end the rule by the US Guardian Council that masquerades as a Court.

The Constitution does not specify the number of justices on the Supreme Court. That is set by law.[4] The number of justices has been set as low as five and as high as ten.[5] Although a controversial proposition, it has been argued that the number can be changed by the simple process of nomination and confirmation.[6] Either way, it is not set in stone.

President Franklin Delano Roosevelt proposed to increase the number when the Court was blocking his efforts to deal with the Depression. In the event, the Court backed down without any change in the number. But the point is that it can be done and should be.

This is a time to get fired up by the efforts of the capitalists, corporations and wrong-wing religious groups to use the courts to take our country away from us. We can take it back. We must and will take it back.

— This commentary was broadcast on WAMC Northeast Report, July 3, 2018.

[1] Janus v. AFSCME, Council 31, 2018 U.S. LEXIS 4028 (2018).

[2] Citizens United v. FEC, 558 U.S. 310 (2010).

[3] Roe v. Wade, 410 U.S. 113 (1973).

[4] 28 USC § 1.

[5] Act of Feb. 13, 1801, § 3, 2 Stat. 89; Act of March 3, 1863, ch. 100, 12 Stat. 794.

[6] Peter Nicolas, “Nine, Of Course”: A Dialogue On Congressional Power To Set By Statute The Number Of Justices On The Supreme Court, 2 NYU J.L. & Liberty 86 (2006).

The Misplaced Questioning of Mark Zuckerberg

May 1, 2018

Before it recedes further into the past, I want to get back to the testimony of Mark Zuckerberg, founder and head of Facebook, before two Senate committees. The central issue was consumer choice. But that issue entirely missed the problem that precipitated the hearing – the behavior of Cambridge Analytica using data to manipulate user preferences for the 2016 election.

Members of the Senate Judiciary and Commerce Committees questioned Zuckerberg for hours about the privacy of consumer choices. Privacy could solve the problem if the law or our Facebook choices prevented entities like Cambridge Analytica from getting the information they needed to manipulate our preferences. But that won’t happen.  Several senators asked Zuckerberg about allowing users to control their information with European style opt-in rules. Consumers can opt out of various services now and Zuckerberg accepted the value of opt in rules. In many circumstances Facebook already requires something like opt in.

None of the committee members got at the underlying problem of manipulation of user preferences by the apps unleashed on Facebook. Those apps were based on extensive testing of users who responded to a program seeking information, then Cambridge Analytica generalized its findings from that program to other Facebook users it had detailed information about, and used what it had learned to redirect their preferences. It is tempting to think that the fundamental problem was the violation of standards of user privacy. Unfortunately, user control doesn’t solve the problem, either in theory or in practice.

It falls short in theory because no one has the right to sell his or her vote. Society works hard to prevent people from selling votes because it fouls up our political system. Delegates to the Constitutional Convention spoke about owner control of worker votes in English factories. Anything that would allow one or a few to control the votes of others destroys meaningful democratic choice and does so on behalf of those who may have bad intentions for the people and their democratic system. The paper ballot was standardized over a century ago to make it harder to pay people for their votes or for voters to extract a fee. So voter/user control does not solve the problem in theory.

Internet businesses that collect data and use it to manipulate us present the same problem. People don’t have the right to consent to their own political manipulation any more than they have the right to agree to sell their votes and for the same reason. That should be the starting point of discussion, not consent. Consent doesn’t sterilize corrupt anti-social transactions.

Voter control doesn’t solve the problem in practice because few voters seem sufficiently interested in keeping their data private to cut off Cambridge Analytica types of manipulation. Plus the complexity of Facebook compounds the problem.

As a result, most discussion about privacy doesn’t go nearly far enough.

Committee members did hit paydirt with questions about users who should have been banished, shut out or stopped from misusing the system, like users touting violence or users targeting Rohingya in Myanmar. These are serious issues, but the risk of foreign manipulation, was largely undefined and unaddressed.

The hard question is what manipulation is and how it can be regulated consistent with the First Amendment. Those are also serious questions and the answers aren’t obvious. But privacy is a distraction.

 This commentary was broadcast on WAMC on May 1, 2018.


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