One Is the Loneliest Number
by JAMES TARANTO, online.wsj.comJuly 5th 2012 3:49 AM
By
On Monday we noted that CBS's Jan Crawford, citing "two sources with specific knowledge" of the Supreme Court's deliberations in NFIB v. Sebelius, the ObamaCare case, had reported that Chief Justice John Roberts initially voted to hold the individual mandate unconstitutional, then changed his mind. But Crawford's sources denied speculation that the dissent was originally drafted by Roberts as a majority opinion.
Now a competing story has emerged. Lefty law prof Paul Campos writes at Salon.com that "a source within the court with direct knowledge of the drafting process" tells him that, to quote the unnamed source, "most of the material in the first three quarters of the joint dissent was drafted in Chief Justice Roberts' chambers in April and May." (The Campos story does not dispute that Roberts switched his vote, and indeed makes sense only if he did.)
National Review's John Fund adds:
I've learned from my own sources that after voting to invalidate the mandate, the chief did express some skepticism about joining the four conservatives in throwing out the whole law. At the justices' conference, there was discussion about accepting the Obama administration's argument, which was that, if the individual mandate was removed, the provisions governing community rating and guaranteed issue of insurance would have to go too but that the rest of the law might stand. The chief justice was equivocal, though, in his views on that point.
Fund's account is consistent with either Crawford's or Campos's. Unlike them, he does not say if his sources were court insiders. What's most striking about these accounts, though, is not the particular details but that we are reading them at all. Politics and law aside, it suggests the Roberts Court has a managerial debacle on its hands.
"Unlike the Congress and the executive branch, which seem to leak information willy-nilly, the Supreme Court, from the chief justice down to the lowliest clerk, appears to truly value silence when it comes to upcoming court opinions, big and small," according to an Associated Press dispatch filed June 25, three days before the ruling. Now the court looks like a dysfunctional executive agency or political campaign, with aggrieved individuals pleading their cases anonymously to the press.
We don't fault our fellow journalists, or even Campos, for pursuing and reporting the story. We simply wish to take note of how unusual such leaks are. True, the details of the justices' internal deliberations do not remain secret forever--see, for example, the excerpt in Monday's column of Crawford's 2007 book, in which she described Justice Anthony Kennedy's switch in Planned Parenthood v. Casey. But that case was decided in 1992.
The release of Justice Harry Blackmun's papers made it possible for "anybody [to] re-create the story of any case," Harold Koh, a onetime Blackmun clerk, told PBS's "NewsHour" in 2004, when the papers were released. Crawford's book drew heavily on the Blackmun papers, as did Linda Greenhouse's "Becoming Justice Blackmun" (2005). But Blackmun relinquished his seat on the court in 1994, so the information in his papers, in contrast with the Roberts Court leaks, was not part of history's first draft.
Lyle Denniston, a reporter who has covered the high court for more than half a century, sums up the significance of the leaking in a post at SCOTUSblog.com:
Whatever the facts about the drafting of the opinions, their sequencing, and their legal points, the fact that all of this internal deliberation has been shared with a news reporter by someone "with specific knowledge" is a departure from the Court's norm of keeping such things to itself, and that alone can leave a trail of bitterness and recrimination. When the famous book The Brethren [by Bob Woodward and Scott Armstrong] came out in 1979, filled with revelations about internal deliberations, the Court's internal dealings were affected for months, and the Justices even closed off some of their hallways and denied media access to them. There also were long-running recriminations over who had been the source or sources.
But the prospect of lingering impact of the CBS story is not due only to the fact of the leaks. The content itself is a public rebuke of Roberts, from inside the Court, and amounts to a direct challenge to his ability to lead the Court and to take steps--if that was what his position on the health care law was intended to do--to insulate the Court from the partisan polarization that so dominates the rest of Washington.
It should be noted that as organizational leaders go, the chief justice has very little real power. He gets to assign the writing of opinions when he's in the majority, and that's about it.
The president has a CEO's power to fire his top officials (though hiring decisions beyond the White House require the Senate's assent). And although congressmen answer to their constituents and are not formally subordinate to the House speaker or their party caucus leader, the leadership has numerous threats it can use as disciplinary levers, including denial of committee assignments and campaign funds. That's why Nancy Pelosi was able to work her will in getting ObamaCare passed.
By contrast, associate justices are not the chief justice's subordinates; he has no authority to fire or discipline them, or to insist that they vote his way. Roberts was able to work his will in upholding ObamaCare only because the eight associate justices were evenly split, giving him the deciding vote.
A chief justice can lead the court only through the power of persuasion. That is to say, ironically, that the leader of the government's nonpolitical branch has to rely entirely on political skill in order to be effective. Earl Warren, who actually was a politician (three-term California governor), famously employed such skill in 1954, when he gradually persuaded all eight associate justices to join his opinion in Brown v. Board of Education, in the belief that unanimity would be helpful in overcoming popular resistance to the ruling.
Almost everyone surmises that Roberts's motives for upholding ObamaCare were political. Putting aside the merits of the respective cases, his political performance--that is, his performance as the court's leader--contrasts dismally with Warren's in 1954.
CloseIn Malta, the lonely life of John Roberts.
Crawford reports that Roberts "engaged in his own lobbying effort--trying to persuade at least Justice [Anthony] Kennedy to join his decision so the Court would appear more united in the case." Not only did that effort fail, but Roberts ended up with the exact opposite of a unanimous decision. He was on his own, with the four dissenters refusing even to acknowledge his opinion, and the four justices who agreed with him on the outcome joining a bitter concurrence in which they upbraided his reasoning on the case's central constitutional question.
In 2005, when Harriet Miers's nomination for the seat now held by Justice Samuel Alito was still pending, we wrote the following, based on a conversation with a Bush administration official at a Washington dinner:
The White House position seems to be that Bush gave the Supreme Court an excellent leader in Chief Justice John Roberts (on this point, of course, we agree wholeheartedly), and that what the president was seeking in his second pick was not someone with "sharp elbows" but a reliable "conservative" vote.
It should be clear that we have adjusted our appraisal of Roberts's leadership skills to take account of events since 2005. We unearthed this quote to raise a tantalizing counterfactual. Alito was among the dissenters in NFIB v. Sebelius. Might a round-elbowed Justice Miers have given the chief justice his sixth vote in favor of ObamaCare?
A Fish Called Rwanda
"Last week's Supreme Court decision upholding of the constitutionality of President Obama's health care law moves the United States closer to the goal of health coverage for all," writes the New York Times's Tina Rosenberg. That is--she said with no apparent irony--it makes us more like Rwanda, which has a "universal health insurance" system called Mutuelle. Which is a good thing:
Rwanda's experience illustrates the value of universal health insurance. "Its health gains in the last decade are among the most dramatic the world has seen in the last 50 years," said Peter Drobac, the director in Rwanda for the Boston-based Partners in Health, which works extensively with the Rwandan health system.
It couldn't have happened without health insurance.
How good are things in Rwanda? Well, life expectancy is 58 (up from 48 a decade ago). Malaria deaths are down. Per capita income is a whopping $550 a year, triple its level at some unspecified time in the past. And it's been almost 20 years since they had a genocide.
"Rwanda, starting from nothing, decided to build a health system that includes everyone," Rosenberg concludes. "And it found economic value, alongside human value, in doing so. Now we can get started." Four more years of ObamaCare and we too may have Rwanda-like life expectancy and income.
But wait. There's one flaw in Rosenberg's argument:
The big challenge for Mutuelle is to begin paying for itself--currently, premiums cover only about 45 percent of costs. The rest of the money is from the government and donors, including the Global Fund to Fight AIDS, Tuberculosis and Malaria and the United States anti-AIDS program Pepfar. The need to cover costs was the reason for the sudden rise in premiums last year, which drew widespread outrage.
When America follows the Rwanda model, what foreigners are going to help us pay for it? The obvious answer is the Chinese, whose economy has been growing at a healthy pace. But China's growth has not been driven by exports to Rwanda.
Aw Frack!
North Carolina's General Assembly "apparently accidentally legalized fracking in North Carolina, due to a deciding vote one Democrat says was a mistake," reports Raleigh's WRAL-TV:
Rep. Becky Carney, D-Mecklenburg, says she did not intend to cast the key vote that overrode the governor's veto of the bill.
The vote was 72-47, exactly the number needed for an override. Without Carney's vote, the veto would have been sustained.
Carney characterized her vote as "very accidental."
"It is late. Here we are rushing to make these kind of decisions this time of night," she said.
Carney pointed out that she has voted against fracking in the past, and said she spent the day lobbying other Democrats to uphold the veto of Senate Bill 820.
"And then I push the green button," she said.
Just after the vote, Carney's voice could be heard on her microphone, saying "Oh my gosh. I pushed green."
Carney asked for a do-over--hey, can John Roberts get one of those?--but under the state House's rules, "members can change their vote if they've made a mistake" only when it won't affect the outcome of the vote.
Oh well, it could've been worse. Consider this Onion headline from 2010: "Nation Waist-Deep In Soybeans After $30 Trillion Farm Subsidy Bill Accidentally Passed."
The Gay Thought Police
Earlier this week, a prominent gay man, Anderson Cooper, revealed a shameful secret: He works for CNN.
Wait, that's not right. Actually, Cooper openly works for CNN. He also is openly gay, although apparently he said so publicly for the first time. His sexual orientation was neither shameful nor secret, just something he preferred not to belabor in public. Naturally, this prompted a denunciation on the op-ed page of the New York Times by Daniel Mendelsohn, "a writer and critic." Here's his criticism:
"I have always been very open and honest about this part of my life with my friends, my family, and my colleagues," he wrote to [Andrew] Sullivan. "In a perfect world, I don't think it's anyone else's business." . . .
But all this talk about privacy reveals deep and troubling assumptions. Mr. Cooper compared disclosure of one's homosexuality to revealing "who a reporter votes for" or "what religion they are," but in a post-Freudian age in which sexuality is seen as a core aspect of identity, this comes across as disingenuous. If you're really "happy, comfortable . . . and proud" to be gay, as Mr. Cooper says he is, the simple fact of being gay should be no more a "privacy" issue than being straight is for straight people.
Ironically, Mendelsohn's op-ed does not specify his own sexual orientation. Ours is heterosexual, which we say not because it's anyone's business but because it may explain our puzzlement at Mendelsohn's description of "sexuality" as "a core aspect of identity." That strikes us as a rather abstruse description of what is, in fact, a biological drive. It would be accurate to describe us as "straight," but it is not a term that is part of our "identity," or indeed that we ever think about except when it is necessary to distinguish people who are not homosexual from those who are.
We surmise that the experience of "identity" tends to be different for homosexuals, whose sexual feelings are unusual and who frequently have to embrace an affirmative identity--"gay"--in response to social disapprobation.
But maybe that wasn't the case with Cooper, who, as the son of Gloria Vanderbilt, grew up in the world of fashion and show business, where social norms have long been far more accepting of homosexuality than in society at large. Maybe being gay really is no more of a big deal to him than being "straight" is to us. And in any case, who is Mendelsohn to tell Cooper how to think about what is, after all, his own private life?
Happy Independence Day to You Too, Jerk
"Within my own particular intellectual tribe of philosophers, patriotism is often regarded as a 'problem,' an emotion that many find hard to defend as morally appropriate. Of course, many Americans are uneasy with, even repelled by, certain expressions of patriotism--perhaps the obligatory flag-pins of politicians, the inanity of 'freedom fries,' the suggestion in the revised Pledge of Allegiance that atheists aren't patriotic, or even readings of the Declaration of Independence. But the philosophical problem of patriotism is not about whether or not certain expressions of patriotism are appropriate; it is about the moral defensibility of the attitude as such. (For a good survey of the philosophical issues see Igor Primoriz's [sic] Stanford Encyclopedia article.)"--Gary Gutting, New York Times website, July 3
Metaphor Alert
"At a time when fiscal concerns weigh heavily on the electorate, and the tug of war between the Republican establishment and the Tea Party still simmers, many conservatives still blame Mr. Bush . . ."--Jeff Zeleny, New York Times, July 4
Out on a Limb
- "Efforts to Implement ObamaCare Law Raise Concerns of Massive Government Expansion"--headline, FoxNews.com, July 3
- "With Occupy nearing its one-year anniversary, many have complained that an ever-widening array of issues might dilute the group's effectiveness."--Phildelphia Inquirer, July 4
We Blame George W. Bush
"Georgie Porgie Gropin' My Thigh"--Annie's Mailbox syndicated column, July 2
'If They Bring a Knife to the Fight, We Bring a Gun.'--Barack Obama
"Ann Romney: Obama Campaign Strategy Is 'Kill' Mitt Romney"--headline, Puffington Host, July 5
The Soft Bigotry of Low Expectations
"Likely Voters: Carter Was a Better President Than Obama"--headline, TheWeeklyStandard.com, July 3
So Use the Taxing Power
"OK, Cats Probably Aren't Causing Danish Women to Kill Themselves"--headline, Slate.com, July 3
The Stimulus Is Working
"Bus Driver Says Caffeine Made Him Grope Girls"--headline, KOMO-TV website (Seattle), July 3
A Prophet Without Honor
- "Donald Trump Warns 'Sick & Perverted' Anthony Weiner Is 'Trying to Make A Comeback' "--headline, Politicker.com, July 3
- "Evil Wiener Weiner Roast"--headline, IndyWeek.com (Durham, N.C.), July 4
Shortest Books Ever Written
"What to Know About Lake Winnipesaukee"--headline, ABCNews.com, July 3
It's a Cookbook
"Free Men, to Serve God & Man"--headline, Patheos.com, July 4
The Lonely Lives of Researchers
"Researchers Crack the Code of What Makes Us Cool"--headline, MSNBC.com, July 3
All Mimsy Were the Borogoves
"Ondo ACN Guber Aspirants Resolve to Work With Akeredolu"--headline, BusinessDayOnline.com (Lagos, Nigeria), July 4
Hey, Kids! What Time Is It?
"Time to Start Believing in the Pirates"--headline, ESPN website, July 2
Questions Nobody Is Asking
"Does Mitt Romney Sing as Sweetly as a 7-Year-Old?"--headline, NationalJournal.com, July 3
Answers to Questions Nobody Is Asking
"Letters: Why the Moon Matters"--headline, Los Angeles Times, July 4
Hot Dog Wins Chestnut Eating Contest--Now That Would Be News
"Chestnut Wins Sixth Consecutive Nathan's Hot Dog Eating Contest"--headline, Bloomberg, July 4
News of the Tautological
- "Idaho Health Officials Say Mosquitoes Are Biting"--headline, Idaho Statesman, July 4
- "Book Printed With Disappearing Ink Eventually Goes Blank"--headline, Yahoo! News, July 2
Breaking News From Genesis 7:4
"A Month of Rain to Fall as More Floods Expected"--headline, Daily Telegraph (London), July 4
Breaking News From Genesis 7:23
"Mermaids Do Not Exist, Says NOAA"--headline, CBSNews.com, July 3
Breaking News From 2008
"US Senator From Vermont Has Role in 'Batman' Movie"--headline, Associated Press, July 3
News You Can Use
"No Need for BDSM-Themed Baby Showers"--headline, Slate.com, July 5
Bottom Story of the Day
"No Problems Reported During Scranton's July 4 Celebration"--headline, Times-Tribune, July 5
Pi in the Face
On Tuesday we noted references in science fiction and urban legend to legislation purporting to redefine the value of pi. We neglected to note that there is an actual case in history. In 1897, as a paper on the Purdue University website reports, a quack named Edwin Goodwin "was one of a long line of mathematical hobbyists to try to square the circle":
Dr. Goodwin wrote a bill incorporating his new ideas, and persuaded his State Representative to introduce it. Taylor I. Record was the Representative from Posey County to the Indiana General Assembly. Representative Record was a farmer, timber and lumber merchant. The session of 1897 was in his first and only term in the legislature. During the debate on the bill, he was quoted as saying he knew nothing of it, but introduced it at the request of Dr. Goodwin. Representative Record submitted the bill, House Bill 246, on January 18, 1897.
Dr. Goodwin had copyrighted his solution to squaring the circle, and his idea was to allow Indiana to use these new facts in its schools free of charge. People in the rest of the country and the world would have to pay him a royalty.
The text of the bill stipulated that "the ratio of the diameter and circumference is as five-fourths to four," which would mean the value of pi was 3.2. The Indiana House passed the bill unanimously, but a deus ex mathematica stopped it from becoming law:
The head of the Purdue University Mathematics Department, Professor Clarence Abiathar Waldo, was in the Statehouse lobbying for the University's budget appropriation. . . . He was astonished to find the General Assembly debating mathematical legislation. Naturally, he listened in. Naturally, he was horrified. . . .
After the debate, a Representative offered to introduce him to Dr. Goodwin. Professor Waldo replied that he was already acquainted with as many crazy people as he cared to know.
The professor "coached" state senators about the bill. "With a speed we can only admire, the committee reported the bill favorably the next day, and sent it to the Senate floor for debate." According to a contemporaneous report in the Indianapolis News, "the bill was brought up and made fun of. The Senators made bad puns about it, ridiculed it and laughed over it. The fun lasted half an hour." A motion was made for the bill's "indefinite postponement," and it carried. Pi remains a transcendental number, even in Indiana.
As for Prof. Waldo's aversion to crazy people, some things are timeless.
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