Articles and Posts by Scott P. Richert:
Brief Thoughts on a Justice Bork(0)
Those who mourn the Senate’s failure to confirm President Reagan’s nomination of Judge Bork to the U.S. Supreme Court make the undeniable claim that a Justice Bork would have been different from a Justice Kennedy. But the real question is how different, and in what ways?
Stand My Ground(0)
Purchasing a house in a city with double-digit unemployment and some of the highest property taxes in the country may well be a definition of insanity. Buying such a house on foreclosure, unable to make the purchase contingent on the sale of your current home, undoubtedly is.
Re: Roberts Is No Warren(0)
I certainly understand Mr. Oliver’s point, but I’m afraid he has misunderstood mine. Do I think that John Roberts has a burning desire to impose a “radical social agenda” on the country? No. But his unprecedented expansion of Congress’s power “to lay and collect Taxes” has given Congress a new tool to do just that.
Mr. Oliver writes that Roberts’ opinion is “very narrow,” but the implications of the opinion are not. And it’s hardly a defense of Roberts to say that “he saw the writing on the wall that some form of universal health care is inevitable” and ruled as he did to avoid “damag[ing] the legitimacy of the Supreme Court, his Supreme Court in particular.” Notice what’s missing? Any concern for the constitutionality of the law itself.
Mr. Oliver is convinced that Chief Justice Roberts will do the right thing on “gay marriage”; Tom Piatak has already explained why that is by no means certain. But let’s take it a step further: If Roberts ruled as he did yesterday because he “saw the writing on the wall” and wanted to preserve the “legitimacy” of “his Supreme Court,” why does Mr. Oliver think that such concerns won’t apply in the case of “gay marriage”?
A footnote: Mr. Oliver sees “gay marriage” coming before the Court in a case involving the Equal Protection Clause, but the first cases filed in federal court, and thus the first cases likely to come to the Court, invoked the Full Faith and Credit Clause. That’s why I have argued—as far back as 2004—that there is a strong possibility that the Court will rule in favor of “gay marriage,” and that, if it does, it won’t be surprising to see at least one “conservative” justice join in the majority. If I had to predict which one, I’d choose the man who today was quoted as saying that he hopes that “his Supreme Court” will be remembered for doing “our job according to the Constitution, of protecting equal justice under the law.”
Can’t Get Fooled Again(0)
In Earl Warren Rides Again, I wrote:
Roberts portrays his decision as a check on federal power—if the Court had upheld the individual mandate under the Commerce Clause, it “would open a new and potentially vast domain to congressional authority.” But it’s unclear whom he thinks he is fooling.
Silly me. I should have known the answer: He thought he’d fool the entire conservative movement. And it looks like he’s right. Pretty much every mainstream conservative group or publication has offered a variation of this post at The Weekly Standard‘s website:
[T]he Roberts Court put real limits on what the government can and cannot do. For starters, it restricted the limits of the Commerce Clause, which does not give the government the power to create activity for the purpose of regulating it. This is a huge victory for those of us who believe that the Constitution is a document which offers a limited grant of power.
The author ignores the fact that “the Roberts Court” (that is, Roberts, Ginsburg, Breyer, Sotomayor, and Kagan) also expanded the power of Congress to “lay and collect Taxes” beyond anything ever claimed before. Rather than noting that Congress can now force any American citizen to purchase something he does not desire or need simply by levying a a tax on him if he does not,
he even tries to make lemonade out of Roberts’ declaration that the penalty imposed by Congress for failure to purchase health insurance is “legally a tax”:
Republicans can and will declare that Obama has slapped the single biggest tax on the middle class in history, after promising not to do that.
Who cares that Congress has just been granted total power over how you choose to spend your money—at least Mitt and the rest of the Republicans can start cranking out those campaign ads!
Those who want to provide cover for Chief Justice Roberts or for the Republican presidential candidate who has promised to “nominate judges in the mold of Chief Justice Roberts” will undoubtedly keep referring to the supposed limitation of the Commerce Clause. But that’s a lot like applauding a murderer for not stabbing his victim with a knife because he blew him away with a cannon.
Earl Warren Rides Again(1)
Chief Justice John Roberts was initially nominated by President George W. Bush to replace Sandra Day O’Connor on the country’s high court. So, in the wake of today’s ObamaCare decision, authored by Roberts, it’s no surprise that many who wanted to see the Court drive a stake through the heart of the most overreaching piece of federal legislation in American history are comparing Roberts to O’Connor. Joined by liberal Justices Ginsburg, Breyer, Sotomayor, and Kagan, Roberts can fairly be said to be the Court’s new swing vote.
In the far-reaching implications of the ObamaCare ruling, however, John Roberts has revealed that he is no Sandra Day O’Connor but a latter-day Earl Warren. Today’s decision not only upheld ObamaCare but provided the framework for an unprecedented expansion of federal power. If you’ve liked the Court’s Commerce Clause decisions over the decades, you’re going to love what the Court can do with Congress’s power “to lay and collect Taxes.”
The Syllabus of the decision provided by the Court cuts through the turgid text of Roberts’ 59-page decision and tells us all we need to know: The individual mandate of ObamaCare could not be justified under the Commerce Clause, because the Commerce Clause can only regulate existing commercial activity, not compel individuals “to become active in commerce.” But Congress and the President want to do precisely that, by forcing individuals without health insurance to purchase it, and so Justice Roberts (with a little help from the Obama administration’s lawyers) found the justification elsewhere: Congress can levy a tax on those who refuse to purchase health insurance.
Roberts portrays his decision as a check on federal power—if the Court had upheld the individual mandate under the Commerce Clause, it “would open a new and potentially vast domain to congressional authority.” But it’s unclear whom he thinks he is fooling. The administration’s lawyers and Roberts turned to the power “to lay and collect Taxes” precisely because the Commerce Clause had already been stretched to the limit. With today’s ruling, Congress has been given the green light to do something that even the most imaginative interpretation of the Commerce Clause would not allow: to compel the supposedly free citizens of the United States to purchase anything that Congress deems in those citizens’ best interest—or to compel them to purchase one thing rather than another. All Congress has to do is to pass legislation levying a tax on those who, say, fail to purchase smoke detectors for their homes, or who insist on purchasing a car that runs on gasoline over one that runs on electricity.
On second thought, comparing Roberts to Earl Warren may be unfair—to Earl Warren, that is. Warren could only dream of writing decisions that would give the federal government this kind of power over the everyday lives of American citizens. Roberts has turned that dream into a reality—and into a nightmare for anyone outside of the ruling elite in Washington, D.C.
Eisenhower, Nixon, Ford, Reagan, Bush, Bush(1)
Thank God for Republican presidents who appoint strict constructionists to the U.S. Supreme Court. Otherwise, the Court today might have upheld ObamaCare.
Ray Bradbury, R.I.P.(0)
America has lost one of her best novelists and writers of short stories, and perhaps the last chronicler of a world that can no longer be found: the early 20th-century Midwest, a world of small towns and small farms, of hot summer days and bitter winter nights, of swimming holes and traveling shows, of Main Streets and gas lights and front porches. Bits and pieces of that world remained in the smallest of small Midwestern towns for almost 50 years after Bradbury’s family left his hometown of Waukegan, Illinois, for the last time, settling in Los Angeles, California, in 1934. But all that remains now is what Bradbury, and a few other writers like him, captured in such novels and collections of short stories as Dandelion Wine, Something Wicked This Way Comes, and Farewell Summer.
To those today who still remember his name, Ray Bradbury was, as the New York Times declared in a lackluster obituary, “a master of science fiction whose imaginative and lyrical evocations of the future reflected both the optimism and the anxieties of his own postwar America.” But while Bradbury worked in a variety of genres—horror, fantasy, and crime stories among them, as well as science fiction—what bound all of his writing together, as his friend Russell Kirk well understood, was the moral imagination. The best elements of his most famous work, The Martian Chronicles, had nothing to do with the future and technology, and everything to do with memory—imagination operating historically. (Bradbury insisted that The Martian Chronicles was not science fiction but fantasy, something that “couldn’t happen,” while Fahrenheit 451 was science fiction because it could—and, indeed, he believed it had happened, before 1960.)
Bradbury’s moral imagination was born, as was Kirk’s, in a particular time and a particular place. For almost 70 years, his imagination ran free in the hot Midwestern summer of 1934. Like meter in poetry, the constraints of his past allowed Bradbury to transcend the increasingly chaotic and immoral present.
The Waukegan, Illinois, of 1934 is gone, never to return; yet all is not lost. There are many forces competing for the imagination of a new generation, and most of them look like Mr. Dark. But there was a reason Ray Bradbury had Charles Halloway work in a library, and if you don’t know what I am talking about, you need to get a copy of Something Wicked This Way Comes and read it to your children, before it is too late.
” . . . despite the obvious reality that it is, by its very nature, diminishing the users’ grasp on reality.” Which (for the benefit of readers who were not there) was the second half of my talk (“Virtual Realities”) at the 2011 meeting of the John Randolph Club. (Readers can purchase a CD of that talk, and of the other talks from that meeting, by calling (800) 383-0680.)
Few technologies (and I’m using that term loosely here, because I think that social media doesn’t really deserve that title) are wholly evil, though I am willing to stipulate that, on a continuum from fire, the lever, and the wheel (the relatively good) to nuclear energy (the relatively evil), the entire computer revolution sits very close to the latter. But, as you’ve suggested, Tom, we have to use the tools we have if we wish “to survive in an increasingly inhuman world.” The Amish option is not an option.
I’m well aware of the world we have lost. My little village, in the 1970′s and early 1980′s, was easily 25 to 30 years behind the times. Little divorce, no crime, solid schools, many families living in the same area for multiple generations, neighbors on porches, concerts on summer evenings, local sporting events that were true community activities . . . I was blessed to have a childhood that my children never could.
“For the most part, the world is gone.” Indeed—even in my hometown. And we can shrug our shoulders and curse our fate, or we can work—as readers will see in the issues you have planned for Chronicles over the next year—to remind others of what we have lost, and work to restore some part of it. Even if we have to use such tools as Facebook.
Re: Half a Cheer—Or Less(0)
“All these things are a lot like TV.” Well, yes and no. The damage done by TV was rather total. The older neighborhoods of Rockford have many front porches; very few of them are ever used today, even on evenings that are as beautiful as today’s is likely to be. Instead of enjoying conversation while watching the sunset and the slow fade of dusk into twilight, most families in Rockford tonight will be gathering round an oddly flickering blue light—or, more likely, not gathering but dispersing, each parent and child drawn like a moth to his own blue flame.
Facebook and other social media can lead to that same sort of fragmentation and dispersion as well—only a fool would deny that. But unlike TV or radio, Facebook can be used to draw people together—by which I don’t mean in “virtual reality,” but in the real world. As I mentioned, my 25-year high-school reunion was planned on Facebook, and some classmates who had disappeared after graduation and thus had never learned of previous reunions were found through Facebook and made it to this one. My cousins and I are planning my grandmother’s 100th birthday party the same way. With scores of people involved, Facebook has actually made it easier to pick a date that will work for most and to coordinate plans than more traditional means of communication would have.
These are things—indeed, I’ll go so far as to say good things—that TV and radio simply cannot facilitate.
Is it “touchy-feely sentimentalism” to “invest much in communication with distant friends and relations”? Perhaps. But I think an argument can be made that it is a half-step back toward the reality that has been shattered by TV and radio.
Two Cheers for Facebook(0)
I learned of the death of my friend and schoolmate Ellen Middlebrook Herron the way I increasingly learn of all such milestones on life’s journey: through Facebook. The first notice I saw was posted by one of my oldest friends, Steve Miller; how he learned of Ellen’s death, I do not know, but it wouldn’t surprise me if he had found out through Facebook, too.
Ellen was about as far as you could get from the stereotype of the “typical Facebook user.” Her passion in life was rare books and manuscripts; Oxford-trained, she was responsible for organizing and cataloging several of the most important collections of rare Bibles and Christian texts in the United States, discovering a number of one-of-a-kind books and manuscripts in the process. Her talent did not go unnoticed: In 2001, she was chosen as the curator for the Dead Sea Scrolls exhibit on its five-year trip around the United States.
We lost touch after high school, reconnecting a few years ago on Facebook. Back problems and unexplainable migraines and vertigo had brought an early end to her promising career. Often unable to leave her parents’ home, she found in Facebook a way to keep in touch with friends that she could not see.
Ellen was not able to make our 25-year high-school reunion (planned on Facebook) last August, and I wish that I had had the chance to see her in person once again. But it was physical distance, and her health, that prevented that, not Facebook. As skeptical as I am of the long-term benefits of Facebook, I am grateful today, as I mourn her loss and pray for the repose of her soul, that it gave me a little more time with Ellen.