Liberals against free speech. Well, duh!

David Savage has a piece titled "Supreme Court faces wave of free-speech cases from conservatives," and he's at pains to portray liberals as the erstwhile strong proponents of free speech.

For decades, liberals wielded the 1st Amendment to protect antiwar activists, civil rights protesters and government whistle-blowers. These days, however, the Constitution's protection for free speech and religious liberty has become the weapon of choice for conservatives.

Give me a break! When did "these days" begin? 30 years ago?! I have a strong feeling for the free-speech liberalism of the 1960s, which is what Savage refers to, but I haven't seen that from political "liberals" in 3 decades. So the notion that conservatives are the ones pushing free speech values is hardly surprising!

"It would be terrible for our democracy … if one politician could directly solicit $3.6 million from a single donor."

"That is 70 times the median income for an American family. It would mean a tiny, tiny group of donors would wield unprecedented power and influence," says an election law expert from a liberal advocacy group, quoted by David Savage in an L.A. Times piece titled "Supreme Court may strike new blow to campaign funding laws/The Supreme Court, in a new campaign funding case, may lift a lid on the total the wealthy can give to all candidates and parties."

In recent [Supreme Court] opinions, [Chief Justice John] Roberts has said the government may not try to "level the playing field" between candidates or prevent well-funded candidates from using their financial advantage to dominate the airwaves. The only justification for limiting contributions, the court has said, is to prevent "corruption or the appearance of corruption."...

"This is a limit on how many candidates you support, not on how much you give them," said James Bopp Jr., an attorney for the Republican National Committee. He cites the case of McCutcheon, an Alabama man who gave a total of $33,000 to various Republican candidates for Congress last year and wanted to give $21,000 more. He was stopped by the legal limit on total contributions to candidates, which now stands at $48,600.

McCutcheon "holds firm convictions on the proper role of government" and "opposes numerous and ill-conceived and overreaching laws," he told the court, and he wants more "federal officeholders who share his beliefs."

"Justice Antonin Scalia believes the law can and should enforce moral standards," says David Savage, incorrectly.

In the L.A. Times. Why is it so hard to read Scalia's Lawrence v. Texas dissent? Experts — purported experts — like Savage, insist on seeing something that Scalia directly tells us he is not saying. He says laws may rest on morality, not that they should:

Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best.... I would no more require a State to criminalize homosexual acts – or, for that matter, display any moral disapprobation of them – than I would forbid it to do so....

And by the way, Scalia has already committed to the proposition that Lawrence dictates the end of the exclusion of gay couples from legal marriage:

If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. 

The majority had claimed that Lawrence did not "involve” the issue of gay marriage, and Scalia said that could only make sense if you think "principle and logic have nothing to do with the decisions of this Court." (Of course, Scalia dissented in Lawrence and may decline to adhere to it, but it won't be because he thinks laws should enforce morality. It will be because he thinks courts should not strike down laws simply because there is no support for them other than morality.)

ADDED: Another post about Scalia, law, and morality, and I rather laboriously spell out some legal distinctions in the comments, here.

"Stevens spoke little about his family's ordeal, but it surely helped inspire a lifelong faith in the fairness of judges and the courts."

David Savage tells the fascinating story of Justice Stevens' boyhood:

He was born in 1920, the youngest of four boys in a wealthy family. When he was 7, his father opened the 28-story Stevens Hotel on Michigan Avenue (now the Hilton Chicago), overlooking the lake.

It was said to be the largest hotel in the world, and the young boy met the traveling celebrities of the era, including aviators Charles Lindbergh, who gave young John a dove, and Amelia Earhart, who advised him he should be in bed because it was a school night. A fan of the hometown Cubs, he watched at Wrigley Field as Babe Ruth pointed his bat at the outfield bleachers and hit the next pitch there during the 1932 World Series.

But by then, his family's prospects had darkened with the Great Depression. The stock market had crashed two years after the Stevens Hotel had opened, and the ensuing business collapse emptied most of its rooms. After the hotel was driven into bankruptcy, Stevens' father, uncle and grandfather were accused of having embezzled more than $1 million from the family-run life insurance company to prop up the failing hotel.

His grandfather suffered a stroke, and his uncle committed suicide. Left to stand trial alone, Stevens' father was convicted and faced a long prison term. A year later, however, the Illinois Supreme Court unanimously overturned the conviction and said that transferring money from one family business to another did not amount to embezzlement.

The power to hold detainees without trial.

Upheld by the D.C. Circuit Court of Appeals:

The appellate judges rejected the claim of Ghaleb Nassar Bihani, a Yemeni native who served as a cook for a Taliban brigade in the fall of 2001, that he deserved to go free because the U.S. war against the Taliban ended when the Islamist forces surrendered in 2002.

Judge Janice Rogers Brown said nothing in the law required the release of military prisoners just because the fighting ended in one sector. The law permits "what common sense tells us must be true: release is only required when the fighting stops," she wrote. Otherwise, "each successful campaign of a long war . . . would trigger an obligation to release Taliban fighters captured in earlier clashes" who could then return to battle.

The judges also rejected the notion that these military prisoners were entitled to the full protections of the criminal law....

"In a detainee case, the judge acts as a neutral decision maker charged with seizing the actual truth of a simple, binary question: Is detention lawful?" she wrote.

The district judge had found that Bihani had fought with the Taliban, the court held, and that is enough to give the U.S. the power to hold him until the long war is over.

What will happen when the requirement that people buy health insurance is challenged in court?

There's no chance that it won't be challenged, is there? David Savage digs up a quote from the Clinton era: Requiring people to buy health insurance "would be an unprecedented form of federal action. . . . The government has never required people to buy any good or service as a condition of lawful residence in the United States."

Savage tries to assure us:

Many constitutional-law experts ... predict that even a conservative Supreme Court would uphold a federal requirement that individuals buy health insurance. The justices have said that Congress has wide latitude to regulate economic activity, and health insurance qualifies as that.

Although the mandate to buy insurance may well face a constitutional challenge, "I don't think this is a close call," said Erwin Chemerinsky, dean of the UC Irvine law school. He said that individuals' refusal to buy insurance could have an effect on the market, and the Supreme Court has said that Congress may regulate actions that affect a market.

That, for you nonlawyers, is a discussion of whether Congress has an enumerated power to support the requirement. The power referred to is given by the Commerce Clause. That says absolutely nothing about whether it might violate the constitutional rights of the individual.

As an example, [Chemerinsky] cited the court's decision four years ago that upheld federal restrictions on home-grown marijuana in California even though two women who used medical marijuana at home argued that they did not intend to buy or sell it.

A 6-3 majority said Congress may "regulate activities that substantially affect interstate commerce," and at least in theory, the home-grown marijuana could have been sold in the illegal drug market.

Yes, and the Supreme Court, after resolving the Commerce Clause question, remanded the case to consider whether there was a substantive due process right to use marijuana when it is medically necessary. That claim of right ultimately failed, but the point is that it's not enough for Congress to have an enumerated power to pass a law. It must also avoid violating individual rights. Savage's quoting of Chemerinsky about the commerce power makes it hard for the average reader to see what is an elementary legal matter — one that liberals ordinarily like to spotlight.

Moreover, the Commerce Clause question is quite a bit more complicated than Dean Chemerinsky makes it sound. The marijuana growers were engaging in an activity — making a product for which there is a big, regulated market. In this new case, we'd have Congress regulating people for their inaction. What other case is like that? Congress can "regulate activities that substantially affect interstate commerce"? Where's the activity? It's inactivity! And Supreme Court cases have limited Congress's power where the activity in question is noncommercial. Isn't the failure to buy insurance noncommercial?

A legal challenge to the healthcare mandate may be several years away. To challenge this requirement in court, a taxpayer would have to face a penalty, and the pending legislation does not phase in the penalties until after 2013.

Now, wait. The economics of the entire restructuring of health care is balanced on this individual mandate. I don't know how well-balanced it is, but the economics are shot to hell without the individual mandate, right? What happens if it turns out that the individual mandate is unconstitutional? Does the whole system go down?

Under Section 255 of the bill ("Severability"):

If any provision of this Act, or any application of such provision to any person or circumstance, is held to be unconstitutional, the remainder of the provisions of this Act and the application of the provision to any other person or circumstance shall not be affected.

In other words, by its own express terms, if part of the Act is struck down, everything else survives. So if we find out, some day, that the individual mandate to buy insurance is unconstitutional, we're still stuck with all the other parts of the plan. Then what happens?

Has anyone promoting this bill even attempted to calculate the economics with the individual mandate excised? Are we going to have the whole lumbering system cranking into operation for years before we find out whether the the individual mandate is unconstitutional? Or is that the scheme? The individual mandate is too big to fail, and the courts will cave.