Science at the SCOTUS: Clean Power Plan in the dumpster.

There are many ways in which the sudden and suddenly-political death of Supreme Court Justice Antonin Scalia has the potential to impact the ordinary lives of every citizen. So far, no one has declared an upside, which is a statement unto itself. We here at DFE decided to take a look from the perspective we know best.

There are a number of cases either before the Supreme Court right now, possibly held up over the threatened year of inaction between now and Election Day, or heard but not yet ruled on. Many of those either rely on the legal interpretation of science or affect interests of the scientific community.

One big story that’s not really getting a lot of play in mainstream channels is the fate of the Clean Power Plan. The Clean Power Plan is the Obama Administration’s EPA plan for cutting emissions at power plants. Power plant hydrocarbon emissions make up a substantial 40% of the total for the United States. The Obama Administration plans to leave as its environmental legacy a system aimed at cutting those emissions by 2030.

But the bombshell from just a week and a half ago was that the Supreme Court ordered the program halted pending a hearing in the Court. That hearing could be pending for quite some time if Republicans make good with their post-election nomination plans. And if a Democrat wins the White House, they may find some new excuse to stall longer.

The Clean Power Plan is a fairly modest proposal that doesn’t even set the goal of the program for another four years. It stipulates that emissions in 2030 will not be more than 16% less than those in 2020. Legally loopy enough for you? Well, get ready for the reason the SCOTUS put the Clean Power Plan on hold:

The various parties challenging the Clean Power Plan, which include multiple states and energy companies, raise several disagreements with how the EPA has interpreted its own authority to regulate under the Clean Air Act. The most difficult question presented by this case, however, isalso the most absurd. A quarter-century ago, Congress enacted two conflicting amendments to the Clean Air Act. One of these amendments arguably prevents the EPA from moving forward with the Clean Power Plan, the other does not.

It is as if Schrödinger’s cat were written into the United States Code. The cat is both alive and dead. The Clean Power Plan is both legal and illegal.

In other words, there is nothing about the letter of the law that is unconstitutional. This is only a matter of which cat gets to exist, based on neither random chance nor on cosmic coincidence. Purely – exclusively – based on politics. And now the politics of the Supreme Court may be changing. Will be changing, one way or the other.


Do Republicans plan to campaign on the SCOTUS nom?

As if their prospects weren’t already looking, well,.. a little mealy in the first place,.. it really begins to seem like Republicans are planning to campaign on the SCOTUS vacancy. Like it or not, without confirmation hearings, SCOTUS will be a big part of the campaign. For a really long time.

Almost a year. Through all the debates. Every single time you hear a Republican speak or be interviewed, the question will come up. One will accuse the other of wanting to appease Obama. The other will complain about a negative attack advert featuring Scalia’s face. Over and over and over again.

How long before the public is just straight-up bored and filled with resentment of the topic by Election Day? How soon before late night comedians are making snarky, “just get it over with” jokes on a nightly basis?

If anyone on the Democratic side chooses to use the topic to highlight the profound lack of appointments in the Republican-led Senate, people might start asking questions. Why is this almost OCD obsession with obstruction necessary?

It just seems like a long-term loser, to me.


Are Cons really ready to let Donald Trump nominate the next SCOTUS Justice?

I have no illusions that either I understand the Trump movement nor that my sense of logic is shared by any of them. But it does make me wonder, now that Antonin Scalia is gone: does the Conservative Movement really let Donald Trump call the shots on the next SCOTUS Justice?

Because the problem mainstream Conservatism has had with Donald Trump is also his greatest electoral strength: his willingness to go his own route at any expense and come out smelling like a rose. His “Brand,” to which I am sure he has great fidelity, wouldn’t suffer being told who to pick.

Or maybe it would, if Cons strike the right bargain. But I don’t think they planned for more horse trading.

The extreme poles of any political argument are usually the worst deal-makers. And it’s clear from this article that a great deal of Conservative wish-list ruling hangs in the balance. Is there a better option among the field of candidates?

Bush will say yes to anything, I’m pretty sure. Nobody likes Cruz except his mysterious voters. Carson is… oh, hell no. I wouldn’t trust Carson with a bag of old oranges. Kaisich seems an unlikely choice for pretty much anything more ambitious than County Clerk.

On second thought, maybe the Cons really don’t have a reliable horse in the race, anymore.

It is reasonable to believe, then, that the Supreme Court will try to avoid a 4-4 split when it can by getting a majority of the eight justices to agree on some sort of a comprise that either makes a decision that is narrower, takes a more moderate course or sends the case back down to the lower court for further consideration. Chief Justice John Roberts can also opt to have certain cases reargued once a ninth justice is confirmed, though the calculus for that route is complicated by Senate Republicans’ vow to delay any nominations until after the 2017 inauguration.

Source: Scalia’s Death Came As Conservatives Were About To Seize Historic Legal Gains


Your “holy shit” number of the day: did SCOTUS uphold the ACA?

According to Pew Research Center, only 55% of Americans know that the SCOTUS upheld the ACA health care reform law, nearly in its entirety. And 19% of Republicans believe that the SCOTUS actually rejected the law. Willful thinking, much?

Via Pew Research, this is the picture of an uninformed public.

What are people watching for news that they didn’t get this message? Fox News, certainly. But every other major news outlet must have covered this topic, how could people not have known?

But then, Americans seem tired of the whole political charade, these days. Pew’s research also shows that people generally find the presidential election to this point dull, overly-negative and entirely too long. Which is not to say they don’t find it important, which they clearly do.

Politics Rochester Technology

Paychex: no clarity on ACA from the Supreme Court ruling

Local Rochester payroll company Paychex has issued a statement regarding the SCOTUS decision on ACA. Namely: that while the mandate has been upheld, there are still implementation questions to answer:

Paychex Reacts to the U.S. Supreme Court’s Decision to Uphold the Individual Mandate in the Patient Protection and Affordable Care Act | Paychex Newsroom

The Supreme Court’s decision does not bring final clarity to the issue of health insurance coverage in the United States, and there is still much uncertainty surrounding its long term impact on employer-sponsored group health coverage. Additionally, the impact of this year’s elections on the law and its implementation is not yet known.

Of course, this is basically a sales pitch for a company whose primary roles, as stated in the press release, are payroll and benefits services. Uncertainty benefits them so long as they look like The Great Clarifier.

Still, I can’t help but wonder about the dangled question of elections. Are they just trying to maintain a marketable vagueness, or are they legitimately pushing for “regime change” in Washington?

Rochester Technology

Xerox getting into the Health Exchange game. Seems like bad timing?

Xerox today released a statement announcing the release of their new information management system geared at creating the Health Insurance Exchanges that are mandated by the Affordable Care Act. The deadline for states to have exchanges set up and ready for use is October and Xerox says their new system is “comprehensive, secure, cloud-based,” and ready for customisation.

The new system appears to be a “Software as Service” product, meaning that Xerox provides the software over their own cloud-based service. This is similar to offers by Amazon Cloud Services and others. The scale of such a state-wide service seems large to say the least, however. The company further states that the SAS product is aimed at customisation from state to state.

The announcement also comes across as either crazy or prescient, as we’re still awaiting a decision from the Supreme Court as to whether the health care reform so needed in this country is going to get junked based on arbitrary interpretations of the Constitution. Maybe they know something we don’t?

Economy Politics

The Justice Kagan Recusal Canard

Its always fun to spot these talking points in their nascent form. Way down towards the bottom of this article, the author notes that opponents of the Health Care Reform Law expect that Justice Elena Kagan must recuse herself of all Court proceedings having anything to do with the Obama Administration because she worked for the Administration. Plan on this being the battle cry for all HCR opponents for the next twenty or more years.

Supreme Court Denies Health Care Opponents Fast Track Request | TPMDC.


Its a Bork-aversary! Its a Pube-aversary, too!

Judge Robert BorkThis day in history: in 1987, Ronald Reagan nominated Appeals Court Judge Robert Bork to the Supreme Court. His nomination became the “do not” model of the nomination process. His unsuccessful bid was derailed by his verbose and controversial responses to Senate inquiry; this to-be-avoided process would later be called “getting Borked.”

This day also marks the SCOTUS nomination in 1991 of one of America.s giants of pubic hair / Coke can comedy: Clarence Thomas. This nomination did not get derailed, proving once again that there is no minority quite like black women.


Keep Your Poll to Yourself

I’m inclined to support Judge Sotomayor for Supreme Court, so far. Nothing the Right has brought up has been terribly interesting – in fact, the Connecticut firefighter case is so esoterically legal, it’s amusing watching the Republicans try to make it a nice sound bite like they like to exploit.

But I know jack-shit about her, and I suspect those of you reading this are probably in the same boat. We need a hearing to know anything much about her; I don’t think there’s even been a public interview of the woman so far.

So why is the media polling Americans about their support for the Judge? How could we possibly know what our support level actually is, and of what value is our opinion in that case? Polling about something like abortion, a subject for which there’s lots of avenues of information, is appropriate. What we know or don’t know about the subject says as much about our opinion as does our opinion.

But in this case, the only thing we have to go on is either our level of support or lack thereof for Barack Obama; our racial prejudices; our sexual prejudices. What else is there? These things are almost completely static, absent any information, and don’t represent really usable data.

Once a hearing happens and Republicans and Democrats get to grandstand, then our public opinion polls will be of some value. Until then, cudgeling politicians with Sotomayor’s 80% approval rating is useless as anything other than a partisan sledgehammer.


. . If a White Man Said it. .

Once again, the Republican Party operatives and Conservative knife fighters trying desperately to gain the momentum are moving along the complete wrong lines and looking like idiots doing it. With the president’s nomination of Judge Sotomayor to the Supreme Court, the Conservatives are already howling about her “reverse racism.”

The mainstream media aught to be ashamed of itself for allowing the juvenile phrase “reverse racism” into the conversation at all. But if Conservatives want to hypothisize about what would happen “if a white man said” some of the more controversial things that Judge Sotomayor has said in the past, allow me to point out that, had that happened, the white man in question would have had the full tradition of 200 years of American history behind her.

But by all means, Republicans, pick on the Hispanic judge for being racist after all your crap about immigration. Great political thinking, but then you can’t help yourselves, can you?


Will He Is

My favourite Rightie Poindexter, George Will, excoriates Republican presidential hopeful John McCain for one more subject on which he shows tremendous lack of understanding: the Great Writ of Habeas Corpus. Or for that matter, legal issues in general. Or for that matter, the pulse of the public, for whom the “activist judges” meme may or may not have every really resonated in the first place:

George F. Will – Contempt Of Courts –

Did McCain’s extravagant condemnation of the court’s habeas ruling result from his reading the 126 pages of opinions and dissents? More likely, some clever ignoramus convinced him that this decision could make the Supreme Court — meaning, which candidate would select the best judicial nominees — a campaign issue.

The decision, however, was 5 to 4. The nine justices are of varying quality, but there are not five fools or knaves. The question of the detainees’ — and the government’s — rights is a matter about which intelligent people of good will can differ.