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Wednesday, October 28, 2020

Fixing the Supreme Court, a Conundrum.

 Generally, partisans of a particular view and ideologues with an axe to grind are happy only when their beliefs are validated by Supreme Court decisions they agree with. They like to think of the Court as a super legislature that will reverse legislation coming out of Congress they don’t like. Should the court reflect the view of the majority? Does the legislature even reflect that? How can unelected judges reflect the will of the majority when one party wins control by a system that doesn’t even support the majority? Does “habitual recourse to the Court on constitutional matters encourage the elected branches to shirk their own obligations to heed constitutional limits?”** 

In the past twenty years, one party has appointed six of the last ten justices even though that party lost the popular vote in six of the last seven elections. That has Democrats and some constitutional scholars up-in-arms.  

The right of the court to review the constitutionality of congressional acts has been long established since 1803 in Marbury v Madison, a power that is nowhere in the Constitution. That power has been only intermittently challenged, although Alexander Bickel, in his book, The Least Dangerous Branch, in titular homage to Alexander Hamilton, argued that the structure of the court made it counter-majoritarian by nature. (Hamilton had written "in a government in which the different departments of power are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.”  

Bickel argued that the court Marshall and Hamilton were wrong.  Hamilton and Marshall derived the judicial duty from the concept of the Constitution as the "supreme law" and the duty of the courts as legal interpreters, Bickel perceived no such compulsion. The justification that he deemed to be essential, and in terms of which he supports and would shape the judicial process, is the need in a democracy for an agency empowered to endorse or to reject measures of the representative branches as compatible or incompatible with principle, legitimating or condemning governmental action on the basis of a principled decision of the sort that politics alone cannot provide. That contradiction lies at the heart of the debate on the politicization of the court today, and those in the majority who fear a counter-majoritarian tyranny have proposed numerous suggestions. 

Packing 

Every president wants a court that will promote his agenda. The Federalists under Adams packed the judiciary, Jefferson changed to size of the court in an effort to manipulate it and even eliminated several federal courts, Jackson, on his last day in office, added two justices, Lincoln added a justice to “reform” it and overcome Taney, and Roosevelt famously tried. Ultimately, he succeeded in his efforts by having two justices change their positions. Size has changed 7 times. 

This is certainly an option for the Democrats, although as one observer remarked, what’s good for the goose becomes good for the gander, and there would be nothing to stop future Congresses from adding even more to again tip the scales. As even Senator Bernie Sanders has conceded, court-packing would produce political whiplash. “Packing the courts is a great idea when you’re in power,” he said. “Not such a great idea when your political opponents are in power.” It is concerning, though, that the current court is so counter-majoritarian. The GOP has “represented a majority of Americans in the Senate only between 1997 and 1998 (if you count half of each state’s population for each senator). Maybe the justices should be forced to ride circuit again as they did originally. 

 Constitutional Court 

Another interesting proposal would create a special court (this is all possible under the Constitution) to be comprised of 8 (to prevent narrow majorities) justices. “This court would be made up of judges from other federal courts, selected by the president from a slate generated by a bipartisan commission to create legitimacy and balance. The judges would serve limited terms, then return to their previous courts. Staggered terms would guarantee each president several appointments.” This is not a novel idea. Constitutional Courts exist in France, Germany, and Great Britain, among others. 

This would be an alternative to “packing” and term limits that would require a constitutional amendment.  

Certiorari 

An interesting idea I tend to favor would be to have Congress redefine certiorari. The way the court decides to hear a case now is for four justices to agree to hear it. Justices often will suggest that if only a case were such and such, then they would be able to rule.  That to me, is not calling “balls and strikes”, it’s deciding who comes to the plate. The court couldn’t always do this. Until the Judiciary Act of 1925  the court had to review every case that litigants appealed. Only with this act did the court begin to exercise vast discretion over its docket.  Congress granted this power, and Congress take it away. It would be replaced by  allowing randomly selected panels of appellate judges to select cases .— would restrain judicial activism by taking the Supreme Court out of the driver’s seat. While the court may still have self-aggrandizing incentives, it could no longer direct the progression of the law because another body would decide which cases it hears.  

To the above suggestions, I would add a couple more. The court has become increasingly antagonistic toward experts especially in the area of regulation. In the past there was a deference to regulatory bodies who had been charged by Congress with creating regulations to enforce legislation.  The Court had traditionally leaned toward them .  This was called Chevron deference after a 1984 case. In Chevron, the Supreme Court set forth a legal test as to when the court should defer to the agency’s answer or interpretation, holding that such judicial deference is appropriate where the agency’s answer was not unreasonable, so long as the Congress had not spoken directly to the precise issue at question. Congress could make this deference far more explicit. 

Secondly, the Court currently had no ethical rules regarding recusal.  It’s simply up to each justice to decide if they have a conflict of interest.  Scalia, in particular, was notorious for arguing he could always be fair and the fact he might have gone duck hunting at an appellant's ranch would not sway his decision. Congress needs to make those rules explicit, or at least apply the Courts’s rules for lower courts to themselves.  

It’s ironic that pleas for “judicial restraint” came from progressives who saw their programs and the 14th Amendment left in tatters by a pro-business conservative courts beginning in the late 19th century and continuing until the New Deal. Many were even discouraged by Brown v Board of Education as the Court anticipated the legislature rather than followed it. They saw that as a continuation of judicial activism even though they agreed with the result. The abandonment of restraint in favor of activism, all the while decrying it, was Scalia’s constant denigration of legislative history and intent.  The current conservatives have totally abandoned favoring the legislature in their wild charge to implement an agenda. 

A final quote from Bickel: "...society, certainly not a large and heterogeneous one, can fail in time to explode if it is deprived of the arts of compromise, if it knows no ways of muddling through. No good society can be un-principled; and no viable society can be principle-ridden" 

Ideas for this essay are drawn from a series on “Fixing the Court” in the New York Times.  


Wednesday, October 21, 2020

An Unenviable Health Care System

 

Ezekiel Emanuel has written an analysis of health care in the world with the provocative title of “Which Country has the Best Health Care.” * I read TR Reid’s “The Healing of America”**several years ago (excellent) that looked at the differences between health care in approximately twenty industrialized nations including the United States.  The U.S. does not fare well. We consistently rank spend more money to achieve worse outcomes than other countries. “The U.S. spends more on health care as a share of the economy — nearly twice as much as the average OECD country — yet has the lowest life expectancy and highest suicide rates among the 11 nations. ***

I did not know that the first universal health care proposal came from Harry Truman in 1945.  As an artillery officer in WW I, Truman had been appalled at the poor health of his troops.  In fact, more than five million draftees in WW II had been rejected as unfit for duty.  He blamed it on the disparity in incomes. “People with low or moderate incomes do not get the same medical attention as those with high incomes.”  He was also concerned by the paucity of medical facilities in rural areas.  Almost half the counties in the United States did not have a hospital. His plan called for universal health care that would be funded by a federal payroll tax and include full medical and dental coverage to all wage earners and their dependents. People got to choose their own doctors.  The private insurance system would continue with a requirement that policy holders would contribute to the federal system. 

His plan was denounced by the Republicans as socialistic supported by the AMA (described by Milton Friedman as “the strongest trade union in the United States) and the pharmaceutical industry.  True to form the label became more important than the content. They accused Truman of turning Americans into “dainty, effeminized, pampered, sissies... [it was] an Un-America n system blueprinted in the Kremlin headquarters of the Communist Internationale.”  We heard similar rhetoric –I hate to elevate the words to that level – during the debate on the ACA in 2009.  

There was little support for the plan. To compensate workers for wages lost to wartime price controls, Congress had exempted health care benefits from taxation.  The unions loved that companies could dole out benefits in the form of ever-increasing health benefits that were not taxed. It currently costs the government $250 billion annually in lost revenue.  

The NHS won out in England over the opposition of the British medical establishment only because Labour had won the elections, the opposite of what happened in the United States. While the NHS is extremely popular and no one wants it replaced, it is seriously underfunded leading to staff shortages and longer wait times for elective surgeries. Everyone wants a fully funded – read fully operational NHS. 

In the U.S. four tiers evolved:  a fully socialized VA system, federal Medicare for the elderly and disabled, partially state funded Medicaid for the poor, and employer-based health coverage.  I would add a fifth, privately paid health care for the very wealthy.  I once had an interesting discussion with a Republican congressman in Maine who claimed that there shouldn’t be any health insurance and that all you needed to do was negotiate costs with your health care provider. I don’t know how that’s works in the ambulance, but there it is, another option. To quote Ezekiel: “The United States has every type of health financing ever invented, this is preposterous.” I would add that it certainly helps explain the huge paperwork overhead that costs an additional 20%.  He writes that our costs dwarf those of other countries with better outcomes.  We pay $10,700 per capita which is 17.9 percentage of GDP. Childbirth in western Europe averages about $4,000.  In the U.S. it’s $30,000 split into multiple bills from anesthesiologist, radiologists, hospital, etc. Many of these physicians you might never even see.  Americans spend half(!) of the $1 trillion world-wide pharmaceutical bill while having only 5% of the population.  Either the prices are too high, or we are far sicker, both mentally and physically than everyone else. That’s an exceptionalism we should avoid. In the meantime, 10 million remain uninsured, placing an enormous strain on emergency rooms and hospital budgets. It also places the United States at a severe competitive disadvantage as companies are forced to shoulder the health care costs their competitors don’t.  In addition, some $500 billion (yes with a “b”) is spent on billion and insurance-related costs” according to Ezekiel. A U.S. physician spends four times as much on billing as his Canadien equivalent. 

COVID-19 will strain the system even further. Intensive care units are filling, people without insurance are reluctant to even visit a doctor if they have symptoms, drug costs are spiraling upward and costs for procedures are wildly different depending on your carrier and circumstance.  Elective surgeries, a primary revenue source have dried up.  

          The 2017 Commonwealth Fund that ranks health care and costs around the world. They rank the United States second to last, after China.  The UK, Australia and the Netherlands rank first. He likes the Netherland system the best: You get to choose your private insurer; you get to choose your primary care doctor. And their primary care doctors are really gatekeepers to a higher level of care.  They’re also innovative.... But there are lots of alternatives I’d be more than happy with." 

 

*Emanuel, E. J. (2020). Which country has the world's best health care? PublicAffairs. 

** Reid, T. R. (2010). The healing of America: A global quest for better, cheaper, and fairer health care. Penguin.My review at https://www.goodreads.com/review/show/459583953?book_show_action=false&from_review_page=1

*** U.S. health care from a global perspective, 2019. (n.d.). Retrieved from https://www.commonwealthfund.org/publications/issue-briefs/2020/jan/us-health-care-global-perspective-2019

Monday, October 19, 2020

Proposal: A Better Way to Vote

The spectacle of watching people having to wait in line for hours to vote is unworthy of a modern democracy. I propose a cheaper, more secure, and faster way to vote.  

 

On turning 18, the prospective voter would register as usual with appropriate identification. S/he would be issued a unique identifier created by an algorithm that would identify the voter’s precinct. This identifier would be entered into a database. Data would be kept on the total number of voters in each precinct and other data uploaded online into a secure database. This identifier would be used to assign the appropriate ballot at the time to vote.  The voter would create a personal PIN that only s/he would know. 

 

At voting time, the length of which could be determined by local ordinance or state legislation, the voter would log into a secure site, enter his or her unique identifier and pin #. That would retrieve the appropriate ballot for his or her location. The voter would vote and submit the ballot at which time the unique identifier would be tagged as having completed the vote, preventing its use by anyone else. The link between the actual ballot and the identifier would be broken thus securing the secrecy of how an individual voted. All transactions would be encrypted. Should anyone steal an identifier, they would still need the PIN, but even if they had that, when the voter tried to vote and was told s/he already had, a visit to the county clerk’s office would start an investigation into that situation.  

 

For those without a computer or smart phone or needing assistance, they could go to the county clerk’s office or some other designated spot, like a library or post office, where secure terminals would be made available with assistance on their use.  Should a voter lose or forget his ID and PIN, a trip to the County Clerk’s office would issue him a new one and have the old one deleted.  Voters who died or moved could be removed from the system almost instantly.  

 

This system would reduce the need for judges, would provide for almost instant results, cost far less, permit ballot changes almost up to the date of voting, eliminate the need to go to a polling place, make voting by armed forces personnel around the world easier and faster, eliminate the need for absentee ballots, and be far more secure.  Blockchain technology could be used as further security by generating public ledgers, preventing any wholesale altering of result totals.

Saturday, October 17, 2020

William Seward, William Freeman, and the Insanity Defense

 I ran across this case while reading Clarence Darrow: Attorney for the Damned, an excellent read (review forthcoming). Darrow's middle name was Seward, named after the brilliant abolitionist, U.S. Senator and governor of New York. Seward was an “agitator,” known for his defense of immigrants and fugitive blacks and for his pioneering use of the insanity defense. In 1846, he showed moral—even physical—courage when he defied the local mobs and agreed to represent William Freeman. Amirus Darrow, Clarence's father, was an inveterate reader and was no doubt familiar with the case and probably even had a copy of Seward's biography which had appeared in 1853.

William Freeman, a black man, deranged from repeated beatings in prison, on March 12, 1846, in a crazed nighttime frenzy (under a full moon), murdered four members of the Van Nest family after they had retired for the night.  Freeman had been recently released from prison where he had been routinely flogged and tortured. He was captured almost immediately and almost killed on the spot by a mob. 

Seward had previously defended a man named Henry Wyatt who had stabbed and killed a prison guard.  At Wyatt's request, Seward visited Wyatt in prison and saw how he had been tortured and abused.  There was evidence the man was not sane. His defense of Wyatt was so eloquent that the jury became deadlocked and Wyatt was sent back to prison to await a second trial. (He was found guilty and sentenced to hang.  That second trial overlapped with that of Freeman's first.)

A common suspicion was that Freeman was trying to use the example of Wyatt to get himself off. Hall, in the short biography of Freeman, writes that Freeman, who had been placed as a servant in several houses, suffered from unusual peculiarities, in fact, he was discharged for "an uncontrollable disposition for play with other colored boys, which rendered his services valueless." Much of his playfulness and "wildness" was attributed to his Native American heritage, for he was half Native American. "These characteristics, then of little moment, have since become the subjects of medical examination, in view of the probable effects of his subsequent imprisonment, as in his veins coursed the blood of a race that has never been restrained without difficulty—never incarcerated without mental disaster."

He was imprisoned for larceny, stealing a horse, that Hall admits he never committed. He escaped prison, was recaptured, and then tried again for the larceny and escape, and sentenced to five years at hard labor in state prison. 

But as it soon became reasonably certain that Freeman was at another place all the night when the larceny was committed, and as Jack was soon thereafter convicted for a similar offence, the public mind at once exonerated Freeman from the felony for which he had been convicted. He was doubtless innocent of the offence. The conviction of Freeman, therefore, appears to have been unjust, and to have had a powerful influence upon his mind when in prison. (Hall)

 While in prison he was flogged and once hit so hard on the head with a board so hard the board split.  Freeman's hearing was destroyed by the blow. He was released in 1845 having served his five years.

Unable to find gainful employment of any kind, and having been denied the possibility of suit against those who had falsely accused him, Freeman, for some unknown reason entered the home of the wealthy Van Nest family and murdered all of them. (Arpey quotes a local newspaper as having reported that someone in the Van Nest family had testified against Freeman in the larceny trial that sent Freeman to prison, but another paper refuted that charge.) He was captured about forty miles away and only just escaped lynching. Community feeling was running very high against him.  The funeral sermon for the family was so incendiary, a screed in favor of capital punishment, that it was reprinted and sold widely.

 On June 1, 1846, Freeman was arraigned, at which time Seward entered an insanity plea. New York law at the time forbade bring insane persons to trial. Seward argued that Freeman's sanity should be determined by a jury. The judge granted his request, but denied him the right to challenge jurors. That meant, in Seward's words, "many of the jurors entered the panel with settled opinions that the prisoner was not only guilt of the homicide, but sane."

Seward lost the sanity hearing as well as the trial itself. On appeal, however the state supreme court, issued a stay of execution, and ordered a new trial holding that the judge had conducted the sanity hearing incorrectly. The judge declined to retry the case as Freeman was in very poor health.

Freeman died in August, 1847.  He was 23. An autopsy (included in the Hall book) revealed considerable brain damage.


Sources:

Arpey, A. W. (2003). The William Freeman murder trial: Insanity, politics, and race. Syracuse University Press.  Arpey examines the racial and cultural background of the community and the impact of the trial. His book also has an excellent contemporary record of the trial.

Freeman, W., & Hall, B. F. (1848). The trial of William Freeman: For the murder of John G. Van nest, including the evidence and the arguments of counsel, with the decision of the Supreme Court granting a new trial, and an account of the death of the prisoner, and of the post-mortem examination of his body by Amariah Brigham, M. D., and others. https://play.google.com/books/reader?id=zk8oAAAAMAAJ&hl=en&pg=GBS.PA15 (available as a free ebook online)  This work has a virtual transcript of the trial. It's fascinating.

Stahr, W. (2013). Seward: Lincoln's indispensable man. Simon & Schuster.