A quick roundup of stories about politics, law, and constitutional rights that have peaked my interest over the course of the week .
HIGH MARKETS, HIGH UNEMPLOYMENT
The stock market just hit record highs, which means nothing to most Americans. Since 2000, the last time the S&P 500 was at this level, most people’s economic lives have tanked:
[D]uring that stretch, economic output has grown by an average of 1.7% a year (the slowest since the Civil War). . . the payroll job count has crept up at a negligible 0.1% annually. Real median family income growth has dropped 8%, and the number of full-time middle class jobs, 6%. The real net worth of the “bottom” 90% has dropped by one-fourth. The number of food stamp and disability aid recipients has more than doubled, to 59 million, about one in five Americans.
That sobering antidote to the market sugar rush is not from Paul Krugman, or some liberal blogger. It’s from Ronald Reagan’s budget director, David Stockman, who was something of a Washington legend for many years.
Many of Stockman’s priorities are still conservative, including a longstanding fixation on the deficit. (He predicts will hit $30 trillion and trigger a “fiscal collapse” on the scale of a “Greek/Cypriot tragedy”–with “choreographed crises over debt ceilings, continuing resolutions and temporary budgetary patches.”) Still, it is notable to see a conservative like Stockman push back on the bipartisan tendency to equate a booming market with a booming America. In his new book, Stockman is also pretty tough on the banks.
He argues that “corrosive financialization”—the ability of banks to package virtually any risk or slice of the market into a purchasable product—has “turned the economy into a giant casino.” To buck this trend, Stockman proposes that banks be pushed “out in the cold.” The government should make them compete like normal companies, with no deposit insurance or easy money from the Fed — basically a version of restoring Glass-Steagall.
That is considered a drastic approach. It is anathema to most Republicans and Democrats in Washington. (A Senate amendment to restore Glass-Steagall only drew 5 cosponsors during the 2010 debate over financial reform, and Democrats were cool to Elizabeth Warren’s call for that approach last year.)
So if nothing else, Stockman is definitely expanding the economic debate. And he’s stopping by The Cycle to talk about his ideas this week, so if you have thoughts or questions, please leave them in the comments section below or on our Facebook page.
EVERYTHING YOU NEED TO KNOW ABOUT GAY MARRIAGE IN TWO NUMBERS
The average age of today’s Supreme Court justices is 68.
Support for gay marriage among Americans under 30 is at 81%.
And the future is coming. . .
PIG FARMER IN CYPRUS EXPLAINS GLOBAL ECONOMY
From The New York Times: As Cyprus cautiously cracked open the doors of its crisis-ridden banks on Thursday, Stelios Sofroniou, a pig farmer, fumed at being able to withdraw only 300 euros, about $385. For Mr. Sofroniou, the bailout terms show that the European Union is driven by the same merciless forces now playing out in the long concrete-and-aluminum sheds of his family farm. “The weakest pigs in the pen don’t eat,” he said. ”The strong ones eat everything. This is the law of nature.”
FROM SEX TO MARRIAGE
With all the talk about whether the Supreme Court should secure a right to marriage for gay Americans, it’s easy to forget how until just 10 years ago, the Court had declined to even find a right to sex for gay Americans. Until 2003, the Court had voted to uphold state laws criminalizing gay sex.
The precedent for that position—which even the most ardent gay marriage opponents no longer support—dates back to 1982, when a man named Michael Hardwick was arrested by police who entered his home and found him having sex with another man. (The entry was legal because the police had a warrant for an unrelated offense.) Hardick was charged with the crime of sodomy. His lawyers protested that the Constitution must bar the government from jailing people simply based on the gender of their sexual partners.
In 1986, the case reached the Supreme Court, which ruled that “The Constitution does not confer a…right for homosexuals [to have sex].”
That precedent held up until 2003, when a similar sodomy case reached the Court. In an opinion by Justice Kennedy, the Court held that not only had it erred by ruling that there was “no Constitutional right” to have sex, but defining the issue so narrowly actually “demeans” the dignity of the struggle for gay rights “just as it would demean a married couple [to say] marriage is simply about the right to have sexual intercourse.”
That line is especially resonant after last week’s oral arguments, when gay marriage opponents pitched traditional marriage as unique because of its “procreative” value. But even more importantly, you can draw a straight line from the 2003 decision to these cases, because the Court’s jurisprudence has left gay Americans in a legal purgatory. While the Court recognized their right to be gay and have sex, it still let the government bar them from a right to commitment–to a recognized, respected commitment under law. That was probably untenable.
After all, what kind of principle guarantees the right to lead a “gay lifestyle,” but no right to build a committed and loving life with another person? That’s not usually how rights work.
The Supreme Court does prefer precedents to experiments, and some justices asked how they can endorse gay marriage when it is such a new concept. Justice Alito asked one lawyer, for example, how he can prove gay marriage is a good thing when it is a newer invention than cell phones. But like the case against Michael Hardwick, and the crabbed view of liberty as merely “a right for homosexuals” to have gay sex, that question is too narrow. Gay marriage is new, but liberty and equality are very old. And long overdue.
Melber discussed these cases on The Cycle here.
DID CONSERVATIVE JUSTICES FAST-TRACK THE GAY MARRIAGE CASES?
It takes five votes to win at the Supreme Court, but only four votes to get there.
The Court does not identify which Justices chose to hear a case, so the process spurs lots of speculation for court-watchers. For gay marriage – an area of law where gay rights advocates want the court to change current precedent–many assumed that the less conservative members of the Court chose to hear last week’s cases. But Adam Liptak, the lawyer who covers the Court for The New York Times, has a new theory:
This week’s arguments provided a telling glimpse into the process through which the court selects its docket, one that is usually shrouded in exceptional secrecy. The arguments also cleared up most of the mystery of whose idea it had been to hear the…challenge to Proposition 8. [It appears] the conservative members of the court, making a calculation that their chances of winning would not improve with time, were behind the decision to take up the volatile subject. The aha moment came on Tuesday.
After Justice Anthony M. Kennedy suggested that the court should dismiss the case, Justice Antonin Scalia tipped his hand. “It’s too late for that now, isn’t it?” he said, a note of glee in his voice. “We have crossed that river,” he said. That was a signal that it was a conservative grant.
Liptak explains how during oral argument, the conservative Justices appeared eager to get to the merits of the case and “lock in” a victory which may be unattainable in the years to come, given the demographic shifts in the country.
The Court also has several ways that it can duck the case, (such as finding that the people who sued to overturn Prop 8 have not met the requirements to do so). In any event, there’s no way to find out if Liptak’s theory is right, because of the Court’s secrecy. These kind of questions are only answered decades later, with the release of justices’ personal archives. Or as Liptak put it on Twitter this weekend, “we’ll know if I’m right in 50 years.”