Erin Ryan’s analysis of potential constitutional challenges to environmental laws in the wake of the NFIB v. Sebelius decision makes a strong case that even under the Supreme Court’s new Spending Clause jurisprudence, these laws are constitutionally sound. (I came to a similar conclusion last year when I asked whether Sebelius casts constitutional doubt on Title IX.) Ryan’s analysis also makes clear, however, that the fundamental incoherence of the Supreme Court’s coercion analysis in Sebelius means that it is difficult to predict how it will be applied going forward. While the Court claimed to reason from contract law in finding the terms of the Medicaid expansion so coercive as to render a state’s implementation of the expansion involuntary, it is difficult to imagine the Court finding such a bargain coercive in other contexts. Consider, for example, another Medicaid case, Harris v. McRae.
In 1976, Cora McRae needed to terminate her pregnancy for medical reasons, but she had very little money. She had health insurance through Medicaid, but under a provision of federal law known as the Hyde Amendment initially passed in 1976, federal Medicaid funds cannot pay for abortions, including medically necessary abortions, though Medicaid covers other medically necessary expenses, including the costs of childbirth. McRae joined with other plaintiffs to challenge this law, arguing that by paying for childbirth expenses, but not for medically necessary abortion expenses, the government was unconstitutionally coercing her reproductive decisions and denying her constitutionally-protected right to end her pregnancy. In 1980, the Supreme Court rejected McRae’s challenge to Medicaid’s failure to fund medically necessary abortions. “Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions,” the Court wrote, “the fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all.”
In other words, refusing to provide Medicaid coverage for abortions did not represent unconstitutional coercion of a poor woman’s reproductive choices, according to the Court, because in the end it was her poverty that constrained her choices, rather than any barriers the federal government had placed in her way. That she was poor and might be forced to make certain choices because of her poverty—like going through with a potentially dangerous pregnancy because she could not afford an abortion--wasn’t the government’s fault, the Court held.
One of the unanticipated challenges I encountered along the path to my recent biography on Supreme Court Justice Tom Clark and his son, Attorney General Ramsey Clark, was the shadow cast on the elder Clark as the result of an unverified and probably inaccurate, but still highly influential historical reference. It is an impact exacerbated by our Google-based world, where even erroneous references can create a lasting marker, repeated so often that both casual observers and scholars assume its accuracy. As Nora Ephron once quipped, “You can’t retrieve your life, unless you’re on Wikipedia, in which case you can retrieve an inaccurate version of it.”
The burden of biographical inaccuracies existed long before Google or Wikipedia, of course – think George Washington chopping down a cherry tree. But when these references undermine a subject’s character – and cannot be disproven – that can mean trouble for a biographer.
For instance, the biographer of Al Shanker, the famous teachers union president and education innovator, never could disprove the frequently cited (though never documented) quote purportedly made by his subject: “When schoolchildren start paying union dues, that’s when I’ll start representing the interests of school children.” A similar question was faced bybiographers of Justice William Brennan, who could neither completely confirm or refute an oft-cited comment said to have been made by President Eisenhower, to the effect that his appointment of Brennan and Chief Justice Earl Warren were the two worst decisions of his presidency.
All of which brings us to the story behind the purported disparagement of Justice Tom Clark by President Harry Truman, the man who appointed Clark as attorney general and later as Supreme Court Justice. The alleged controversial remarks, as well as a number of other provocative statements from the former president about other prominent subjects, derived from a series of conversations between Truman and writer Merle Miller as part of a television series that never aired and which subsequently were compiled by Miller for his 1974 best-selling book, Plain Speaking. According to Miller, Truman called Clark was “my biggest mistake,” adding, ”He was no damn good as Attorney General, and on the Supreme Court . . . it doesn’t seem possible, but he’s been even worse.” Asked by Miller to explain the comment, Truman stated further: “The main thing is . . . well, it isn’t so much that he’s a bad man. It’s just that he’s such a dumb son of a bitch. He’s about the dumbest man I think I’ve ever run across.” This is juicy stuff that, not surprisingly, has been included in various forms in nearly every subsequent biographical reference about the former Justice.
“It’s no use pretending that what has obviously happened has not in fact happened,” wrote Columbia Prof. Joseph Stiglitz in the spring of 2011. “America has allowed inequality to grow.” In fact, the United States now has the fourth-highest degree of wealth inequality in the world, surpassed only by Russia, Ukraine and Lebanon. So, as we mark the second anniversary of Occupy Wall Street, we are presented with an ideal moment to take stock of our society with an eye to shaping its future.
Enter Robert Reich. The U.S. Labor Secretary-turned-U.C. Berkeley professor has never pretended anything to the contrary. Both a founding editor of The American Prospect and the current chairman of Common Cause, Reich has penned 13 books on economics and public policy in the last two decades. With the September 27 limited release of the documentary film Inequality for All, in which he is both narrator and star subject, Reich is resizing his impassioned argument for the silver screen. As he explained to Bill Moyers, “I’ve tried everything else!”
The film – directed by Jacob Kornbluth, whom Reich names the “creative giant” behind its inception – is masterful in constructing a narrative of urgency without falling into despair. Reich explores the causes and consequences of widening economic inequality through compelling graphics like the “suspension bridge," whose foundation tracks the concentration of income in the last century. In one powerful sequence, Reich asks a class of Berkeley students to guess how the profits from iPhone sales are distributed globally. To their surprise, the U.S. and China receive a combined 10 percent of revenue, while Germany and Japan receive upwards of 20 and 30 percent, respectively. Globalization, Reich concludes, is a terrific win for the consumer but a devastating loss for the worker.
Woven into the factual argument is personal testimony from across the economic spectrum. Among the most compelling is that of Nick Hanauer, the entrepreneur and progressive advocate whose 2012 TED Talk on income inequality sparked controversy in its call for a more equitable tax policy. When the rich call themselves “job creators,” Hanauer explains, they are “making claims about status, power and privilege.” As an early investor in Amazon.com and a successful venture capitalist, Hanauer is no stranger to wealth, but he readily admits that the rich don’t generate enough economic activity to sustain the economy. After all, he jokes, “even the richest people only sleep on one or two pillows.” Instead, Hanauer believes we must demand a kind of “middle-out economics” that protects and empowers the middle class – America’s true job creators.
On the morning of August 24, tens of thousands of people assembled to commemorate the 1963 March on Washington for Jobs and Freedom. That march, which sought to secure civil and economic rights for all Americans, paved the way for the modern civil rights era. Those who gathered last month reflected on how far we have come since Martin Luther King, Jr. delivered his famous “I Have a Dream” speech, but even more attention was given to the progress we have yet to make.
Dr. King and others in the Civil Rights Movement accomplished a remarkable feat, setting a standard for equality that would resonate not just with African-Americans but with all Americans facing injustice. This year’s march embodied this living movement, acknowledging the struggles of the present while remembering the victories of the past. Speeches and signs emphasized that there is still much more to be done for U.S. minorities, highlighting immigration reform, mass incarceration, LGBT rights and educational equity.
The contemporary civil rights movement echoed its predecessor as House Minority Leader Nancy Pelosi, borrowing rhetoric from Dr. King, emphasized “the fierce urgency of now.” Representative John Lewis, the youngest speaker at the original march 50 years ago, also called the crowd to action. “You cannot stand by. You cannot sit down. You got to stand up. Speak up. Speak out, and get in the way,” he said. His comments echoed those he gave earlier this year at the ACS National Convention.
by Janai S. Nelson, law professor, associate dean for faculty scholarship, and associate director of the The Ronald H. Brown Center for Civil Rights and Economic Development, St. John's University School of Law. She is also author of the article, “The Causal Context of Disparate Vote Denial” on the Voting Rights Act. This post is part of an ACSblog symposium on the 50th Anniversary of the March on Washington for Jobs and Freedom.
The commemoration of the historic March on Washington for Jobs and Freedom is a reminder both of how far we've come as a nation and how far we’ve yet to go.
The 1963 march signaled the beginning of the end of America’s racial apartheid regime and brought over a quarter of a million citizens together, largely African-Americans, in one of the nation’s largest human rights demonstrations. The power of their presence and the movement they represented forced the nation’s leaders finally to allow the words of the American constitution to ring with unprecedented truth.
However, many of the legal victories of the civil rights movement -- affirmative action, voting rights, and equal employment opportunities -- have been scaled back by the Supreme Court in recent years. The real change in our democracy envisioned by Dr. Martin Luther King Jr. and others requires immediate and sustained attention from our legislators and advocates. It means strengthening the Voting Rights Act by reinstating federal oversight of our nation’s most troubled voting locales. It also means articulating an affirmative, equal right to vote, and making voter registration automatic.
These are fundamental steps to ensure that the commemoration of the march and King's dream speech is more than just a remembrance but rather is a call to action. As I’ve written in this post on Reuters, “The promise held in King’s dream is to wake up one day to its reality — not to slumber while discrimination marches on. The immediate step we can take is to reverse the continuing assault on voting rights and expand participation in our democracy. Rehabilitating the Voting Rights Act of 1965, following the Supreme Court’s recent decision in Shelby County v. Holder, which struck down one of the law’s most important provisions, should be at the top of this agenda.” The full text on this post, “King’s Deferred Dream of Democracy,” is here.