Supreme Court conservatives think slaveholders perfected human law

It’s a slow news week, which gives me a chance to get to some of those articles sitting in browser tabs. Some I might get through rather quickly. In an article posted on Daily Kos in mid December Patrick Rucker of The Capitol Forum and David Armstrong and Doris Burke of ProPublica discussed some aspects of how the health insurance industry denies coverage.

For most policyholders, the inner workings of their health insurer are a black box: Requests to cover treatment or pay claims go in, and approvals or rejections are spit out. The pivotal gatekeepers inside the box are medical directors like Kasemsap. They can, without ever seeing a patient, overrule the judgment of the doctor who did and deny payment for a recommended procedure, test or medicine. Insurers say medical directors steer patients away from unnecessary or risky care and expensive treatments for which there are less costly, equally effective alternatives. Patients and their physicians complain that insurance company doctors routinely, and wrongly, deny payment for critical lifesaving treatments because they are expensive. The stakes are high: A refusal to pay for treatment can drive families into bankruptcy. Some patients, facing the cost, forgo care altogether.

That passage mentioned Dr. Pachavit Kasemsap. He doesn’t practice medicine, not directly, because he was hit with so many big malpractice suits. While the medical community didn’t want Kasemsap around any more the medical insurance community welcomed him. He affects far more lives by practicing medicine indirectly. And he’s far from the only one approving or rejecting treatment plans with a long history of malpractice. Eric Umansky of ProPublica, with help from Umar Farooq, discussed police body cams. Body cameras were introduced a decade ago as the promise of a revolution in policing. Misbehaving officers would be held accountable. Oversight agencies could punish offenders and improve training. This fix has fallen far short of those hopes.

As policymakers rushed to equip the police with cameras, they often failed to grapple with a fundamental question: Who would control the footage? Instead, they defaulted to leaving police departments, including New York’s, with the power to decide what is recorded, who can see it and when. In turn, departments across the country have routinely delayed releasing footage, released only partial or redacted video or refused to release it at all. They have frequently failed to discipline or fire officers when body cameras document abuse and have kept footage from the agencies charged with investigating police misconduct.

The rest of the long article fills in a lot of details of that paragraph. I have a bunch of ProPublica articles today! This one is by Justin Elliott, Joshua Kaplan, Alex Mierjeski, and Brett Murphy and it discusses how and why Clarence Thomas acquired his sugar daddy billionaire friends. Thomas came to the court in 1991. In 2000 he was hundreds of thousands in debt, some of that was student loans from law school. As a justice he had to have a decent home and a car (though a Corvette). And Thomas wasn’t making much money on a Supreme Court salary. Yeah, it was $173K, but with his debt and expenses, it wasn’t enough. Also, since the Court was a lifetime appointment Thomas couldn’t rely on a hefty payday of working on the Court for a few years then joining a big law firm. So in 2000 on the way home from a stay at a five-star beach resort (!) his flight seat mate was a Republican member of Congress. That member was worried that Thomas might resign because he couldn’t afford to stay on the court. Republicans and their donors didn’t want their conservative darling to do that. Efforts to raise the salary for justices went nowhere. Congress didn’t lift the ban on speaking fees.

But in the years that followed, as ProPublica has reported, Thomas accepted a stream of gifts from friends and acquaintances that appears to be unparalleled in the modern history of the Supreme Court. Some defrayed living expenses large and small — private school tuition, vehicle batteries, tires. Other gifts from a coterie of ultrarich men supplemented his lifestyle, such as free international vacations on the private jet and superyacht of Dallas real estate billionaire Harlan Crow. Precisely what led so many people to offer Thomas money and other gifts remains an open question. There’s no evidence the justice ever raised the specter of resigning with Crow or his other wealthy benefactors. George Priest, a Yale Law School professor who has vacationed with Thomas and Crow, told ProPublica he believes Crow’s generosity was not intended to influence Thomas’ views but rather to make his life more comfortable. “He views Thomas as a Supreme Court justice as having a limited salary,” Priest said. “So he provides benefits for him.”

There was (and probably still is) a problem with government jobs – they paid far less than comparable private sector jobs. But there is still an ethics problem – Thomas didn’t disclose most of those gifts and doesn’t recuse himself when there are conflicts of interest. I learned something today. The US has a Judicial Conference. Its purpose is to create policy guidelines for the federal courts. Members are the Chief Justice of the Supreme Court, the Chief Judge of each of the circuit courts, the heads of a few district courts, and the Chief Judge of the Court of International Trade. The Conference was created by Congress back in 1922. I mention the Conference because back in mid December Joan McCarter of Kos reported that Sen. Sheldon Whitehouse and Rep. Hank Johnson, both involved in court oversight and both complaining about the Supreme Court’s lack of enforceable ethics, called om the Conference to impose greater transparency in the judicial system. One reason for that is:

A recent investigation by Politico shows just how deep and influential the dark money network created by conservative activist Leonard Leo is on decisions from district courts all the way up to the Supreme Court. Politico found that “Leo and his network of nonprofit groups are either directly or indirectly connected to a majority of amicus briefs filed on behalf of conservative parties in seven of the highest-profile rulings the court has issued over the past two years.” Whitehouse and Johnson are asking the conference to require that groups filing amicus briefs disclose who is funding them. “We urge it to take into account the impact that these and other examples have on public confidence in the judiciary,” Whitehouse and Johnson said, citing the Politico report.

There is an active case where that disclosure should apply. The case aims to gut the remains of the Voting Rights Act by saying individuals or groups can’t bring suit against cases of gerrymandering based on race. The suit has already passed the 8th Circuit based on briefs supplied by Leo’s dark money network. Hunter of Kos discussed a case the Supreme Court heard in early December. It’s about the Securities and Exchange Commission and whether they have the right to impose fines without a jury trial for each case. Yeah, that will either vastly increase the size of the SEC or only the worst offenses will be sent to trial. Can you see the fingerprints of Republicans and their donors all over this one? During oral arguments the plaintiff’s counsel argued something about how this case was similar to the courts in England in 1791.

And that led the non-conservatives on the nation’s highest court to express a collective what the hell, because this entire premise of digging up 16th- to 18th-century English corpses and declaring them to be the final authorities on all legal matters forever has gone past a mere schtick and is now a fetish. And not a good fetish. ... What the nonconservative justices are so roused about, albeit in more dignified language than the rest of us need to abide by, is this increasingly glib rightist notion that 16th- to18th-century common law does not just inform U.S. laws passed from the Constitution onward, but preempts them—such that Congress, allegedly, has no power to write any law that would conflict with what a misogynistic English witch hunter or slave-murdering colonial plantation owner would abide, back in the days when legal rights were conferred to white landholding men and only white landholding men. ... In this telling of the American story, the American people themselves have no agency—ever. Congress has no agency, and neither do the courts. No law or regulation can exist that did not exist before the Constitution's founding, barring a new amendment that explicitly encodes each and every one of them—and the amendments, too, are looked on with extreme skepticism.

Strange this devotion to 18th century doesn’t apply to the drug-induced abortions common when the Constitution was written.