ProfessorBainbridge.com

The Greenhouse effect and liberal media love for CJ Roberts

The Greenhouse Effect:

The Greenhouse Effect is a term coined by Hoover Institution economist Thomas Sowell and popularized by D.C. Court of Appeals Senior Judge Laurence Silberman in a speech to The Federalist Society in 1992. In this speech, Silberman used the term to postulate a tendency of conservative Supreme Court Justices to vote with the liberals more often as their careers progress due to a desire for favorable press coverage. He said "It seems that the primary objective of The Times's legal reporters is to put activist heat on recently appointed Supreme Court justices." ... The Greenhouse Effect refers to Linda Greenhouse, a Pulitzer Prize winning New York Times Supreme Court reporter for over three decades, currently a Senior Fellow at Yale Law School.

Today's WSJ:

... none of his colleagues can compete with the media acclaim cascading over Chief Justice John Roberts after his solo decision upholding the Affordable Care Act this June. The editors of Esquire have included Chief Justice Roberts in their December "Americans of the Year" issue, praising his "nimbleness." After the Citizens Uniteddecision on free speech and political spending, he found a way "to save the court's credibility."

Chief Justice Roberts shares the Esquire honor with Lena Dunham, the star of an Obama campaign ad and the creator and star of the HBO series about 20-something sexual angst called "Girls."

She and the Chief Justice also make the Atlantic Monthly's list of "Brave Thinkers" of 2012, by which they mean thinkers who agree with the Atlantic's liberal editors. Ms. Dunham is praised for taking "the soft glow off the 'chick flick,'" for instance when her character acts "like an underage street hooker to turn her boyfriend on," while the Chief Justice gets credit for "maintaining the Court's legitimacy" with a ruling "both brave and shrewd." President Obama probably has Time's "Person of the Year" nailed down, but expect the Chief to finish a close second.

One wonders if one is observing the Greenhousing of the CJ.

Free exercise rights for corporations?

Ronald Colombo has an interesting paper on the rolke of religion in the private sphere:

In the latter half of the twentieth century, America witnessed the construction of a “wall of separation” between religion and the public square. What had once been commonplace (such as prayer in public schools, and religious symbols on public property) had suddenly become verboten. This phenomenon is well known and has been well studied. Less well known (and less well studied) has been the parallel phenomenon of religion’s expulsion from the private square. Employment law, corporate law, and constitutional law have worked to impede the ability of business enterprises to adopt, pursue, and maintain distinctively religious personae. This is undesirable because religious freedom does not truly and fully exist if religion expression and practice is restricted to the private quarters of one’s home or temple. Fortunately, a corrective to this situation exists: recognition of the right to free exercise of religion on the part of business corporations. Such a right has been long in the making, and the jurisprudential trajectory of the courts (especially the U.S. Supreme Court), combined with the increased assertion of this right against certain elements of the current regulatory onslaught, suggests that its recognition is imminent.

Colombo, Ronald J., The Naked Private Square (October 21, 2012). Hofstra Univ. Legal Studies Research Paper Forthcoming. Available at SSRN: http://ssrn.com/abstract=2173801

I'm reminded of a post I wrote a long time ago about corporate chaplains and the serious legal risks they pose for their employers. I'm not sure Colombo's solution is the right one, but I do think we need to take seriously the erosion of religious freedom in the workplace.

A Romney Supreme Court Wish list

It seems to me that the best (only?) reason for me to vote for Mitt Romney is to have a Republican picking Supreme Court justices. Well, that and taxes.

So I got to thinking, if Romney makes it to the White House, who would I like to see him appoint to the SCOTUS?

In rough order of preference, I came up with

1. Michael McConnell-Super smart. Great on church/state issues. Excellent experience as both judge and academic and litigator.
2. Paul Clement-former Solicitor General has great credentials and did a masterful job in losing effort in fight to stop Obamacare.
3. Eugene Scalia-No judicial experience, but a seasoned appellate litigator with lots of business experience, and an unmatched string of victories in challenging foolish Obama regulations. Plus, what a great bloodline.
4. Brett Kavanaugh--Nobody who generates that much hate on the left can be all bad.
5. Eugene Volokh-One of the smartest people I know and an interestingly idosyncratic libertarian whose opinions would be erudite and unique. Realistically, needs a stint on the 9th Circuit for prep.
6. Diane Sykes-Circuit court judge and solid conservative record
7. Miguel Estrada-He got hosed last time

Is the Supreme Court pro-business and, if so, you got a problem with that?

Great analysis by Stephen Richer:

Things that happen almost every October:

• The Kansas City Royals stop playing baseball.
• A new Supreme Court term starts, and liberal pundits raise the specter of “The Unjustly Pro-Business Supreme Court.”

The first is sad.  The Royals haven’t made the playoffs since 1985.

The second is sadder.  It’s sad because the accusations are unceasing, but seemingly facile.  It’s sadder still because it reflects the hatred that journalists and academia hold for big business.  Why hate big business? Big business creates wealth; big business creates the iPhone5; big business efficiently manages resources (so long as it’s not subsidized by the government); big business employees millions, including its enemies ....

He goes on to suggest 7 cogent reasons for doubting that the SCOTUS is really pro-business.

Fisher v University of Texas: The trouble with the use of "holistic admissions" by universities

In Fisher v. University of Texas, the Supreme Court is once again considering the extent to which a university can use affirmative action to increase the number of underrepresented minorities among its student body. Part of the UT program under challenge is a so-called "holistic" admission process. Over at HuffPo, Samantha Robles explains and defends the process:

Diversity is a complex concept that is not limited to what we put on our college applications. The "top 10 percent rule" in Texas helps bring students from various rural communities, social classes, sexual orientations, races and learning levels; however, it is not enough to achieve the amount of diversity needed at this university. Holistic review is important to UT because it allows for a person to be recognized by everything that makes them whole and unique.

Sorry, but I don't buy it. UCLA long has used a holistic admissions process and, as I have noted before, it is fraught with problems:

UC Berkeley's experience with its similar system of comprehensive review suggests that holistic admissions in fact will affect the racial composition of the student body:

Although race is not overtly mentioned as a factor in the comprehensive-review admissions process, the numbers indicate that it plays a significant role. A Los Angeles Times analysis shows that at UC Berkeley, low-scoring blacks and Hispanics were admitted at twice the rate of similarly scoring Asians and whites. 

A cynic thus might wonder whether the readers charged with holistically evaluating admission files share UM President Coleman's refusal to "stand by while the very heart and soul of this great university is threatened," and are taking into account the race of candidates despite Proposition 209's ban. Indeed, when Berkeley adopted comprehensive review, student activist Hoku Jeffrey noted that it gave "admissions officials the ability on paper to reverse the segregation ... and that's what must be done."

The trouble with holistic admissions is that the readers [i.e., the admissions officials who review the applications] don't have to explain why they make their admission decisions. They simply score the files. Whether consciously or unconsciously, the readers thus could systematically bias their scores so as to promote diversity, and no one would be the wiser. Even if required to offer an explanation for their scores, moreover, readers likely would point to some wrinkle other than race in each application that purportedly justified their decision.

If the goal is a color-blind society, holistic admissions is not the way to get there.

Update: At Balkanization, Joey Fishkin discusses Fisher and holistic admissions, concluding that:

At this point, it seems to me that there is no way this Court or any court can actually eliminate the use of race from college admissions. They can try.  New anti-affirmative-action decisions may move the demarcation lines that tell colleges where and how to use race in admissions.  But such decisions will not cause admissions officers to become truly blind to race, unless they require colleges to stop engaging in subjective efforts to build diverse and vibrant classes, and instead demand some mechanical metric of grades and test scores.  There is no constitutional reason to require such an outcome, and at any rate, elite colleges would never accept it.  Still, victories for anti-affirmative-action plaintiffs might have a number of important effects: reducing somewhat the overall level of racial diversity on campuses; encouraging holistic review processes that further submerge the use of race; encouraging the further use of facially race-neutral policies carefully calibrated to achieve racial diversity; and encouraging schools to shift more of the burden to applicants to think and write about race in the admissions process themselves (as in “tell us how you would contribute to the diversity of our school” or “tell us about obstacles you have overcome”).  These are among the many “winks, nods, and disguises” to which Justice Souter referred in his dissent in Gratz, in which he asked whether perhaps honesty was a better policy.

In other words, given the commitments of those who run elite academic institutions to a particular ideology about diversity, it simply doesn't matter how Fisher comes out. Affirmative action will continue in even more carefully camouflaged ways. Holistic admissions simply set the precedent.

The Montana Corporate Personhood Constitutional Amendment: Can a state constitution tell Congressmen what to do?

I blogged the other day about the corporate law aspects of Montana's pending state constitutional amendment that would " advance the philosophy that corporations are not human beings with constitutional rights." As I thought about it some more, however, a very interesting wrinkle struck me.

The amendment states, in pertinent part, that:

It is policy of the state of Montana that each elected and appointed official in Montana, whether acting on a state or federal level, advance the philosophy that corporations are not human beings with constitutional rights ...

The amendment further provides that:

(1) Montana’s congressional delegation is charged with proposing a joint resolution offering an amendment to the United States constitution that accomplishes the following:

(a) overturns the U.S. Supreme Court’s ruling in Citizens United v. Federal Election Commission;

(b) establishes that corporations are not human beings with constitutional rights;

(c) establishes that campaign contributions or expenditures by corporations, whether to candidates or ballot issues, may be prohibited by a political body at any level of government; and

(d) accomplishes the goals of Montanans in achieving a level playing field in election spending.

(2) Montana’s congressional delegation is charged to work diligently to bring such a joint resolution to a vote and passage, including use of discharge petitions, cloture, and every other procedural method to secure a vote and passage. 

What I know about state constitutions could be inscribed on the head of a very small pin, but this amendment intuitively strikes me as absurd. Setting aside its inconsistency with Edmund Burke's justly famous dictum -- "Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion." -- on what possible basis can a state constitution bind officials acting on a "federal level" or "charge" a state's congressional delegation with doing anything?

After all, Burke also noted that "authoritative instructions; mandates issued, which the member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of his judgment and conscience,--these are things utterly unknown to the laws of this land, and which arise from a fundamental mistake of the whole order and tenor of our constitution." What was true of England surely is also true of our representatives.

On top of which, there is the whole question of federal supremacy. Didn't we settle back in 1864 that states can't tell the federal government what to do?

I'm going to forward this post to some friends with greater constitutional law expertise than that I possess in hopes that we might get some insights on this seemingly over the top proposal.

Update: Here's one of those friend's answer:

States can urge their elected officials to advocate for certain positions all they want.  It cannot be binding, and one attempt to tarnish the elected official with a "scarlet letter" in a subsequent election was held to be unconstitutional.  Arkansas (I think), after losing the Term Limits case, decided to pass an ordinance similar to Montana's, urging its representatives in Congress to push for a Term Limits amendment.  Those who did not were designated on the next ballot as "refused to support Term Limits Amendment". The Supreme Court held this to be unconstitutional.

Memo to Montanans (sp?): Don't be stupid about corporate personhood

Polling data:

Montana's constitutional amendment setting it as state policy that 'corporations are not people' has a wide lead for passage right now with 53% of voters saying they support it to 24% who are opposed. Democrats (67/13) and independents (59/25) both stand strong behind the 'corporations are not people' movement, while Republicans are pretty evenly divided with 32% of them supporting it and 35% opposed.

Here's the text of the amendment and a link to a supporting statement:

(1) It is policy of the state of Montana that each elected and appointed official in Montana, whether acting on a state or federal level, advance the philosophy that corporations are not human beings with constitutional rights and that each such elected and appointed official is charged to act to prohibit, whenever possible, corporations from making contributions to or expenditures on the campaigns of candidates or ballot issues. As part of this policy, each such elected and appointed official in Montana is charged to promote actions that accomplish a level playing field in election spending.

(2) When carrying out the policy under subsection (1), Montana’s elected and appointed officials are generally directed as follows:

(a) that the people of Montana regard money as property, not speech;

(b) that the people of Montana regard the rights under the United States Constitution as rights of human beings, not rights of corporations;

(c) that the people of Montana regard the immense aggregation of wealth that is accumulated by corporations using advantages provided by the government to be corrosive and distorting when used to advance the political interests of corporations;

(d) that the people of Montana intend that there should be a level playing field in campaign spending that allows all individuals, regardless of wealth, to express their views to one another and their government; and

(e) that the people of Montana intend that a level playing field in campaign spending includes limits on overall campaign expenditures and limits on large contributions to or expenditures for the benefit of any campaign by any source, including corporations, individuals, or political committees. 

It is, of course, an even more deeply anti-capitalist statement than the usual versions of these amendments. But even setting that issue aside, it is deeply flawed. 

For most purposes the corporation is treated as though it were a legal person, having most of the rights and obligations of real people, and having an identity wholly apart from its constituents. Corporate law statutes, for example, typically give a corporation “the same powers as an individual to do all things necessary or convenient to carry out its business and affairs.”

Although the corporation’s legal personality obviously is a fiction, it is a very useful one. Consider a large forestry company, owning forest land in many states. If the corporation is not a legal person with the power to own land, who owns the land? Presumably the shareholders of the company. If the company were therefore required to list all of its shareholder on every deed recorded in every county in which it owned property, and also had to amend those filings every time a shareholder sold stock, there would be an intolerable burden not only on the firm but also on government agencies that deal with the firm. But did anybody in Boulder or Madison pause to consider that undesirable outcome of their proposal?

An even more useful feature of the corporation’s legal personality, however, is that it allows partitioning of business assets from the personal assets of shareholders, managers, and other corporate constituents.  This partitioning has two important aspects. On the one hand, asset partitioning creates a distinct pool of assets belonging to the firm on which the firm’s creditors have a claim that is prior to the claims of personal creditors of the corporation’s constituencies. By eliminating the risk that the firm will be affected by the financial difficulties of its constituencies, asset partitioning reduces the risks borne by creditors and thus enables the firm to raise capital at a lower cost. On the other hand, asset partitioning also protects the personal assets of the corporation’s constituencies from the vicissitudes of corporate life. The doctrine of limited liability means that creditors of the firm may not reach the personal assets of shareholders or other corporate constituents. Just how do the brilliant legal minds behind this movement propose to preserve this feature of corporate personhood if they succeed?

Maybe proponents of this amendment will argue that they're limiting their attack on corporate personhood to questions of constitutional law. The trouble with that is that corporations have constitutional rights beyond just political campaigns, as I note in my book Corporate Law:

As a legal person, a corporation has most of the constitutional rights possessed by natural persons. See, e.g., First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 784 (1978) (corporation has First Amendment right of free speech); Hale v. Henkel, 201 U.S. 43 (1906) (corporation gets Fourth Amendment protection against unreasonable searches and seizures but not protected by Fifth Amendment privilege against self-incrimination); Blake v. McClung, 172 U.S. 239 (1898) (corporation not covered by the privileges and immunities clause of the Fourteenth Amendment or of the comity clause of Article IV); Minneapolis & St. Louis Ry. Co. v. Beckwith, 129 U.S. 26, 28 (1888) (corporation entitled to due process of law under the Fifth and Fourteenth Amendments); Santa Clara County v. Southern Pacific Railroad Co., 118 U.S. 394, 416 (1886) (corporation entitled to equal protection of the law under the Fourteenth Amendment).

If you want to exclude the corporation from having First Amendment rights, you've got to explain why the Corporation gets all these other rights. If you want to exclude the corporation from having any constitutional rights, you're engaged in a striking act of activism entailing overturning countless precedents handed down over many decades.

You're also depriving the people who make up corporations of essential protections. Government regulation of corporations obviously impacts the people for whose relationships the corporate serves as a nexus. (You see how hard it is to even talk about the corporation without reifying it?) It's useful to allow the corporation to provide those persons with a single voice when seeking constitutional protections. 

Indeed, doing so is not just useful, it is necessary to protect the rights of the parties to those various contracts. As Larry Ribstein explained in Corporate Political Speech, 49 Wash. & Lee L. Rev. 109, because "a corporation is a nexus of contracts, these contract rights should be constitutionally protected to the same extent as other contract rights. Thus, the state must show why intervention in the corporate contract is constitutionally justified given the availability of self-protection through private contracting." He continued: 

The Court must begin to base its decisions on well-developed modern economic theory rather than on unsupported assertions about corporations and the political process. It is particularly important to understand that any regulation of corporate speech or of the electoral process can have far-reaching consequences in terms of both the costs of governing the firm and the deadweight costs of effecting wealth transfers among interest groups. Until the Court understands these consequences, its decisions may be the proverbial bull in the china shop, particularly as pressure builds for more extensive reform of campaign financing and of corporate political activity.

While it may be useful to allow the corporation "person" standing to assert collective rights, however, it is very important to remember that this is still a fiction that we embrace to facilitate protection of the rights of individuals. As Ribstein once blogged:

In a nutshell, viewing the corporation as an entity for First Amendment purposes actually serves to push the speech rights of owners and managers under a rug. Abandoning entity reasoning would focus on what matters for the First Amendment analysis. My article and blog post just linked show that once you do that, and put the arguments for limiting speech rights under an analytical spotlight, they look pretty weak.

Finally, let's look at the politics of the amendment. The proponents claim to be worked up about the Citizens United decision. But their left-liberal bias shows up in the fact that they're only worked up about half of the Citizens United case.

Unions were also freed by Citizens United to make independent political expenditures. Unions, however, are uniformly organized as unincorporated voluntary associations. The corporate peronhood proposal thus would leave unions unaffected. Which means a main source of the left's financing would remain free to spend on campaigns and political ads.

Having said that, however, the left is being mostly stupid here. Lots of pillars of the liberal political movement are limited liability entities with the status of legal persons. The NY Times is run by a corporation. Daily Kos is owned by a LLC. The Washington Post is a corporation. Moveon.org is a (nonprofit) corporation. And so on. If the goal of preclude corporations from having constitutional rights by denying them the status of legal persons were to succeed both politically and legally, all of these liberal stalwarts would lose -- among other things -- the First Amendment rights they presently enjoy.

Scalia versus Posner

A bibliography of the ever-growing feud. FWIW, these days I rank Posner right about the same level as the Dallas Cowboys.

Citizens United, Corporate Personhood, and Corporate Power: The Tension between Constitutional Law and Corporate Law

Ripken, Susanna Kim, Citizens United, Corporate Personhood, and Corporate Power: The Tension between Constitutional Law and Corporate Law (August 22, 2012). Available at SSRN: http://ssrn.com/abstract=2134465

Abstract: In Citizens United v. Federal Election Commission, the Supreme Court invalidated strict federal campaign finance laws and upheld the First Amendment right of corporations to use general treasury funds to support or oppose candidates in political elections. Shortly after the case was decided, a grassroots popular movement began calling for an amendment to the Constitution to establish that money is not speech and that human beings, not corporations, are the only “persons” entitled to constitutional rights. The concept of corporate personhood entered the national debate, causing many average Americans to question the legitimacy of corporations’ legal personhood status. Federal and state lawmakers have introduced several bills proposing a constitutional amendment to abolish corporate personhood, and hundreds of cities nationwide have passed municipal resolutions supporting such an amendment. Progressive groups that oppose corporate influence in politics disagree on whether the push for a constitutional amendment is a good idea. This article identifies several problems with the amendment strategy and suggests that the focus on personhood is misplaced. Legal history shows that the personhood label has long been arbitrarily applied in constitutional law cases, and, as a practical matter, personhood is largely indeterminate and sometimes irrelevant. More significantly, corporate personhood and power do not find their origin exclusively in constitutional law, but in long-standing corporate law doctrines and deeply entrenched norms. An attempt to curb corporate power in the political realm through a constitutional amendment does not address the systemic features of corporate law that allow corporate entities to amass great economic and political power. To ignore the tensions that corporate law raises in this regard is to miss the deeper source of corporate ascendance in the modern world.

via papers.ssrn.com

I really liked this article. And basically agree with the thrust of the argument. 

Delaware Chancery Court Arbitration Process Closure to Public Violates First Amendment

So says a federal district court. Steven Davidoff has the details. Jim Hamilton comments. The WSJ explains:

Delaware's Court of Chancery two years ago began a program in which sitting judges can arbitrate business disputes behind closed doors, with no public record of the proceedings.

But U.S. District Judge Mary A. McLaughlin ruled Thursday that the so-called judicial-arbitration procedure is the equivalent of a civil trial, meaning the public is entitled to have access to the proceedings under the First Amendment. ...

The Chancery judges named as defendants in the challenge said they would appeal her ruling. "In an increasingly competitive global marketplace, the United States cannot afford to be at a competitive disadvantage in providing efficient ways for businesses to resolve their disputes. Otherwise, businesses will tend to move toward other nations that provide that advantage," the Chancery judges said in a written statement.

Henry Manne's take on the SCOTUS Obamacare decision

Law and economics guru Henry Manne kindly authorized me to share his thoughts on the Obamacare outcome:

This may sound like heresy, but I am rather fond of today's opinion on Obamacare (perhaps, to make full disclosure, because I predicted that the Court would not find it unconstitutional). I certainly would prefer a system under which Congress is constrained all the way around, commerce, taxing, necessary and proper or what have you.  But that is not at the moment the world we live in.  But you will excuse me for saying that I believe we are a lot closer to that world today after this opinion than we would have been had this court said something like Scalia's dissent.  That would simply have been too dramatic a shift for the polity, and the Court would have found itself in real political jeopardy in years to come.  And, if you think back through post-Marbury Constitutional history, the Court has never been a particularly courageous institution.  Punt has been their usual strategy for dealing with really critical issues. 

But look, we now have a majority of the Supremes agreeing with Roberts' limitations on the Commerce Clause (and that, after all, is where the real constitutional fight has been for over 75 years) and putting real restraint on the idea of forcing states to do something by conditioning it on federal money (the thing that let the feds into speed limit controls and a lot of their educational ands welfare junk).  The taxing power is not nearly as liable to turn into the next opening for federal powers.  First of all, if a thing is recognized as a tax, no one wants credit for it (NB the Obama folks' efforts to avoid calling this one a tax); second of all, if this does open a new constitutional avenue for the exercise of federal powers, it will take many decades to find out what it really means in practice, and it may, for reasons unimaginable right now, prove to be a dead letter. Will every mandate have to be initiated in the House of Representatives as tax bills do? Hmm, that would be a pretty severe restraint right there. Will it have to be "proportional" among the states, whatever that means?  Meanwhile we have put real teeth back in the Commerce Clause, which is exactly where restraint needed to be.  And the Supreme Court is free to fight its little battles at the margin, where its powers are not seriously threatened.

Mark Hodak replies to Nancy Pelosi's condescending dismissal of Obamacare opponents

Well, Ms. Pelosi, many of us were in fact more concerned about a dramatic and potentially unconstitutional expansion of government power over the most private part of our private lives than we were dazzled by the promise of unfettered access to low cost health care. We were serious about that concern. We didn’t deserve to be treated like dirt to be brushed off.

via hodakvalue.com

Challenge to key Dodd-Frank financial services provisions

The Competitive Enterprise Institute (CEI) has announced that:

The State National Bank of Big Spring, Texas, today filed a lawsuit asking the U.S. District Court for the District of Columbia to hear its case challenging the constitutionality of provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The Competitive Enterprise Institute and the 60 Plus Association are also joining this community bank as plaintiffs in the same action, requesting the Court to invalidate the law because of the unprecedented, unchecked power it gives the government. ...

According to the complaint, there are no effective checks and balances to assure the public of accountability.  Most importantly:

• Congress exercises no “power of the purse” over the CFPB, because the agency’s budget – administered essentially by one person – comes from the Federal Reserve, amounting to approximately $400 million that Congress cannot touch or regulate.
• The President cannot carry out his constitutional obligation to “take care that the laws be faithfully executed,” because the President cannot remove the CFPB Director except under limited circumstances.
• Judicial review of the CFPB’s actions is limited, because Dodd-Frank requires the courts to give extra deference to the CFPB’s legal interpretations.
• The plaintiffs claim in their suit that Dodd-Frank gives an agency of unelected government bureaucrats unrestrained power. They argue this unaccountable power over the daily lives of the American people results in a lack of public accountability, creating a power grab over every U.S. citizen.

“As a whole, Dodd-Frank aggregates the power of all three branches of government in one unelected, unsupervised and unaccountable bureaucrat,” said former White House Counsel C. Boyden Gray, attorney for the plaintiffs and founder of Boyden Gray & Associates. ...

The complaint is here. The Federalist Society has put together a web page with links to lots of key documents, including an essay by Boyden Gray that formed the foundation for the law suit. Gray also co-authored a WSJ op-ed on the lawsuit.

These are many of the same guys the guys that won the suit claiming that the PCAOB's lack of accountability to executive branch violated the Constitution. As far as I can tell from a quick glance, their arguments here seem even stronger. The Democrats who wrote Dodd-Frank were determined to insulate these agencies from oversight, presumably out of fear that future GOP Presidents and/or Congresses might actually want to constrain the agencies' powers. But our Constitution doesn't work that way.

Kevin Drum's crocodile SCOTUS tears

Kevin Drum complains that "conservative judges don't even bother pretending to be neutral anymore. They listen to Fox News, and if something becomes a conservative talking point then they're on board. And that goes all the way up to the Supreme Court."

Even if that were remotely true, all I could say is "Welcome to my world."

Long before <SNARKY SARCASM>liberals like Drum decided to make climate change their latest way of turning the economy over to the government</SNARKY SARCASM>, we conservatives knew all about the "Greenhouse effect":

A Federal appeals judge has criticized journalists for what he described as biased reporting of the Supreme Court.

The judge, Laurence H. Silberman of the United States Court of Appeals for the District of Columbia Circuit, said the press had "accepted and embraced the tenets of judicial activism."

"The truth is that the lawyer-reporters are among the most unbalanced, the least abashed, at asserting the value of judicial activism," Judge Silberman said Saturday in a speech to the Federalist Society, a legal group that advocates a strict interpretation of the Constitution.

The judge had the harshest words for The New York Times, saying, "It seems that the primary objective of The Times's legal reporters is to put activist heat on recently appointed Supreme Court justices."

The judge said some had referred to this as the "Greenhouse effect," a reference to Linda Greenhouse, The Times's Supreme Court reporter. 

Indeed, there is empirical evidence that there were "substantial shifts toward more liberal voting, by ... Earl Warren, Potter Stewart, Harry Blackmun, Lewis Powell, Anthony Kennedy, and David Souter." See Judges and Their Audiences: A Perspective on Judicial Behavior. All of whom care(d) more than they should about what folks like the NY Times editorial board think.

So, Kevin, spare me. Your set has been taking advantage of this effect for decades to advance your agenda in the courts, so your sudden embrace of neutral principles is hardly convincing.

Update: Since some (typically humorless) folks on the left apparently are incapable of detecting snarky sarcasm when they see it, I've highlighted it to help them with reading comprehension.

Of course, while I was mostly just being sarcastic, it is also the case that one could plausibly believe that climate change is real, anthromporphic, and being used by liberals to expand government control over markets.

On Why Radio Today re "Are Corporations People?"

WHY? Radio presents: "Are Corporations People?” with guest Stephen M. Bainbridge.

Sunday, June 10, 5 p.m. central.

Listen live from anywhere in the world at www.whyradioshow.org  and in North Dakota at 89.3 (Grand Forks),  91.9 (Fargo), 90.5 (Bismarck), and on Prairie Public radio stations across North Dakota.

 RSVP on Facebook at:  https://www.facebook.com/events/322982607777391/

In 2010, the U.S. Supreme Court ruled that corporations should be considered persons. They have the same rights as individuals, including the freedom to fund political campaigns. This led to a firestorm of debate with advocates arguing both sides, each pointing to the absolute necessity of their positions. On this episode of WHY?, we will ask what it means for a corporation to be a person, how collective action affects agency, and how these large companies are to be considered legally and morally accountable for their actions.

Stephen Bainbridge is the William D. Warren Distinguished Professor of Law at the UCLA School of Law in Los Angeles. He is a prolific scholar, whose work covers avariety of subjects, but with a strong emphasis on the law and economics ofpublic corporations. He has written over 75 law review articles and numerous books. He has been a Salvatori Fellow with the Heritage Foundation and in 2008 and 2011, he was named by Directorship magazine to its list of the 100 most influential people in the field of corporate governance.