For seven seasons, the West Wing was therapy for thousands of Bush-weary progressives who fantasized about being governed by a Nobel Prize winning scholar who didn’t believe that high-income tax cuts were a panacea. Now that America actually is governed by a Nobel Prize winning scholar with a real domestic policy agenda, however, it’s time to be honest about President Bartlet’s legacy. While the ability to rhetorically shame conservatives made him an appealing fantasy, the substance of Bartlet’s policies ranged from uninspired on issues like health care to downright destructive on Social Security and education. Bartlet had a lackluster economic record. He gave away a seat on the Supreme Court to the far right, and he consistently favored symbolic cultural victories over real opportunities to make life better for American families.

If you set aside the budget-busting Bush tax cuts, George W. Bush was actually a better president on domestic policy than President Bartlet. So Bartlet expanded Medicare to cover mammograms and cancer clinical trials? President Bush actually signed a prescription drug plan for seniors. And while George W. Bush at least had the decency to allow his plan to turn Social Security over to Bear Sterns and Lehman Brothers die a politically embarrassing death, Bartlet worked with Republicans to pass a massive Social Security reform at a time when Republicans’ were single-mindedly focused on privatization. If the Bartlet Social Security plan had actually been in effect when the market bottomed out in 2008, millions of American seniors would have been left with no safety net to fall back on.

Besides trashing Social Security, the Bartlet Administration had few bold ideas. What was the Bartlet plan to ensure universal access to health care? Or the Bartlet plan to combat global warming? What did President Bartlet do to close the education gap between poor and rich children? Or to ensure that every child who does succeed in high school will be able to pay for college? If anything, his education policy was as much a betrayal as his Social Security debacle. Although the first term Bartlet White House had ambitious plans for education reform, the second term Bartlet wound up supporting school vouchers.

After nearly an entire term in the White House, Bartlet’s economic record was so dismal that it is a miracle he was reelected. Consider his attempt to literally defend this record before God (who he also calls a “feckless thug”): “3.8 million new jobs, that wasn’t good? Bailed out Mexico. Increased foreign trade. 30 million new acres of land for conservation. Put Mendoza on the bench. We’re not fighting a war.”

3.8 million jobs sure sounds like a lot, but at the time Bartlet made this speech, it added up to just over 90,000 jobs during each month of his presidency — far less than the country needs just to keep up with population growth. This kind of stagnant growth could be excused if President Bartlet, like President Obama, presided over our emergence from an historic recession, but the Bartlet Administration experienced no similar economic calamity.

Bartlet does deserve credit for appointing Justice Mendoza, but the Mendoza appointment is overshadowed by his egregious decision to appoint Justice Christopher Mulready. Mulready’s appointment came about as part of a compromise to ensure that Senate Republicans would also confirm a chief justice whose very personal experience with Roe v. Wade would otherwise make her unconfirmable. While there is certainly symbolic value to having a chief justice who once had an abortion, such symbolism will come as cold comfort to the millions of American families impacted every time Mulready joins his fellow conservative jurists engaged in a systematic campaign to rewrite the law to leave workers and consumers powerless against the wealthy and the well-connected.

President Bartlet had his moments — they just rarely had much to do with economic justice. Bartlet was a strong supporter of both gay rights and reproductive freedom, for example, and he deserves credit for negotiating a peace between Israel and Palestine. Ultimately, however, his presidency advances a very small kind of liberalism that appeals mostly to people who’ve never worried if they could pay their medical bills or if their children can afford college.

President Bartlet’s inattentiveness to the 99 percent cannot be dismissed because economic justice doesn’t make good television. Screenwriters could not design a better villain than James Clark McReynolds, the Supreme Court Justice who systematically undermined FDR’s New Deal and routinely referred to President Roosevelt as a “crippled son-of-a-bitch.” Lyndon Johnson’s transformation from southern segregationist to civil rights crusader reached a climax that literally brought Martin Luther King to tears. President Obama’s drawn out battle over the Affordable Care Act is riddled with the kinds of crushing defeats, unexpected setbacks and narrow triumphs that fiction writers dream of recreating.

Ultimately, the Bartlet Administration was a failed opportunity because President Bartlet never once sought out these kinds of battles. Protecting choice or welcoming gays into the military (something the Bartlet Administration supported but never accomplished) are important prongs of the progressive agenda, but a liberalism that’s uninterested in income inequality or ensuring that no American ever dies because they cannot afford to treat a curable disease is both a recipe for electoral defeat and a tragedy of moral neglect.

Justice Anthony Kennedy

The day has now come for the Supreme Court to fix its most egregious error since Bush v. Gore:

Challengers to Montana’s ban on corporate independent expenditures—recently upheld by the Montana Supreme Court—have asked Justice Anthony Kennedy to put a hold on the state court’s ruling and have urged the full Court to reverse it. . . .

“The Montana Supreme Court held the Ban constitutional despite the holding in Citizens United v. FEC, 130 S.Ct. 876 (2010), that `[n]o sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.’ Immediate relief is needed to prevent irreparable harm to the Corporations’ First Amendment free-speech right. Montana’s primary elections are on June 5, making it vital that planning begin now for independent expenditures before the election.”

Citizens United was wrong the day it was decided, and it has only succeeded in refuting itself during the two years it’s been in effect. One of the core conclusions in Citizens United was the majority’s statement that so-called “independent expenditures” — as opposed to contributions directly to campaigns — “do not give rise to corruption or the appearance of corruption.”

It’s unclear how anyone could have ever believed this was true, but it’s impossible to believe this now. Casino billionaire Sheldon Adelson’s family, for example, gave $11 million to a Super PAC intended to elect Newt Gingrich, and Gingrich met personally with Adelson after this money started flowing. Mitt Rommey has also met with Adelson, and, while it will never be known what the two men said to each other, Romney managed to extract from that meeting an assurance that Adelson “will be behind him 100 percent should he become the nominee.”

Maybe there really were five justices who didn’t understand that this was bound to happen when Citizens United was handed down in 2010, but, in the wake of these backroom meetings between top funders and their candidates, the justices cannot possibly deny the fact that Citizens United leads to corruption or at least the appearance of it. It’s time for the justices to simply admit they were wrong the first time around and overrule Citizens United.

This president is attacking religion, and is putting in place a secular agenda that our forefounders would not recognize. He, uh, he took a position which I thought was interesting which is he said, instead of a church being able to say who their ministers are, the government has to approve who you say your ministers are. He made that decision, and by the way, the church involved went to the Supreme Court, ultimately, to see if they could reverse that decision by the Obama Administration . . . did you know that the Supreme Court voted 9-0 against the president to retain religious liberty.

Imitation is the sincerest form of flattery, but Romney really shouldn’t ape Santorum’s inability to get his facts straight. For starters, the Obama Administration did not even come close to saying that the government has to approve church ministers. Rather, as conservative Chief Justice John Roberts explained in the unanimous opinion Romney refers to, the Obama Administration’s position is that “it would violate the First Amendment for courts to apply [anti-discrimination] laws to compel the ordination of women by the Catholic Church or by an Orthodox Jewish seminary.”

Nor is it true that this Supreme Court decision ended some nefarious Obama plot to impose unwanted clergy upon churches. The case that Romney refers to, Hosanna-Tabor v. EEOC, dealt with a school teacher who spent most of her time teaching secular subjects, but who also spent some time providing religious education at a religious school. The school claimed this teacher was actually a minister — and thus unprotected from the federal law that makes it illegal to fire her because she has a disability — while the teacher (and the Obama Administration) believed that she should not be treated the same way as Catholic priests or Orthodox rabbis because the overwhelming majority of her job duties were secular. Ultimately, a federal appeals court agreed with the teacher, and the Supreme Court agreed with the school.

No one in this saga ever claimed that the government can pick and choose a church’s ministers. Rather, the most important issue in the case was a very narrow factual dispute over what a single woman’s job was. But, of course, for Romney to realize this, he would actually have to spend some time learning basic facts before opening his mouth. And he has much more important things to do, like finding ways to copy Santorum’s successful strategy of telling falsehoods to GOP primary voters.

On Fox News this morning, GOP presidential candidate Rick Santorum doubled down on this bizarre claim that Obama is going after religion — falsely claiming that the president wants to tell Catholics who they can hire as priests:

What they’ve done here is a direct assault on the First Amendment, not only a direct assault on the freedom of religion, by forcing people specifically to do things that are against their religious teachings. . . . This is a president who, just recently, in this Hosanna-Tabor case was basically making the argument that Catholics had to, you know, maybe even had to go so far as to hire women priests to comply with employment discrimination issues. This is a very hostile president to people of faith. He’s a hostile president, not just to people of faith, but to all freedoms.

Watch it:

It’s not clear exactly which First Amendment Santorum is talking about here, because he clearly isn’t talking about the First Amendment to the United States Constitution. As conservative (and Catholic) Justice Antonin Scalia explained in a Supreme Court opinion more than twenty years ago, a law does not suddenly become unconstitutional because someone raises a religious objective to it — if this actually were true, anyone at all could immunize themselves from paying taxes or from any other law simply by claiming they have a religious objection to being a law-abiding citizen.

Moreover, Santorum’s claim that the Obama Administration wants to force Catholics to hire female priests (something which, incidentally, 53 percent of Catholics support) is the opposite of true. The Obama Administration’s brief in the case Santorum cites expressly stated that it would be unconstitutional to tell the Catholic church to do so, a fact that Santorum would have been aware of if he had actually bothered to read the Supreme Court’s opinion in Hosanna-Tabor. That opinion explains that the administration “grant[s] . . . that it would violate the First Amendment for courts to apply [anti-discrimination] laws to compel the ordination of women by the Catholic Church or by an Orthodox Jewish seminary.”

Ultimately, however, Santorum’s objection to the president doesn’t come down to some paranoid debate over whether President Obama is hostile to “all freedoms,” but a very important debate over what the word freedom actually means. President Obama does believe that women’s access to contraceptive care is fundamentally important to ensuring their freedom to participate in society and the in the workforce. Santorum, on the other hand, harshly criticized the Supreme Court’s longstanding decision saying that woman have a constitutional right to use birth control at all. Given that Santorum’s long history of radicalism on women’s health and the Constitution, it’s no surprise that he couldn’t be bothered to check basic facts before mouthing off about what the Obama Administration does and does not believe.

In 1996, the Supreme Court struck down an anti-gay Colorado constitutional amendment that stripped many gay men and lesbians of their existing legal rights in a case called Romer v. Evans. Today’s opinion relies heavily on Romer, honing in on the fact that Prop 8 stripped gay couples of a right they already enjoyed prior to its enactment — the right to marry a person of their choosing. As the Ninth Circuit explains:

The is not the first time the voters of a state have enacted an initiative constitutional amendment that reduces the rights of gays and lesbians under state law. In 1992, Colorado adopted Amendment 2 to its state constitution, which prohibited the state and its political subdivisions from providing any protection against discrimination on the basis of sexual orientation. . . . The Supreme Court held that Amendment 2 violated the Equal Protection Clause because “[i]t is not within our constitutional tradition to enact laws of this sort” — laws that “single out a certain class of citizens for disfavored legal status,” which “raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” . . .

Proposition 8 is remarkably similar to Amendment 2. Like Amendment 2, Proposition 8 “single[s] out a certain class of citizens for disfavored legal status . . . .” Like Amendment 2, Proposition 8 has the “peculiar property” of withdraw[ing] from homosexuals, but no others,” and existing legal right — here, access to the official designation of “marriage” — that had been broadly available, notwithstanding the fact that the Constitution did not compel the state to confer it in the first place.

In other words, the court finds a constitutional violation that is unique to the state of California — only California once extended equal marriage rights to gay couples, then yanked them away through a subsequent amendment.

There are two upshots to this California-specific reasoning. The first is that it reduces the likelihood that the Supreme Court will hear the case, although Supreme Court review remains very highly likely. Had the Ninth Circuit applied Judge Walker’s much broader reasoning, the implication would be that every single state has a constitutional obligation to marry gay couples. The justices typically hear cases that present an exceptionally important legal question of national importance, and such a broad decision would certainly qualify. Today’s decision, by contrast, is narrow enough that there is an off chance the justices could pass on it.

The other upshot is that today’s opinion gives an out to the justices in case a majority of them find Prop 8 constitutionally offensive but aren’t yet ready to kick off a political firestorm by ordering Alabama to marry same-sex couples. The opinion is, at its heart, a decision that discretion is the better part of valor, and that the Constitution is best served by banking an easier victory today and putting off the big fight until tomorrow. Gay couples in Alabama — and indeed the Constitution itself — may suffer longer for that decision, but today’s decision also maximizes the likelihood that Proposition 8 will stay dead.

In a perfect world, the president’s campaign would never make this announcement, and Obama’s supporters should not be naïve about what this means. When casino magnate Sheldon Adelson and his wife spend $10 million in an attempt to buy Newt Gingrich the presidency, it is impossible to imagine that Adelson isn’t also buying himself special access to the president in a Gingrich Administration. Likewise, when big oil companies pump $1.2 million into Mitt Romney’s Super PAC, it is impossible to imagine that they don’t expect some quid for their pro quo. President Obama is somewhat immunized from this kind of influence buying because, as a second term president, he won’t need to worry about needing his big donors again to get reelected. But, at the very least, every policy a second term Obama supports that benefits a big dollar supporter will now open him up to allegations of corruption.

Ultimately, however, President Obama made the only choice he could. In 2008, all presidential candidates spent a record setting $1.7 billion during their campaigns. Yet this amounts to less than one fifth of what Exxon earns in three months, and it is less than 8 percent of Adelson’s massive fortune. If just one major corporation or modern day viscount decides to go all in against Obama, they could effectively drown out the president’s ability to complete in this election. The American people deserve a choice in 2012, not an auction attended only by big money Republicans.

It’s important that the Obama campaign does not decide that last night’s decision requires them to stop campaigning hard against Citizens United and the flood of money it has injected into our system — especially because his opponent will certainly advocate for a very different vision of how democracy should work. This must include throwing his full weight behind state ballot initiatives and legislation that will mitigate the harmful effects of the Supreme Court’s decision until the day when that decision can be overruled.

Indeed, the 2012 election may be America’s last chance to fight the Supreme Court’s attempt to place elections up for sale to the highest bidder. Obama’s likely opponent, former Massachusetts Gov. Mitt Romney, doesn’t just believe that “corporations are people,” and he hasn’t simply pledged to appoint more Supreme Court justices who support Citizens United. Romney actually believes that billionaires should be able to write unlimited checks directly to his campaign — one of the few limits on influence buying that the Supreme Court has not yet gotten around to destroying.

By 2017, when the winner of November’s election will step down, three sitting justices will turn 80. Justice Ginsburg, one of the four dissenters in Citizens United is both the oldest justice and a cancer survivor. If a President Romney has the opportunity to replace just her, it could entrench Citizens United for a generation or more. Conversely, if President Obama can replace just one member of the majority in that case, he could eradicate this blight upon the Constitution and ensure that no future president needs to base his campaign strategy on how hard the likes of Sheldon Adelson is breathing down the back of their neck.

So President Obama didn’t just make the right decision, he made the right decision for people who believe that American democracy cannot be sold to the highest bidder. His decision to play upon the uneven field the Supreme Court laid for him is also America’s best chance to ensure that no candidate will play this same rigged game again. None of this will take away the cloud his decision will raise over a potential second term, but the blame for that cloud rests firmly in the laps of five Supreme Court justices.

Anti-ACA Attorney Paul Clement

The most striking thing about the brief is how light it is on citations to cases. Normally, a brief filed in the Supreme Court will be absolutely riddled with case citations in an attempt to demonstrate that the result supported by the brief flows naturally from existing precedent. Clement’s brief, by contrast appears barren by normal standards. His entire summary of his argument includes only three citations to cases, and only one of those cases was decided after 1820.

Instead, much of Clement’s brief reads as if it were an exercise in how the Constitution could have been interpreted if it had never once been examined in the first 225 years of the Republic. He opens the brief with a lengthy argument that just one word in the Constitution’s text forbids Congress from passing a law requiring most Americans to carry health insurance (this passage omits citations, although there are no cites in the bolded part of the quote):

The Constitution grants Congress the power “[t]o regulate Commerce … among the several States.” While the term “commerce” has not always been “marked … by a coherent or consistent course” of interpretation, the term “regulate” has: For nearly two centuries, the Court has defined “the power to regulate” as the power “to prescribe the rule by which commerce is to be governed.” . . . It is axiomatic that the power to “regulate commerce” presupposes the existence of commerce to be regulated. It is not the power to compel individuals to engage in commerce so that Congress has something to regulate The difference between the two is self-evident. The power to regulate is far more modest and allows Congress to reach individuals only if they decide to engage in conduct that constitutes (or substantially affects) interstate commerce..

Unfortunately, for Clement, however, the Constitution has been examined many times by the Supreme and other courts, and it is clearly and unambiguously false that there is two hundred years of precedent defining the word “regulate” the way Clement describes it. To the contrary, Chief Justice John Marshall — a man who, unlike Clement, was actually involved in ratifying the Constitution — disagreed strenuously with Clement’s reading of the document.

In Marshall’s words, there is “no sort of trade” that the words “regulate Commerce” do not apply to. Moreover, Marshall wrote in the very first Supreme Court case interpreting Congress’ power over interstate commerce, the power to “regulate” something “implies in its nature full power over the thing to be regulated.”

Given John Marshall’s reading of the Constitution, it’s pretty obvious why Clement’s argument falls apart. If the United States can regulate any form of trade, that includes power over trade in health care services. Moreover, if this regulatory power includes “full power over the thing to be regulated” than Congress may do so however it chooses. That includes the power to require most Americans to pay for their health care through insurance rather than waiting until they become sick and then hoping they have enough money squirrelled away to ward off bankruptcy.

No doubt anticipating this flaw in his argument, Clement responds by splitting a very fine hair:

The federal government attempts to minimize the lack of constitutional grounding for a mandate to purchase health care insurance by recharacterizing it as something it is not: a “regulat[ion of] … the way in which individuals finance their participation in the health care market.” That is simply not true. The mandate does not regulate or even speak to how “individuals finance their participation in the health care market.” Nowhere in the mandate—or anywhere else in entire 2,700 pages of the ACA—did Congress require individuals to actually pay for health care services with the insurance that the mandate requires them to obtain. The mandate neither addresses the “health care services” market nor regulates the method of financing purchases in that market. All the mandate does is force individuals to purchase insurance, which they are free to use or not use in the event that they actually need health care services.

In other words, Clement argues, the ACA doesn’t actually regulate how people purchase their health care because it merely ensures that they have health insurance. It doesn’t actually require people to use it. Somewhere out there, Clement must assume, is a person who would rather buy insurance and pay for their own health care out of pocket rather than simply allowing the insurance company to cover their costs.

One doesn’t exactly have to have a Nobel Prize in Economics to understand why this argument is ridiculous.

The next president, whether it’s Obama or a Republican, also has a reasonable shot at transforming the majority on the Supreme Court, because three justices representing the closely divided court’s liberal and conservative wings, as well as its center, will turn 80 before the next presidential term ends.

The three justices are Ruth Bader Ginsburg, the leader of the court’s liberal wing, conservative Antonin Scalia, and Anthony Kennedy, who leans conservative but on some issues provides a decisive vote for the liberals.

Kennedy, of course, does a whole lot more than simply “lean” conservative. Although his moderate views on issues such as gay rights and detainee treatment are welcome, Kennedy consistently places the interests of wealth individuals and corporations ahead of the more than 99 percent of Americans who cannot afford to buy and sell elections. Kennedy authored the egregious Citizens United decision that unleashed unlimited corporate efforts to buy elections and which led to the creation of Super PACs that empower billionaires to buy off candidates. He’s also consistently voted to allow corporations to force consumers and workers into a privatized, corporate-owned court system that overwhelmingly favors corporations.

If Obama is reelected, however, he could have the opportunity to replace Scalia or Kennedy and transform a Court that has bent over backwards for the one percent into a Court interested in enforcing laws enacted to benefit all Americans. Perhaps this is why super-wealthy donors taking advantage of Kennedy’s error in Citizens United are overwhelming using their vast fortunes to try to defeat Obama.

In their attempt to see the entire Affordable Care Act fall, however, several of the plaintiffs challenging the law committed what should be a fatal blunder — they effectively admit that their entire constitutional challenge to the law is garbage.

The primary attack on the ACA targets its provision requiring most Americans to either carry health insurance or pay slightly more income taxes — the so-called “individual mandate.” This insurance coverage provision exists because without it, the law’s other provisions ensuring that people with preexisting conditions can obtain insurance cannot be implemented. If patients can wait until they get sick to buy insurance, they will drain all the money out of an insurance plan that they have not previously paid into, massively driving up costs for the rest of the plan’s consumers.

This problem doesn’t just make the insurance coverage requirement good policy, it also makes it constitutional. The Constitution doesn’t just give Congress sweeping authority to regulate the national economy, it also authorizes it “[t]o make all laws which shall be necessary and proper for carrying into execution” regulations of interstate commerce. As conservative Justice Antonin Scalia explains, this means that, “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”

So, with this background in mind, consider the following passage from the private plaintiffs’ brief arguing that the entire law must fall if the insurance coverage rule goes down:

The mandate was intended to be a direct subsidy to insurance companies, as compensation for requiring them (in the guaranteed-issue provision) to insure against “risks” that have already come to pass and forbidding them (in the community-rating provision) from using actuarially sound insurance premiums. The mandate thus works to counteract the powerful inflationary impacts of these other provisions, which would otherwise make premiums in the individual insurance market prohibitively expensive, thereby frustrating Congress’ goal of affordable health insurance. And Congress further viewed the mandate as necessary to prevent “adverse selection” to “game” the new insurance rules, which proponents warned would spark a “death spiral” in insurance.

The guaranteed-issue and community-rating requirements thus cannot operate without the mandate in the manner intended by Congress. Rather, “their associated force—not one or the other but both combined—was deemed by Congress to be necessary to achieve the end sought.” To strike the mandate alone would impermissibly eliminate a central quid pro quo of the Act. If the mandate falls, the guaranteed-issue and community-rating regulations must therefore fall with it, as the Government itself has conceded.

So the plaintiffs admit that, without the insurance coverage requirement, premiums will become “prohibitively expensive” and that the ACA’s provisions protecting people with preexisting conditions or who otherwise are highly likely to need health care (what are known as “guaranteed-issue” and “community-rating” laws in the jargon of health policy) “cannot operate without the mandate in the manner intended by Congress.” This is a flat out admission that the Scalia Rule applies in this case. Guaranteed issue and community rating are regulations of interstate commerce, and thus Congress has “every power needed” to make them effective — including the power to enact the insurance coverage requirement.

I discuss this rather breathtaking admission at greater length in an amicus brief I filed Friday on behalf of several health provider organizations, which also includes some more details about why the plaintiffs’ attempt to take out the entire ACA has no basis in law. Ultimately, however, there is no need whatsoever for the justices to consider how much of the law stands or falls without the coverage requirement. The private plaintiffs already gave away the farm when they admitted that their entire legal challenge rests on a crumbling foundation.

Simply put, “We the People” are fed up and have already entered into what is in effect a Second American Revolution because judges and other government officials behave as if they are “above the law,” in effect nobility who can do as they please. . . . In short, the comments of Chief Justice Roberts [suggesting that Kagan does not need to recuse] are an affront to the high ethical standards of our Founding Fathers and amount to a subversion of our laws. They are disgraceful at best and at worst amount to obstruction of justice. They are the result of someone who became Chief Justice by first ingratiating himself to the “Washington establishment,” and now seeks to act as the Chief Justice not just of the Court, but of this same establishment – which for decades has pushed the nation to the brink of revolution by representing mostly its own interests, perpetuating and consolidating its power and selling out “We the People.” This is why in large part the nation is in a deep crisis; the majority of Americans have little if any respect for either the Supreme Court or our judiciary as a whole, notwithstanding their current similar disdain for the other two branches of government.

The situation is as bad as in 1776 when “We the People” declared independence from King George III and the British Crown. In the 236 years since the start of the first American Revolution, our current ruling class, which is not of the mettle of our Founding Fathers, – who pledged their sacred honor, fortunes and risked their lives to create a free nation – has come full circle. Today, the Supreme Court and the other two branches of government have assumed the role of a “royalty” – in some ways worse than even King George III – who feel free to ignore the legitimate interests and grievances of “We the People,” because they believe they are a “protected class” and above the law.

So, to be clear, the claim here is that far-right Chief Justice John Roberts is part of a giant conspiracy to help Kagan preserve President Obama’s chief legislative accomplishment, that this conspiracy is “in some ways worse” than monarchy, and that the American people are presently responding to it with a “Second American Revolution.” And this is what passes as legal argument among the Kagan recusal crowd. Sadly, this argument is only slightly better than the absurd claim that the Affordable Care Act itself is unconstitutional.

Super PACs have raised more than $30 million just three races into the 2012 presidential race, according to the website opensecrets.org, run by The Center for Responsive Politics. TV advertising alone in South Carolina, which is voting Saturday, is estimated at $12 million, or nearly $27 per voter when calculated using the 2008 Republican primary turnout numbers. [...]

Scalia said the blame for this type of system shouldn’t fall on the Supreme Court, which he said decides merely whether the system is legal under the U.S. Constitution. Instead, he said the ones who have to change things are the politicians who created the system and the voters who often reward the candidates who spend the most money.

“If the system seems crazy to you, don’t blame it on the court,” Scalia said, during a discussion in front of South Carolina lawyers that lasted for more than an hour.

Scalia’s attempt to shift blame is, frankly, ridiculous. While America’s pre-Citizens United campaign finance laws were far from perfect, they were at least adequate to prevent a handful of corporations from buying and selling elections. Congress passed a ban on corporate money in politics 65 years ago. The Supreme Court, with Scalia casting the deciding vote, killed that ban. If it wasn’t for the Supreme Court, the ban would still be in place.

Moreover, while Citizens United is best remembered for opening the floodgates to corporate money in politics, it also led to the creation of “Super PACs” which allow wealthy individuals and corporations to spend unlimited sums of money on shadow campaigns intended to elect particular candidates. Shortly after Citizens United was handed down, a key lower court decision used it to declare so-called “independent expenditures” a free for all for the very wealthy. Billionaires are still forbidden from giving unlimited money to a campaign, but donations to “independent” groups such as Newt Gingrich or Mitt Romney’s Super PAC are entirely unbound.

To the extent that Citizens United still allows some leeway to regulate campaign finance, the fact that Congress has not done anything to enact new regulation after the Supreme Court blew our existing system up can be explained with just one chart:

That’s the top 20 spenders on the 2012 election — 17 of whom are conservatives or Republicans. In other words, Scalia’s action in Citizens United doesn’t just mean a flood of corporate and other money, it means that this money overwhelmingly favors one political party. Republican lawmakers are more than smart enough to figure this out, and that gives them all the incentive they need to block any attempt to fix the mess Citizens United created.

Many voting rights advocates feared that the conservative Supreme Court would use this case to make sweeping changes to the laws protecting voters, either by eliminating the judiciary’s authority to draw interim maps such as the ones at issue here or potentially even by striking down key parts of the Voting Rights Act. Fortunately, those fears proved unfounded this time around. The crux of their holding is that the lower court erred in drawing these particular maps because they did not treat the state legislature’s preferred maps as a baseline and depart from that baseline only when necessary to rescue the map from illegality:

In [the challenger's] view, this Court’s precedents require district courts to ignore any state plan that has not received §5 preclearance. But the cases upon which appellees rely hold only that a district court may not adopt an unprecleared plan as its own. They say nothing about whether a district court may take guidance from the lawful policies incorporated insuch a plan for aid in drawing an interim map. Indeed, in Upham this Court ordered a District Court to defer to the unobjectionable aspects of a State’s plan even though that plan had already been denied preclearance.

In this case, the District Court stated that it had “giv[en] effect to as much of the policy judgments in the Legislature’s enacted map as possible.” At the same time, however, the court said that it was required to draw an “independent map” following “neutral principles that advance the interest of the collective public good.” In the court’s view, it “was not required to give any deference to the Legislature’s enacted plan,” and it instead applied principles that it determined “place the interests of the citizens of Texas first.” To the extent the District Court exceeded its mission to draw interim maps that do not violate the Constitution or the Voting Rights Act, and substituted its own concept of “the collective public good” for the Texas Legislature’s determination of which policies serve “the interests of the citizens of Texas,” the court erred.

The partisan upshot of this decision is that it is probably good news for Republicans. In an earlier case called Vieth v. Jubelirer, the Supreme Court largely abdicated oversight over politically motivated gerrymanders, thus enabling political parties to be as aggressive as they want in drawing maps that achieve their partisan goals. Because the Texas legislature is overwhelming dominated by Republicans, today’s decision requiring the lower court to use their map as the baseline in drawing an interim map will increase the likelihood that partisan gerrymandering intended to favor the GOP will remain present in the interim map the lower court eventually produces.

One thing that is clear from the list is that organizations that actually know something about health care support this law. In the lower courts, real experts in health care — doctors, nurses, patient groups and hospitals — all lined up in support of the law. That pattern has now repeated itself before the Supreme Court. Groups supporting the law include:

• Doctors and Nurses: Six health providers groups, including the American Academy of Pediatrics and the American Nurses Association, joined a brief authored by an attorney who will be very familiar to the readers of this blog.
• Patient Groups: A long list of patient and disability groups, including the American Cancer Society, American Diabetes Association, American Heart Association, the March of Dimes and the American Association of People with Disabilities joined two briefs supporting the ACA.
• Hospitals: The American Hospital Association, the Association of American Medical Colleges, the Catholic Health Association of the United States, Federation of American Hospitals, National Association of Public Hospitals and Health Systems and the National Association of Children’s Hospitals submitted another brief.
• Insurers: Blue Cross and Blue Shield of Massachusetts also filed a brief explaining the success of the Massachusetts health plan, which was the model for the Affordable Care Act.

Other amici include the AARP, the attorneys general of eleven states, four Nobel Prize winning economists, small business groups, nearly 500 state lawmakers, groups representing women, young people and numerous advocacy groups and academics.

It, of course, remains to be seen what the law’s opponents will produce when it come their time to file amicus briefs, but their past efforts have not been impressive. In the lower courts, briefs opposing the law were filed mostly by conservative think tanks, GOP elected officials and Republican-aligned lobbying groups. Virtually no health care groups — beyond a right-wing doctors’ advocacy group which likens the Affordable Care Act to “Hitler” — stood against the ACA.

“It took us a long time to sell West Wing and it would be increasingly impossible now. You would take it to cable,” he said, suggesting that he also wouldn’t have been able to get China Beach on the air. “We never would have been able to sell ER…I can tell you that even at the time it was turned down by all the major broadcast networks twice before we actually got NBC to make it.” But he suggested that the combination of a return to profitability and the rise of smart, sophisticated storytelling on cable might pry the doors open again. “I’m hopeful about the network business,” he said. “They’re starting to see the competition for high-end programming, programming that’s going to be watched by a more sophisticated and affluent audience, that they have to compete with cable. I find it to be a very good time to have ideas that are different.”

He also suggested that even if the Supreme Court declined to overturn the rules against indecency on network television, the key to pushing the boundaries was to provide clear context and emotional basis for both events and language, pointing to ER as an example.

“We spent a lot of time intentionally pushing against where we knew the fence to be because we knew the audience was ready for more than what the government was prepared for us to do,” Wells said. “The audience is always very prepared to accept something that is done within the context…It was an episode I wrote and directed in which Anthony Edwards was dying and fell out of bed and started screaming ‘Shit!’ because he was so frustrated with where he was in his life…We didn’t get a single letter because the context, people understood.” In a different philosophy than that laid out by CBS Entertainment president Nina Tassler and 2 Broke Girls executive producer Michael Patrick King yesterday, Wells questioned indecency for indecency’s sake. “Is the audience going to understand what we’re trying to get at, or are we trying to inflame or do the thing that you do in elementary school where you wave around words and try to get a reaction?” he asked.

Wells also spent some time discussing the role of Ian Gallagher, the young gay character on Showtime who is not just romantically, but sexually active. He said that Cameron Monaghan’s turning 18 meant that Shameless would be able to be somewhat more explicit about Ian’s sex life without having to worry about violating federal child pornography laws. And Wells said he’d been touched by how the story had resonated with young gay teenagers who told him and Monaghan that they appreciated how the show reflects the complexity of their lives. Especially given the role of Roscoe on Showtime, it will be interesting to see if the network is digging in as a grittier alternative to shows like Glee, which focus more on the emotional lives of teenagers than the details of their sex lives. That’s not to say that you’ve got to be explicit to explore emotion, but it’s true that sometimes the details of sexual experience (or of exploring gender identity) do create specific emotional reactions, and it’s nice to have a commitment to exploring that.

-Great background on and analysis of the decency case argued before the Supreme Court yesterday.

-For Downton Abbey fans, this piece about Virginia Woolf’s relationship with her cook is a fascinating read.

-We are, apparently, getting an Into the Woods movie.

-As usual, Caitlin Flanagan makes with the totalizing, but there is interesting stuff in her review of Blue Nights.

-Why is Hollywood suddenly so nuts for Linda Lovelace?

-The only reason I’m sorry to be in California is the Supreme Court is hearing arguments in its broadcast decency case today. Let’s hope the decisions are as amusing as the video games case.

-Apparently, being a radio host means you have to be more sedate than a blogger. Who knew?

-Rick Santorum signals support for stronger copyright protections, if not SOPA.

-The Pawnee City Council race just got even more adorable.

-Tom Hanks will make us a web television series because why not.

-Yes, this is pretty much how I feel about New Girl:

The Montana Supreme Court

As has now been widely reported, the Montana Supreme Court recently tried to consign Citizens United to its well deserved fate by essentially holding that the U.S. Supreme Court’s folly does not apply in Montana. I have genuinely struggled about what to say about this 5-2 decision — which is why ThinkProgress has not reported on it prior to this post. On the one hand, the Montana justices defied an obviously wrong decision that threatens to turn American democracy into an auction that sells essential government jobs to whichever special interest group happens to be the highest bidder. On the other hand, ThinkProgress has been unequivocal in condemning conservative officials who believe that they have the power to defy Supreme Court decisions they disagree with, or who think that states can simply ignore federal law or the Constitution.

We will not abandon this commitment to the rule of law today. It is wrong when Newt Gingrich plots a campaign of massive resistance against judges he disagrees with, and Montana’s justices act no less illegitimately when they fail to follow a binding Supreme Court precedent. There is no reason to doubt that every word of the Montana Supreme Court’s decision — which explains in great detail how corporate money corrupts a state’s politics — is accurate, except for the part when they say that Citizens United does not force them to allow corporations to corrupt Montana.

Yet, while the Montana justices erred, they erred far less than the five U.S. Supreme Court justices who ignored the Constitution and decades of precedent to strike down a 63 year old ban on corporate money in politics. The U.S. Supremes will doubtless decide they need to review the Montana decision. They should do so, and they should reverse their error in Citizens United as soon as possible to minimize its impact on the upcoming election.

Additionally, every judge in the country should read Montana Justice James Nelson’s dissent from the decision rejecting Citizens United. He devotes most of the last eight pages of this decision to explaining why, despite the fact that he is bound by Supreme Court precedent, the one that binds him today is disastrously wrong:

While, as a member of this Court, I am bound to follow Citizens United, I do not have to agree with the Supreme Court’s decision. And, to be absolutely clear, I do not agree with it. For starters, the notion that corporations are disadvantaged in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield inordinate power in Congress and in state legislatures. It is hard to tell where government ends and corporate America begins; the transition is seamless and overlapping. In my view, Citizens United has turned the First Amendment’s “open marketplace” of ideas into an auction house for Friedmanian corporatists. Freedom of speech is now synonymous with freedom to spend. Speech equals money; money equals democracy. This decidedly was not the view of the constitutional founders, who favored the preeminence of individual interests over those of big business. [...]

Lastly, I am compelled to say something about corporate “personhood.” While I recognize that this doctrine is firmly entrenched in the law, I find the entire concept offensive. Corporations are artificial creatures of law. As such, they should enjoy only those powers—not constitutional rights, but legislatively-conferred powers—that are concomitant with their legitimate function, that being limited-liability investment vehicles for business. Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental, natural rights with soulless creations of government. Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons.

Even in an era when corporate interest groups dominate the U.S. Supreme Court, judges lack the authority to defy the high Court’s commands. What they can never lose, however, is their right to speak out in published opinions about how deeply misguided the nation’s highest Court has become. Justice Nelson’s opinion should be the model for every judge who fears the Supreme Court has forgotten to follow the very Constitution it is sworn to uphold.

[L]ongstanding constitutional law protects U.S. citizens’ right to speak out on political matters or even run ads supporting or opposing a candidate. Moreover, the Supreme Court’s egregious Citizens United decision forced America to treat corporations as if they had exactly the same First Amendment rights as people. To date, however, the court has not said that foreign nationals or foreign corporations enjoy the same rights as Americans.

Bluman asks the justices to punch a giant hole in this distinction between citizens and foreigners. But if foreigners must be treated the same as Americans, and if corporations also must be treated the same as people, then it follows that foreign corporations must enjoy the same right that American citizens enjoy: the right to spend money to influence U.S. elections, at least as long as they spend the money themselves rather than contribute it to a candidate.

The Court deserves some small degree of credit for today’s opinion, although only a very small amount since the result they reached today is clearly and obviously correct. Because the justices did not release an opinion explaining their decision, however, the rest of the nation will simply have to guess why five justices believe that allowing foreign corporations to corrupt our elections is a bridge too far, but enabling domestic corporations to buy elections is required by the Constitution.