Archive for June, 2012

Mandate Mania

June 27, 2012

As a long-time SCOTUS junkie, I have never seen anything like the white-knuckle anticipation for the Obamacare decision.  Whatever the outcome, I think the Court is 9-0 about this principle of  appellate jurisprudence: Get out of town fast!   You can be sure that not one of these nine jurists will enjoy being in the glare of the public after this Thursday, and they will try to limit access for their own sanity.

Unlike some commentators, however, I think the mandate is still 50-50.  I was disturbed by Kennedy joining the dissent on the Southern Union Company v. U.S. decision.  The Court had affirmed a broad sixth amendment protection for the citizen in Apprendi, and later cases.  I simply can’t understand why Kennedy would see the need to cut back on that  in a case that is clearly an abuse of judicial discretion.  Significantly, to call the majority’s decision “ahistorical”  is to suggest that there is an approach to the health care mandate that finds an implied confirmation based on repetition alone.  Just because the Court has repeatedly, and improperly, extended the commerce clause should not mean that its scope has actually increased.

But I don’t mean to advance any legal theory in this post.  I am writing here, in haste, to express an optimism —  shaky, at best — about the growing willingness of many citizens to confront their leaders with their dissatisfaction with the government.  This dissatisfaction is currently unfocused, and there’s little agreement on what people want that would replace the rampant paternalism that seems to be Washington’s only work product today.  But it has to start somewhere, and opposing the mandate is as good a place as anywhere else.  What I’m saying here –and about this I am very confident — is that if Thursday’s decision upholds the mandate, that this will definitely NOT put the genie back into the bottle.  There is something refreshing, even liberating, about openly discussing the limits of the government’s authority.  The Court’s decision on Thursday, whatever it is, will serve as the conclusion of this opening chapter.  But the debate will continue, in a major way, in the Senate confirmation hearings of the next nominee to the Supreme Court.

Peevish on Polls

June 10, 2012

   I admit that my distrust of surveys, or polls, has little statistical evidence to back it up — not that I’ve researched the question.  It’s just that they seem to be everywhere — especially in an election year — and they are reported in the media as hard evidence of what the larger, unpolled population actually thinks.  Well-paid pundits and journalists then use the polls to announce their latest predictions about the “mood” of the country as a whole.

   I’ve often wondered why we believe these polls in the first place.  Thankfully, the media never ties to describe the complex laws of probability that, supposedly, justify the pollsters’ conclusions; we would all fast-exit if they did. I know I’d never consent to such torture, and only a truly committed sorehead would take on the challenge in the hope of exposing the “science” as a fraud.

   And yet, secretly, don’t many of us think it is?  But, if we’re not willing to put in the “hard labor” of learning this pseudoscience, does that mean we are to be forever besieged with polls that claim a national significance based on the droppings of 1,154 unidentified bozos?

   I propose a half-measure as a kind of defense, at least until a hardier sorehead than me comes along to do the dirty work.  Why not have each polled respondent answer a question of fact about the subject they are asked to have an opinion about?  It should be a plain, simple fact, but one that everyone should be expected to know if we are to take their “informed opinions” seriously.  Let’s say, Mitt Romney was the governor of what state? Or maybe, what is a governor?

   I think this is important because the pollsters and pundits never explain why their volunteer army of pollees are representative of us.  We are expected to take that on faith.  A “plain fact” test — like the one I propose — might make them hesitate a little.  In fact, I don’t think the poll interpreters should even know those “plain fact” answers until after they make their “scientific” conclusions about the other questions.  It should be easy to hide the computerized responses from the pollsters, and then publish them widely.  Maybe on the Comedy network.


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