The Daily Parker

Politics, Weather, Photography, and the Dog

Papagena lebe!

I'm just over a week from performing with the Chicago Symphony Orchestra at Ravinia in Mozart's Die Zauberflöte, so as I try to finish a feature that turned out to be a lot bigger than I thought, I'm hearing opera choruses in my head. Between rehearsals and actual work, I might never get to read any of these items:

Finally, New York City (and other urban areas) are experiencing a post-pandemic dog-poop renaissance. Watch where you step!

And now, I will put on "Dank sei dir Osiris" one more time.

The Religious Right, uh, finds a way

New York Times columnist and former Supreme Court reporter Linda Greenhouse summarizes the frightening success of the Religious Right under the Roberts court:

Yes, democracy survived [the Supreme Court's 2022-23 term], and that’s a good thing. But to settle on that theme is to miss the point of a term that was in many respects the capstone of the 18-year tenure of Chief Justice John Roberts. To understand today’s Supreme Court, to see it whole, demands a longer timeline. To show why, I offer a thought experiment. Suppose a modern Rip Van Winkle went to sleep in September 2005 and didn’t wake up until last week. Such a person would awaken in a profoundly different constitutional world, a world transformed, term by term and case by case, at the Supreme Court’s hand.

To appreciate that transformation’s full dimension, consider the robust conservative wish list that greeted the new chief justice 18 years ago: Overturn Roe v. Wade. Reinterpret the Second Amendment to make private gun ownership a constitutional right. Eliminate race-based affirmative action in university admissions. Elevate the place of religion across the legal landscape. Curb the regulatory power of federal agencies.

By the time the sun set on June 30, the term’s final day, every goal on the conservative wish list had been achieved. All of it. To miss that remarkable fact is to miss the story of the Roberts court.

It’s worth reviewing how the court accomplished each of the goals. ... Precedents that stood in the way were either repudiated outright, as the Dobbs v. Jackson Women’s Health Organization decision did last year to Roe v. Wade and Planned Parenthood v. Casey, or were simply rendered irrelevant — abandoned, in the odd euphemism the court has taken to using.

Likewise, the court has not formally overruled its Chevron decision. Its administrative-law decisions have just stopped citing that 1984 precedent as authority. The justices have simply replaced Chevron’s rule of judicial deference with its polar opposite, a new rule that goes by the name of the major questions doctrine.

But how to tell a major question from an ordinary one? No surprise there: The court itself will decide.

But of course, the Supreme Court doesn’t stand alone. Powerful social and political movements swirl around it, carefully cultivating cases and serving them up to justices who themselves were propelled to their positions of great power by those movements. The Supreme Court now is this country’s ultimate political prize. That may not be apparent on a day-to-day or even a term-by-term basis. But from the perspective of 18 years, that conclusion is as unavoidable as it is frightening.

Last weekend I discussed the just-ended term with a friend who's a practicing attorney. We lamented the right-wing march of the Court under Roberts on social issues, but we also discussed another aspect of the Roberts court that doesn't get as much reportage.

Under this Republican Court, series of other cases has systematically made it harder for smaller litigants to get access to Federal courts. These seemingly minor procedural changes may actually cause much more damage to our country than the clearly-out-of-step decisions that will start getting thrown out when the pendulum swings back to the center in a few years.

Why am I inside?

I'm in my downtown office today, with its floor-to-ceiling window that one could only open with a sledgehammer. The weather right now makes that approach pretty tempting. However, as that would be a career-limiting move, I'm trying to get as much done as possible to leave downtown on the 4:32 train instead of the 5:32. I can read these tomorrow in my home office, with the window open and the roofers on the farthest part of my complex from it:

Finally, does day drinking cause more harm than drinking at night? (Asking for a friend.)

Shocking Supreme Court decisions just announced!

Ah, ha ha. I'm kidding. Absolutely no one on Earth found anything surprising in the two decisions the Court just announced, except perhaps that Gorsuch and not Alito delivered the First Amendment one. Both were 6-3 decisions with the Republicans on one side and the non-partisan justices on the other. Both removed protections for disadvantaged groups in favor of established groups. And both lend weight to the argument that the Court has gone so far to the right that they continue to cause instability in the law as no one knows how long these precedents will last.

Let's start with 303 Creative v Elenis, in which the Court ruled that a Colorado web designer did not have to create websites for gay weddings, on the philosophy that religiously-motivated anti-gay bigotry is protected under the First Amendment:

The decision also appeared to suggest that the rights of L.G.B.T.Q. people, including to same-sex marriage, are on more vulnerable legal footing, particularly when they are at odds with claims of religious freedom. At the same time, the ruling limited the ability of the governments to enforce anti-discrimination laws.

The designer, Lorie Smith, said her Christian faith requires her to turn away customers seeking wedding-related services to celebrate same-sex unions. She added that she intends to post a message saying the company’s policy is a product of her religious convictions.

A Colorado law forbids discrimination against gay people by businesses open to the public as well as statements announcing such discrimination. Ms. Smith, who has not begun the wedding business or posted the proposed statement for fear of running afoul of the law, sued to challenge it, saying it violated her rights to free speech and the free exercise of religion.

I actually might agree with the very narrow outcome of this specific case: I don't think someone should be forced to create something they morally oppose. That said, I fear, as do many others, that people will see this as license to scale back anti-discrimination measures against all marginalized groups. And this is why I think the case is going to be a problem for a generation. I'll read Gorsuch's opinion over the weekend, hoping that he resisted the urge to fill it with Federalist Society-approved obiter dicta. But I expect to see more litigation on anti-discrimination statutes as a result of the ruling. It's part of the Republican strategy to erode hard-won rights by creating fear and doubt in marginalized groups, and it's working.

The other ruling (Biden v Nebraska), also pitting the Republicans against everyone else in the free world, killed the President's program to waive about $405 billion in student debt that hundreds of thousands of low- and middle-income borrowers owed to the Federal Government. The Court found the thinnest of pretexts to allow the State of Missouri just enough standing to keep the case from evaporating entirely, and then rug-pulled all those people for whom $10,000 might be the difference between poverty and continued daily meals by saying the President exceeded authority granted him by Congress to "waive or modify" the loans:

The court has rejected the administration’s expansive arguments in the past. The court lifted a pandemic-era moratorium on rental evictions put in place by the Centers for Disease Control and Prevention. It threw out a coronavirus vaccination-or-testing mandate imposed on large businesses by the Occupational Safety and Health Administration. And in a ruling unrelated to the pandemic, it cited the “major questions” doctrine to limit the Environmental Protection Agency’s options for combating climate change.

The legal battles have left millions of student loan borrowers in limbo. More than half of eligible people had applied for the forgiveness program before it was halted by the courts, with the Education Department approving some 16 million applications.

Biden’s debt relief program has been a divisive issue on Capitol Hill. On June 7, Biden vetoed a Republican-led resolution to strike down the controversial program and restart loan payments for tens of millions of borrowers. The measure passed the Senate with the backing of Sens. Joe Manchin III (D-W.Va.), Jon Tester (D-Mont.) and Kyrsten Sinema (I-Ariz.). Despite Biden’s veto, the resolution shows the likely difficulty of getting any future debt relief plan through Congress.

This, like yesterday's affirmative action decision, shows the Republican majority gleefully rolling back all the things they have hated ever since Lyndon Johnson had the gall to give those people civil rights in 1964. They firmly believe in the ability of everyone born on second base to get a home run even if it means everyone else strikes out, because (and I'm really not making this up, if you dig into what these people have written) they deserve it. (Best Tweet of the day, from the ever-scathing New York Times Pitchbot: "Opinion | Without the burden of affirmative action, Harvard can finally become a true meritocracy—by Jared Kushner and Robert F. Kennedy Jr.")

The good news—in the most general sense as the 6-3 split will continue to be very bad news in specific for years—is that this kind of reactionary behavior by the right wing tends to flame out in a generation or so. It's the desperate clawing back of gains made by the lower orders to hold onto inherited privilege for just a little longer that happens when the old guard know they're on their way out. We've seen it in the US before, and in the UK, and in lots of other times and places.

Unfortunately, undoing the damage the revanchists cause hurts like hell. The next 10-15 years are going to suck for a lot of people.

The more things change, the more they stay the same

Some stories to read at lunch today:

Finally, our air quality has improved slightly (now showing 168 at IDTWHQ), but the Canadian smoke may linger for another couple of days.

The 2023 Canadian Smoke-Out continues

As the smoke from Canadian wildfires continues to spread through the American Midwest, I want to mention that the effective use of government regulation of industry has made this week's air quality that much more surprising. Just take a look at Evanston, Ill., yesterday around 7pm:

The fact that this looks really weird says a lot about what the government can do when people are behind it.

No, really: the air-quality alerts from Minnesota to West Virginia look bizarre right now because we hardly ever see AQIs above 150 these days. In my lifetime, even 35 years ago, Chicago looked like this all the time.

The Chicago Tribune reported on this incredible change in 2015:

As early as 1874, as the city rebuilt after the Great Fire of 1871, the Tribune warned that the huge increase in factories and hotels, and the new skyscrapers with their steam-powered elevators, was a serious problem. "So dense is this volume of smoke that, unless there is a brisk, stirring breeze, the whole of it settles down in the central part of the city and leaves its dirty imprint," the editorial said.

Civic leaders, including the editors of the Tribune, crusaded tirelessly against the "smoke horror."

It is hard to know how often the sun lost its battle to shine — though it happened regularly into the 1950s — because the Tribune wrote stories only when it was unusually bad. On Jan. 18, 1925, the newspaper reported the pall that turned day into night was "the densest, thickest and darkest smoke screen which has been thrown over the city this season." The "plague of darkness" on Dec. 7, 1929, was caused by low-hanging clouds, fog and "the customary smoke screen."

And the power needed to light the day meant Commonwealth Edison had to burn even more coal.

By the late 1960s people had had enough. So finally, in 1970, Congress unanimously (except for one demon from the 3rd Circle of Hell) passed the Clean Air Act, starting a decades-long process of cutting emissions and switching from dirty power sources that continues today.

In 1980, ten years after the Clean Air Act passed, Los Angeles had only 6 days with AQIs below 50 but 206 above 150. (I know, because I was there for many of them.) In 2021, LA had 41 days below 50 and only 27 above 150.

This week we have unhealthy air due to natural pollution from an unusual combination of record wildfires in Canada and a weather system blowing the smoke south. Air quality should return to normal (or even healthy) by the weekend. But absent bipartisan regulation 53 years ago, it would look like this (or worse) more than half the year.

So when I say I want a real opposition party and not the whackadoodle nihilists currently destroying their constituents' faith in government, this is why.

Comey Barrett and Kavanaugh continue to surprise

The Supreme Court published its ruling in Moore v Harper today, snuffing out the Federalist Society weed-induced fantasy of the "independent state legislature theory" would remain just that—a fantasy:

[A]lthough the Constitution gives state legislatures the power to regulate federal elections, state courts can supervise the legislature’s exercise of that power. By a vote of 6-3, the court rejected the so-called “independent state legislature theory,” holding that the North Carolina Supreme Court did not violate the Constitution when it set aside a congressional map adopted by the state’s legislature.

In 2019, in Rucho v. Common Cause, the Supreme Court ruled that federal courts cannot consider claims of partisan gerrymandering. But the 5-4 decision by Chief Justice John Roberts noted that states could still address partisan gerrymandering in their own laws and constitutions. In February 2022, the North Carolina Supreme Court (which at the time had a 4-3 Democratic majority) ruled that the new map violated a provision in the state constitution guaranteeing free elections. The state supreme court barred the state from using the new map in the 2022 elections, and the trial court later adopted a new map, drawn by Republicans and Democrats split the state’s congressional seats 7-7.

Republican legislators came to the U.S. Supreme Court last year, challenging the state supreme court’s decision. They argued that when it set aside the legislature’s congressional map, the state court violated the “independent state legislature” theory. That theory, which the Supreme Court has never endorsed in a majority opinion, rests on two provisions of the Constitution. In Moore, the legislators point to one of those provisions, Article I’s elections clause, which provides that the “Times, Places and Manner” of congressional elections “shall be prescribed in each State by the Legislature thereof.” Article II’s electors clause provides that states shall appoint presidential electors for the Electoral College “in such Manner as the Legislature thereof may direct.” These provisions, the theory’s proponents contend, mean that state courts lack the power to supervise how state legislatures run elections for Congress or the president – including, as in this case, the power to set aside congressional powers.

Notably, Justices Amy Comey Barrett (R) and Brett Kavanaugh (R), themselves test-tube babies of the Federalist Society judiciary pipeline, signed onto the opinion Chief Justice John Roberts (R) wrote, along with the non-partisan Justices Katanji Brown Jackson, Sonia Sotomayor, and Elena Kagan.

Kavanaugh also concurred with Roberts' opinion in Allen v Milligan, sending Alabama's blatantly racist map back to Montgomery, and Monday in a similar Louisiana case.

I don't know whether Justices Gorsuch (R), Thomas (R$), and Alito (R$) dissenting from Moore surprises me or not. Those three have always believed the Republican Party is the only legitimate ruler of the United States, signing on to a series of ridiculous arguments to advance the Cause. I'm sure the Federalist Society expected Kavanaugh and Comey Barrett to follow behind them. Maybe Kavanaugh is turning Brennan?

Ha. No. But at least he hasn't chased the right-wingers over the ledge. Yet.

Lawsuits may fix US real estate commission nonsense

James Rodriguez reports today in Insider on two class-action lawsuits (one in the 8th Circuit and one here in the 7th) against the National Association of Realtors. The cases, both filed in 2019, allege that the NAR has violated the Sherman Antitrust Act by requiring buyers to pay 3% commissions on house purchases through a multi-step process whereby the buyer's agent commission is paid by the seller. These rules prevent buyers from negotiating over fees. Recent orders by the two courts have moved the cases closer to trial (and, one assumes, consolidation), with experts predicting a big win for house buyers—and a big loss for real estate agents:

Stephen Brobeck, a senior fellow at the Consumer Federation of America, told me that one of the biggest problems identified in the cases is what's known as "steering." Since agents representing buyers can see the promised commission for each home in the MLS, they can discourage their clients from viewing properties with unsatisfactory paydays. The NAR doesn't set a minimum commission that listing brokers need to promise to their counterparts on the buyer's side — technically, it could be as little as $1. But the going rate is typically between 2.5% and 3% of the total sale price, so anything below that amount means the sellers' home could be less likely to get traction. 

"They not only have to pay a buyer's agent commission, but they can't negotiate that commission," Brobeck said of sellers. "Because if they lower that commission, research has shown that the house is less likely to be shown by the buyer-agents." One study found that properties listed with sub-2.5% commission rates were 5% less likely to sell and took 12% longer to sell.

The sheer size of the damages sought by the plaintiffs would undoubtedly wreak havoc on the industry's largest players. But for regular agents, there would also be a reckoning. If buyers have to pay out of pocket for their agents, many might choose to not hire an agent at all, or just pay an agent by the hour for their insight. Agents would face more competition for clients and potentially depressed commissions. The current glut of agents would become more glaring, and a mass exodus from the industry could ensue.

[Rob Hahn, a longtime consultant to local MLSs and Realtor associations], who now runs a startup focused on bringing the auction model to residential real estate, told me he's doubtful of NAR's chances of winning in court and believes some kind of settlement is likely. With the smaller of the two suits slated for trial in just a few months, the industry has little time to come to grips with what the future could hold.

I have negotiated lower commissions for my agents in the past, but only down to 2.5%. As much as I've appreciated their efforts, I do not believe that the buyer's agent contributes nearly as much as a seller's agent, particularly in an area like Chicago where lawyers handle the closing. Why, I have asked myself every time, am I paying someone over $10,000 to help me buy a house that someone else is paying their agent to market? I mean, my lawyer only charges $1,200 and he's doing most of the work.

I very much hope these cases see the end of fixed buyer's agent commissions.

A wish list

I'll elaborate on this later, but I just want to list a couple of things I desperately want for my country and city during my lifetime. For comparison, I'm also listing when other places in the world got them first. For context, I expect (hope?) to live another 50 years or so.

Universal health care, whether through extending Medicare to all residents or through some other mechanism. The UK got it in 1948, Canada in 1984, and Germany in 1883. We're the only holdout in the OECD, and it benefits no one except the owners and shareholders of private insurance companies to continue our broken system.

Universal child care, which would enable single parents to work without going broke on daycare. Much of Continental Europe makes this a no-brainer, with free day care for little kids and extended school hours for older ones. In a report covering 41 rich countries, UNICEF puts Luxembourg first, Germany 5th, Canada 22nd...and the US 40th. Only Slovakia treats its kids worse. (The UK is 35th, which is sad.)

Term limits on appellate judges, including an 18-year term for the Supreme Court and a 13-year term for the Circuit Courts. The UK and Canada require judges to retire at 75; Japan at 70; and Mexico after 15 years. Every US State (except Rhode Island) has some limitation on its supreme court, whether through mandatory retirement, term limits, or elections. This doesn't require anything more than an act of Congress, as former Justices and Appellate Judges would still continue to serve in other Federal courts "during good Behaviour." I would also like to see a Governor-appointed, single-term Illinois supreme court.

A functioning opposition party, both at the Federal level (either through the Republicans coming to their senses or a serious third party replacing them in opposition or governance), and here in Illinois. As much as I like the current Democratic trifecta in my state, I don't think single-party governance is healthy, as it tends to become single-party rule, followed shortly by something worse. All of our peer nations (except possibly the Republic of Korea) have had two or more functioning parties since the end of World War II. Only 11 US states currently have divided governments, and in 4 of the 6 most populous (California, New York, Texas, and Illinois), the party out of power has almost no power at all and no hope of getting elected this decade. Illinois farmers need an effective voice in the General Assembly; right now, they have the modern GOP.

A larger House of Representatives. We last expanded our lower house in 1913, when the US population was less than 1/3 what it is today. As of 2020, each congressional district has an average population of 762,000, with Delaware having its entire population of nearly 1 million represented by one person. The average Canadian riding has 108,000, the average UK constituency is between 56,000 (Wales) and 72,000 (England), and the Bundestag elects 598 members on a proportional basis by party and Land population. One plan I like would take the largest state that currently has 1 representative (Delaware), give it and the three smaller states 2, then use that as the size of the other districts. At roughly 500,000 per district, we'd have around 650 representatives, giving us a House the size of the UK House of Commons.

End Gerrymandering. Require that all electoral districts for any office have compact, contiguous outlines drawn by non-partisan commissions at each level of government. I would also allow multi-representative districts chosen by proportional vote (for example, a 2-person district where the first and second vote-getters win). Canada passed legislation making malapportionment much harder in the 1990s, as did the UK in 2015, while Germany has proportional representation which nearly (but not totally) obviates it. This has to be done nationally, because as the Democratic legislatures in California and Illinois would like to remind the Republican legislatures in Texas and Florida, we'll put down our guns when you put down yours.

Realistic gun regulation, including mandatory licensure and registration, limits and painful taxes on ammunition purchases, and allowing local jurisdictions to set their own regulations—up or down, for the sake of rural residents—on who can own what kinds of firearms. The UK and Australia famously enacted tough laws after mass shootings in 1996; Canada in 1977; Germany in 1973. I should also point out that Switzerland—where every adult male must own a gun—has more liberal gun laws than the US in some ways, but still restricted entire classes of weapons in 2019, and has severe penalties for misusing them.

De-militarize local police forces. There's a reason George Washington feared a standing army, and why many Americans fear they live with one today. Everyone who cares about police policy should read Radley Balko's The Rise of the Warrior Cop. All of our peer nations have strict rules against police agencies using military weapons and tactics, and most UK cops still walk around unarmed and unmolested to this day. I've used Germany as a Continental example for many of these points, so let me just say that Germany has a great deal of experience with heavily-armed local paramilitary forces, and they don't ever want to see them again. Why are we building them here? We frogs need to hop out of the pot—and soon.

Fully-electric commuter rail in Chicago. London skipped from coal to electric in the 1950s, and Munich in the 1920s. Toronto, sadly, still uses diesel trains, but they're fixing that. Sure, this would cost about $5 billion, but it would bring more than that in benefits to the whole Chicago area. For example, a side-effect of London electrifying was to drastically increase the value of workingmen's houses along rights-of-way (seriously, £1.2 m for a tiny house!), as they're awfully convenient to Central London without getting flaming cinders dropped on them anymore.

High-speed rail between most US cities less than 500 km apart, like Chicago-Detroit, San Francisco-L.A.-San Diego, and Dallas-Houston-San Antonio. (Not to mention, real high-speed rail throughout the Northeast Corridor, none of this anemic 110 km/h crap.) Most of Europe has had true HSR since the 1990s, starting with the French TGV in the 1980s. The London-Paris Eurostar came in 1994, moving people between the two cities in just over two hours—quicker than you can get from central London to your airplane seat at Heathrow. It's criminal that it takes 4½ hours to travel the 450 km between Chicago and Detroit, while you can get from Paris to Lyon (also about 450 km) in just over 2. And if they can spend £25 billion (in 2023 pounds) to build a 50-kilometer tunnel under the English Channel, we can spend half that to build a 20-kilometer tunnel under Long Island Sound, FFS.

This list isn't exhaustive, by any means. I believe the US has the resources to accomplish all of them in the next 10 years, let alone the next 50. We just lack the political will, especially in the modern Republican Party, which lacks the understanding that American greatness has always depended on collective effort.

The United States is no longer the greatest country in the world...but it could be again.

The indictment

I've just read the indictment against the XPOTUS and his "body man" Walt Nauta. Wow. As a FBI agent in The West Wing once remarked, "In 13 years with the Bureau I've discovered that there's no amount of money, manpower or knowledge than can equal the person you're looking for being stupid." And wow, was the XPOTUS stupid.

I'm not a practicing lawyer but I can read an indictment. If the US Attorneys can prove any of these facts—and I have no doubt they will—he's going to get convicted of a felony. Oddly, under our Constitution, he can still run for a second term if that happens, though he won't be able to vote for himself in Florida. But as Josh Marshall points out, the larger issues just distract from the utterly banal issues:

I wanted to share one thought.

That is the sheer ordinariness of the whole story. That may seem like a odd thing to say: ex-President facing multiple federal felony indictments for the first time ever, the bizarre details of this antic clown’s Florida Villa-cum-Hotel stuffed with banker’s boxes of classified documents, the bathroom chandelier, the power glitz jammed together with gaudy dime store aesthetic. But we grant Trump too much by lavishing, wearying too much in the purported weightiness of the moment. It’s very normal. Yes, powerful people get away with a lot. But if you commit crimes repeatedly and brazenly you’re very likely to get charged with one or more crimes, particularly if you’re in the public spotlight.

We hear endlessly how everyone not thoroughly in Trump’s thrall wants to ‘move on’ from the man. The first and most important part of that is shaking free of the reality distortion field that surrounds the man, as much for his foes as his followers. He’s hit with charges with evidence of his guilt that is clear and overwhelming and he jumps to the front to declare no one ever thought this could happen or be possible. He didn’t do it … but of course he was perfectly entitled to do it, even though he chose not to. Remember, he could have but chose not to. Got it? He attacks, defames. People get caught up in the frenzy of his seeming invulnerability and transgressive nature, the entertainment and the confusion. They’re wondering what he’ll do next. They’re baffled and suddenly the obvious ceases to be obvious.

Don’t be baffled. You may be thinking somehow there’s no way he’ll actually get convicted of anything. You’re wrong. He probably will. Maybe not. That happens too. That’s normal. It’s all normal.

I lived in New York in the late '80s and late '90s, and we always thought that the XPOTUS would never survive first contact with law enforcement. It took a while, but eventually his narcissism, unaccountability, and yes, his tiny little hands mind would eventually lead us here.

One more thing. John Scalzi called out all the remaining XPOTUS supporters to "get off the train," but hit on the reason they won't: "no one who is still on the Trump train at this point in 2023 is there for logical or rational reasons, you’re probably...stuck too far down in the grift to ever admit you’re the chump." But wow, the national security implications of this indictment alone should have every rational person in the country running from this guy.