Essentially Contested America

I am both surprised and bemused at Chief Justice Roberts’ criticism of President Obama in a question and answer session with students at the University of Alabama School of Law last week. The Chief Justice said that Obama’s criticism of the Court’s recent ruling in the Citizens United case (in which the Court struck down a 100 year old campaign finance law) during his state of the union address was “very troubling.” It is not unusual for a president to criticize a Supreme Court decision. Both President Bushes and President Reagan repeatedly attacked the Court’s holding in Roe v. Wade that women have a constitutional right to choose an abortion. Richard Nixon ran for president on an anti-Warren Court platform. Franklin Roosevelt accused the Court of being out of touch when it struck down key New Deal measures. Indeed, Roberts conceeded that it was permissible for the president to criticize the Court, saying that he just didn’t think the state of the union address was the appropriate format for such critique.

What is highly unusual, if not unprecedented, is for a Supreme Court Chief Justice to criticize the President for his stance on a Supreme Court opinion. While it is appropriate for members of the political branches to criticize the Court, the Court is supposed to be insulated from politics. Others have accused Roberts of whining, but I am most concerned about the political overtones of Roberts’s remarks. Most likely, like his colleague Samuel Alito, Justice Roberts just does not like being criticized to his face. But given that the Citizens United opinion will almost certainly benefit the party of the President that appointed him, Justice Roberts should be a little more circumspect before he allows himself to be drawn into what is really a political, and not a judicial, debate.

I was a colleague of Bobby Lipkin’s. His enthusiasm for the project was the main inspiration for my own, Word in Edgewise, where I blog about all manner of things legal, social, and personal (quite differently than Bobby did, of course). Shortly after his shocking death, I offered these thoughts, but I urge you to read through the testimonials on this site (especially this one) to get a real sense of who the man was, and what his passion meant to others.

As I logged in tonight, I noted that Rebecca Zietlow had just brought forth the exciting news that this blog will continue, with Bobby’s co-bloggers (Rebecca and Henry L. Chambers, Jr.) now being joined by Jim Chen and, soon, some of Bobby’s colleagues at Widener. (I’m putting this consortium together now; stay tuned for further information.) This idea stemmed from a conversation I had with the webmaster, Cassandra King, where we started with the notion that the site would be archived but eventually moved to an aha! moment: Let’s keep the blog alive, and true to Bobby’s mission, as set forth in his very first two posts, filed on the same day in late October 2006:

How should we respond to the essential contestability of concepts and the burdens of judgment? Deliberatively! Pragmatically! We need to provide reasons for our conclusions, vigilantly check and re-check these reasons, take seriously the opposing conclusions of others, and with humility try to formulate the most comprehensive perspectives possible. At that time we will either have achieved consensus, or what is so much more likely, we will have refined our conflicts so that we understand just what is at stake.

Then, more concretely, he added:

The meaning of America has always been essentially contested. We all believe in freedom and equality. But then why do we disagree so stridently about public policy? Just what does America stand for if it stands for anything at all? Are we a libertarian nation, one that valorizes liberty to the exclusion of all other competing values? Or is collective, legally enforced altruism our creed? Examining these choices, and a host of similar choices, will be one of this blog’s goals.

We can only hope to approach Bobby Lipkin’s level of insight, passion and humanity. But that won’t stop us from trying.

Like many of my colleagues in constitutional law, I was shocked and saddened to hear of Bobby’s passing. I first met Bobby through a Con Law listserve. I always enjoyed reading his comments, and I couldn’t help but noticing that his many inquiries seemd to track exactly my thoughts and research at the time. I contacted him, and thus began our friendship. I have since learned that many people have had the same experience. Bobby was both thoughtful and prolific, and he always approached his subjects with an original perspective. At the same time, he respected the opinions of others who disagreed with him and he was always interested in engaging in dialogues. Bobby was unbelievably supportive of junior colleagues such as myself. I have committed myself to returning to blogging in his memory because I know how important this blog was to Bobby. I already miss his gentle reminders when I missed a posting date, but I will do my best to honor his memory by continuing to engage in a critical exploration of constitutional law and politics.

I remember Bobby Lipkin very fondly as a founding member of the Ratio Juris weblog.  He was thrilled to discover the joys of blogging and soon founded his own blog, Essentially Contested America.  These new channels for communication gave him a voice and an immediacy unique to online media.  Bobby mastered this craft and quickly developed a devoted following.

As so often happens in our wired world, Bobby and I never personally met.  I regret that I never even heard his voice on the telephone.  We nevertheless enjoyed a rich professional relationship.  Frankly, his e-mail correspondence and his blog posts were so vivid that he always seemed near.  Bobby loved his family, including his cats.  His posts about the loss of a cat to tainted food were among his most moving contributions to Ratio Juris and Essentially Contested America.
Bobby Lipkin touched so many lives, within his family, his circle of friends, his students, and the academic community.  I valued his friendship and will miss him.

Words cannot do Bobby justice. He was smart, thoughtful, inquisitive, kind and gentle. His generosity knew no bounds. I will miss Bobby. The world is a bit worse off than it was just a few days ago.

I am not Bobby Lipkin. I am his friend  and colleague, Cassandra King.

[SEE ALSO: Robert L. Chamber's post about Bobby , Jim Chen's Remembering Bobby]

Below, I’ve pasted the announcement that appeared on the homepage of the Widener Law site:

Robert “Bobby” Justin Lipkin, Distinguished Professor of Constitutional Law on Widener Law’s Delaware Campus, passed away on Thursday, February 18th. The Widener Law community’s thoughts and prayers are with Professor Lipkin’s loved ones. We are shocked and saddened by his passing and share their grief. Bobby Lipkin was an exceptional individual, a good friend, and a respected professor. His passing is a substantial loss for the entire law school community. He will be missed by all of us privileged to have known and worked with him.

On a personal note, my intention as webmaster at the Law School and as someone who loved Bobby dearly, is to preserve this site as a tribute to Lipkin the thinker, Lipkin the philosopher, Lipkin the pundit, Lipkin the scholar.

I  admit: my heart is broken. I bawled like a child when I first heard the news.

I miss Bobby terribly.

I am in shock over his passing.

However, his spirit  lives on and his musings and writings will be preserved here for everyone to re-read or to discover anew.  It should be noted that Bobby touched many of us with his passion for teaching, his deep respect of his profession and his students, his enormous heart, his deep sensitivity, and his sharp sense of humor.

Bobby discovered his passion for blogging back in 2006. He had approached the subject very timidly and with a slight hint of techno-phobia. The fear of technology quickly vanished, as Bobby found himself blogging almost daily since October of 2006. He performed double-duty: not only posting to ECA daily, but contributing to Jim Chen’s Ratio Juris.

Bobby and I would meet formally in my office to discuss tweaks and fixes to his blog. As the consummate perfectionist, he had a very clear vision for what he wanted his blog to look like, read like and ‘feel’ like. Our formal meetings always (de)evolved into truly fun, informal exchanges of ideas, opinions, baseball, politics, jokes, sports, popular culture, Jews (him) and  and Puerto Ricans (me), atheists and religious zealots, kooks and geniuses, and everything in between. Both he and my dad were Brooklyn College alumni, and that shared history would sometimes open up to a stream of amusing tales from his college days.   He loved his wife and daughter, mentioning  them often in our talks. He loved his cat; in his post Is There a Legal Remedy for the loss of a cat? he mourned to loss of his Siamese cat to tainted cat food. He loved his baseball; in one of my favorite posts, he recounts being at the game where the Dodgers won the National League Pennant in 1956; in another post he recounts  the journey of Harlan and Joba Chamberlain.

I could go on and on, as Bobby was a man of so many passions and interests, so many ideas; it is   difficult to distill his person, his personality, his being in a few descriptive sentences here.

I consider myself blessed to have been in his circle of  friends and colleagues. Bobby was   a kind-hearted soul, a thoughtful person, a great professor, a loving husband and father.

I love you and I miss you, Bobby.

The public option took a shot to the kidney yesterday.  The punch was hard and it was not fair, but it is just a part of the game.  The public option may be getting a standing eight-count in boxing parlance, but it should not be counted out.  In the next several weeks, the pressure will continue to build for a public option.  Eventually, the House of Representatives will pass a bill with a public option.  The Senate may not follow suit, but eventually will have to compromise on some form of a public option.  What form the public option will take is anyone’s guess.  However, it will be in a form that will allow all sides to claim victory and get on to campaigning for 2010.

This week, I have ahad a taste of what it might be like not to have health insurance for members of my family. Fortunately, my experience did not involve uninsured children, but instead an uninsured dog. My puppy, Owen, just turned 6 months old and he does not have health insurance. Being a risk adverse person, I investigated the insurance options when we got Owen. However, I soon learned that health insurance for dogs is prohibitvely expensive. Even simple catastrophic coverage cost at least $30-40 per month (For those who don’t know, “catastrophic insurance” is insurance that covers only “catastrophically” expensive health care for illness or injury), and regular health insurance coverage for dogs is simply not cost effective.

Last week, Owen had surgery. Fortunately, the surgery was routine (OK, we took away his ability to father puppies) and surgery for dogs is a lot less expensive than surgery for humans. Still, I paid several hundred dollars for his care. I had to make some tough decisions, such as whether to pay extra for the less invasive, less painful laser surgery, and how much to spend on pain medication (not to mention our worries about breaking or chipping the cone on his head – an added expense). Furthermore, when Owen’s stitches started bleding on Saturday afternoon, we had to decide whether to take him to the Emergency Animal Care and pay another large sum, or wait until Monday to have him re-checked by his regular doctor for free. Since Owen is, after all, a non-human animal, and since he continued to romp happily (as much as he could with a cone on his head), we decided to wait until Monday.

This experience got me thinking. I have a friend who is pregnant who only has catastrophic health insurance. I have another friend who has children and no health insurance. I imagine how hard it must be to make health care decisions for them. Wait until the cheaper doctor on Monday or go to the ER? Purchase the highest quality, least pain method of surgery or opt for the cheaper and plan to do lots of handholding? These decisions can’t be easy – indeed, they must be agonizing for the millions of uninsured parents with uninsured children in this country. I am lucky. Only my dog is uninsured. But I sure do feel for the many others are not so lucky.

This week, news circulated suggesting that President Barack Obama sent emissaries to attempt to convinced New York Governor David Paterson to exit the 2010 New York gubernatorial race.   I have heard some argue that the president’s attempt is anti-democratic and that the voters of New York should decide who their governor will be.  Of course, all would agree that New Yorkers should elect their governor.  However, given that the president is the de facto head of the Democratic Party, he has an obligation to do what he can to ensure that the person New Yorkers elect is a Democrat and that the person running at the top of the ticket is as strong as possible.  The stakes for the Democratic Party in the 2010 New York election are large.  A weak candidate may weaken turnout and affect down-ticket races.  Given that Sen. Gillibrand is crucial to count to 60 Democrats in the Senate, a strong gubernatorial candidate is important for reasons important to the national Democratic Party and its agenda.  As important is the redistricting that will occur in the wake of the 2010 Census.  The map that a Republican governor would endorse is likely to be far different than the one a Democratic governor would endorse.  Congressional seats may be in the balance.  If these are the concerns that drove Pres. Obama to encourage Paterson (and those who would have challenged Sen. Gillibrand) out of the New York primaries, his actions may be perfectly understandable and somewhat necessary as the head of the party.  Of course, the president may be wrong about the parade of horribles that could follow a Gov. Paterson primary run (and possible win) but that is a very different question than whether he should have gotten involved at all.

This may be an overly saturnine observation, but it seems that the United States is no longer governable–if by “governable” one means implementing the positions that win elections. The current Health Care Reform crisis is one of many such examples, but there are others also. Indeed, it’s a good test case. If we get a bill will it be one that favors the people or the Health Insurance companies? Four out of five congressional committees reported bills including a public option. One would think a public option is a sure thing. Right? Not necessarily. This fiasco turns off even those citizens who for the first time and who turned out en masse to support a candidate for president. How will this president reward them? Bold, courageous action is required, not politics as usual.