Original Sin
The Supreme Court
Last week the Supreme Court overturned Roe v. Wade, essentially making it illegal for half the country’s women to get abortions. We’ve talked before about what this will mean for reproductive rights and civil rights in this country, and many states moved swiftly to confirm our worst fears after the ruling - passing or proposing dozens of laws to ban and criminalize abortion and some forms of contraception.
Not only did the Court callously revoke the rights of tens of millions of women, it did so in an incredibly cynical way:
In this case, Alito declares that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” even as he argues that when it comes to rights “not mentioned in the Constitution,” only those “deeply rooted in this Nation’s history and tradition” are protected.
Essentially, the conservative majority said that their ruling should not be interpreted to mean they want to revoke all the civil rights gains of the last hundred years - gay marriage, interracial marriage, women’s suffrage, etc - just abortion for, uh, reasons? Gay rights aren’t mentioned in the Constitution, or ‘deeply rooted’ in the nation’s history, but that’s different, because six unelected judges say it is. Right.
Abortion was not illegal until the mid-to-late 19th century. At the time of the country’s founding, opinions about the procedure were quite different:
In the early decades of American independence, the states drew guidance from traditional British common law, which did not recognize the existence of a fetus until the “quickening”: the moment a woman felt the fetus move, usually during the second trimester.
18th century America had less restrictive abortion laws than most of 21st century America, how about that. Alito’s inability to clearly articulate why abortion - and only abortion - should be regulated at a state level tells a larger story about how this Supreme Court views the country’s laws:
…the Supreme Court has become an institution whose primary role is to force a right-wing vision of American society on the rest of the country. The conservative majority’s main vehicle for this imposition is a presentist historical analysis that takes whatever stances define right-wing cultural and political identity at a given moment and asserts them as essential aspects of American law since the founding, and therefore obligatory.
We’ve seen it in the last two weeks as the Court said states can’t enact strict gun laws, the EPA can’t force states to cut emissions, and the OSHA can’t regulate workplace safety. It nearly upheld a Texas law forcing social-media companies to host content they don’t want to - a clear First Amendment violation. What do all these things have in common? If you were to turn on Fox News any given night, you’d hear its prime time lineup frothing into the camera about them.
The Supreme Court, via three Trump-appointed justices, has become the right wing’s legislative body. Banning abortion, preventing regulatory agencies from doing their jobs, and shredding gun control restrictions are all wildly unpopular issues with the American public. The last administration couldn’t even find the votes to gut Obamacare, which Republicans hated since its inception. What the right has done instead is to install deeply ideological judges on the bench to craft legal arguments in favor of all the things it likes, and against all the things it doesn’t. As we’ve seen in the last year, their long term judicial strategy has come to fruition with devastating results. So, how did we get here?
The Federalist Society
There is an interesting story behind Roe, featuring a conservative judge named Harry Blackmun. He initially leaned anti-abortion, but in a series of arguments and letters with clerks and fellow justices, he came around to the view that the Court should not set arbitrary standards on abortion, and compromised on the viability argument that came to underpin Roe and US abortion law for decades. This was a bad result for the country’s growing anti-abortion movement, who had assumed justices appointed by Republican presidents - Blackmun, Kennedy, Souter - could be counted on to rule their way on social issues. Instead, these moderate conservatives could be downright reasonable on civil rights issues. Bummer!
What did the right wing and evangelical movements do? In 1982 a group of students from Harvard, Yale, and U of Chicago law schools formed an ideological group to ‘challenge the liberal ideology’ they saw in the country’s courts and laws. This student organization grew over a decade, and one man was at the center of its rise to dominate the right wing school of legal thought, Leonard Leo:
In 1990, Leo became a clerk for a U.S. Court of Appeals judge in Washington, D.C., where he met Clarence Thomas, then an appellate judge. The two became close friends.
After his clerkship, Leo joined the Federalist Society as one of its first paid employees. But he delayed the start date to help Thomas through his contentious confirmation process for the Supreme Court.
At the Federalist Society, Leo took a leading role in the conservative legal movement, part of a burgeoning effort to counter the influence of the 1960s and liberals on education, law and politics.
Leo became an adviser to George W. Bush’s administration, working with a WH counsel named Brett Kavanaugh. He pressed the president to nominate strict ideologues to the bench, and the Federalist Society was happy to supply an unending stream of candidates. He maintained a somewhat murky role - technically working for FedSoc which laughably describes itself as a non-partisan charity organization - while advising and raising money to install scores of pliant judges on the bench. FedSoc has become an assembly line for hard right lawyers:
"The Federalist Society is a one-stop shopping network for identifying, helping promote, credentialing, and supporting conservative lawyers. And in the end, turning them into conservative judicial nominees, and then conservative judges," Marcus said.
Leo made himself and his network of lawyers indispensable to Republicans by raising huge amounts of dark money, which they funneled into campaigns and massive advertising blitzes on behalf of its members:
A Washington Post analysis found Leo and his allies raised $250 million between 2014 and 2017 from undisclosed donors. And a chunk of that money has gone directly to campaigns to drum up support for judicial confirmations…
Burned by Blackmun and prior conservative judges, the right now had judicial candidates it trusted would rule the ‘right’ way. Not only because Leo spent millions to get them installed, but because many of them wouldn’t be qualified to serve elsewhere:
More of Donald Trump’s judicial picks have received “not qualified” ratings from the American Bar Association than did those nominated by his four most-recent predecessors in the first two years of their presidencies, Bloomberg Law research shows.
All this work culminated in ‘the list’ Leo created for Trump’s Supreme Court picks:
Those three justices were Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — all of whom voted to overturn Roe. And all of whom were, at some point, on a much publicized list of potential SCOTUS nominees that Trump publicly shared.
A list that was personally curated by Leo.
Leo and the wealthy donors who fund his web of phony non-profits and advocacy groups have won. By the end of the next Supreme Court term they will have gutted government regulation, stripped reproductive and civil rights from millions of Americans, and likely set the stage for a full blown crisis of democracy in 2024. It’s a grim situation, and at this point we have to hope the current Democratic majority can muster any sort of legislative response, but as long as we continue to view the Supreme Court’s decisions as legitimate, Leo and the right have a built-in veto on the other two branches of government. This is precisely what the founders - whom the conservative justices so love to cite - warned about and tried to protect against, and yet here we are.
Mark Cuban
You do not, under any circumstances, have to hand it to any billionaire. At best, their new business ventures may try to do something cool like find sunken shipwrecks. At worst, well, they end up this newsletter. And so it pains me to admit that Mark Cuban had a good idea when he founded his pharmacy this year:
Medicare’s prescription-drug program could save billions of dollars annually if it purchased generic acid-reflux, cancer and other drugs from a new pharmacy backed by investor Mark Cuban, according to Harvard Medical School researchers.
[…]
A group of Harvard Medical School researchers say that Mr. Cuban’s “cost plus” business model could also benefit health insurers, including Medicare, which spent an estimated $115.6 billion on prescription drugs last year, or nearly a third of total U.S. drug spending.
Why was Cuban able to ‘disrupt’ the generic drug market? Despite what we were told at the time, Medicare Part D has stymied government efforts to save money on prescriptions:
Medicare’s drug program, called Part D, was created in 2003 and prohibits the government from directly purchasing medicines. Instead, private health insurers offer hundreds of different coverage plans around the country that are supposed to compete for patients by offering the lowest possible drug costs.
“It’s clear Medicare is overpaying for some generic drugs, and that they could save billions,” said lead study author Hussain Lalani, a primary-care doctor at Brigham and Women’s Hospital in Boston. “There are some serious inefficiencies in the pharmaceutical supply chain.”
Like Medicare Advantage, conservative efforts to privatize every possible aspect of government-run healthcare have been a huge payday for distributors, drug companies, and all the associated middlemen required to make the system run.
Drug price controls for seniors - the rest of us are screwed, I guess? - are in the Build Back Better bill which has been stalled primarily by Joe Manchin, but even those efforts are nibbling around the edges:
Under the proposal, the drug negotiations are set to begin in 2023, according to details obtained by The Washington Post. Democrats also have preserved plans to cap seniors’ drug costs under Medicare at $2,000 each year, while penalizing companies that raise prescription prices faster than inflation.
[…]
Democrats also plan to extend additional support for a wider array of low-income seniors, hoping to help them afford their premiums and co-pays.
Sure, allowing the government to negotiate prices on certain drugs is an improvement over the status quo, but it’s still a tacit admission that the government and insurance companies are wildly overpaying, and passing some of it along to patients. Speaking from experience, my insurance company would only cover 30-day supplies of a stomach medicine I took for years, whereas they could have saved money filling 90-day scrips:
The greatest savings from using the Cuban pharmacy came when purchasing prescriptions in larger quantities, such as 90-day supplies, which cut down on distribution fees, the authors said.
Some insurers have gone ahead an purchased pharmacy benefit mangers (PBMs) which allows them to take more profits from the system, while removing incentives to aggressively negotiate costs. That’s recently come under scrutiny by the government:
The FTC said the inquiry will dive into fees and clawbacks PBMs charge unaffiliated pharmacies; methods to steer patients toward PBM-owned pharmacies; the prevalence of administrative restrictions like prior authorizations; the impact of rebates and fees from drug manufacturers on formulary design; and the costs of prescription drugs to payers and patients, among other research areas.
Mark Cuban opened an online pharmacy that delivers generic drugs at cost plus - still a tidy profit! - and it could save the government and insurance companies billions. If one billionaire with half a brain can set up what is essentially a dropship company and disrupt the prescription drug market to the tune of nine figures, just how much additional waste and graft is there in the system?
Brazilian Country Music
In a controversy that began with Anitta's butt tattoo, prosecutors in 70 cities are exploring improprieties in booking sertanejo artists.
Sometimes a subhed really grabs your attention, and you are immediately desperate to learn more. Sertanejo is Brazil’s version of country music, and apparently 70 cities across five Brazilian states are suspected of paying inflated fees to lure artists to their towns.
The butt tattoo in question belongs to the singer of Envolver, Brazil’s biggest sertangejo act. An artist named Zé Neto criticized the singer’s tattoo, and the Rouanet Law which provides public grants to local governments to sponsor music festivals and concerts. This sparked a national conversation about how and where the money is going, which led to multiple investigations.
Large payments to top acts drew scrutiny:
Roraima’s Prosecutor’s Office is examining a contract for 800,000 reais ($163,000) for a Lima show scheduled for December – an exorbitant amount for a city with just over 8,000 residents, which is the second-poorest city in Roraima, with an annual GDP of around $30 million. (Lima’s contract is 77% more than São Luiz’s yearly budget for school lunches, school busing and health surveillance services put together, according to public figures reported by the Brazilian media.)
Not great! More worrying is the possibility Brazil’s far-right president Jair Bolsonaro may be using such programs as shadow campaign spending:
Scrutiny over the outsized fees using public funds come as Brazil prepares for a contentious election in October pitting incumbent far-right President Jair Bolsonaro – whom many of the sertanejo artists support – against former leftist President Luiz Inácio Lula da Silva, who is leading in the polls.
It’s part of a larger pot of money Bolsonaro’s government has offered to cities:
Separate from Rouanet law, the publicly funded music shows may be linked to a controversial congressional funding model called Emenda Pix created by Bolsonaro’s government, which allows elected representatives to request money from the federal government and donate it to cities with little to no accountability.
This lack of transparency, Toledo explains, enables cities to make liberal use of the federal money in the hiring of influential musicians – who could help support Bolsonaro’s reelection in exchange for high per-show fees.
Bolsonaro is a dangerous, corrupt leader who will do anything to win - there’s compelling evidence he illegally conspired to put his current opponent in jail so he could win the last election. Sometimes you start reading a story because it involves butt tattoos and Brazilian country singers, and you end up fearing for another rigged election in the fifth largest nation in the world. It’s hard to enjoy things these days.
Short Cons
Press of Atlantic City - “As they pushed for tax relief, gaming companies were already on the rebound from the pandemic slump, recording profits above 2019 levels.”
E&E News - “FedNat’s pullback is the latest in a stunning series of insurance cancellations, nonrenewals and company liquidations that have left Florida residents struggling to find coverage at the start of a hurricane season that is projected to be unusually strong.”
Barrons - “It wasn’t until almost six months later that Burton learned the reason for the registration delay: Carvana couldn’t transfer the car’s ownership to her because the company—officially, at least—hadn’t owned the car.”
FTC - “The Federal Trade Commission today sued Walmart for allowing its money transfer services to be used by fraudsters, who fleeced consumers out of hundreds of millions of dollars.”
Reuters - “Four companies, led by one lawyer, have used the 'Texas two-step' to divert tens of thousands of lawsuits into bankruptcy court – without filing for Chapter 11 themselves.”
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