The Jewish Vote and the Generational Divide

There is an old joke that if you have two Jews you will have three opinions.  Former US Congressman and New York Mayor Ed Koch this weekend added, “And also four different temples.”  This joke is not a joke but an indication of the fragmentation of what can no longer seriously be categorized as “Jewish political thought” when that category has been totally deconstructed.

This past weekend I chaired a conference in New York City on the Jewish Vote, the Holocaust and Israel.  Speakers included Mayor Koch, present Republican Congressman Bob Turner, famous talking heads Tevi Troy and Hank Sheinkopf and several academics and authors, all under the auspices of the Wyman Institute for Holocaust Studies.  The conference was excellent in substance, tracing Jewish voting trends from Hoover to the present from both academic and political perspectives.

As interesting were the reactions of attendees.  Much of the audience was older, conservative, angry with Obama, seeing the election in terms of support of Israel.  Younger attendees were almost bemused by what they considered to be a narrow view of the world and of the election, saying “this is not how the younger Jewish community views these issues,” suggesting that a focus on the Holocaust as informing current voting is old fashioned in style and irrelevant on the ground.

And after spending a whole day at the conference, locked in Fordham Law School, attendees stepped out into the bright Manhattan sunshine and confronted a demonstration by a couple of dozen Hasidic Jews, dressed in dark coats and with untrimmed hair, holding signs objecting to the conference itself as purporting to address the US elections from the standpoint of the Jewish community; these observant Jews thought that any involvement in politics as a group was wrong-minded (signs admonishing us not to address political issues “in my name”).

Whether there is a Jewish vote (which implies some sort of bloc) or just a set of statistics reflecting historical voting patterns in Jewish neighborhoods is much a matter of semantics.  How Jews voted historically (typically Democratic from at least the ‘20s onward, almost without regard to attractive Republican positions) or were likely to vote this year (among the aged attendees of the conference, I don’t think Obama could get elected dog-catcher) was explored but without likelihood that the conference would change anyone’s mind.

The more interesting issue is, what if anything can be said about Jewish political views with any confidence that one is speaking for more than a fragment of the alleged cohort.  There are numerous groups speaking (they say) for “the Jews.”  I conclude that we too, this weekend, even as a scholarly and open forum, were viewed as just another one of many fragments.  Is there merit in attempting to bond these fragments, or at least some of them?  Is there any prospect for doing so?

Important here is the gap in defining what is important for the Wyman Institute, or for many of the groups focused on the Holocaust.  A younger view wants relevance to the problems of today: current issues, current genocides not only focused on Jewish victims, issues currently presented to us by the world.  An older view says that yes, we can hear that, but there is another thread here, that Jews must be alert to their personal and special risks as historical punching bags over centuries and across continents.

It seems to me the older view has a fear in delivering overtly the message that Jews should beware of the world even today, even as assimilated peoples in settings where the illogic of societal prejudice actually running wild seems paranoid.  The older view is two fold I think: first, it is not paranoid when “they” are in fact talking about you; second, how many times do we have to replay the same conversation before it sinks in that today’s logical person is well advised to keep a weather eye peeled towards the almost inconceivably irrational beast?

I see a generational disconnect that must be overcome.  I see older elements of the Jewish community hesitant effectively to express the old fears, almost dismissing younger elements as so ill-educated as to be beyond reach.  I see younger elements appropriate offended that their eldest living forbears would so dismiss them after nurturing them and educating them and setting them loose to compete (and succeed) in the world at large.

There is both wisdom and lack of patience on both sides of the divide.  And there are so many ancillary divides, including but not limited to the guys across the street who invoke the Bible to criticize even holding the discussion.

It is not odd that voting, viewed by historians of democracy as the ultimate expression of political freedom, should highlight the schisms within our polity, and within its constituent elements.  But whoever wins the election this November, there is work to be done to bring together some of the older strands of Jewish political thinking with the J-Street crowd.

M&A, AOL StyleM&A, AOL Style

Last week AOL Chair and CEO Tim Armstrong, a young and fast-talking executive of the new media, addressed the season’s first meeting of the Boston Association for Corporate Growth.  He spread witty anecdotes and hints of his view of the electronic future (“every traditional media company is a turn-around, they just don’t know it yet; AOL wants to be the arms dealer to the internet [providing content]”), but also set forth four rules for an effective acquisition (AOL has “traded $3 billion of assets in the last 24 months”):

*Do the Target’s Work.  Find a way to articulate and communicate the value of a deal to the other side and its board.

*Don’t be Stupid.  (Not sure I would have thought of that one….)  Don’t let anyone tell you that “this is the way this kind of deal works.”  Look at the situation and adapt your strategy, even fundamental approaches.

*Show Up.  Be politely in front of your target at all times.  Even socially or, it seems based on anecdotes, by contrived accident.  Don’t go home if you think you have a lock on the deal, as someone else may be waiting to turn the tide.

*Every deal needs a Coach.  He moves people in and out of deals based on the needs of the play, the synergies or lack of synergies with the counter-party.  There needs to be someone like a coach of a team measuring this aspect and reacting as needed.  He also likes having a team with widely divergent viewpoints at first,  to force examination of every aspect of a deal including risks.

Armstrong also counseled against trying to get the last dime out of a deal, making the winning of small points the end-all of negotiation.  Deals should not be adversarial.  How does he contribute to that desired atmosphere?  “I always start in the middle of the field,” avoiding extreme starting positions.

Governance Viewed from the Top of the Heap

Three major players on the New England corporate scene agreed today that American business is over-regulated, and that Boards of Directors are being diverted from their primary task of strategic leadership and are being forced to deal with regulatory compliance.   Further, new regulation is not responsive to recent failures of the economy and thus will not solve our problems.

Speaking at a breakfast session of the New England Chapter of the National Association of Corporate Directors, Robert Reynolds (CEO of Putnam Investments), Joe Tucci (chair and CEO of EMC Corporation) and Ted Kelly (chair of Liberty Mutual) were of one predictable mind on a variety of governance issues:

*the role of the board is strategic and should focus on shareholder return

*investors are interested in board governance as a tool for excellence in performance and not as an independent goal

*with a concentration of corporate wealth on corporate balance sheets, it is ever more critical to have directors of sound judgment, at a time when it is harder to find people willing to serve who have requisite skill sets

*regulation by government, evaluations by ISS, and pressure from bloggers and social media contribute to a “gotcha” mentality, where mistakes (inevitable when businesses take risks, as they must) are met with a focus on who to blame

*the ideal board member asks “the wrong questions” and is independent-minded but can work within the system (we need different ideas but no board factions).

Ted Kelly made the most telling attack on the rise in government regulation.  Noting that the “American corporate form” is unique in the world for creating a wealthy middle class, he sees us now engaged in a political struggle over whether regulation will destroy it.  Compensation should reward success deep into an organizational structure, creating wealth at various levels of society; regulation discouraging risk by casting blame for failure and clawing back previous earnings threatens innovation.

Boards should include some people with deep industry knowledge, and all directors should become as expert as possible in the company business.  Contacts by directors should go deep into the management team to understand from people with hands-on functions the issues faced.

The presentations were not unexpected from people at the top of huge enterprises.  But it was interesting to see all the panelists completely miss one key question from the floor. They were asked how they would parse their expressed view to fill the board with people who meet exacting standards of skill and ethics with the reality that some boards are forced to accept representatives of VC or PE investors.  The only answer was that if you are ever forced to accept someone on the board who does not fit your own standards, you must be starting from a point of weakness.  Those of us who work in financing corporate growth in companies that lack the capital base of Putnam, EMC and Liberty can only dream of working with a company that is desperate for money, yet has the power and nerve to tell the investor that the investor’s board designee just doesn’t fit the desired mold.  You need Liberty’s checkbook to have that kind of clout.

The Jewish Vote in November

Now that we are finished with both rather conventional and predictable Conventions, the “race” for the Presidency begins in earnest.  The seeming fragmentation of the body politic into discrete and intensely focused “voting blocs” which are fought over between the parties is an example of the growing polarization of American thought.

In this context, the upcoming September 23 conference in New York City entitled “The Jewish Vote, the Holocaust and Israel” takes on enlarged relevance. The allegiance of this constituency (which historically has both voted and contributed at high levels) is important in some of the swing states which may determine the electoral outcome.

There is a lot of history that impacts how Jews are likely to vote.  Notwithstanding the significant contributions to World Jewry by Herbert Hoover and other Republicans, the affinity of Jewish voters for the Democratic Party is deep and long-lasting, rooted in theoretical commonality, the labor movement and the power of inherited fundamental beliefs.  It survived Roosevelt’s failures to address the Holocaust, and numerous subsequent strong endorsements of Israeli positions by Republican politicians, platforms, and constituent blocs attracted to Israeli claims through religious belief.

Will Jews continue to support Obama, who has been deeply criticized by more conservative Jewish elements?   Will the new omission in the Democratic platform of the reference to Jerusalem as the “capital” of Israel weigh into the debate in any lasting way?  What can we learn from the history of Jewish voting in the United States, and its deep-seated historical patterns, that may inform our understanding of November, 2012?  What should each party be doing to court this voting (and financial) bloc?

The one-day conference on Sunday, September 23 at Fordham Law School, sponsored by The Wyman Institute for Holocaust Studies, will explore these issues through the eyes of academics, Congressman Bob Turner (R-NY), former New York Mayor Ed Koch, and Dr. Tevi Troy (whose background includes advisor to the White House, and CNN and Fox News analyst).  If interested in attending or learning more, go to  (Disclosure: the Institute is a pro bono client of DuaneMorris LLP and I am chairing the conference.)

Today’s Public Radio commentary was all about what candidates should do to appeal to various disparate  blocs.  Is that a relevant question, or are we destined by and large to vote as our parents and we ourselves have always voted, slaves to our own personal histories (and thus doomed to not learn from prior experience, but merely to repeat it)?

Sikh Heil

The other day a man, Wade Michael Page, now sketchily described as a neo-Nazi white supremacist, shot some followers of the Sikh religion at their Wisconsin Temple, a patently deplorable action regardless of the backstory of either the perp or the victims.  Beneath the obvious, this has set off a semantic war with unknown ramifications.

At first, knowing nothing about the shooter, the authorities speculated it was an act of domestic terrorism.  Then the ignorant diagnosis was downgraded to a “type” of terrorist attack.  On today’s NPR news program, mention was made in passing that there was an ongoing investigation into whether this was an act of domestic terrorism.  Aside from a spotty military career and a few drunken brushes with the law, we have learned only that Wade played with White Supremacist bands (a category of which I and doubtless many others were hitherto unaware).

What would flow from a conclusion that indeed this action falls under the “T word”?  Why do we seem to have a compulsion to attach some extrinsic categorizing label onto what happened?  It is logical to understand that the shooter was nuts just by reason of acting clearly outside of what our society accepts as human behavior; that societal definition also labels the shooter a criminal who can escape punishment only if he can prove a certain elusive and legally ill-defined supreme level of nutiness.

At first blush one might think this is just another incident of the human passion for categorizing events so as to create a better understanding of those events and the world as a whole; patterns are both mentally comforting and sometimes reveal trends or syndromes that, once identified, may require societal remediation.

A more cynical view is that people innately want to punish what they find abhorrent;  it is a way to put that action in its place, to distance us from it, to put it into a category that we know we reject and thus to insulate us temporally and morally from that action and the mental set that drove it.

A recent New Yorker article discusses the capsizing of a pleasure yacht after a fireworks display in a fancy area of Long Island, which carried three young children to their deaths as they were trapped in a cabin below-decks.  The reportage noted that the boat was raised and was the subject of intense local police and FBI investigation, reflecting a need to understand the tragedy and indeed see if some punishment was appropriate to such people as may be viewed as guilty of some transgression of law or attentiveness.

The drive to affix blame and punish it is also at work in the case of the Sikh shooting.  The perp is quite dead; it is not likely that punishing him is worth considering.  If we can find that the deceased killer was part of some conspiracy, some movement, some group representing the wrong kind of violence, then we can blame them, and try to punish them by law; perhaps silence or disband them, at least infiltrate and monitor them.  Society wants to protect itself from groups that will harm that society.  (This creates serious problems of balancing civil liberties, a different subject for a different time.)

One of the issues is that a single person can have bad ideas, can get these ideas from groups that espouse them, and can act fundamentally alone in the physical sense (if not the intellectual sense) and thus kill large numbers of Sikhs (or any other group) and there is no one to blame except either the ideas or the deranged killer (who is likely either then already dead or clearly nuts).  An unsatisfactory conclusion.

Hence, we look for available conspirators.  If this cohort does terrible things, they are semantically “terrorists.”  Of course this word now carries heavy freight after 9-11; we know in our deepest part that terrorists are a thing unique, singularly deranged and to be stamped out.  Would it not be nice to find that the Sikh shooter was part of a cohort we can label as terrorists and then treat them violently because that is how one must deal with terrorists in this terror-burdened world?

It is frightening to think about what next happens if someone with a police mind-set, after careful analysis of unclear definitional factors, declares at a major press conference that yes, indeed, the shooter of Sikhs committed an act of domestic terrorism.  What do we do?  Does this just give us comfort psychologically (yeah, they are terrorists, they are bad, they are not like me, they are sort of rare so I am likely safe) and we move on?  Does this lead us to arrest or suppress those whose ideas, but not actions, he shared?  Do we do that only if he had physical contact with these people?  Do we do that if the only contact is that they shared ideas?

I wish the FBI and police would stop trying to classify this event as terrorism.  I get a bad feeling that the classification will achieve nothing but some negative unintended consequence.

Twinkies and Capitalism

There may be a death-knell coming for Twinkies and I know this is true because this week’s Fortune magazine tells me that the corporate parent may not emerge from bankruptcy.  The article explores the allegedly intransigent positions of the private equity owners, the secured lenders and the labor unions.  The broader ramifications have escaped Fortune, of course.  Fortune is the People Magazine of business, and its reportage is about as deep as Cape Cod Bay at dead low tide.

The first ramification is social.  We are talking about an American institution here.  People have dropped Twinkies from office towers and made movies about them.  Lawyers have built insanity defenses around their sugar content.  Generations of New Yorkers, and business travelers in New York making the taxi trek to LaGuardia Airport, have looked at, around and past the Wonderbread sign dominating the Jamaica, Queens skyline and marking the hallowed ground where the Twinkies were, er, manufactured.  Blog posters are uniformly claiming to be crushed, as if the Twinkie were an FDA-approved universal cure-all being lost to mankind through some colossal business error.

The broader ramification is anti-American and surely anti-Fortune.  It is the fact that, when you look at the Hostess Company, now in its second bankruptcy in fewer years than one hand has fingers, you see the raw Darwinian logic of our economic system.  It is hard to believe that good business or social planning would include the Hostess scenario as a success story.

The culprit is capitalism.

I am not against capitalism.  I am not smart enough to be against capitalism.  I am sure there are numerous analyses proving it the best system net on a utilitarian basis, far superior to other forms of social organization (many of which I cannot, no doubt, even name).  My point is so much simpler: the failure of this company appears to be a disaster for absolutely everyone involved and it was accomplished in about four years by people we consider to be smart, and we are about to brush it off and forget about it.

When one openly says that our economic  system unexplainably produces failures,  the typical  reactions to such a statement  are these: clucks of condescension from business folk who look at such remarks as so painfully naïve as to be below reply; reports to government agencies that subversives are in our midst; well-trained functionaries in the capitalist system who are well enough off, and poorly enough educated, think that this must be Valhalla.  Classify me what you will for saying that the emperor has bad clothes and for not knowing the address of another tailor who can cut a better fit to human need, but as Hostess joins an almost unmeasurable parade of failures that bring economic tragedy one has a choice: to casually observe that such is the nature of free enterprise; OR to say that there is a problem if this is the best we can do.

And why write this blog post when it fails to advance our thinking on anything?  It at least advances our understanding of what we do not understand.

Well, you know how it goes.   That’s how the Twinkie crumbles….

Red Sox to Win World Series

I am about to ensure 2012 World Series victory for the Red Sox by declaring that the team will win it all.  I am the sort of pundit who is always wrong; if I were to declare the world to be round, some damned fool in a sailboat off the coast of Malaysia would promptly fall off the edge and into empty space just to prove me wrong.

Here is the analysis.  Last night our “ace” pitcher gave up four runs in less than 7 innings which was, remarkably, one of his better starts.  A series of three relief pitchers, two of whom I (a season ticket holder) had never heard of until last week, each gave up one run.  Against those six runs the Red Sox managed three, on a home run by the kid replacement for Kevin Youkalis (whom we never should have traded) whose homer, in turn, was set up by a fielding error by the Rangers and thus almost doesn’t even count.

In other developments, Sox management took enough time away from its soccer interests to assure the public that it was not blaming manager Bobby Valentine, the very fellow they will fire in the off-season no matter what happens including my predicted World Series triumph, just because they can.  Big Papi, one of only three big league players on this year’s roster, remains sidelined with an achilles problem and is at the stage of taking shots to control the pain which, I can tell you from personal experience, is an inadequate temporary palliative that does not address the basic issue; my achilles sojourn with shots deep into my heel resulted in half a year on a cane as an alternative to surgery and half a year on a cane — but then again Big Papi is a professional athlete and hopefully can be cured while I was relegated to a lawyerly limp.  And finally the Sox have carefully explained why they did so little at the trading deadline: the team is so darned good as it is that tinkering with it was a mistake.

All this plays on the backdrop of the Yankees losing 7 of their last 10, the entire American League drifting together with no team playing consistently good baseball (no one approaching .600), and yet the Sox are this morning only the ninth best team out of the 14 in the AL.  That means there are eight teams ahead of us, three will win divisions and make the playoffs automatically, and so we need to overtake four of the five other teams ahead of us to get the wild card slot that will allow us to slip into contention and thus win the World Series, as I have promised (see paragraph #1 above).

Did I mention our team is below .500, having lost more games than we have won?  (That’s how it works, by the way; when you lose more than you win, you are below .500!)

SO, per Sox management we have them right where we want them.  I predict, along with John Henry and Ben Cherrington, that the Sox will take the Series this year; I say 6 games.  I have already looked onto MLB’s website, put the dates on my calendar, and made sure I do not schedule anything that might conflict with those dates and any possible rain (or snow) postponements.

I am offering World Series Seats to you readers for all home games in the playoffs, American League championship series, and the World Series at a flat $1000 per seat per game, first come first served.  Reservations are non-refundable and must be accompanied by bank checks for the seats committed.  You really don’t want to miss this Series; it will blow away 2004 and 2007 for drama, and allow you also to say good-bye to half the team that will join Valentine in the off-season by trying on different uniforms for their new employers.

Corporate Chicken

Midst this summer’s preoccupation with vacations, London and (around here) the collapse/revival/recollapse of the Red Sox, a fascinating corporate-social experiment is bubbling just below the lead headlines: Chick-fil-A.

We do not, here in Massachusetts,  know much about this company, a large restaurant chain that is privately owned and has its locations South and, to some extent, West of New England.  I am not even sure whether it is a fast food outfit like a Wendy’s or a casual dining chain like Olive Garden.  But all reporting indicates that its food is really good and that the chain is growing rapidly.

The nub of the issue is the active assertions of management that gay marriage is wrong.  The question is, what impact will this activism on a social issue have upon the company.  Reportage on the opinion pages of the Globe suggested this week-end that gay marriage supporters are wasting their time trying to make an issue of this, or trying to get people to not eat at these restaurants (I gather there are only two locations that are within driving distance from Greater Boston).  The argument seems to be: the food is good so do not deprive us; social positions of management have nothing to do with the food; why single out this one company and this social issue, and isn’t it wrong to do so — for example, would liberals be happy about a social boycott of restaurants owned by Muslims, or devout Catholics?

Today’s Wall Street Journal (B-1) jumps into the fray, noting that for the short term Chick-fil-A is not likely to be badly hurt; the vast bulk of their stores are in regions that most strongly oppose gay marriage in the first place.  One of those helpful little WSJ maps attempts to demonstrate graphically the locations of stores and of anti-gay-marriage sentiment.  But the Journal is of course a finance-centric publication with urban Eastern overtones, and speculates that with the power of social media, Chick-fil-A is making what is perhaps an existential mistake, dooming its company in areas of potential major expansion at the hands of liberal tweets and blog posts.

The debate can be viewed from the standpoint of corporate governance.  Recent governance theory has suggested that the traditional focus on damage control and crisis management is an outdated concept in today’s social media world, where major brand damage can occur with lightning speed that outstrips almost any after-the-fact response strategy.  Today, this theory holds, the only game worth playing is up-front prevention of brand deterioration.  Boards are encouraged to approach this element of risk management by making sure that their company is out ahead of social media pitfalls, avoiding positions that might create a furor and becoming active in the social media world so as to continually monitor what is being said and to help shape the dialog.

Surely, based on this view of the world, what the Cathy family (management of Chick-fil-A) is doing is, as the Journal suggests, “swimming against the tide.”

There are lots of ways to think about the problem from a social standpoint. The Cathys have a right to free speech.  We do not think about the social or political views of virtually all companies we deal with (unless one of those views creates a physical or economic disaster, a palpable result which may be driven by those ideas but which is different in kind from the ideas themselves).  But the partisan sorting out of American life, reflected by our current politics, the Tea Party (and counterparts on the Left), the constant elevation of social debates to a degree that undercuts tolerance of other views, and the very democratization of the instrumentalities of communication through the internet and social media, are categorically and fundamentally altering the manner and content of how we think about decisions.

That change is the social issue which Chick-fil-A is testing.  Is this the first case where, in the long run, the mere content of social ideas espoused by a company management, social ideas which are subject to debate and not clearly abhorent across the board, will harm a company in a significant way?  Aside from the social experiment, the case should be watched by those in corporate America to inform how one must think about risk management.  Does the new corporate checklist include a review to make sure that a company and its principal players are “vanilla” on social issues?  Political issues?

Should boards police their corporations to meet the standard that our parents taught us when invited to someone’s house for dinner?  “Use the forks starting from the outside in, and whatever you say do NOT discuss politics or religion!”

Blue Sox

It has been a while since I posted about the Boston Red Sox, and followers of baseball likely know the reason: they have been playing terribly.  And if you go back to the last (2011) All Star break, they are 50 wins and 63 losses, which probably puts them in the bottom quarter of all teams while having the second or third highest payroll.

And it is hard to post about the Red Sox when in Boston, where the constant sports press beats incessantly on their failures, on management, and on the running joke of all games being sold out for the umpteenth straight time.  But there are some interesting things to think about as the Sox sit today at exactly .500, tied with Toronto for last place in the super-performing AL East.

First, let us lay some blame on Bobby Valentine, who for some reason was on Kevin Youkilis’ case and claimed that Youk (of all people) was dogging it, not putting it all on the line for the team.  We gave him away to the other Sox in exchange for a minor league pitcher and a utility infielder who is hitting below .170 AND we still get to pay his salary of five or six million dollars.  The result?  Youk was named Player of the Week in our very League, and his replacement at third is an injured rookie and his replacement replacement put on the worst show I have ever seen from a big league player, when I suffered through the Yankee destruction of the Sox at Fenway last Sunday night: he made an error at third; he bounced a throw to first on a double play by not setting up correctly; switched to first, he ran to the bag rather than catching a catchable grounder that bounced into right field through the space he left open; on a grounder to first he whipped the ball to second and then ran over to cover first for the return double play ball and thus blocked out the view of the pitcher who was properly covering the bag; he went hitless and clearly had never seen a big league curve ball before in his whole life, striking out I don’t recall how many times.  Gomez may be a lovely guy and just watch–given my powers of observation he may end up as the next Wade Boggs– but he sure stank the place out on Sunday, and all you could think about as this clown bounced from third to first was, “but these are Youk’s positions, and did he not win a Gold Glove at first?”

Some folks “in the know” think that Youk was done, stick a fork in him, and he burned bridges in the clubhouse, with Big Papi, etc.  I am not in the know, but I do know this: after Gonzalez left the game Sunday (illness) there was not a person in the infield, and indeed in the entire Sox line-up, who could carry Youk’s bat-bag as far as I am concerned.

You could win a playoff spot with the people the Sox have on their DL or who are playing below historical norms: Beckett, Lester, Pedroia, Lackey, Jenks, Bailey, Ellsbury, Gonzalez,  Bard, Crawford, Dice-K.  But these guys cannot play, or not as in the past; and we are still paying them (and Youk too!).  The front office is end-gamed on trades, out of money by any rational measure, and must be thinking that the sainted Theo got out of town just before he should have been run out on a rail (watch out, you Cubs fans).  Now the front office has to figure out whether to try for the new second wild card slot this year (they are only 2 1/2 games back for that slot although there are five teams ahead of them) or whether they should declare this a building year.  Their goals will drive their trading strategy.

Speaking of which, the Boston press seems to think that management must trade Ellsbury, which would be a real crime because last year he was about the best position ball-player I have seen since Willy Mays (yes — Willy Mays).  He will be a free agent, very expensive, and is rumored as not long for the Sox in any event.  And truth be told, we need pitching more than we need outfielders.  But how many cynical hits can the fans take and still want to buy season tickets?  This is actually a subject of email traffic even now within my own group who split the season.

Today’s Red Sox look like the Mets of a few years ago; aging or under-performing players with big price tags playing sub-.500 ball.  It will take a big effort, or a few years, to compete at the top of the League but the question is: which of three paths does management take? Tweak ourselves into the playoffs, or go blockbuster to fix it all now, or mentally accept we are rebuilding and spend a couple of years doing it.

In a way, fans might be more comfortable with the last option, which can be understood and holds out clear hope for the future while lifting the pressure for current performance.  Does management have the dough and the resolve to fix it all now?  That option is the only one that will permit further increases in ticket prices.  Do they need to increase prices any more when water is $4 a bottle and “premium” beer is $9.25 and my sandwich was $9.50?

Another school of thought is that the once-vaunted Sox management is out of touch and has so much ego, so much being invested in being the big sports gorilla in a big sports city, that they will NEVER declare, or appear to be in the midst of, a rebuilding year.  It will always be “we are trying like crazy to win NOW.”  I am unable to analyze these people as easily as the sports writers and cynical fans seem able to do, however.  I just think they are greedy and end-gamed, an ugly thought.

Sox fans were better before we won two World Series.  Now we expect excellence, not just a day at the Park.  And now that we are paying the price of excellence in the ticket scale, we also are entitled to get it.  Poor blue Sox.


Regrettably, the reading of Supreme Court opinions often falls only to lawyers.  There is much that is technical in them, but most (in cases such as the Affordable Care Act) relates to policy, to the nature of our social contract with each other, and the application of close logical analysis to a given set of facts.

Some opinions soar with rhetoric, or with literary allusion.  Some opinions purport to expose the essence of the American experience.  Some anger and offend.  Some are just really good to read so as to inform the current debate.  Chief Justice Roberts’ decision in the Affordable Care Act case is in that last category.

I pause to speculate as to how many have read it.  I suspect many who comment on it have not; although it is possible that the misstatement of its contents by politicians is manipulative and purposeful, relying on the near-certainty that the average voter is not going to read the sixty pages (almost 200 pages with syllabus and dissents).

I submit that anyone truly interested in bringing an open mind to the current election must be a reader.  That class of people may be quite small, of course; research has shown that very few people ever change their mind during an election, and (although this is speculation and not supported by research) I suspect that those few who do change their minds are not usually driven by what candidates say about Supreme Court opinions.

All this is a pity.  Justice Roberts, much maligned as a tool of partisan politics, has for whatever reason written an elucidating and wholly enjoyable opinion, and one that informs our understanding of just what our government is all about.  Cynics may say that Roberts was forced to swing in favor of the statute, at least in part, in order to assure his Court’s legacy and save himself from the historical judgment of partisanship at the expense of jurisprudence.  That suspicion may be bolstered by Justice Kennedy’s view of the unconstitutionality of the Act, but whatever the reason the majority opinion itself is satisfying to read, subtle to think about, and destined to be over-simplified for political gain in the current election environment.

What does it say?  Really say?

The individual mandate of the statute says that the vast majority of people without other health insurance coverage must pay annually what is called a “shared responsibility payment” to the IRS, to be collected like a tax and to be measured based on income (but never below $695 nor more than the cost of a certain model health insurance policy which covers far less than most solvent Americans would consider to be adequate).  There never was serious question of whether the Congress could do this and call it a tax.  But Congress (the Democrats, to be fair) called it a penalty and based it not on the Constitutional power to tax but on the Constitutional power to regulate commerce.  (States have general powers to do anything not delegated to the Federal government by the Constitution and we call these State functions “police powers.”  The Feds have ONLY the powers granted [enumerated] by the Constitution.)

Citing ample prior authority, the majority opinion held that the power to regulate commerce presupposed there was commercial activity.  Someone who did not buy insurance was not engaged in an act of commerce.  The majority rejected the argument, embraced by the more liberal justices, that sooner or later everyone goes for health care and thus being in the commerce of health care is never an “if,” only a “when.”  The majority was concerned that if the Federal government could regulate doing nothing by calling it commerce, there was nothing it could not pass laws about.

Citing other ample authority, and noting that something is what it is, and not what its label says it is, the majority found that the payment required of the uninsured was in fact a tax.  (They did not even find it was a tax for all purposes, there is a fascinating analysis much ignored as to why it is NOT a tax as a matter of legislation; they just found that it was a tax in the Constitutional sense of the word.)

The second part of the law subject to review extended Medicaid coverage.  Previously, such coverage benefited pregnant women, children, people over 65, and people earning 2/3rds of the Federal poverty level.  The extension covers everyone in a family earning less than 133% of the poverty level.  Many states brought suit to declare this provision unconstitutional, as forcing the states to cover this expanded population.  Their basis was this: if a State refused to provide such coverage, it would lose all funding for all other Medicaid programs now existing, which result was coercive.  The majority said that this was indeed coercive, in effect forcing the States to adhere to a Federal policy by a grossly disproportionate penalty imposed in an unrelated area.  The majority struck the requirement that States adopt the expansion, leaving them the option to do so voluntarily.

While State resistance to the Medicaid expansion is to my mind difficult to understand, particularly since the Federal government will pay initially 90% of the cost and never less than 80% in exchange for which virtually all State residents will be insured (thereby improving the public health of the population, protecting the economics of local hospitals, and protecting the taxpayer base from having to pay for uninsured medical expenses incurred by the uncovered), the Court was deciding Constitutionality, not policy, and found the expansion unconstitutional.

There is much embedded philosophy in the Roberts opinion and indeed speculation had been that if Justice Kennedy had been in favor of the mandate premised on the Commerce Clause (so that it would have been found Constitutional by a 5-4 vote anyway), then Roberts would have surely voted that way also, making the vote 6-3 but ensuring that he (Roberts) could write the majority opinion.  The Roberts opinion is full of reassuring signals to conservative  constituencies, indicating the limited reading Roberts wants this opinion to have.  Witness the following among others (all internal punctuation and references to cases are omitted):

* “The Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control.”

* “Proper respect for the co-ordinate branch of the government requires that we strike down an Act of Congress only if the lack of constitutional authority to pass the act in question is clearly demonstrated.  Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments.”

* “The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits.  The Court does so today.  But the Court does not express any opinion on the wisdom of the Affordable Care Act.  Under the Constitution, that judgment is reserved to the people.”

I omit discussion of the dissents which are, in the aggregate, twice as long as the majority opinion.  They are not the law of the land, and political debate will revolve around spinning and misrepresenting the majority; it is ambitious enough here to attempt to state clearly that which WAS DECIDED, as a point of reference in what will become a sea of distortion.  Indeed, already Democrats are ignoring the unconstitutional finding on the Medicaid part of the Act which leaves 50 Million people potentially uncovered, and the Republicans are  trumpeting the startling revelation that what we have here is a tax imposed by Democrats, even if patterned after Governor Romney’s successful Massachusetts legislation.

The opinions (majority and dissents) discuss at a fundamental level the theories of American democracy and the pressure that the Constitution is placed under by a country infinitely more populous and sophisticated and modern that the colonies at the end of the 18th Century.  Some of the more arcane discussions are not even touched upon here, and may be too lawyer-ly to be of general interest.  But rather than sitting on the beach this summer with Fifty Shades of Grey, I suggest instead reading Fifty Shades of Governance, as written by Chief Justice Roberts.  It is, in its own way, far sexier.