Hasta La Gadget!

Justice Ruth Bader Ginsburg doesn’t like a Supreme Court operating with only eight justices since the February death of her friend, Justice Antonin Scalia.

“Eight, as you know, is not a good number for a multi-member court,” Ginsburg said Thursday at a New York conference for judges and lawyers. “When we meet … next year, I anticipate reporting on the decisions of a full bench.”

Ginsburg’s remarks at the annual Second Circuit Judicial Conference, which she attends regularly, are the boldest by a justice so far on the dynamics of a Supreme Court that’s one member short. 

Her insights give the public a bird’s eye view of high-profile cases the court has heard, decided and is still deliberating — including those where no final decision could be reached due to an even split.

“That means no opinions and no precedential value,” Ginsburg said, according to a transcript of her speech. “An equal division is essentially the same as a denial of review.”

Ginsburg’s desire for a full, nine-member court may be wishful thinking, in light of staunch Republican opposition to granting a Senate hearing or a vote for Merrick Garland, the appeals judge President Barack Obama nominated to take Scalia’s seat at the high court. If the GOP blockade persists until the next president takes office, a new justice might not be seated until after June 2017, the end of the court’s next term.

Ginsburg singled out two recent cases where the justices have deadlocked 4-4: a conservative challenge to public sector unions, and a religious case that sought to undermine contraceptive coverage under the Affordable Care Act.

On the Obamacare case, the court was roundly criticized for issuing a meager three-page decision that failed to clarify whether a requirement of the health care law that faith-based nonprofits sign a form noting objections to contraception violates their rights under federal law. The practical effect of this quasi-ruling is more litigation and uncertainty for the dozens of parties involved — and a possible new trip to the Supreme Court later. 

Ginsburg’s comments came a day after Chief Justice John Roberts, speaking at a similar conference in West Virginia, said he’s doing his best to try to get his colleagues to find common ground on contentious issues.

“I try to achieve as much consensus as I can,” Roberts said, according to The Associated Press, sounding a bit more optimistic about the status quo. “We kind of have to have a commitment as a group. I think we spend a fair amount of time — maybe a little more than others in the past — talking about things, talking them out. It sometimes brings you a bit closer together.”

But recent action or inaction by the court shows otherwise. An analysis by FiveThirtyEight, published last week, noted that the court is on track to have its lightest caseload in seven decades, and that none of the cases it will hear beginning in October is particularly newsworthy. During its usual round of orders on Monday, the court again refused to hear any new cases.

This comes amid debate among legal scholars and experts on whether it’s a good thing for the Supreme Court to be understaffed. 

In the meantime, the justices have four major decisions remaining on their current docket before they recess for the summer: the legality of Obama’s executive actions on immigration, affirmative action at public universities, regulations on abortion providers, and the reach of federal anti-corruption laws.

For an educated guess on how the Supreme Court might rule on some of those issues, don’t look to Justice Stephen Breyer. Earlier this week, he added his voice to the conversation by noting, ambivalently, that he and his benchmates “may” or “may not” deadlock in the pending cases.

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Peter Thiel offers a case study in the way America’s top tax rate is much, much too low.

This week, we learned that Thiel — a Silicon Valley techno-libertarian billionaire who co-founded PayPal, sits on the board of Facebook and is estimated to be worth $2.7 billion — is trying to sue Gawker Media out of existence by financially backing plaintiffs who want to bring lawsuits against the company. 

What does it mean that Thiel has amassed enough wealth — and thus enough power — to make a credible attempt to cripple a major media company by throwing money at the legal system?

It doesn’t necessarily tell us that individuals shouldn’t be able to fund litigation. It tells us that some people in this country have too much money.

Thiel funding a lawsuit he wasn’t involved in, a practice known as champerty, was once illegal in the U.S. But as Eugene Kontorovich, a professor at Northwestern University’s Pritzker School of Law, points out in The Washington Post this week, anti-champerty laws eventually underwent a gradual attrition — particularly because of civil rights litigation, which often involves a third party funding the lawsuits. 

“They were gradually eroded by numerous developments, most saliently public interest litigation and the private provision of legal aid to indigents,” Kontorovich writes. Progressives are generally in favor of those last couple of things, so changing these laws would be complicated.

Yet here is Thiel, using the power afforded by his vast wealth to make serious trouble for Gawker. The media company has certainly shown questionable editorial judgment sometimes, but more often than not it speaks truth to power — a crucial function of the press in a democracy. Gawker’s now-inactive Silicon Valley blog, Valleywag, wrote unflattering things about the stars of the tech world, Thiel included — something to which most of them were, and still are, unaccustomed. In response, Thiel used his money to try to destroy Gawker. There are countries whose governments use their power to control what the media says about them. We generally refer to these as autocracies. 

Thiel is a private citizen, of course, not a public servant. But that doesn’t make it much better. Imagine if other private citizens, like Bill Gates or the Koch brothers, tried to destroy every media outlet that wrote something nasty about them. The public’s access to information would suffer. Not immediately, maybe, but certainly after the eighth or ninth crippling lawsuit.

But there’s another way to prevent this kind of abuse of power: taxes. What this country really needs isn’t a law to keep incredibly wealthy people from funding litigation in an attempt to destroy the First Amendment. We just need fewer incredibly wealthy people. 

Economists agree. Back in 2014, my colleague Ben Walsh wrote about a report by Fabian Kindermann from the University of Bonn and Dirk Krueger from the University of Pennsylvania that found the ideal top marginal tax rate on the highest 1 percent of earners — the tax rate that makes everyone in society the most well-off overall — is between 85 and 90 percent. That’s more than twice the current U.S. top rate of just under 40 percent, which is paid on income above $415,050 for individuals and above $466,950 for couples.

Marginal tax rates don’t mean that all income is taxed at that rate — just the income above a certain level. So if the marginal tax rate for individuals making $1 million a year was, say, 99 percent, only the money they made after the first $1 million would be taxed at that rate. That first million bucks would be taxed at a lower rate, leaving the person plenty to live off of. But a robust top marginal tax rate would prevent people who make, say, $100 million per year from becoming exponentially wealthier than everybody else, and getting to more or less make up their own laws as a result.

Having several million dollars in the bank is a way to live comfortably, have some influence and generally be considered a rich person. Having several billion dollars in the bank is different. A billion dollars is power — power to grind down your enemies through endless litigation; power to throw off an entire state’s budget because you moved to a new house. A billion dollars is plutocracy. 

Of course, if we take away the plutocrats’ power by taxing them at higher rates, that money — and the power that goes along with it — will go to the government instead. And governments, to state the obvious, abuse their power all the time, including here in the U.S. But elected officials are still accountable to the public, and bound by the Constitution, in ways that individual billionaires are not. Do we want the power of regulating the press to be in the hands of the many or the hands of the few?

It’s important to remember that there are different kinds of rich. There’s the kind of rich where you can live comfortably without worrying about money, and there’s the kind of rich where you can manipulate democracy or fund a never-ending series of lawsuits in pursuit of a personal grudge. Taxes are the way to keep the first kind of rich from metastasizing into the second. The higher we set the top marginal tax rate, the harder it becomes for anyone to make that jump.

Without high tax rates, huge amounts of wealth simply beget more huge amounts of wealth. In this chart, compiled by economists Thomas Piketty and Emmanuel Saez, you can see the massive amounts of wealth created for the top 0.1 percent by capital gains (that’s returns on investment) in the 1920s, and again in the 2000s. 

Not coincidentally, U.S. inequality reached historic heights in the 1920s, and it’s happening again now. As capital gains soar, real median incomes in the U.S. have fallen since 2000. What’s good for the extremely rich is not necessarily good for average Americans. When top marginal tax rates decline, income inequality balloons:

What happens when income inequality grows too extreme? It’s not just about Gawker, or any corporation a billionaire might dislike. Inequality can be a threat to both politics and the economy. The more money is concentrated at the top, the more political power accrues to that same small group of people. If power becomes too concentrated among the rich, and they are no longer exercising that power in a way that benefits everyone, you get violence. Ask Marie Antoinette.

And then there’s the less obvious consequence: sluggish economic growth. Recent research has shown that as wealth concentrates at the top, everyone who’s not at the top stops producing as much. As a result, the economy cools off and stagnates. Even when there is some growth, who benefits from it? An OECD report from 2015 shows that not only does growth slow and inequality increase under such conditions, but “when such a large group in the population gains so little from economic growth, the social fabric frays and trust in social institutions is weakened.” And once again we’re back to the lessons of the French Revolution. Any way you look at it, neglecting to tax the rich is bad for democracy.

Sure, perhaps you dislike Gawker and are unfazed by Thiel’s meddling. But what if it were The New York Times? What if it were The Huffington Post? What if it were Breitbart?  

If we tax the rich properly, we never have to find out.

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With the ink now dry on the new climate agreement agreed in Paris, the euphoria of achieving a record number of signatories must now give way to practical action from the 177 nations involved. There is little room for self-congratulation, as the Minister of Environment of Morocco reminded summit participants at the recent Climate Action Summit in Washington DC. Tired of the discussions that revolved around what could be done to mitigate greenhouse gas (GHG) emissions by cities in the industrialized world, she asked the frank question: when can Africa, that has been experiencing climate change for many years now, expect solutions instead of speeches?

Africa is still enduring one of the most severe droughts on record, has 500 million hectares of degraded land, 300 million people without access to clean and safe water, and millions migrating to its megacities. Africa is projected to become 56% urban by 2050, while Asia is projected to be 64% urban.

It is time for leaders to wake up from the fog of Paris negotiations and move towards action. Photo: Alain Vidal

At the Bonn Climate Change Conference this week, which convenes the Subsidiary Body for Scientific and Technological Advice (SBSTA) of the UN Framework Convention on Climate Change (UNFCCC), scientists are setting out recommendations to move the Paris Agreement from ambition to action, and the daunting challenge of adapting food systems while producing enough nutritious food is a hot topic.

In fact, negotiators representing South East Asia and sub-Saharan Africa have already loudly called for the climate talks in Morocco this year to establish a real scientific work program on adaptation in agriculture, which is currently not on the SBSTA agenda. Such a program will need evidence-based and impact-oriented science from scientists all over the world to make it viable. At CGIAR, we are working on papers that will be used as the basis for providing technical support to countries and country groups in Latin America, Asia, and Africa.

Here are some more ways CGIAR and our partners believe science can help provide nutritious food in a warming world:

1. Setting a Global Target for Emissions Reductions in Agriculture
Scientists from the CGIAR Research Program on Climate Change, Agriculture and Food Security (CCAFS) and the University of Vermont, alongside partner institutions, estimate that the agriculture sector must reduce non-CO2 emissions by 1 gigaton per year in 2030, in order for the world to remain within the 2C warming limit. Yet in-depth analysis also revealed a major gap between the existing mitigation options for the agriculture sector and the reductions needed: current interventions would only deliver between 21-40% of mitigation required. Agriculture (not including land use change) contributes an average of 35% of emissions in developing countries and 12% in developed countries today. Mitigation will require massive investment, information sharing and technical support from scientists to enable a global-scale transition to low emission technologies. There are many promising innovations on the horizon, such as recently developed methane inhibitors that reduce dairy cow emissions by 30% without affecting milk yields. Varieties of cereal crops that release less nitrous oxide also have great potential. But the investment to drive the discovery and dissemination of these scientific advancements must be released from climate funds.

2. Accurately Monitoring Climate-Smart Progress
CGIAR, through its Research Program on Climate Change, Agriculture and Food Security (CCAFS), has been called upon by the World Business Council for Sustainable Development (WBCSD) to be a key knowledge partner for its Climate-Smart Agriculture (CSA) platform. At the Paris climate talks, WBCSD members (including agribusiness giants such as PepsiCo and Kelloggs) pledged to make 50% more food available, while reducing emissions by 50% by 2030. As Peter Bakker, CEO of WBCSD commented, this will require “new rules for disclosure and reporting”. CGIAR will be working with WBCSD on improving businesses’ ability to trace, measure and monitor CSA progress, by developing science-based indicators.

In this role, CCAFS aims to link the cutting edge metrics for CSA measurement being developed by the research community to private sector needs. The private sector has a major role in achieving impact at scale, and by partnering with the scientific community, businesses can ensure its interventions reach their full potential.

3. Promoting Access to Science-Based Tools for Farmers
Farmers all around the world – and not only those from the developing world – are confronted with and will be facing more and more adaptation and mitigation issues, from new regulations and changing public opinions to the obvious, new weather patterns. The scientific community has a responsibility to ensure there are enough practical tools being made available to farmers to help them make their contribution towards climate goals whilst feeding the world. Tools like CGIAR’s CSA 101,recently launched by CCAFS, helps interested farmers determine appropriate mitigation and adaptation initiatives in agriculture and offers guidance on how to set them up. Other more specific tools like IRRI’s Rice Knowledge Bank, is a catalogue of best practices that enables farmers to make the best decisions for both productivity and the environment. Reaching farmers with this kind of practical information is going to be paramount.

We’re well on our way to COP22 in Marrakech, and it is imperative to remember that the world, and in particular the poorest and most vulnerable, are expecting – no, needing – action. This action needs to be based on science, and supported by just and transparent public policies and private investments. This is going to be the best way to drive the climate agenda forward and still safeguard our future food supply.

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In the 1980s, a colleague of mine at the National Audubon Society, participated in an Earthwatch program with orangutans. I had seen the advertisements and wanted so much to take this trip to Borneo. However, any free time I took from my public policy position at Audubon was used to fulfill contracts with the U.S. Agency for International Development, primarily in Africa.

When my husband, Ken Strom, and I finally retired several years ago, we began to make lists of the great places we wanted to still explore. And the beginning of the list targeted some of the most difficult to get to. In our considerations were the amount of time it would take to just get there.

Last year we began to look for options to see those orangutans in Borneo. It would take 30 hours of travel on planes and sitting in airports to find our way to Borneo which is actually an island split between Malaysia and Indonesia, with a cutout space for Brunei.

The usual travel companies we had travelled with did not really include Borneo, and specifically the small places still left in the world where wild orangutans were living in their primary habitat. Borneo, like so many places in the world, is losing habitat for wild birds, mammals, amphibians and insects. The global demand for palm oil, which is often found in nut butters and hair products for example, leads to the destruction of primary rain forests.

In our research we discovered Orangutan Foundation, International (OFI). This organization is the one most closely associated with Dr. Birute Mary Galdikas, who has the longest continuous research of orangutans in the world. I will write more on her in my next post.

Travel with OFI is handled by Irene Spencer out of San Diego. There is a process for being accepted on the few trips that are being done each year, and most of the requirements are to ensure that you understand the challenges of the trip and the need to protect the orangutans that you come into contact with. For example, you need a current TB test.

We decided that if we were going all that way, we would add an additional week for birding in Malaysian Borneo rain forest. We stayed at the Sepilok, Sukau and Tabin Eco Lodges, birding on foot, by range rover and from boats. We saw 115 species of birds, some for the first time in our lives.

At Tabin we could actually see at one point the contrast between the primary and secondary rain forests up against the palm oil plantation. The palms only last for 35 years, so we were able to see fully grown and newly planted palm groves, as well as burning fields from slash and burn processes.

At Sepilok we saw one orangutan, which hangs around the Rainforest Discovery Center, and three baby orangutans on the roof of the nursery at the small park. Rehabilitated orangutans eventually are released in Tabin. We did not see any of the 240 orangutans in the forest, but we could see the nests that they make high in the trees of the primary forest.

Heading back from Tabin, we flew from Ladtu Datu to Kota Kindabala to Kuala Lumpur to Jakarta, Indonesia where we spent the night. The next morning we connected with the group heading for Pangkalan Bun, Indonesia, and the boats that would take this small group into the Tanjung Pating National Park.

Our lunch with Dr. Galdikas was a combination briefing and group introductions. She outlined her mission to protect wild orangutans by protecting the habitat they need. During the 45 years of work, her group has been able to help save the national park, educate the local people, protect wild populations of orangutans, rescue orangutans in captivity, rehabilitate injured and orphaned orangutans and purchase land to extend the habitat.

We arrived at the Rimba Lodge on the Sekonyer Kanan River, which was our home base. Each day we would float done the river to the Camp Leakey River extension and see Proboscis monkeys, macaques, and once an orangutan along the way.

The elusive orangutan in Malaysian Borneo was not hidden in Indonesian Borneo, especially in the park. They met us at the dock when we arrived in Camp Leakey. And they met us at the Camp buildings. They came to “feeding stations” to get fruit during the day. Some 6,000 orangutans live in the park. And the Care Center back in the city is providing rehabilitation for several hundred more.

Siswi, who is one of the older orangutans, greeted us the first day inside the camp. Somehow, she knew Dr. Galdikas was coming. In the interim, she tore down some branches and made them into a square mat on the ground. Then she laid down on it. She was demonstrating how the orangutans make their beds. That day and the next when walking into the forest, we would find branch beds on the path and were sure the Siswi had made these beds to rest on while she waited for us to return from the feeding stations.

If was not uncommon to see mother orangutans with their babies attached to their backs and sides. Juveniles might be hanging around with moms and their younger siblings. Tom, the alpha male at Camp Leakey, showed up one day. He is probably 300 pounds and has the extended face pouches which mark the males. Some of the orangutans will go out in the forest and not be seen for years. But each day the Camp provides supplemental fruit and milk for those orangutans that want them.

Once you have met the orangutans, you will see that they are the gentle ones of the ape species. If you have seen the IMAX film “Born to be Wild,” you will understand the need to make sure they have a space to live and thrive. And if you have a desire to see them up close, go to www.orangutan.org. Irene Spencer will help you design your trip.

There are two immediate things you can do: donate to the foundation or become a foster parent: join the effort to boycott products made with palm oil. Remember, if we cannot maintain a healthy habitat for these creatures, we will not be able to save one for ourselves.

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“I think it pisses God off if you walk by the color purple in a field somewhere and don’t notice it.” -Shug Avery in the Color Purple

It’s likely that Alice Walker wasn’t thinking about Takisha Mundy and Amy Meachum when she sat down to write her award winning novel, “The Color Purple.” Takisha was just beginning elementary school while Amy was challenging boundaries as a young toddler. Nevertheless, there is no better present day example of an unbreakable bond of sisterhood and the beauty of the color purple as a reflection of hope than Takisha and Amy.

The academically gifted pair excelled at Bartram Motivation Center in Philadelphia and at West Chester University of Pennsylvania. It was no surprise to friends and family when Amy followed in her sister’s footsteps by becoming a sister of Zeta Phi Beta Sorority Inc. (Theta Lambda and later Epsilon Omega Zeta chapters). Perhaps it was fate, the luck of the draw, or the Universe that once again led the sisters down the same path. Just one year after Takisha was diagnosed with discoid lupus, Amy unknowingly began experiencing systematic lupus erythematosus (SLE) related health issues.

My sister was diagnosed with lupus a year before me and I remember that time so clearly. She told me while I was at work. I was being supportive and saying we would get through this like everything else. Once we got off the phone, I researched the disease and immediately started crying and knowing I needed to get to her. I left early that day and went straight to her. She is always so strong and doesn’t like others to know she is feeling anything other than herself. So before I was diagnosed we would talk about it (more like I would yell at her for not taking her meds) but I never fully understood until I was diagnosed.

Excruciating joint and back pain nearly debilitated Amy during the summer of 2011; even still she never considered that lupus was slowly attacking her body. “My life has changed drastically because of this illness. My illness has gotten to the point of barely being able to walk without help, lift things, drive, do daily activities,” she said.

During an extended stay in the hospital, Amy stopped breathing during treatment. Her body was full of fluid, her hair fell out in clumps and her kidneys entered stage 4 renal failure. She was eventually allowed to go home but was placed on disability leave from work. Her rheumatologist and nephrologist were able to get her into remission with an aggressive treatment plan.

The first 4 years of dealing with everything I would sit in the house with the TV off, no noise around and just think. I was so down I wrote out my will and wishes for my burial. I would put on a face to my sister, boyfriend, family and friend closes to me. On the outside I was okay, but the inside would feel empty and full of pain. Knowing this disease could one day take my life is a hard pill to swallow and I can’t say I have accepted that, but I have decided to live. I do what I can when I can and always over work myself. I pay for it days later; walk a little further then maybe I should, carry a little too much then I should. I interact and do activities I know I shouldn’t. I do these things because I don’t want lupus to beat me.

Takisha was diagnosed with discoid lupus prior to Amy’s SLE diagnosis; however, the disease progressed rapidly in Amy’s immune system requiring her to be hospitalized. In protective big sister form, Takisha searched for ways to help carry the load. “My sister once told me that she wants to get my form of lupus so I don’t have to go through this alone. As much as I love her I wanted to punch her. I never wanted her to go through this (but) more and more I see her symptoms converting over to mine. I am terrified and feel helpless,” says Amy.

Takisha acknowledges that the disease is finally impacting her life in ways she cannot ignore. “Butterflies are no longer pretty to me,” says Takisha. “I don’t even really like to look in the mirror anymore. If I do, I find myself picking at my face staring at the marks and becoming upset. Living with pain is an adjustment. A new fear of not wanting to become addicted to pain meds is growing.”

Nevertheless, like everything else in life the sisters believe they will get through this together. They are each other’s light during the storm. They are cheerleaders, nursemaids, and friends; but most of all they are sisters.

In Alice Walker’s novel, the color purple is reflective of God’s love, beauty, and hope for a better tomorrow. Like Takisha and Amy, those living with lupus embrace the color purple as they battle the illness, strive to enhance awareness, and increase funding for a cure. “Lupus patients embody the meaning behind the color purple every day. They are inspiring individuals who…have such uplifting and gentle spirits. Instead of constantly worrying about themselves and their needs, they often reach out to others who are faced with lupus in an attempt to create a powerful community of support and strength,” (LFA, 2016 ).

Amy and Takisha are at peace in their current journey. It’s just something else these three time sisters have in common. In addition to supporting each other, they have a teamed up to recruit family and friends to put on their purple laces and walk for a cure each June at the Xfinity Live Philadelphia. (Feel free to donate to Team Sissy’s Lupie). The sisters wear purple for themselves, each other, and the millions of others fighting this disease.

You and me, Us never part
Makidada
You and me, Us have one heart
Makidada
Ain’t no ocean, ain’t no sea
Makidada
Keep my sistah way from me
Makidada
(The Color Purple)

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