Author Archives: weeklysift

Doug Muder is a former mathematician who now writes about politics and religion. He is a frequent contributor to UU World.

Something Other

June 24, 2024 – 11:59 am

If your version of Christianity wants to put the Ten Commandments in schools but take free lunch out of them, you are worshipping something other than Jesus.

– Zach W. Lambert

This week’s featured post is “The Limits of Originalism“.

This week everybody was talking about the upcoming debate

So Biden and Trump are scheduled to debate Thursday night on CNN. I am resisting the temptation to do something I often criticize the cable-news talking heads for: speculate. We shouldn’t waste our time trying to predict how the debate will go, because in a few days it will happen and we can see.

I will say this: I think the existence of a debate works in Biden’s favor. The biggest reason I am optimistic about Biden’s chances in general is that the Trump campaign is based on lies: that Biden is senile, the economy is bad, crime is soaring, immigrants are responsible for that soaring crime, we were all better off four years ago, and so on. (CNN found 30 lies in Trump’s speech in Wisconsin Tuesday.) Anything that can get voters focused on reality — like what the candidates are actually like when you watch them live — works in Biden’s favor.

Having had time to mull over his insane sharks-and-batteries story, Trump tells it again, notes that he was criticized for it, and concludes: “It’s actually not crazy. It’s sort of a smart story, right?”

Biden continues to creep upward in the polls, and currently has a small lead in the 538 polling average. The average includes a Fox News poll from Wednesday, which has Biden up 50-48.

I have been skeptical of the polls that showed Biden behind, and I remain skeptical as he seems to pull ahead (by far less than the margin of error). The trend probably means something, but not the margins.

Aaron Rupar writes sarcastically:

With even Fox News now acknowledging that Biden is pulling ahead, who’s writing the big think piece about how Trump should gracefully bow out at the RNC for a younger, fresher candidate?

But of course, you would know nothing about Biden’s momentum from the NYT, which publishes only bad news about Biden’s candidacy. Friday’s story on the campaign was about how Trump is catching up in fund-raising.

Oddly, there seems to be no actual news development that occasioned this article. The FEC has not released any new totals, but the NYT is basing its article on claims made by the campaigns, trusting the Trump campaign to tell it honest numbers. The article also accepts the Trump campaign’s claim that they are catching up due to small online contributions, and doesn’t mention the $50 million check Trump’s super-PAC got from billionaire Timothy Mellon.

The New Yorker does focus on such big-ticket donations, and makes this comment:

Trump’s fund-raising efforts have included brazen solicitation of donations from individuals and business interests that have big stakes in regulatory decisions. Last month, the Washington Post reported on an April meeting that Trump had at his Mar-a-Lago estate with senior executives from the energy industry. According to the Post story, Trump said that if he was reëlected he would reverse Biden Administration policies that have restricted oil and gas drilling in the Arctic and frozen export permits for liquefied natural gas. In pressing the energy executives to donate to his campaign, he told them that “(g)iving $1 billion would be a ‘deal’ . . . because of the taxation and regulation they would avoid.”

Chris Hayes calls attention to additional examples of influence-peddling: Trump wanted to ban TikTok until a major TikTok investor gave his campaign a lot of money. Trump wanted to regulate crypto-currencies, but now he doesn’t and is getting millions from crypto interests. He’ll even back away from his anti-immigrant position to suit potential donors looking to recruit immigrant talent: He’s promising automatic green cards to immigrants who graduate from college.

Little in this campaign is more laughable than the repeated videos of Trump waving to no one, as if a huge crowd were there to greet him.

and the Supreme Court

The featured post covers the Rahimi decision. On the surface it doesn’t sound like a big deal, because the Court does the right thing by an 8-1 margin. But five of the six conservative justices recognize that the Bruen decision has caused a mess, and they have to figure out how to fix it within the bounds of their originalist dogma.

Still no word on when we might hear an opinion on Trump’s absurd claim of absolute immunity from prosecution. Whether the Court grants his request or not, they’ve already delayed his January 6 trial by more than six months, which was what he wanted.

and Louisiana

So Louisiana has decided to waste a bunch of court time and lawyer fees so that it can be told to remove the Ten Commandments from its classrooms. This is part of a post-Dobbs push in the red states that amounts to: “Since precedent doesn’t matter any more, let’s try stuff that is obviously unconstitutional and see if this Court will OK it.”

Supporters of the law, in defending the measure, have leaned on the 2022 US Supreme Court decision in Kennedy v. Bremerton School District, which gave a high school football coach his job back after he was disciplined over a controversy involving prayer on the field. The Supreme Court ruled that the coach’s prayers amounted to private speech, protected by the First Amendment, and could not be restricted by the school district.

The decision lowered the bar between church and state in an opinion that legal experts predicted would allow more religious expression in public spaces. At the time, the court clarified that a government entity does not necessarily violate the establishment clause by permitting religious expression in public.

But of course, here the state isn’t “permitting” religious expression, it’s mandating religious expression. Not even this Supreme Court will go for that. And the case they’re leaning on was a travesty to begin with.

Anyway, it’s just so typical: politicians making a show of their Christianity by doing some symbolic thing that costs them nothing and helps no one. “These people come near to me with their mouth and honor me with their lips, but their hearts are far from me.” – Isaiah 29:13.

Minnesota Governor Tim Walz contrasts public schools feeding hungry children (as Minnesota does) versus forcing state-sponsored religion on them.

I’m a two-decade school teacher. We know that full bellies make better learners. But look, you’re seeing the contrast in this when you get a Democratic governor versus a Republican governor. We don’t have the Ten Commandments posted in our classrooms, but we have free breakfast and lunch. Those are policies the Biden-Harris administration is talking about taking national. It makes a huge difference.

and Willie Mays and Reggie Jackson

Thursday, a major league baseball game was played in a town without a major league team: Birmingham, Alabama. The point of the game was to honor the Negro Leagues, and it also turned into a spontaneous tribute to the great Willie Mays, who had died two days before.

Prior to the game, the usual Fox Sports announcer crew interviewed another Black Hall of Fame player, Reggie Jackson. Reggie comes from the generation after Mays (entering the major leagues in the middle of the 1967 season, 16 years after Mays’ rookie year and 20 years after Jackie Robinson broke the color barrier), and so is not usually thought of as a pioneer. But he had a lot to say about the racism he faced while playing for the minor league Birmingham A’s in 1967.

His story is worth the three minutes it will take you to listen to it, because it underlines a point that is often glossed over in upbeat accounts of our civil rights progress, particularly in this age when any honest testimony about American racism is denounced as “critical race theory”: Racism isn’t something you beat once and then are done with. Twenty years after Jackie Robinson, racism against Black baseball players was still virulent.

Joe and Sharon Rudi, I slept on their couch three-four nights a week for about a month and a half. Finally they were threatened that they would burn our apartment complex down unless I got out. …

Had it not been for my White friends … I would have never made it. I was too physically violent. I was ready to physically fight somebody. I’da got killed here, because I woulda beat someone’s ass, and you’da saw me in an oak tree somewhere.

and you also might be interested in

This week it was hot in the Northeast, but that was nothing compared with Mecca, which hit 125 degrees (51.8 C). Saudi sources estimate that at least 1300 people died during this year’s Hajj.

Pastor Robert Morris, founder of the Gateway Church in Southlake, Texas (ranked in 2023 as the 9th largest church in the US) resigned Tuesday after the “extramarital relationship” from early in his career that he had previously confessed to turned out to be the multi-year abuse of a 12-year-old girl.

Morris, a former member of President Donald Trump’s spiritual advisory committee, had long told a story to his congregation and church leaders about a “moral failure” involving sexual sin when he was a young minister in his 20s.

Last week, Cindy Clemishire, now 54, revealed in a post on the church watchdog site The Wartburg Watch that she was 12 when Morris first sexually abused her in 1982. The alleged abuse continued for more than four years, Clemishire told NBC News on Monday.

If the mention of Southlake rings a bell, it might be because two weeks ago I told you about Mike Hixenbaugh’s book They Came for the Schools, which describes the campaign to remove “critical race theory” and so-called LGBTQ “groomers” from the Southlake schools. I didn’t talk about Morris and Gateway’s role in that campaign, but in a 2023 podcast, Hixenbaugh described how Morris and Gateway campaigned for conservative candidates to take over the school board. To protect the children, of course.

Hardly any Democrat communicates better than Pete Buttigieg. Here, he explains why conservatives’ lack of answers on questions like gas prices, prescription drug prices, inflation in general, infrastructure, child care, and taxes (Rick Scott wants to raise taxes on the poor), leads them to their current rhetoric.

So what do they do? They find somebody vulnerable and pick on them — which at the moment is largely the trans community. And they find something to talk about that can go between the laughable — is Donald Duck going to make your kid gay? — to the incredibly dark, which is the suggestion that the very presence of someone who is gender-nonconforming or trans or gay or lesbian or otherwise different — the very existence of someone like that is an “adult subject”. That if my kids in, let’s say, the first grade classroom were to mention in passing that over the weekend they had a great time going with their dads to the zoo, that they would have somehow, by saying that, uttered something age inappropriate. And get us really fired up about that fight.

and let’s close with something fictitious

The environmentalist website Grist did something creative: sponsored a “climate fiction” contest. Contestants were challenged to “imagine 2200” and “offer vivid, hope-filled, diverse visions of climate progress”. From over a thousand entries, the judges chose three winners and nine finalists. You can read the stories here.

Posted in Weekly summaries | Comments (2)

The Limits of Originalism

June 24, 2024 – 10:05 am

The Rahimi case isn’t getting a lot of coverage, because (as an 8-1 victory for common sense), it doesn’t make good clickbait. But the conservative judges are having an important discussion about the future of originalism.

Imagine you’re at a dinner party. On your way back from the bathroom, you happen to overhear a snatch of conversation from the kitchen: Your hosts have been discussing whether to poison your meal, and decide not to.

How should you feel about that? Relieved? Poisoning is a bad thing, and it’s not going to happen to you tonight. Angry? Why? Murder is wrong, and your hosts have decided not to do it. They’ve made the moral choice. Good for them.

Or maybe you focus on this question: Why were they having that conversation to begin with?

The Rahimi case. Now you can imagine how I feel about the outcome of United States v Rahimi, which the Supreme Court announced Friday. They decided that Congress does have the right to pass laws that take guns away from domestic abusers who are under restraining orders. Or, looking at it from the other side of the gun, men who have been judged by a court to pose a credible threat to their intimate partners do not have an absolute right to bear arms.

Good job, justices. With only one dissent (corrupt Clarence Thomas) they made the right call. Good for them. But why were they having that conversation to begin with? Why did anyone think that in one of the most obvious potential-murder situations imaginable [1], our legal system is banned from offering a woman even the simplest kind of protection?

In particular, why did anyone think it might be unconstitutional to disarm Zackey Rahimi, who perfectly exemplifies why domestic abuse laws exist? Rahimi didn’t just threaten the estranged mother of his child with a gun and then violate the restraining order she got for her own (and her child’s) protection, he also was involved in several other shooting incidents, some related to his personal anger-control issues and others stemming from his professional role as a drug dealer.

That guy. Even worse, Rahimi was making what is known as a facial challenge to the law disarming domestic abusers. In ordinary English, the law is unconstitutional on its face; there are no conceivable situations in which the law could be applied without violating the Second Amendment.

Why would anybody take that claim seriously enough that the Supreme Court should have to decide it?

Two reasons, really:

  • Two years ago, in the Bruen case (which was announced almost simultaneously with the Dobbs decision reversing Roe v Wade), the Court proclaimed a new test for Second Amendment constitutionality that called nearly all American gun laws into question.
  • And then in 2023, one of the few courts even more batshit crazy than the Supreme Court itself (the Fifth Circuit Court of Appeals) applied the Bruen test to Zackey Rahimi and ordered the government to give him back his guns.

So that’s where we were as of Thursday: Unless the Court acted, Rahimi was getting his guns back, and the mother of his child had just better watch out. Not only wouldn’t the government help her, it was constitutionally barred from ever doing so, no matter what Congress or any other elected officials might think.

The Bruen test. You’ll never guess who wrote the majority opinion in Bruen. OK, maybe you will: corrupt Clarence Thomas, with the backing of the other five conservative justices, including all three of the Trump justices. The heart of that ruling is this:

[W]e hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

In a hearing before the Fifth Circuit, the government offered various colonial or founding-era analogues of the domestic abuse law in question, and the judges found none of them quite analogous enough. Justice Sotomayor’s concurrence with Friday’s decision explained why this might be:

Given the fact that the law at the founding was more likely to protect husbands who abused their spouses than offer some measure of accountability, see, e.g., R. Siegel, “The Rule of Love”: Wife Beating as Prerogative and Privacy, 105 Yale L. J. 2117, 2154–2170 (1996), it is no surprise that that generation did not have an equivalent to [the law Rahimi has challenged]. Under the dissent’s [i.e. Thomas’] approach, the legislatures of today would be limited not by a distant generation’s determination that such a law was unconstitutional, but by a distant generation’s failure to consider that such a law might be necessary. History has a role to play in Second Amendment analysis, but a rigid adherence to history, (particularly history predating the inclusion of women and people of color as full members of the polity), impoverishes constitutional interpretation and hamstrings our democracy.

Putting her point more bluntly: When the Second Amendment was ratified in 1791, women were not really people, and wives in particular were subject to the whims of their husbands in ways we no longer accept. So you’re not going to find much in the way of domestic-violence legislation from that era, much less laws disarming domestic abusers. But that’s because the founding generation just didn’t think domestic violence was a problem worthy of government action, not necessarily because they endorsed the right of dangerous people to be armed.

But the Fifth Circuit didn’t look at it that way: Nobody disarmed the Zackey Rahimis of 1791, so we shouldn’t be able to disarm Zackey Rahimi today.

Originalism. Like Justice Alito’s majority opinion in Dobbs, Thomas’ opinion in Bruen (and his dissent in Rahimi) is an example of a method of constitutional interpretation known as originalism. All six conservative justices claim to be originalists. In his Rahimi concurrence, Justice Kavanaugh restates the fundamental notion of originalism:

The first and most important rule in constitutional interpretation is to heed the text—that is, the actual words of the Constitution—and to interpret that text according to its ordinary meaning as originally understood.

Originalism was popularized by the late Justice Anton Scalia, who spent most of his career in the minority, writing rousing dissents. But in recent years, originalists have become the majority on the Court, raising a significant issue: How do you turn a critical theory into a governing theory? [2] Most of the time, Scalia didn’t have to worry about the practical implications of his views, because they weren’t going to be adopted anyway. Now, though, originalists have to be concerned with consequences, like arming the Zackey Rahinis of the world.

In arguing against originalist interpretations, it’s important to understand precisely where originalists are and aren’t coming from. The point isn’t that the Founders were divinely inspired lawgivers like Moses (though some conservatives do believe this). Originalism says something more fundamental about the basis of law in a constitutional democratic republic like the United States: For laws to be binding on the People, the People must at some point have accepted that burden. So any legitimate originalist analysis [3] revolves around the questions: When did the People accept this restriction or give the government this power?

So, for example, look back at another case in this term: Cargill, the bump-stock case. That case revolves around two questions: When did the American people give up their right to own machine guns? And what did they think a “machine gun” was at that time? The answer to the first question is that (through their elected representatives) they gave up that right in the National Firearms Act of 1938. The NFA contains a definition of machine gun, which the justices then argue about.

The blurring effects of time. The root problem with originalism is that a text’s “ordinary meaning as originally understood” is way more complicated than Kavanaugh makes it sound. Individual people living in the same era think at different levels of abstraction. So consider the “bear arms” phrase in the Second Amendment. To one American living in 1791, the Amendment might apply abstractly to all “bearable arms” — any weapon that can be carried by one person. [4] His neighbor might have a more specific way of thinking, and so picture “arms” as the weapons he has seen or handled personally: flintlocks, sabres, and bows. A third citizen might think about the effects of arms: To him, the Amendment applies to anything that does roughly the same amount of damage as flintlocks, sabres, and bows. He might not have been picturing African blowguns, but if you described them to him he would probably see them as “arms” as well.

At that one particular moment in 1791, those three ways of thinking were in alignment: The arms that could be borne were flintlocks, sabres, and bows, but not cannons. The three citizens have different mental notions, but they will agree on any specific case that comes up.

But as the world changes, notions that once agreed come out of alignment. Transport our three founding-era citizens to World War II and show them a bazooka. The first citizen sees a weapon bearable by one person, the second sees something totally unlike any weapon he has used, and the third sees something more analogous to a cannon than a flintlock. So what is the “original meaning” of Second Amendment “arms” as applied to a bazooka?

That’s why our jurisprudence is so inconsistent in its originalism. (My advice: Don’t try to buy a bazooka.) Take the NFA of 1938 for example. Our first citizen looks at a 1938 Thompson submachine gun (or our era’s combat-ready M-16) and sees a bearable weapon, so to him the NFA’s ban on such weapons is clearly unconstitutional. But none of our current “originalist” justices took that position in Cargill.

The blurring legal environment. Sometimes what changes isn’t technology, but the context of other laws that surround a given law. That’s what happened with same-sex marriage. The Obergefell decision that legalized same-sex marriage nationally in 2015 was based on the 14th Amendment, which was ratified in 1868. [5]

But did the people of 1868 or their elected representatives realize they were legalizing same-sex marriage? Of course not. In the legal environment of the time, same-sex marriage didn’t even make sense. At the time, husbands and wives had different rights and responsibilities under the law, so “Which one of you is the husband and which one is the wife?” was a legitimate question. Also, men had more legal rights than women — most obviously the right to vote, but many others as well. So all opposite-sex households had one vote, but a same-sex household had either zero votes or two. How could that be justified?

By 2015, though, all those legal problems had gone away, for reasons that had nothing to do with homosexuality. Under the law, there are two spouses with legal equality, and neither role requires any special rights only available to one gender or the other. So the only reason to write marriage laws restricted to opposite-sex couples is prejudice against same-sex couples — something “equal protection of the laws” doesn’t allow.

Americans of 1868 couldn’t have foreseen how “equal protection of the laws” would apply to marriage in 2015. But they understood what “equal protection” meant as a principle, and they agreed to it.

Back to Rahimi. Except for Thomas himself, all the justices — liberal and conservative alike — recognize that the originalist logic of Bruen has led the Court to the edge of an abyss: Rahimi should get his guns back. This obviously is a bad outcome, and who knows what worse monsters might also regain their arms and go on to murder their intimate partners or ex-intimate partners? This result is not only bad in itself, but — like Dobbs — will incite a voter backlash against the Court, and against the Republican Party that appointed this conservative majority.

That majority, above all, is partisan. Thomas and Alito clearly want to retire, but will only do so if a Republican president can replace them. The others (with the possible exception of Barrett, who hasn’t done enough yet to earn my negative judgment) enjoy being in the majority and don’t want a re-elected President Biden to shrink that majority by appointing liberals.

Possibly even worse is the effect Bruen has had on the lower courts. The standard of keeping the laws “consistent with the Nation’s historical tradition of firearm regulation” is not only impossibly vague, but the example Bruen sets — cherry-pick history until you get the result you want — invites the worst kind of judicial activism.

Justice Jackson (who hadn’t joined the Court yet when Bruen was decided) lays this out as politely as possible.

This case highlights the apparent difficulty faced by judges on the ground. Make no mistake: Today’s effort to clear up “misunderst[andings],” [from Roberts’ majority opinion] is a tacit admission that lower courts are struggling. In my view, the blame may lie with us, not with them.

The message that lower courts are sending now in Second Amendment cases could not be clearer. They say there is little method to Bruen’s madness. It isn’t just that Bruen’s history-and-tradition test is burdensome (though that is no small thing to courts with heavier caseloads and fewer resources than we have). The more worrisome concern is that lower courts appear to be diverging in both approach and outcome as they struggle to conduct the inquiry Bruen requires of them. Scholars [in an amicus brief on this case] report that lower courts applying Bruen’s approach have been unable to produce “consistent, principled results,” and, in fact, they “have come to conflicting conclusions on virtually every consequential Second Amendment issue to come before them”.

So Bruen needs to be fixed somehow, or at least reined in. But how?

Liberal interpretation. Everyone on the Court is an originalist up to a point: If the text of a law is clear, if its “ordinary meaning as originally understood” can be ascertained, and the varied understandings of people at the time are still more-or-less in alignment, then that well-understood text should be respected. If such a law needs to be fixed according to our current notions of justice, Congress should do it, not the Court.

Conservatives claim liberals don’t believe this [6], but we do.

On most issues controversial enough to reach the Supreme Court, though, liberals recognize that there is no “original understanding” that covers the contemporary situation. (See the examples above.) And yet there is a case that needs to be decided: Rahimi either gets his guns back or he doesn’t.

To state the liberal view more simplistically than probably any of the current liberal justices would: Liberals want to give the original lawmakers the benefit of the doubt. Maybe they couldn’t have foreseen the current situation, but they didn’t intend for us to do something stupid with their words. And while much has changed since the 1700s — women and the non-European races have become people, as Sotomayor points out — certain abstract notions of justice are closer to timeless, and are still more-or-less the same. So we can use those shared values to update our interpretation of the text.

Ideally, the most important texts come up fairly often, so that the record of judicial precedents represents a continuous updating rather than an abrupt break with the past (as Dobbs, Bruen, and Heller were). Like the laws themselves, precedents should be read generously, because the justices of the past also wouldn’t want us to do something stupid with their words.

Of course, this approach requires that current justices have some measure of wisdom and aren’t too humble to use it. That openly confident wisdom is anathema to originalists, who insist that any application of contemporary wisdom must happen covertly, by manipulating history and then claiming to follow it.

Originalism trying to fix itself. Every conservative justice but Alito wrote an opinion on this case. Thomas’ lonely dissent doubles down on Bruen: If the logic of Bruen sends us over a cliff, then here we go. But the other four aren’t willing to jump with him, and feel obligated to explain why not. All of them are sneaking some version of liberal interpretation into their thinking, while denying that they do so.

Roberts’ majority opinion claims that a law can be “consistent with the Nation’s historical tradition of firearm regulation” even if there is no exact parallel, as long as it is analogous to laws from the colonial or founding eras. How close does the analogy need to be? How many parallel regulations establish a “tradition” rather than an anomaly? He doesn’t precisely say. The point is to get enough wiggle room that we don’t have to give back Rahimi’s guns, an outcome that violates “common sense”.

Taken together, the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.

Such an appeal to contemporary common sense clearly doesn’t sit well with the other conservative justices, who have to write concurrences to put their own spin on it. Kavanaugh’s opinion in particular is a long and fairly dull exposition of originalism that rarely mentions the current case. (As I read, I kept saying “Dude, write a textbook.”) To me, he seems to need to repledge his fealty to originalism precisely because he knows he’s violating it.

The only conservative concurrence that seems honest to me is Barrett’s. (I am developing a grudging affection for Barrett. She’ll probably disillusion me soon, but I have to give credit where it’s due.) Like Jackson, she recognizes that lower courts have had trouble applying Bruen, as well as the inherent limitations of the historical method Kavanaugh extols at such length.

[I]mposing a test that demands overly specific analogues has serious problems. To name two: It forces 21st-century regulations to follow late-18th-century policy choices, giving us “a law trapped in amber.” And it assumes that founding-era legislatures maximally exercised their power to regulate, thereby adopting a “use it or lose it” view of legislative authority. Such assumptions are flawed, and originalism does not require them.

“Analogical reasoning” under Bruen demands a wider lens: Historical regulations reveal a principle, not a mold.

Examining founding-era firearms regulations reveals the “contour” of the right the Founders thought they were recognizing, but doesn’t always lay down its precise terms. Barrett recognizes that being a judge requires applying a certain amount of wisdom to past examples, to draw out the abstract principles behind them. It’s not just “calling balls and strikes” as Roberts claimed at his confirmation hearing and Kavanaugh endorsed in his concurrence. She ends up deciding that the majority opinion in this case “settles on just the right level of generality”, and so she concurs.

I read that as a statement of confidence in her contemporary wisdom, not an effort to hide her judgment behind a fog of historicism.

Conclusion. The Rahimi case is not getting a lot of press coverage, largely because it came to a common-sense conclusion: Rahimi (and other malefactors like him) shouldn’t be armed. It is within the power of Congress and state legislatures to make such decisions.

But the conservative judges are subtly arguing about how to sneak contemporary wisdom (sometimes disguised as “common sense”) back into judicial reasoning. As a governing theory, originalism will have to recognize that the wisdom of the past does not solve all our problems. At some point, judges have be judicious.

[1] According to the Department of Justice:

Of the estimated 4,970 female victims of murder and nonnegligent manslaughter in 2021, data reported by law enforcement agencies indicate that 34% were killed by an intimate partner … Overall, 76% of female murders and 56% of male murders were perpetrated by someone known to the victim. About 16% of female murder victims were killed by a nonintimate family member—parent, grandparent, sibling, in-law, and other family member

[2] This problem parallels the one in the House of Representatives, where MAGA rebels suddenly have real power.

[3] I use the word legitimate because, as I’ve stated in other posts, I don’t believe that most originalist arguments are made in good faith. By cherry-picking historical examples and engaging in opportunistic reasoning no historian studying that era would vouch for, a judge can almost always find an “originalist” justification for whatever conclusion he wants to come to.

Justice Alito’s majority opinion in Dobbs, in my opinion, was an example of this kind of bad-faith historicism. And so was Justice Scalia’s opinion in 2008’s Heller case, which (as Justice Jackson puts it in her concurrence) “unearthed” a new individual right to bear arms, upsetting a consensus interpretation of the Second Amendment that Justice Breyer’s dissent in Heller claimed “ha[d] been considered settled by courts and legislatures for over two centuries”.

Justice Kavanaugh can’t admit that Scalia invented his Heller interpretation out of nothing, but does say: “Second Amendment jurisprudence is still in the relatively early innings, unlike the First, Fourth, and Sixth Amendments, for example. That is because the Court did not have occasion to recognize the Second Amendment’s individual right until recently.”

[4] This is the position Justice Scalia laid out in Heller:

the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

[5] Justice Kennedy’s majority opinion rooted his argument in the 14th Amendment’s Due Process clause, but (like some of the concurring justices) I think the 14th Amendment’s guarantee of “the equal protection of the laws” is a cleaner justification.

[6] Kavanaugh’s concurrence warns against “an approach where judges subtly (or not so subtly) impose their own policy views on the American people”, which he sees as the only alternative to originalism’s historical method of interpreting “vague” text.

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The Monday Morning Teaser

June 24, 2024 – 8:37 am

It’s June, so I continue to write about the Supreme Court. This week I’m focusing on the Rahimi case, which hasn’t gotten a lot of press, largely because it came to a common-sense conclusion that doesn’t make good clickbait: The Second Amendment doesn’t give domestic abusers an unfettered right to have guns.

It was an 8-1 decision with only corrupt Clarence Thomas taking the side of domestic abusers. Nobody really expects Thomas to make sense, so the mainstream press didn’t see a lot to write about.

I found the case fascinating from another point of view: What’s going to happen to originalism? The late Justice Scalia developed originalism when he was in the minority, and it gave him a theoretical framework for criticizing more liberal ideas about interpreting the Constitution. Only recently, though, has the Court had a clear originalist majority, which faces the challenge of turning Scalia’s critical theory into a governing theory.

The Rahimi case follows from the Bruen case decided two years ago on originalist grounds: Any current law has to be in accordance with “the Nation’s historical tradition of firearm regulation”. But the Founding era didn’t consider domestic abuse to be a problem — wives are just women, after all — so there is no “historical tradition” of disarming abusers. The obvious originalist conclusion, which the conservative Fifth Circuit came to, is to give Rahimi’s guns back and wait to see whether he kills the estranged mother of his child.

But five of the Court’s six conservative justices decided to step back from that abyss. Four of them felt a need to write their own opinions justifying that move. I’d been meaning to write an abstract piece about originalism anyway, so this gave me a lot to work with. The result is “The Limits of Originalism”, which I’ll try to get out by 10 EDT.

The weekly summary will cover the cases still to be decided in the next week or so, the upcoming Biden/Trump debate, Biden’s slight momentum in the polls, Louisiana’s law to display the Ten Commandments in classrooms, Reggie Jackson’s moving and disturbing account of the racism he faced in the minor leagues, and a few other things. I’ll try to get that out by noon, but I seem to be moving slowly this morning.

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Like a Duck

June 17, 2024 – 11:20 am

When I see a bird that walks like a duck, swims like a duck,
and quacks like a duck, I call that bird a duck.

– Supreme Court Justice Sonya Sotomayor,
explaining why bump stocks turn AR-15s into machine guns

This week’s featured post is “This Week’s Legal Decisions“.

This week everybody was talking about the courts

The featured post covers the Supreme Court’s ruling on the mifepristone case and the bump-stock ban, as well as a district court ruling overturning Florida’s ban on gender-affirming care.

But the other case in the news was Hunter Biden’s conviction on three felony counts related to purchasing a handgun and lying about his drug use.

In this situation, President Biden has done something Trump has never been able to conceive of: He has drawn a line between his personal life and his role as president. He loves and supports Hunter the way a Dad should. But as president, he stayed out of Hunter’s case, and he’s not going to give Hunter a pardon.

Trump was never able to compartmentalize the presidency like this. Presidential power was his power, to use for whatever purpose he desired. If he liked somebody, or needed to repay them for their silence, he pardoned them, regardless of the merits. Rod Blagojevich, for example, got his sentence commuted because he’d been a contestant on Celebrity Apprentice.

One clear difference between the Trump trial and the Biden trial: Hunter’s jurors have already begun going public. Trump’s jurors didn’t dare, for fear of violent retribution.

and the weather

Much of southern Florida flooded this week as up to two feet of rain fell in places like North Miami. But of course, Governor DeSantis is not going to admit that climate change played any role.

This clearly is not unprecedented. I think the difference is, you compare 50 to 100 years ago to now, there’s just a lot more that’s been developed, so there’s a lot more effects that this type of event can have.

The WaPo notes:

The brouhaha over how to characterize the storm came a month after DeSantis signed a bill that removes most references to climate change in state law. The legislation, which is set to take effect July 1, eliminates climate change as a priority in making energy policy decisions, even though Florida routinely faces threats from extreme heat, deadly hurricanes and toxic algae blooms.

… The storm arrived 14 months after another “rain bomb” hit South Florida, dropping 22.5 inches on Fort Lauderdale-Hollywood International Airport in one day. Last year’s storm knocked the city’s main hospital offline for all but emergency procedures, shorted electrical equipment at City Hall and left thousands of travelers stranded.

Both that system and this week’s deluge bear the fingerprint of human-caused climate change. In a warmer world, the atmosphere can hold more moisture. That means rainfall rates are getting heavier and extremes are becoming more common.

This week, most of the Eastern US is going to roast under a “heat dome”. But if all you want to say is “It gets hot in summer”, nobody can make you see any larger significance.

and fake videos that “show” President Biden’s senility

This cycle’s version of Hillary’s emails or Obama’s birth certificate is the supposed “evidence” that Joe Biden is too old to be president. This week the Republican National Committee released two videos that were picked up by Republican media outlets like the New York Post, and were widely shared on social media. Both seemed to show President Biden being “out of it” during public events. One of these apparent incidents made the New York Post’s cover.

In reality, both videos were carefully edited so that what Biden was reacting to was out of the frame, making it appear as if the President were off in a world of his own. The Washington Post’s fact checker compared these videos to the same events from other angles and wider perspectives — views that were also available to right-wing outlets that chose to ignore them — and awarded the videos four Pinocchios, its rating for the most extreme dishonesty.

In one video, the RNC’s version has Biden apparently wandering off during an outdoor photo op for G-7 leaders in Italy, only to be brought back to the group by the Italian prime minister. Outside the frame, but clearly visible in other videos of the same event, is the parachutist Biden had turned to pay attention to, giving him a thumbs-up and exchanging a few words. (As part of the festivities, skydivers had floated down with the flags of the seven nations.) This video, in fact, shows Biden exercising one of his trademark virtues: acknowledging the contributions of people who aren’t at his world-leader rank.

In another RNC-edited video, Biden stands still while all the people around him dance during a Juneteenth celebration. A conservative UK newspaper, the Telegraph, then wrote an article implying that Biden was having some kind of episode that caused him to freeze. However, the WaPo notes:

The full video, when it pans, shows other people similarly standing still at the right end of the screen.

I have to wonder if the Biden-not-dancing criticism is intended to deflect the response Trump faces when he tries to dance at rallies and looks ridiculous.

If Biden were really doing as badly as Republicans would have you believe, the evidence would be everywhere; they wouldn’t have to manufacture it out of perfectly innocuous events. On the contrary, whenever Biden appears in an event too big to be controlled and packaged for the right-wing echo chamber, the Biden-is-senile narrative gets punctured and outlets like Fox News have to scramble to patch it. That’s what happened during the State of the Union, which Trump explained by saying Biden must have been “on drugs“.

Republicans are already preparing for Biden’s performance in the upcoming debate with Trump, which will undoubtedly conflict with their constructed narrative. Trump is predicting that Biden will be “on drugs” again. In an interview Thursday, Trump said he might lose the debate intentionally so that Democrats won’t take Biden off the ticket. (The idea that some behind-the-scenes cabal has the power to replace Biden is widespread on the Right. I’ve been hearing it for more than a year.)

They know Biden is sharp and will demonstrate that fact during the debate. So they’re already planting the seeds of how they’ll explain away what viewers will see with their own eyes.

Meanwhile, the evidence that something is seriously wrong with Trump really is everywhere, and doesn’t have to be manufactured. While Biden gets roasted in the media whenever he says one word when he means another, Trump frequently goes off into long what-is-he-talking-about riffs like his recent sharks-and-batteries tirade. The Atlantic’s Tom Nichols points out the obvious: If a 78-year-old relative did this at a family dinner, you’d be seriously worried about him.

Perhaps the greatest trick Donald Trump ever pulled was convincing millions of people—and the American media—to treat his lapses into fantasies and gibberish as a normal, meaningful form of oratory. … But Trump is obviously unfit—and something is profoundly wrong with a political environment in which he can now say almost anything, no matter how weird, and his comments will get a couple of days of coverage and then a shrug, as if to say: Another day, another Trump rant about sharks.

… [M]any people in the media have fallen under the spell of the Jedi hand-waves from Trump and his people that none of this is as disturbing and weird as it sounds. The refs have been worked: A significant segment of the media—and even the Democratic Party—has bought into a Republican narrative that asking whether Trump is mentally unstable is somehow biased and elitist, the kind of thing that could only occur to Beltway mandarins who don’t understand how the candidate talks to normal people.

Thursday, Trump spoke privately to a group of big-name CEOs like Apple’s Tim Cook and Chase’s Jamie Dimon. They came out dismayed, according to CNBC anchor Andrew Ross Sorkin.

They walked away from that meeting, I think, a bit disheartened, a bit questioning—I don’t want to say his mental fitness—but questioning just how meandering, how, in some cases, one said to me he could not keep a thought straight. He would go in one direction and then he’d go in another direction and … there wasn’t really necessarily a through line.

Apparently the CEOs expected to see a coherent and rational behind-the-scenes Trump, one who wasn’t acting like a carnival performer to entertain his fans. But it turns out that the sharks-and-batteries Trump is the only one available.

Fake videos are OK if they’re over-the-top fake. In this hilarious one, Trump’s sharks-and-batteries riff is interspersed with reaction shots from the nurses and patients of One Flew Over the Cuckoo’s Nest.

and you also might be interested in …

An unsettling reminder of how easily freedom is lost: “The Apprentice” is a new movie about the relationship between a young Donald Trump and his hard-nosed lawyer Roy Cohn. The film exists, and was screened to an appreciative crowd at the Cannes festival in May.

But you can’t see it.

Distributors have bought the rights to “The Apprentice” in Canada, Britain, France, Germany, Japan and many other countries. But the filmmakers have yet to secure a deal to release it here, either in theaters or on streaming services.

Negotiations are ongoing, and domestic distribution could still come together. Yet the possibility that American audiences won’t be able to see “The Apprentice” isn’t just frustrating. It’s frightening, because it suggests that Trump and his supporters have already intimidated some media companies, which seem to be pre-emptively capitulating to him.

… The fear seems to be twofold. Few want to end up in the MAGA movement’s cross hairs the way Bud Light and Disney did. And as one distribution executive told Variety, any company that wants to be sold or to merge with or buy another company would be hesitant to touch “The Apprentice” because of the possibility that, should Trump be re-elected, his “regulators will be punitive.”

When we think about authoritarianism, we picture restrictive laws, police who throw their weight around, and prison camps. But it can be far more subtle than that, working its Leader’s will by intimidation rather than overt force. Don Corleone rarely had to make good on the implied threat in “an offer you can’t refuse”.

Friday, Vladimir Putin issued his conditions for ending the Ukraine War, which amount to Ukraine’s complete surrender: Not only must it renounce claims to its eastern provinces and Crimea, but it must permanently drop its bid to join NATO. So even after giving up territory, the remainder of Ukraine would be wide open to some future invasion.

How did I not see this coming? “Book about book bans banned by Florida school board“.

The book is Ban This Book by Alan Gratz. And of course, it’s the oxymoronic Moms for Liberty who are behind this violation of liberty. (Can anybody come up with an example of Moms for Liberty doing something that promotes or protects liberty? I can’t.) Gratz comments:

It feels like they know exactly what they’re doing and they’re somewhat ashamed of what they’re doing and they don’t want a book on the shelves that calls them out.

Kellyanne Conway told Fox News that Trump talked to 8,000 people at a Black church in Detriot. Video makes clear it was a few hundred people, most of whom were White. The point of this kind of deception is not to attract Black voters, but to reassure White Trump supporters that he’s not racist.

The NYT’s David Leonhardt explains why both theories of Covid’s origins — natural transmission from an infected animal in the Wuhan live-animal market or a leak from Wuhan’s virus-research lab — are plausible. What he doesn’t explain (and should) is how implausible the conspiracy version of the lab-leak theory is: Covid wasn’t genetically engineered as a bio-weapon and then released for some nefarious purpose. It’s hard even to tell that story in such a way that all the major players have some clear motive to do what they’re supposed to have done.

Leaving Caitlin Clark off the US Women’s Olympic basketball team is the latest chapter in a saga that illustrates the continuing significance of race in American sports.

Clark set scoring records in college, and was arguably (but not obviously) the greatest player in the history of NCAA women’s college basketball. She lifted women’s college basketball to new heights of public attention, partly due to her personal star power and exciting style of play, but also (let’s face it) because she’s White, and basketball hasn’t had a lot of White American-born heroes since Larry Bird retired.

This spring she started her professional WNBA career, and has similarly been drawing new fans to that league. So far, she’s shown some promise, but her team is terrible (that’s why they got such a high draft pick) and her quality of play does not yet live up to the level of attention she’s been getting. (She scores well, but shoots a low percentage and has a lot of turnovers, as rookies often do.) Veteran WNBA players seem to resent the spotlight on her, and so she’s getting pushed around on the court in ways that go beyond the usual rookie hazing.

Again, all of this is drawing national attention, and is fueling racial resentment among fans: To those on one extreme, she’s the White underachiever who has had stardom handed to her, and to those on the other, Black thugs are targeting her unfairly.

So now we have the Olympic team. Looking at the roster, I don’t see who should be kicked off to make room for Clark, whose WNBA performance so far doesn’t justify her inclusion. (Some sources have reported inaccurately that she’s been named as an alternate.)

Clark herself seems to be caught in the middle of all this, and is embarrassed by the racist tropes being used to defend her. Laura Ingraham once famously told LeBron James to “shut up and dribble“. I suspect Caitlin Clark would be happy if the world would let her do that.

and let’s close with something joyful

Be sure to spend a few moments looking at “the happiest dog I’ve seen in my life“. It may improve your day.

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This week’s legal decisions

June 17, 2024 – 9:24 am

A temporary victory for abortion pills, the effective legalization of machine guns, and lower court protection for families with trans children. Meanwhile, continued stalling to protect Donald Trump from prosecution.

We’re getting near the end of the Supreme Court’s term, so the rulings will come hot and heavy for the rest of the month. Several important cases are still pending, but a few decisions came in this week.

The abortion pill mifepristone got a reprieve. As I’ve explained in the past, there is a federal district around Amarillo where cases are wired to go in front of a Christian nationalist judge, Matthew Kacsmaryk, and go from there to the nation’s most conservative appeals court, the Fifth. In the spring of 2023, anti-abortion groups (established in Amarillo precisely to take advantage of this legal pipeline) targeted mifepristone, the drug used in more than half of abortions nationally.

Predictably, Kacsmaryk suspended the FDA’s approval of mifepristone, effectively banning it nationally. That decision was partially reversed by the Fifth Circuit, and then totally stayed by the Supreme Court, pending its own decision. (So far, no one has been prevented from using mifepristone in states where it would otherwise be permitted.)

There are many ways to reverse Kacsmaryk’s decision, because it is baseless both legally and scientifically. Vox described the scientific situation like this:

The case has virtually no scientific merit, and challenging the use of a drug that has been studied and safely used for over two decades is highly unusual. Jack Resneck Jr., the president of the American Medical Association, said in a statement Friday night that Kacsmaryk’s “disregard for well-established scientific facts in favor of speculative allegations and ideological assertions will cause harm to our patients and undermines the health of the nation.”

But the Court decided not to go there. Instead, it pointed to the legal ridiculousness of the lawsuit: The plaintiffs have no standing to sue. [1]

As was obvious from the beginning, these plaintiffs — primarily doctors who don’t prescribe mifepristone — have no standing. They made up, and two levels of federal courts accepted, a ridiculous explanation of how mifepristone harms them: On the rare occasions when mifepristone fails, a woman caught in the middle of a miscarriage might show up on their doorsteps or emergency rooms, and they might have to do a procedure they morally object to in order to save her life.

Putting aside the issue of how any principle requiring a doctor to do nothing while he watches a woman die can be considered “moral”, Justice Kavanaugh (writing for a rare 9-0 Court) noted that federal conscience protections already protect the doctors, so they are not injured. So the suit should never have been heard in the first place. Slate’s Dahlia Lithwich and Mark Joseph Stern comment:

A doctor who opposes abortion, the court affirmed, may stand by and watch a patient bleed out rather than treat her in contravention of his conscience. Ironically, then, an anti-abortion statute that protects anti-abortion doctors played a key role in defeating the plaintiffs’ claim. Their own lavish safeguards against terminating a pregnancy—or even just treating a patient who already terminated a pregnancy—helped defeat their attempt to pull mifepristone off the market.

They go on to observe:

Yet the decision was not a total defeat for anti-abortion activists. Among other things, Kavanaugh slipped language into his opinion that could expand protections for physicians who refuse to provide emergency abortions, potentially imperiling the lives of patients.

The Court’s ruling also left open the fundamental issue — whether the FDA was right (or within its legal authority) to approve mifepristone at all. The most likely course forward from here is that new plaintiffs with different explanations of why they are not busybodies will pick up the suit, and the whole circus will start again.

One path flows from a brief line near the end of the Alliance opinion: “[I]t is not clear that no one else would have standing to challenge FDA’s relaxed regulation of mifepristone.” Last January, Kacsmaryk ruled that three red states — Idaho, Missouri, and Kansas — could join this lawsuit and press the claim that mifepristone should be banned. 

It is far from clear how these states are injured by the mere fact that mifepristone is legal. But Kacsmaryk’s (and the Fifth Circuit’s) behavior in this case and others shows that he’s willing to bend the law into pretzels in order to rule against abortion rights. It is likely, in other words, that Kacsmaryk will simply make up some reason why the red states have standing to sue and then issue a new order attempting to ban mifepristone.

In other words, this isn’t over. Another path forward is that Trump could win the election and instruct the FDA to rescind its approval or impose new restrictions on mifepristone’s use, or reinterpret the Comstock Act of 1873 to prevent distribution of mifepristone by mail. Good luck getting a straight answer out of him on those questions.

It’s now legal to alter your AR-15 to function as a machine gun. If you’ve ever watched a gangster movie set in the Al Capone era, you’ve seen the destructive power of that era’s submachine guns, the weapon of choice in the St. Valentine’s Day Massacre of 1929.

Responding to that problem, Congress made tommy guns and other fully automatic weapons illegal for civilian use in the National Firearms Act of 1934. By 2002, though, a new technology had inserted a loophole in that ban: the bump stock. A bump stock is an add-on piece of equipment that uses a semiautomatic rifle’s recoil to release and pull the trigger over and over again, so that the shooter’s experience resembles firing a machine gun.

Most explanations of bump stocks available on the internet are by pro- or anti-gun activists, and so should be taken with a grain of salt. However, this one comes from a general how-things-work channel, Zack Nelson’s JerryRigEverything. The video was made while bump stocks were legal.

Zack refuses to state an opinion on whether bump stocks should be legal or not, saying ambiguously: “Personally, I think guns are a great hobby, but not everyone in the world is sane.”

Most people had never heard of bump stocks until the Las Vegas massacre of 2017, when a gunman used one to fire more than 1,000 rounds down on a crowd gathered for a music festival. He killed 60 and wounded over 400, with an almost equal number injured in the stampede of people trying to get to safety. (Like tommy guns, bump-stocked AR-15s aren’t very accurate, making them poor sniper weapons. But if you’re firing at thousands of people, accuracy isn’t that important.) To the untrained ear, audio from the massacre certainly sounds like somebody is firing a fully automatic weapon. (For what it’s worth, real gun people claim otherwise, that a fully automatic machine gun fires even faster.)

Responding to public outrage, the Trump administration Bureau of Alcohol Tobacco and Firearms (ATF) changed its interpretation of the NFA’s machine gun ban, ruling that a bump stock converted a semiautomatic weapon into an automatic weapon, and so was illegal. That ruling was challenged in court, and the case has taken six years to make it to the Supreme Court.

Friday, the Court struck down the bump stock ban in a ruling that split 6-3 along the usual ideological divide. The majority opinion was written by the corrupt Justice Clarence Thomas [2]. It centers on the exact definition of “machinegun” in the NFA:

any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.

Thomas goes on to focus on the “function of the trigger” in its mechanical sense: As far as the gun is concerned, its trigger is being pulled once for each shot. In her dissent, Justice Sonya Sotomayor focuses on the experience of the shooter, who pulls the trigger once and keeps his finger stationary as the gun bucks back and forth against it. The Congress of 1934, I suspect, intended to focus on the experience of the victims, but they didn’t phrase the law that way, so here we are.

In an ideal world, it’s obvious what would happen next: Congress would say “oops” and would amend the NFA based on some other criteria, like perhaps the rate of fire. That’s what President Biden wants [3], and what Justice Alito’s concurrence suggests, perhaps disingenuously.

There is a simple remedy for the disparate treatment of bump stocks and machineguns. Congress can amend the law—and perhaps would have done so already if ATF had stuck with its earlier interpretation. Now that the situation is clear, Congress can act.

The reason I suggest Alito’s recommendation might not be completely serious is that he knows his right-wing allies won’t allow this to happen. I would be amazed if Speaker Johnson allowed even the narrowest possible bump-stock ban to make it to the House floor for a vote, and Republicans would almost certainly filibuster such a bill in the Senate.

Sunday, possible Trump VP Senator Tim Scott dodged taking any position on a bump stock ban, while another Trump VP hopeful from the House, Byron Donalds went full gaslight:

A bump stock does not cause anybody to be shot in the United States. That is the shooter that does that.

Donalds might want to explain that to the families of the Las victims, many of whom would probably be alive if the shooter had not been able to use a bump stock. It’s also worth pointing out that Donalds’ logic justifies legalizing any weapon, no matter how destructive. After all, nuclear weapons don’t destroy cities, people destroy cities.

Meanwhile, a spokesman for the Republican Party’s lord and savior, convicted felon Donald Trump, for once expressed faith in our justice system.

The court has spoken and their decision should be respected.

This pattern is not a coincidence: If you make Congress dysfunctional and unresponsive to the people, and then interpret the laws and the powers of agencies like the ATF strictly, the result is that when technology changes, old regulations lapse and can’t be updated. That’s not some unfortunate bit of happenstance; it’s two sides of the same strategy. Today it results in the effective legalization of machine guns. Tomorrow the loophole will be in the Clean Air Act or the antitrust rules. When the laws stand still, malefactors adapt.

Gender-affirming care. In an important lower-court case, a judge found a Florida law banning gender-affirming care for minors to be unconstitutional. This ruling differs from the case of a similar Alabama law, which was upheld by the 11th Circuit appeals court (where this case is headed) in that Judge Robert Hinkle found malice on the part of the legislature. That issue wasn’t raised in the Alabama case.

The plaintiffs have shown that animus motivated a sufficient number of statutory decisionmakers.

Judge Hinkle found that “gender identity is real” and is distinct from an individual’s “external sexual characteristics and chromosomes”. He also noted that the treatments at issue — puberty blockers and hormones like estrogen and testosterone [4] — are legal in Florida for other purposes.

[C]onsider a child that a physician wishes to treat with GnRH agonists to delay the onset of puberty. Is the treatment legal or illegal? To know the answer, one must know whether the child is cisgender or transgender. The treatment is legal if the child is cisgender but illegal if the child is transgender, because the statute prohibits GnRH agonists only for transgender children, not for anyone else.

If these treatments have risks, parents of non-trans kids (in consultation with doctors) are allowed to judge those risks for themselves. But in trans cases, the state’s judgment prevails.

Susan Doe, Gavin Goe, and Mr. Hamel have obtained appropriate medical care. Qualified professionals have properly evaluated their medical conditions and needs in accordance with the well-established standards of care. The minors, to the extent of their limited ability, and their parents, and Mr. Hamel, all in consultation with the treating professionals, have determined that the benefits of their gender-affirming care will outweigh the risks. The parents’ and Mr. Hamel’s ability to evaluate the benefits and risks of this treatment in their individual circumstances far exceeds the ability of the State of Florida to do so.

Judge Hinkle found a motive for the State of Florida assuming the power to overrule parental and medical judgment:

The defendants [i.e., the State of Florida] have explicitly admitted that prohibiting or impeding individuals from pursuing their transgender identities is not a legitimate state interest. But the record shows beyond any doubt that a significant number of legislators and others involved in the adoption of the statute and rules at issue pursued this admittedly illegitimate interest.

The ruling quotes numerous statements by legislators or Governor DeSantis that show animus, such as referring to transgender witnesses at hearings as “mutants” and “demons”, denying the reality of gender identity, or exaggerating gender-affirming care by talking about “castrating” young boys. The fact that no one supporting the anti-care bill contested these statements, according to the judge, was evidence that such sentiments were widespread in the legislature.

Trump’s immunity. The Court continues to sit on the apparently simple issue of Donald Trump’s absolute-immunity claim, which has been rejected by every lower-court judge who heard it. By taking the case and refusing to rule promptly, the Court has made it all-but-certain that no trial can be held prior to the election on Trump’s plot to stay in power after losing in 2020. Without the Court’s interference, the public would already have heard testimony under oath from key witnesses like Mike Pence and Mark Meadows.

Particularly given the apparent bias of Justices Alito (whose home and vacation home were the site for pro-insurrection flags) and Thomas (whose wife traded texts with Mark Meadows to encourage resistance to accepting the will of the voters), it’s hard to see the Court’s actions as anything other than an attempt to put its thumb on the scale to Trump’s benefit.

My prediction is that the immunity ruling will come out on the second-to-last day of the term. Putting it last would underline the Court’s intent to delay justice, so the conservative majority will probably sacrifice a day or two of delay to avoid that poor appearance.

[1] Standing is one of the basic concepts of civil lawsuits: A court can only rule on a situation if a suit is brought by someone actually affected. For example, I can’t sue for divorce on behalf of one of my friends, no matter how convinced I am that she needs to be out of that marriage. Requiring that a plaintiff have standing is basically a no-busybodies rule.

[2] I am going to use the word corrupt whenever Thomas’ name comes up until he is either removed from the Court or is called to account in some other way. This week we found out that Thomas has received even more billionaire gifts than the $4 million that were previously known.

Thomas claims these gifts are not bribes, but fall into a loophole for gifts from “friends”. However, Thomas’ rich friends are right-wing donors he had never met before joining the Court.

So as far as this blog is concerned, “corrupt Justice Clarence Thomas” is his full name.

[3] Biden would also like to see an assault weapon ban in that amended bill, but is likely to sign a smaller reform if he gets the chance.

[4] Gender-affirming surgeries on minors, according to the judge, “are extraordinarily rare and are not involved in this litigation.”

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The Monday Morning Teaser

June 17, 2024 – 8:13 am

As we approach the end of the Supreme Court’s annual term, the decisions announced are getting increasingly significant and controversial. This week saw two important rulings: The Amarillo lawsuit seeking to ban the abortion drug mifepristone was thrown out on grounds that the plaintiffs lacked standing, and the ATF’s decision to count bump-stock-inhanced semiautomatic rifles as machine guns was thrown out, fully legalizing rapid-fire weapons like the one used in the Las Vegas massacre of 2017.

The featured post “This Week’s Legal Decisions” will examine those cases in detail, and also look at a lower-court ruling that threw out Florida’s ban on gender-affirming care for minors. It should appear shortly after 9 EDT.

The weekly summary will Hunter Biden’s conviction, the Florida government’s inability to see climate change in its massive rainfall, the carefully-edited videos that unfairly smear President Biden’s mental capacities, Florida’s ban of a book about book banning, and a few other things. I’ll try to get that out around noon.

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In Our Time

June 10, 2024 – 11:36 am

In memory of those who fought here, died here, literally saved the world here, let us be worthy of their sacrifice. Let us be the generation that when history is written about our time — in 10, 20, 30, 50, 80 years from now — it will be said: When the moment came, we met the moment. We stood strong. Our alliances were made stronger. And we saved democracy in our time as well. 

– President Joe Biden
at the Normandy American Cemetery
June 6, 2024

This week’s featured post is “To stop fascism, unite around the old guy“.

This week everybody was talking about Israel’s hostage rescue

The good news: Four of the approximately 250 Israelis taken hostage in Hamas’ October 7 attack were freed Saturday.

The bad news: It appears that the raid killed 274 Palestinians. Palestinian authorities don’t try to identify who was or wasn’t a Hamas fighter, so we don’t know how many civilians were killed. We do know that dozens of children were included in the 274 total.

But only three other hostages have been freed by military force since the start of the war. Another three were mistakenly killed by Israeli forces after they escaped on their own, and Hamas says others have been killed in Israeli airstrikes. … Over 100 hostages were released during a weeklong cease-fire last year, in exchange for Palestinians imprisoned by Israel, and reaching a similar agreement is still widely seen as the only way of getting the rest of the hostages back.

Sunday, Netanyahu rival Benny Gantz followed through on his threat to withdraw from Israel’s war cabinet. He had given Netanyahu a three-week ultimatum to produce a plan to end the war, and that deadline ran out Saturday.

President Biden has put forward a peace plan that pairs a full hostage release with a complete ceasefire. But Prime Minister Netanyahu stands by his condition that Hamas be “completely defeated” before hostilities can end. Gantz’ protest is related to the idea that no one can define what “completely defeated” means, so Netanyahu’s plan seems to be to continue fighting indefinitely.

and more reaction to Trump’s felony conviction

Rick Perlstein hangs around in far-right social-media communities — and he claims that’s not why he’s depressed — reporting on “The Republican Id“. His article got me thinking about the weird dichotomy we’re seeing.

On the one hand, Trump (along with virtually all elected Republicans) are pouring out violence-promoting rhetoric. They’re not exactly saying “Go out and kill liberals”, but they’re definitely hinting in that direction. Trump predicts that seeing him sentenced to jail “would be tough for the public to take. You know, at a certain point, there’s a breaking point.”

What are MAGA folks supposed to do when they “break”? He doesn’t say.

But he has similarly predicted violence if the Republican convention didn’t nominate him in 2016, if Pennsylvania counted all the mail-in ballots in 2020, after the search of Mar-a-Lago, if he was indicted, or went to trial, or was convicted. Other than the convention snub, those events came and went without so much as a major protest. During his Manhattan trial, Trump was so embarrassed by the lack of MAGA demonstrators that he made up an outrageous lie to cover it:

After The New York Times published a story that said Trump was unhappy with the meager crowd he saw when he arrived at the courthouse for opening statements on Monday, Trump posted on social media on Tuesday to deny the story, denigrate a Times reporter and make this claim: “Thousands of people were turned away from the Courthouse in Lower Manhattan by steel stanchions and police, literally blocks from the tiny side door from where I enter and leave. It is an armed camp to keep people away.”

Trump also wrote on social media on Monday that “Lower Manhattan surrounding the Courthouse, where I am heading now, is completely CLOSED DOWN.” And he told reporters inside the courthouse on Tuesday: “For blocks you can’t get near this courthouse.”

He succeeded in inciting a riot once: on January 6. Other than that day, and in spite of all the violent rhetoric on social media and all the death threats against anyone who speaks out against him, his supporters seem to have little appetite for mass action on his behalf.

and the border

President Biden announced a new border policy this week. It’s complicated, but the basic idea is to stop letting people apply for asylum when the number of daily border crossings gets too high. Vox elaborates.

The underlying problem at the border can’t be solved without congressional action, which Trump and his allies have blocked: The US is obligated by law and treaty to give asylum to refugees who meet certain standards of persecution, but the system that processes asylum claims was not designed to handle the current quantity and is hopelessly jammed. People wait years for a hearing, and what should we do with them in the meantime? As the new executive order puts it:

For the vast majority of people in immigration proceedings, the current laws make it impossible to quickly grant protection to those who require it and to quickly remove those who do not establish a legal basis to remain in the United States. This reality is compounded by the fact that the Congress has chronically underfunded our border security and immigration system and has failed to provide the resources or reforms it needs to be able to deliver timely consequences to most individuals who cross unlawfully and cannot establish a legal basis to remain in the United States.

Executive orders can’t create new courts, hire new judges, or ameliorate the conditions that cause people to leave their home countries. They can only change how the backlog is handled. And even then, the Supreme Court may decide that Biden has exceeded his authority. (In recent years, the Court has interpreted Biden’s authority far less generously than it did Trump’s.)

and the Supreme Court

Still no word on the immunity case that the Court is using to delay Trump’s D.C. trial until after the election. The court’s term is expected to end later this month.

Meanwhile, there were two new reasons to doubt the conservative majority’s honesty and impartiality: First, the neighbor at the heart of Justice Alito’s flag controversy has disputed his story, and seems to have a police report to back up her version of the timeline. Watch her CNN interview. (Almost as disturbing as the Alito lie is the neighbor’s account of how the Alito’s tried to intimidate her.)

And second, Fix the Court has published a tally of all the gifts accepted by the justices who served during the last 20 years. The $4.7 million total is stunning in itself, but the jaw-dropping fact is that more than $4 million went to Clarence Thomas, nearly matching his already-generous salary. Fix the Court says the total is “probably an undercount”.

and Hunter’s trial

It’s been observed many times that Trump and his followers practice projection: Whatever Trump is doing — trying to steal an election, corrupting the Justice Department, … — they claim that his opponents are doing it. Every accusation they make is actually a confession.

Because it has fallen so close to the trial that found Trump guilty of multiple felonies, the Hunter Biden trial is providing a grand opportunity for projection. Here, Fox News’ Jeanine Pirro discusses the “mob mentality” of the Biden family and their attempt to intimidate jurors. (To see how a family with a real mob-mentality operates, look at Pro Publica’s recent report: “Nine witnesses in the criminal cases against former President Donald Trump have received significant financial benefits, including large raises from his campaign, severance packages, new jobs, and a grant of shares and cash from Trump’s media company.” Take care of the Boss, and the Boss will take care of you.)

How are the Bidens carrying out this “intimidation”? First Lady Jill Biden, who has been Hunter’s step-mother since he was seven years old, has been showing up at his trial! Her presence, Pirro claims, tells jurors that “We know who you are. We’re in the courtroom and we’re watching you.” (Very scary lady, that Jill Biden.)

And then there’s Joe, who spent the entire previous weekend with his son! Another Fox host quotes a New York Post writer suggesting this is a “cynical power play” aimed at sending a “Mafia-like” message to potential jurors: “Screw with my son and you screw with me.”

Consider the parallels and contrasts with the Trump trial: Nobody from Trump’s family supported him in court until the media started to notice, and neither Melania nor Ivanka ever made an appearance. (“His family is nowhere to be seen. His wife, at least presently, is not to be seen at his side; his children have vanished; his loved ones have melted away.”) You know who did show up? Power players: the Speaker of the House, numerous senators and congressmen. (Matt Gaetz ominously tweeted that he was “standing back and standing by, Mr. President”. Standing by to do what to who?)

Can you picture Hakeem Jeffries or Chuck Schumer going to Delaware to attend Hunter’s trial? What would they do there? Is AOC standing back and standing by?

Trump jurors can only hope they stay anonymous, because Trump’s supporters post threats against them (and the judge and his daughter) daily. But if you’re a Biden supporter, you probably can’t name the judge in Hunter’s trial, or any of the judge’s family members. I know I can’t. I have no interest in finding out who Hunter’s jurors are, and I don’t know anybody who does. Those people are all safe from us, no matter how the trial comes out.

But yes, Fox News, tell me more about the Biden family’s “mob-like” approach to Hunter’s trial.

The Bidens have gone to great lengths to communicate to Hunter that no matter what mistakes he has made in life, he is still their son and they love him. How sinister of them! How unlike the Trump family.

Meanwhile, the House committee that failed to find any evidence linking Joe Biden to whatever sketchy business deals brother James and son Hunter might have had going has taken its next step: The committee refers James and Hunter to the DoJ, claiming that they lied to the committee about Joe not having anything to do with their business deals.

See the logic? The complete lack of evidence is the clearest sign that the conspiracy is working.

and you also might be interested in …

Three Trump allies have been charged with forgery for their role in the Wisconsin fake elector plot.

Steve Bannon is finally going to jail. He will start a four-month sentence for contempt of Congress on July 1. During that time he will probably go to trial for his role in conning contributors to his We Build the Wall fund.

Trump has pardoned Bannon for his role in stealing from Trump supporters, but New York state has decided to pursue charges. His accomplices are already in jail.

AP examines videos that are deceptively edited to make Biden look mentally incompetent. If he’s so lost to dementia, why can’t his critics just use real videos?

In a strong hint that the Sandy Hook parents he slandered may finally see some money, Alex Jones has changed his bankruptcy filing. Originally he filed for a Chapter 11 reorganization, but he has changed that to a Chapter 7 liquidation.

I mentioned Trumpists’ projections above. Here’s more: The Federalist’s Erika Andersen thinks Dolly Parton isn’t really Christian and Newmax’ Greg Kelly worries that Taylor Swift fans are practicing “idolatry”, which “is a sin”.

Just before the guilty verdict in Trump’s Manhattan trial was announced, Maryland Republican senate candidate Larry Hogan made a statement that would be uncontroversial in any other era of American life. He asked people to “respect the verdict and the legal process”.

That pro-civic stance has just about gotten him run out of the Republican Party, which appears to be ready to sacrifice the Maryland senate seat in order to enforce MAGA discipline.

Tuesday, Hogan’s campaign confirmed that he will not attend the Republican Convention in Milwaukee next month. That should avoid some nasty confrontations.

On a similar note, former Republican congressman Ken Buck told Jon Stewart:

I left because I couldn’t tell the lie. The 2020 election wasn’t stolen. The Jan. 6 defendants aren’t political prisoners…There’s a lot of life out there besides arguing about nothing and telling lies. I made a choice to go enjoy what I’ve got left.

A book you might want to read: They Came for the Schools by Mike Hixenbaugh. It’s the story of how the model suburb of Southlake, Texas began to recognize it had a racism problem and tried to deal with it, until a backlash led to a right-wing takeover of the school board.

You may have seen news stories about Southlake in the last few years. It was the testing ground for the conservative campaign against “critical race theory” and for the idea that teachers and librarians were trying to “groom” children to become gay or trans. I had been loosely following that story, but seeing everything laid out in one narrative is pretty amazing.

The big thing I glean from this story is that the conservative cultural project doesn’t work without lying. Parents need to be convinced that schools are teaching things nobody is actually teaching, and they need to believe that members of their community not just wrongheaded, but are engaged in unimaginable evil.

As I’ve said before, I don’t see how this happens without the flaws in Christianity. You have to believe in a Devil to make these kinds of conspiracy theories plausible.

Justin Rosario tells the story of his wife’s two miscarriages in 2006. Her situation (both times) was very similar to that of women in red states who very nearly bleed to death, and sometimes suffer permanent consequences, because of abortion bans. But Justin’s wife got the medical care she needed and survived to have two children. (If you have the time, read the comments on this post. Many are by women telling their own miscarriage stories.)

Recently, friends told me a similar story about a miscarriage suffered by their daughter, a girl I watched grow up. Similarly, she was in a blue state and is fine now, probably planning her next attempt at motherhood. But what, they wondered, might have happened to her Texas or Missouri?

Rosario:

What if the next time, [my wife’s] miscarriage had stalled and become septic like [a woman in Texas]’s? Numerous women have had this happen to them throughout Republican-controlled states already. They’ve lost the ability to have children. Some of them have possibly died.

If you’re wondering why these stories have not been massive front-page headlines for weeks on end, you should know the answer by now. Doing so would require discussing why these women are suffering and dying and that would require pointing the finger, unerringly, at Republicans.

But we don’t do that in America’s press. We will run hundreds of above-the-fold articles about a “crisis” at the border to terrorize racist white people but talk about how Republicans are literally maiming and killing women? No, thank you. That would be biased.

This strikes me as a revealing clip from Fox News: Interviewers ask Trump a question submitted by a viewer: “What’s your relationship with God like and how do you pray?” He never answers. Instead he talks about how well he does with Evangelical voters and how many people are praying for him. Eventually he goes off on a tangent about how people who don’t believe in God have no reason to be good.

I can’t decide: Is he dodging? Or does the question make no sense to him because he has no inner life to report on?

and let’s close with something natural

racooned.com collects photos of animal striking humanlike poses. Here, raccoons seem to be gossiping.

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To stop fascism, unite around the old guy

June 10, 2024 – 9:08 am

Democracies fall to fascism when the opposition fails to unite until it’s too late.
It’s getting late.

Nothing sums up the psychological difference between the two major parties quite like this fact: In the week-and-a-half after Donald Trump was convicted of 34 felonies, it was the Democrats who fretted about whether they were nominating the right candidate.

Democracies fall to fascism when the opposition fails to unite until it’s too late. It’s getting late.

Big-name Republicans were quick to circle the wagons around their felonious leader: If a jury found him guilty, then the jury system must be to blame. Anybody and everybody — judges, prosecutors, witnesses, the Biden administration, the FBI, the jurors — must be corrupt, because Trump can’t possibly be corrupt. Only he can be trusted, and just wait until he’s back in power and can turn the power of government against Democrats!

Meanwhile, the latest collective Democratic shiver started, oddly enough, with an article in Rupert Murdoch’s Wall Street Journal: “Behind Closed Doors, Biden Shows Signs of Slipping“. These “signs” of fading mental acuity had been noticed by such unbiased and reliable sources as Kevin McCarthy and Mike Johnson, causing CNN to comment:

Republicans accusing their political foe of lacking the mental fitness to hold office is nothing surprising. Such accusations are made every night on Fox News. And Donald Trump, who at 77 years old has also shown plenty of signs of waning mental faculties, including repeatedly falling asleep at his own high-stakes hush money trial, has made the accusation a centerpiece of his campaign. In other words, these accusations from the right aren’t exactly news.

The WSJ article was followed by Mark Leibovich in The Atlantic making a headline out of an insult from cheap-shot artist Bill Maher: “Ruth Bader Biden“, “the person who doesn’t know when to quit and so does great damage to their party and their country.”

If my social media is typical, we then saw yet another round of young progressives suggesting Biden should withdraw and let the Democratic Convention choose someone else, or perhaps that left-of-center folks should all vote for Cornell West or Jill Stein in November.

It’s hard to know where to start. There are so many wrongheaded notions floating around that by addressing one in detail I can seem to covertly accept the others. So let’s keep this short and simple:

  • Biden is fine. Yes, Joe Biden is 81, arthritis causes him to walk stiffly, and he’s never going to be an Obama-class orator. But whenever there’s a big test and he needs to be at the top of his game, he is. Watch either of the last two state of the union addresses, where he didn’t just deliver a good speech, he bantered with Republicans in the audience and ate their lunch. (If that seems like ancient history to you, watch his D-Day speech from this week.) He got the better of both McCarthy and Johnson in budget negotiations. He has brilliantly used the Strategic Petroleum Reserve to stabilize the oil market. A debate with Trump is coming up two weeks from Thursday (if Trump doesn’t come up with some excuse to drop out). Watch it. If you’re expecting Biden to be a doddering old man, I think you’ll be surprised. (Also, if it’s so obvious that he’s fading into senility, why do his critics need to post doctored videos to make that point?)
  • Whatever issue you have with Biden, Trump will be worse. What do you think will happen to inflation after Trump raises tariffs and deports millions of low-wage workers? And yes, Biden has not done nearly enough to rein in Netanyahu’s genocide in Gaza. But Trump actively cheers Netanyahu on, and criticizes Biden for putting up any resistance at all.
  • This would have been a worthwhile discussion to have a year ago, or maybe even six months ago. But not now. The Democratic Party held its ordinary primary process this year. If support had coalesced around some other candidate, that candidate could be the nominee. But none of the white knights people hope to nominate instead of Biden made that challenge then, and they’re still not making it. Maybe you should respect their judgment.
  • A chaotic Democratic Convention is not going to help defeat Trump. Competitive conventions tend to get nasty, and people come out of them with hard feelings. (For example, I can easily picture Black voters getting miffed if the Convention passes over Kamala Harris to nominate a White candidate like Gavin Newsom or Gretchen Whitmer.) That wonderful Biden-replacement nominee you’re imagining will have to spend most of the fall reuniting the base rather than reaching out to persuadable swing voters.
  • Any Democratic nominee will have to run on the Biden record. Pushing Biden aside more-or-less ratifies Trump’s assertion that Biden has been a terrible president. Certainly most of the public will interpret it that way. I don’t see how we then turn around and convince them to vote for another Democrat.
  • Whoever you imagine nominating to beat Trump, that candidate can be smeared too. Whenever the right-wing noise machine turns its power against someone, that candidate develops “baggage”. Before Biden’s supposed mental decline, it was Hillary’s emails and Obama’s birth certificate and Kerry’s swiftboat. There’s always some reason why this was the wrong person to nominate. We often picture our favorite alternative candidate remaining unsullied through November. But by election day, he or she would have baggage too. No one is so perfect that they can’t be lied about.
  • Biden has been a good president and has a good story to tell. We need to stop wasting time and start telling that story. Biden didn’t inherit the rosy pre-Covid America Trumpists get nostalgic about. He inherited a mess — high unemployment, a stagnant economy, huge budget and trade deficits, a high murder rate, and thousands dying of Covid every day. He has done a remarkable job cleaning that up. Job-creation is off the charts. We’ve finally started the transition to a sustainable economy, even if there’s still a long way to go. Crime has fallen significantly. Looking ahead, Biden will protect your personal autonomy, your voting rights, and American democracy — all of which are threatened if Trump returns to power. The longer we compare Biden unfavorably to some ideal alternative, the less time we’ll have to make that case.

I know it’s frustrating that the polls remain close, and that so many Americans fail to see what Trump is or what Biden has accomplished. But believe me, bickering among ourselves is not going to solve that problem. In every democracy that falls to fascism, the story is always the same: The opposition fails to unite until it’s too late. Let’s not make that mistake here.

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The Monday Morning Teaser

June 10, 2024 – 8:32 am

After one presumptive nominee for president gets convicted of felonies, you might expect to hear talk about one of the summer’s political conventions choosing someone else. What you wouldn’t expect, though, is that it’s the other party having that discussion.

So far it doesn’t seem to be a serious discussion: The Democratic Convention is going to renominate President Biden without significant opposition. Nonetheless, this week we went through yet another round of Democrats and left-leaning pundits fretting about Biden’s age and poll numbers, and speculating about alternatives.

Republicans never seem to suffer from this kind of self-doubt. During the primaries, nobody cared that polls consistently showed Nikki Haley running much better against Biden than Trump did. Now, Trump is a convicted felon in New York, and only his political clout has delayed his three other trials long enough to avoid pre-election convictions for even-more-serious federal and Georgia felonies. But prominent Republicans have wasted no time lining up behind their criminal leader, and even Larry Hogan’s tepid plea to “respect the verdict and the legal process” has all but gotten him run out of the party.

In this week’s featured post, I’ll explain why it’s time for all these anxiety-driven can’t-we-dump-Biden conversations to stop. Hoping for another candidate was a totally appropriate fantasy a year ago, but at this point there’s only one scenario that avoids a second Trump term and the threat of fascism it poses: re-elect Biden. We need to get focused on that project, which means boosting Biden rather than tearing him down.

Democracies fall to fascism when the non-fascist opposition fails to unite until it’s too late. Let’s not do that.

That post, “To stop fascism, unite around the old guy”, is just about done and should be out soon.

The weekly summary has a bunch of other stuff to cover: Israel’s costly raid to recover hostages, the ceasefire proposal, Alito’s flag story falls apart, Biden’s new border policy, Hunter’s trial, and a few other things, plus a book about the anti-CRT campaign in one Texas suburb. That should be out around noon EDT.

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Dividends of Democracy

June 3, 2024 – 10:41 am

This trial could never have happened in the countries Trump admires. No
one can hold Xi, Putin, Orban, Erdogan, Lukashenko, or any other of
these vile strongmen accountable. This is why we invest in democracy and
work to uphold it when it is being attacked.

– Ruth Ben-Ghiat

This week’s featured posts is “Trump is Guilty“.

This week everybody was talking about the Trump verdict

I cover that in the featured post. There are a few common questions I didn’t get to.

Can Trump continue running for president now that he’s a felon? Yes. There’s precedent: In 1920, Socialist candidate Eugene Debs got a million votes for president while he was in prison. He was serving a 10-year sentence for an anti-World-War-I speech he gave in 1917, which the government claimed violated the Espionage Act.

Could he take office? I don’t see why not. The Constitution‘s list of qualifications for the presidency is pretty short and says nothing about being a criminal. (The Founders certainly imagined the possibility of a criminal getting elected president — hence the provision of impeachment — but I doubt they pictured someone whose criminality was already known getting elected.)

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

Could this actually help him? These days, MAGA folks tend towards confident bluster and Democrats tend towards doom-saying, so people from both sides are likely to predict that conviction will give Trump a boost. But I doubt it. If Trump getting convicted makes you like him more, you were probably already voting for him.

About half the country didn’t expect him to get convicted, and those are the people to watch. Particularly important are the folks who hadn’t been paying a lot of attention to the Trump trials. To a lot of them, I imagine this had been sounding like the usual political attacks: something opponents say that never comes to anything, like the Biden impeachment effort in the House. This actually arrived at a conviction, which makes it a bit different. It also should make people re-evaluate the other charges against Trump: Maybe they’re true too.

In particular, the idea that Blacks will be more attracted to Trump now that he’s a felon seems based on a stereotypic and demeaning view of Black people.

Yesterday on Meet the Press, House Minority Leader Hakeem Jeffries was asked a simple question and (in contrast to Republicans asked about the Trump verdict) gave a simple answer.

PETER ALEXANDER: Congressman Jeffries, Donald Trump’s attorney, as you’ve certainly heard, said that they will appeal the verdict. If it is overturned on appeal, will you accept that result?

REP. HAKEEM JEFFRIES: Yes.

and Justice Alito

To no one’s surprise, Justice Alito announced in a letter to Senators Durbin and Whitehouse that he will not recuse himself from January 6 related cases. He responded to both of the recently-revealed flag incidents by putting the responsibility on his wife (“My wife is fond of flying flags. I am not.”) and claiming that

A reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude that this event does not meet the applicable standard for recusal.

Josh Marshall comments:

This is not how federal ethics guidelines work. They make very clear that the appearance of a conflict of interest or impropriety, for these purposes, counts as much as actual ones. They also make clear that the actions of a spouse count toward creating such appearances even though, certainly in the early 21st century, a judge can’t dictate a spouse’s actions. The ethics guidelines specifically deal with the spouse issue. And they say “it’s my spouse, not me” isn’t a defense. … Alito is a smart guy. He knows this.

So while Alito’s wife has every right to express her political views, even treasonous ones, her actions have consequences for her husband. Alito is refusing to accept those consequences. (Imagine the outcry if Justice Jackson drove to court displaying a Black Lives Matter bumper sticker, and then said, “It’s my husband’s car.”)

In addition, Marshall notes, Alito has now told multiple versions of the flag story, at least some of which must be lies. In responding to the controversy, he sought out a friendly reporter at a partisan venue (Fox News) — something a politician might do, but a justice shouldn’t.

Alito’s reaction to this controversy has been sullen, defensive, mendacious and overtly partisan. Those are all total nonstarters for how a justice is supposed to conduct himself or herself. He does it because he’s corrupt and he’s confident in his impunity.

In an idealistic vision of the judiciary, recusal is not that big a deal: Your responsibility to rule impartially passes to the other justices, who presumably are also impartial. But this clearly is not Alito’s vision: He is a member of a political faction, and it is important that he be there to deliver his vote.

and other legal news

A federal judge just struck down a New Hampshire law that comes out of the same conservative flurry that gave us Florida’s Don’t-Say-Gay and Stop-WOKE laws.

New Hampshire prohibited public employees, including public school teachers, from promoting “divisive concepts” related to race or gender. A parent who felt the law had been violated could sue, and offending teachers could lose their licenses to teach in the state.

In April 2022, a New Hampshire parent complained that Alison O’Brien, a high school social studies teacher, violated the divisive concepts law by showing two videos — “Formation” by Beyoncé and “This is America” by Childish Gambino — as part of a unit on the Harlem Renaissance. … The parent who complained claimed the music videos were “offensive,” too focused “on the oppression of just one group,” and “not a balanced view of history.”

Fortunately, a federal judge has objected.

[District Judge Paul J.] Barbadoro, citing the experience of O’Brien and other teachers, ruled that the law was unconstitutionally vague. The law represents “viewpoint-based restrictions on speech” but does not “provide either fair warning to educators of what they prohibit or sufficient standards for law enforcement to prevent arbitrary and discriminatory enforcement.” As such, it violates the due process protections of the 14th Amendment.

Since May 21, Trump has been claiming that when the FBI searched Mar-a-Lago in August, 2022, they were really there to assassinate him, a claim Politifact has rated as a pants-on-fire lie.

Special Counsel Jack Smith is concerned about the danger this and similar lies pose to the FBI agents involved in the search, some of whom would be witnesses in the Mar-a-Lago documents trial, assuming Judge Cannon ever allows that trial to take place. (The process Smith worries about is called stochastic terrorism, which Wikipedia defines as “when a political or media figure publicly demonizes a person or group in a way that inspires supporters of the figure to commit a violent act against the target of the communication”.)

Last week, Smith filed a motion asking Cannon to amend Trump’s terms of release, to prevent him from making this claim. Cannon denied that motion on procedural grounds. Smith has now refiled it in a way that satisfies Cannon’s objections.

Predictably, Cannon is slow-walking the motion.

Another Trump-appointed judge is slow-walking Steven Bannon’s prison sentence. Bannon has been convicted of contempt of Congress and sentenced to four months in prison. He was released pending his appeal, which has now been rejected. But the judge still hasn’t ordered him to report to prison.

and two thought-provoking articles

Rick Perlstein is the leading historian of the modern conservative movement, from Barry Goldwater to (so far) Ronald Reagan. He has an article in The American Prospect that is interesting both for its ideas and for what it says about the current political mood.

The interesting idea concerns the question: Why does conservatism keep getting worse? There could be a long discussion about what “worse” means in this context, but intuitively you already know: Barry Goldwater lost graciously. Dick Nixon’s administration was a mixture of good and bad. (For example, he signed the Clean Air Act.) Ronald Reagan generally maintained a high level of decorum. George W. Bush tried to avoid a post-9-11 pogrom against American Muslims. And so on. I’ve had many moments when I looked at something Trump was doing and wished I had one of those past conservative leaders back.

Perlstein thinks the reason is something he calls “the authoritarian rachet”.

Its axioms are that the basic thing conservatism promises to its adherents, a return of society to a prelapsarian state, is impossible; but that this impossible thing, in the logic of conservatism, is also imperative to achieve, lest civilization collapse, and good people suffer a kind of living death.

So each time conservatives win, they nonetheless fail, because the impossible things don’t happen. (Donald Trump did not bring back the “great again” era of the 1950s or the 1920s or whenever you thought America was greatest.) So the next time conservatism gains power, it will have to try even harder.

This is why I now describe the history of conservatism as a ratchet. It must always move in an invariably more authoritarian direction, with no possible end point but an apocalyptic one.

Just listen to any recent Donald Trump speech: The redemptive promises he makes are more insanely fantastical with each passing day. Imagine the disappointment their serial failures will bring in their wake, which can never redound on him. (Conservatism never fails …) They must instead be blamed on the Enemy.

Which is us.

That is why another Trump term—or the potential insurgency after a Trump defeat—may be traumatic beyond our poor powers to imagine it.

But Perlstein’s article is also about his personal depression, which he claims is brought on by the Left, not the Right: Perlstein is frustrated by his inability to convince progressives to put aside their very real differences with Biden in order to avoid the catastrophe of a second (and necessarily worse) Trump administration.

What it comes down to, I guess, is this. If I of all people can’t convince people on the left to fight right-wing authoritarians who consider them veritable Untermenschen, then what the hell have I been wasting half my life on this work for?

The other article I want to call your attention to is Cory Doctorow’s “A Major Defeat for Technofeudalism” from last fall. (It sometimes takes a while for me to notice things.)

Ostensibly, he’s writing about patent trolls, the people who claim ownership of basic technological ideas that nobody else had thought to patent, and then harass anybody who uses those ideas, looking for royalty payments. But the article is more interesting for its theoretical framing: Doctorow calls attention to a piece of the class struggle we ordinarily don’t think about: not the battle between capital and labor, but the battle between two factions in the ruling class: capitalists and rentiers.

Basically, capitalists make money by producing things to sell at a profit, while rentiers make money by owning things they can charge rent on. What defines feudalism, for Doctorow, is the domination of society by rentiers.

Perversely, even as capitalism replaces feudalism, capitalists aspire to become rentiers. They want to achieve a monopoly or near-monopoly position in some market that allows them to charge what is essentially rent.

In his new book Technofeudalism: What Killed Capitalism, the economist Yanis Varoufakis argues that a new form of capital, “cloud capital,” has taken over the real economy, allowing a small number of feudal companies to insert themselves between capitalists and their customers. Amazon takes 45–51 percent out of every dollar its sellers generate, Google and Apple take 30 cents out of every dollar an app maker generates.

and you also might be interested in …

If you’ve been worrying about the “weaponization” of the Justice Department by Democrats against Republicans, Hunter Biden’s trial began today. Like Trump, he also will have his future decided by a jury.

The bribery trial of Democratic Senator Bob Menendez is ongoing.

DoJ seems to be focused on people who break the law, not on Republicans or Democrats.

Seven Negro leagues operated between 1920 and 1948. As became apparent after Jackie Robinson broke the color barrier in major league baseball in 1947, the players in those leagues were quite good. This week major league baseball recognized this fact by including players from these Negro leagues in the official statistics.

The biggest impact will be on the all-time-best lists. For example, Josh Gibson (.372) now replaces Ty Cobb (.367) at the top of the all-time career batting average list.

For most of us, this rectifies a longstanding injustice. But if you’re a white supremacist, it’s one more example of America being taken away from you. You can be offended on behalf of Ty Cobb, and resent that what you learned as a kid is now obsolete.

Basketball great Bill Walton died. The most interesting tribute came from his friend and rival Kareem Abdul-Jabbar. Walton’s place on the list of great players is hard to pin down, because he played at a very high level for a very short time before injuries brought him down. You could put him in the top 10 or leave him out of the top 50.

and let’s close with something deep

A surprising number of impressive sculptures are under water. Some sank there, like those from the lost Egyptian city of Heracleion. Others, though, like this statue of Poseidon’s wife Amphitrite, were intentionally placed where only divers can see them.

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