Don’t Panic

In many of the more relaxed civilizations on the Outer Eastern Rim of the Galaxy, the Hitch-Hiker’s Guide has already supplanted the great Encyclopaedia Galactica as the standard repository of all knowledge and wisdom, for though it has many omissions and contains much that is apocryphal, or at least wildly inaccurate, it scores over the older, more pedestrian work in two important respects. First, it is slightly cheaper; and secondly it has the words DON’T PANIC inscribed in large friendly letters on its cover.

– Douglas Adams, The Hitchhiker’s Guide to the Galaxy

This week’s featured posts are “They Both Lost. What Now?” about the debate and “Down to the Wire” about the Supreme Court’s next-to-last decisions of the term.

This week everybody was talking about the debate

That’s the subject of one featured post.

One issue in this campaign is whether the country was better off four years ago. To refresh your memory, here’s a meme from April, 2020.

Scott Dworkin is keeping a list of Republicans who are not supporting Trump.

It’s way too soon for this kind of humor, but here’s Andy Borowitz:

There are some compelling arguments for replacing Joe with Hunter. You could still use BIDEN ‘24 campaign regalia. He’s a generation younger. And the fact that he’s a convicted felon could attract Republican voters.

and the Supreme Court

Having delayed to the very end of the term, the Supreme Court is about to post its decision on Trump’s immunity claim. I’ll punt my analysis until next week.

Everything from last week is covered in the other featured post.

and Oklahoma

Oklahoma is suddenly a central battleground for church-and-state issues. This week saw one effort to shore up the wall between the two, and another to blow a hole in it.

The Oklahoma Supreme Court defended the wall: It ruled 6-2 that the state’s charter school program can’t support an openly Catholic school.

The Oklahoma state constitution has a pretty sweeping statement separating church and state:

Article 2, Section 5: No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.

Article 1, Section 5 makes that provision specific to public schools:

Provisions shall be made for the establishment and maintenance of a system of public schools, which shall be open to all the children of the state and free from sectarian control

Nonetheless, two Catholic institutions got together to create St. Isidore, which they pitched as a virtual charter school to be supported by the state. The majority opinion summarizes:

The Archdiocese of Oklahoma City and the Diocese of Tulsa applied to the Charter School Board to establish St. Isidore, a religious virtual charter school. St. Isidore does not dispute that it is a religious institution. Its purpose is “[t]o create, establish, and operate” the school as a Catholic school. Specifically, it plans to derive ‘its original characteristics and its structure as a genuine instrument of the church” and participate “in the evangelizing mission of the church.”

Despite the state constitution, the Oklahoma Charter School Board accepted St. Isidore’s application by a 3-2 vote, and made a contract to fund the school that would have begun today.

The argument on the other side, which a dissent spells out, is something you’re likely to hear again — possibly when the sponsoring dioceses appeal to the US Supreme Court: St. Isidore isn’t a “public school” per se, it’s a private organization contracting to provide a service (i.e., education) to the state. It shouldn’t be banned from competing for state contracts just because it’s a religious organization. It’s like a Catholic hospital providing medical services to Medicare patients.

Six justices weren’t impressed with that argument, mainly because of that “participate in the evangelizing mission of the church”. A Catholic hospital isn’t trying to make good Catholics out of its patients, but St. Isidore would be trying to make good Catholics out of its students. That may or may not be a worthy goal, but State of Oklahoma shouldn’t be paying for it.

Meanwhile, the state’s Superintendent of Public Instruction dropped a bomb intended to knock the wall down.

In a state board of education meeting on Thursday, state superintendent of public instruction Ryan Walters announced a new memo “that every school district will adhere to, which is that every teacher, every classroom in the state will have a Bible in the classroom and will be teaching from the Bible in the classroom to ensure that this historical understanding is there for every student in the state of Oklahoma in accordance with our academic standards and state law”.

You can see Walters’ statement in the video of the meeting. Don’t be intimidated by the nearly-six-hour meeting length. Walters’ comments happen early: Around the seven minute mark, he says he will challenge the Oklahoma Supreme Court’s St. Isidore decision “all the way to the Supreme Court”. He then goes on to make his comments about teaching the Bible in all classrooms, because of its historical significance for “the Constitution and the birth of our country”. He’s done by the ten-minute mark.

My comment: Christianity does have a lot of historical significance for the US, both for good and ill. But if we’re going to be focusing on that in classrooms, I think we also need to teach about the constant religious strife in England during the 1600s, as Catholics, Anglicans, and dissenters (i.e., Oliver Cromwell) fought for control of the government. This was the English version of the continental Thirty Years War, in which battles between Protestants and Catholics killed millions and depopulated parts of Germany by 50% or more.

The Founders knew that history and didn’t want similar wars of religion to erupt here. Hence the Establishment Clause of the Constitution, which Jefferson summarized with the metaphor of a “wall of separation” between Church and State. Saying to the various denominations: “You can compete in all sorts of ways, but the government is off limits” was a very astute piece of statecraft.

In contrast to making kids learn the Bible, South Carolina has taken the opposite tack: Don’t let them read anything else. The Department of Education’s new regulation mandates that all books in classrooms or school libraries be “age appropriate” and not describe “sexual conduct”. Any parent of public-school students can challenge up to five titles a month, and a state board is the decision-maker rather than any local authority. Those phrases sound fine, but the problem is their vagueness: Librarians who don’t want to keep defending their choices to the state will self-censor all books about sexuality or race, including many that some students would benefit from reading.

For reasons no one seems to be able to explain, the legislature didn’t discuss this during the standard 120-day vetting period for new regulations, so it took effect Tuesday.

And there’s always Louisiana:

and you also might be interested in …

My wife recently asked me if there was anything good happening in the world, so I pointed to this: California’s shift to renewable energy is starting to show some serious results. Bill McKibben elaborates:

Something approaching a miracle has been taking place in California this spring. Beginning in early March, for some portion of almost every day, a combination of solar, wind, geothermal, and hydropower has been producing more than a hundred per cent of the state’s demand for electricity. Some afternoons, solar panels alone have produced more power than the state uses. And, at night, large utility-scale batteries that have been installed during the past few years are often the single largest source of supply to the grid—sending the excess power stored up during the afternoon back out to consumers across the state.

I mean, it’s encouraging when some island in Denmark replaces fossil fuels with wind power … but California!

Another good thing happening: Violent crime is falling. One good example comes from liberal Massachusetts.

Boston’s murder tally was already low. The city had 70 homicides in 2010 and 56 in 2020; last year, there were 37.

So far this year: 4.

Steve Bannon (a.k.a. inmate #05635-509) is supposed to start his four-month jail term for contempt of Congress today. Depending on how vindictive you’re feeling at the moment, that also might lift your spirits.

Before he gets out, he’ll have to stand trial on something else: defrauding contributors to the We Build the Wall campaign. Let me suggest a defense he might try: No harm was done, because people who would give to a cause like that, headed by someone like him, are so stupid they would have lost their money somehow anyway.

and let’s close with something big

Depending on your mood, astronomy can either depressing or uplifting. Maybe it makes you feel insignificant, or maybe it makes your troubles seem insignificant. It’s a Rorschach test.

This photo, pieced together from some number of Webb telescope images, is 340 light years across.

July 1, 2024 – 11:09 am Categories: Weekly summaries | Comments (5)

Down to the Wire

Having admitted (in the previous article) to being wrong about the debate, I might as well confess something else: I had expected the Supreme Court to release their Trump immunity decision Friday, the second-to-last day of this term.

Obviously, the Court’s Republican majority wants to delay as long as possible, in order to make sure that their party’s presidential candidate doesn’t stand trial again before the election. (Such political considerations used to be beneath the Supreme Court, but little is beneath the Roberts court.) Jack Smith asked them to take the case back in December, and his prosecution of Trump’s post-2020-election conspiracy has been frozen ever since. (The trial should be over by now.) The Court actually took it in February, they heard oral arguments in April, and subsequently they have been sitting on their hands for more than two months. We can all see what they’re (not) doing.

But the Court pretends to be oblivious to politics, so delaying every possible second would make the game a little too obvious, or so I thought. Announcing their decision on the last day, I anticipated, would be too big a fuck-you to the American people.

Well, guess what, American people? I gave them too much credit. Today is when they will announce their last rulings of the term, and the immunity decision still hasn’t come out as of 10:30 EDT.

What they did announce this week was serious enough. The Court always procrastinates to a certain extent, so every year there’s a flurry of decisions in the last few days. But this year is extreme, and I (like several other observers) wonder whether that’s intentional: When you release hundreds and hundreds of pages of legal reasoning in a few days, who has time to process it all and inform the voters about it before the news cycle moves on to something else?

Not me, apparently. This week I haven’t done the kind of detailed analysis I’ve done the last two weeks. So while I’ve dipped into the text of the decisions, I’ve also had to rely on other people’s summaries. Here’s what the Court did this week.

They legalized bribery. Not in so many words, of course, but that’s the upshot. As Amy Howe delicately put it on SCOTUSblog, they “limited the scope of anti-bribery laws”.

The gist of Brett Kavanaugh’s opinion (supported by the entire conservative faction: Gorsuch, Barrett, Thomas, Alito, and Roberts) is that bribery is when a public official is paid off before making a decision. If he’s paid off afterwards, it’s a gratuity, which is fine. So going forward, paying officials to do you a favor will only be a crime if you do it stupidly. (“No, no, I’m tipping you for last week’s decision. Tomorrow’s decision is completely up to you. Do whatever you think is best.”)

There’s been a lot of conservative rhetoric lately about Trump’s prosecution making the US a “third-world country”. But (until now) one important feature has separated the US from the bad-example kind of small countries: Public officials don’t ordinarily expect gratuities for doing their jobs. For example, I’ve never tipped the people who process my driver’s license renewals at the DMV. In some countries, I’d be expected to. Maybe that’s the direction Kavanaugh pictures us going.

Typically, in order to illustrate just how bad a decision is, you have to make up some hypothetical example that takes the decision’s logic to an extreme, like “What if a president had Seal Team 6 assassinate his rivals?” Here, though, you just have to recount the facts of the case at hand (which Kavanaugh doesn’t do, but Justice Jackson’s dissent does): While he was mayor of Portage, Indiana, James Snyder oversaw the purchase of new garbage trucks at a cost of $1.1 million.

Snyder put one of his friends, Randy Reeder, in charge of the bidding process, despite Reeder’s lack of experience in administering public bids. Evidence presented at Snyder’s trial showed that Reeder tailored bid specifications for two different city contracts to favor Great Lakes Peterbilt, a truck dealership owned by brothers Robert Buha and Stephen Buha. Evidence also showed that during the bidding process, Snyder was in contact with the Buha brothers, but no other bidders. … Reeder testified that he crafted some specifications, including delivery within 150 days, knowing they would favor Great Lakes Peterbilt. The board of works voted to award Great Lakes Peterbilt the contract. Evidence at trial showed that the city could have saved about $60,000 had it not prioritized expedited delivery. …

Shortly after the second contract was awarded, Snyder paid the Buha brothers a visit at their dealership. “I need money,” he said. He asked for $15,000; the dealership gave him $13,000. When federal investigators heard about the payment and came calling, Snyder told them the check was for information technology and health insurance consulting services that he had provided to the dealership. He gave different explanations for the money to Reeder and a different city employee.

Employees at Great Lakes Peterbilt testified that Snyder never performed any consulting work for the dealership. And during the federal investigation, no written agreements, work product, evidence of meetings, invoices, or other documentation was ever produced relating to any consulting work performed by Snyder. All of this confirmed testimony from the dealership’s controller, who had cut the check to Snyder: Snyder had instead been paid for an “inside track.”

Kavanaugh doesn’t dispute those facts, he just chooses not to mention them, while ruling that this kind of thing is OK now. Any other interpretation of the law, he says, would criminalize harmless gratuities, such as “gift cards, lunches, plaques, books, framed photos, or the like”. But Jackson points to the word “corruptly” in the law. In order to convict an official, a jury has to believe that the gratuity was large enough that its anticipation corrupted the official’s judgment. A plaque probably wouldn’t do that, but $13,000 goes a long way in Portage.

Kavanaugh also reasons that he is only monkey-wrenching the federal anti-corruption law, so Snyder might still be prosecuted under local law. This entirely misses the point of federal anti-corruption laws. Local corruption needs to be subject to federal oversight, because local processes may have been corrupted. That’s why Eliot Ness’ Untouchables could take down Al Capone when the Chicago police had failed.

I think the cartoonist is on to something: Presumably, it would now be OK if James Snyder wrote Brett Kavanaugh a check in appreciation of his fine judicial wisdom and his grasp of political reality in towns like Portage. (Did I mention that corrupt Clarence Thomas signed on to Kavanaugh’s opinion?) The best summary of the situation comes from Elie Mystal:

According to Brett Kavanaugh and the conservatives, it’s only bribery if it comes from the Bribérie region of France. Everything else is just sparkling corruption.

They allowed local governments to criminalize homelessness. Again, that’s not said in so many words, at least not until you get to Justice Sotomayor’s dissent. The case centers on a law in Grants Pass, Oregon that “prohibits activities such as camping on public property or parking overnight in the city’s parks”. Here’s why Sotomayor thinks that’s a problem:

Sleep is a biological necessity, not a crime. For some people, sleeping outside is their only option. The City of Grants Pass jails and fines those people for sleeping anywhere in public at any time, including in their cars, if they use as little as a blanket to keep warm or a rolled-up shirt as a pillow. For people with no access to shelter, that punishes them for being homeless. That is unconscionable and unconstitutional. Punishing people for their status is “cruel and unusual” under the Eighth Amendment.

But Justice Gorsuch says the law doesn’t punish homelessness, because the law applies to everybody, not just the homeless.

Grants Pass’s public-camping ordinances do not criminalize status. The public-camping laws prohibit actions undertaken by any person, regardless of status. It makes no difference whether the charged defendant is currently a person experiencing homelessness, a backpacker on vacation, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building.

So if Elon Musk unrolled his Patagonia sleeping bag in a Grants Pass park, he’d be arrested too. What better illustration could there be of what Anatole France wrote in 1894?

In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets, and steal loaves of bread.

In his concurrence, Clarence Thomas wants to go further than Gorsuch and overturn the precedent this case is based on. In other words, you should be able to criminalize someone’s status.

Gorsuch and Sotomayor paint very different pictures of what Grants Pass is trying to accomplish. Gorsuch mostly ignores Grants Pass itself, but talks about other cities with similar laws. (Notice the pattern: The conservative justices want to discuss anything other than the specific facts of the cases at hand.) Cities like San Francisco, Gorsuch claims, are making a good-faith attempt to help the homeless by getting them into shelters, using anti-camping laws as the stick in a carrot-and-stick approach. But Sotomayor sees Grants Pass hoping the homeless will leave and become some other town’s problem:

For someone with no available shelter, the only way to comply with the Ordinances is to leave Grants Pass altogether. … The Grants Pass City Council held a public meeting in 2013 to “identify solutions to current vagrancy problems.” The council discussed the City’s previous efforts to banish homeless people by “buying the person a bus ticket to a specific destination,” or transporting them to a different jurisdiction and “leaving them there.”

That was unsuccessful, so the council discussed other ideas, including a “ ‘do not serve’ ” list or “a ‘most unwanted list’ made by taking pictures of the offenders . . . and then disseminating it to all the service agencies.” The council even contemplated denying basic services such as “food, clothing, bedding, hygiene, and those types of things.” … The council president summed up the goal succinctly: “[T]he point is to make it uncomfortable enough for [homeless people] in our city so they will want to move on down the road.”

They grabbed power away from federal agencies and claimed it for themselves. The Chevron doctrine is a legal principle that you will probably never run into in your personal life, but it has a bankshot effect on everything the government does. What’s at stake here is Congress’ ability to write open-ended laws whose details can be nailed down by the relevant federal agencies. Here’s an example I gave in January:

A typical example is the Clean Air Act. The CAA was first passed in 1963 and then overhauled in 1970. It established air quality standards (NAAQS) for a few well-known pollutants like carbon monoxide, sulfur dioxide, and lead, but then it defined a general category of “hazardous air pollutants” (HAPs) made up of other gases and particulates that “threaten human health and welfare”. It tasked the EPA with making and maintaining a list of HAPs and creating emission regulations for controlling them.

Hold that in your mind for a minute: In passing the CAA, Congress banned or controlled substances that the members of Congress had never even heard of. That’s how the regulatory system works.

If the CAA didn’t work that way, Congress would have to pass a new law every time some company created a new pollutant. Corporations move faster than Congress does, so our lives would be constantly in danger. (Plus, corporations can now give “gratuities” to congressmen who procrastinate on new laws. See above.)

In 1984, the Supreme Court decided the Chevron case, establishing the principal that if a law Congress wrote is vague about something, and if an agency’s interpretation of that vagueness is reasonable, then courts should defer to the agency’s interpretation. This deference makes sense for two reasons:

  • Courts can’t match the expertise assembled in federal agencies like the EPA or the FDA.
  • Federal agencies are overseen by presidents, who can be voted out of office. Courts are overseen by judges appointed for life.

The Chevron precedent has stood for forty years. Friday the Court tossed it out, without identifying any significant problem they were solving.

I didn’t manage to read the whole opinion, so I refer you to Joyce Vance.

Want to know if you can use the abortion drug mifepristone? Despite studies confirming the drug is safer than Viagra and Tylenol, that decision is up to Judge Matthew Kacsmaryk in Amarillo, Texas. If he decides the FDA was wrong to approve it, well then, he can deny women access to medication abortion. What happens if a company that builds airplanes objects to an agency decision that requires them to use, say, six bolts to attach an engine to a plane? They can go to court and make their case to a federal judge. And then, that judge—a lawyer, not an engineer—gets to decide how it will work. The arbitrary action the court expresses concern agencies might take is replaced by arbitrary action from far less qualified federal judges—possibly shopped for in the infamous one-judge-divisions like the one that gave us the mifepristone case. Do you feel less safe suddenly?

Set up a future showdown on abortion — after the election. So Idaho law only allows abortions that save a woman’s life, while a federal law (EMTALA — the Emergency Medical Treatment and Labor Act) mandates that hospitals receiving federal money (i.e. Medicare) stabilize any patient who shows up in their emergency rooms, including pregnant women who will suffer serious health consequences without an abortion.

But there’s a gray area, where a woman faces serious consequences but isn’t about to die. For women who fall into that gap, state law forbids what federal law mandates. A district court issued an injunction allowing the abortions, on the principle that federal law preempts state law. In January, the Supreme Court stayed that injunction, leaving the Idaho ban in place. Justice Kagan lays out the consequences of that move:

With that stay in effect, Idaho could enforce its abortion ban even when terminating a pregnancy was necessary to prevent grave harm to the woman. The on-the-ground impact was immediate. To ensure appropriate medical care, the State’s largest provider of emergency services had to airlift pregnant women out of Idaho roughly every other week, compared to once in the prior year (when the injunction was in effect). … Those transfers measure the difference between the life-threatening conditions Idaho will allow hospitals to treat and the health-threatening conditions it will not, despite EMTALA’s command.

So this week the Court’s three liberals (Kagan, Sotomayor, and Jackson) got together with three conservatives (Roberts, Barrett, and Kavanaugh) to lift the stay and rule that the Court should not have gotten involved in this case yet.

That’s good as far as it goes; for the next few months, Idaho hospitals can stop airlifting women to Oregon or wherever. But the case is likely to come back next term. And even if it doesn’t, other states’ abortion laws also conflict with EMTALA.

So both Jackson and Alito want to know why the case can’t be decided now: The Court has heard all the arguments and knows everything it’s going to know when the case comes back. (Both think the proper decision is obvious, but they disagree about what it is.)

But it looks like Roberts, Barrett, and Kavanaugh have made a political move: Denying health care to women with serious pregnancy-related health problems is really unpopular, so pushing such a decision to the other side of the election helps Trump and other Republicans. “It is so ordered.”

Let some January 6 rioters off the hook. This case, Fischer, looks more complicated than the others, because even though the margin (6-3) is familiar, two justices have switched sides: Barrett joined the liberals and Jackson joined the conservatives.

This fell off my stack, so here’s Amy Howe’s summary:

The Supreme Court on Friday threw out the charges against a former Pennsylvania police officer who entered the U.S. Capitol during the Jan. 6, 2021, attacks. By a vote of 6-3, the justices ruled that the law that Joseph Fischer was charged with violating, which bars obstruction of an official proceeding, applies only to evidence tampering, such as destruction of records or documents, in official proceedings.

Friday’s ruling could affect charges against more than 300 other Jan. 6 defendants. The same law is also at the center of two of the four charges brought by Special Counsel Jack Smith against former President Donald Trump in Washington, D.C.

In other words, obstructing an official proceeding physically, by taking over the building, isn’t covered by this law.

I still don’t grasp the impact of this ruling. Several lawyers writing for MSNBC claim only a small number of January 6 defendants will be affected, and even the ones who are won’t go free, since they were convicted of other offenses as well. Many articles claim this interpretation will help Trump in his January 6 case, but the MSNBC article claims the opposite. It will take a while for me to sort this out.

July 1, 2024 – 10:30 am Categories: Articles | Comments (10)

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They Both Lost. What Now?

Biden and Trump each needed to reassure the small flock of undecided voters that the country would be safe in his hands for the next four years. They failed in different ways, but they both failed.

The headlines Friday morning summed things up pretty well: Biden stumbled, while Trump lied. If you were worried that Joe Biden is too old to do the job, he did nothing to give you confidence in his vigor. But if you were worried that Donald Trump can’t be trusted to respond to the real problems America faces, rather than issues spawned by his dark imagination, he also did nothing to ease your mind.

The news coverage has tended to make more of Biden’s failings, stoking talk of replacing him on the Democratic ticket (which we’ll get to down the page), but it’s not clear that Trump’s were any less significant. It’s too soon to see much post-debate polling, but while most observers said Trump won the debate, the first post-debate head-to-head Morning Consult poll showed Biden gaining a point, leading Trump 45%-44% after being tied pre-debate. I wouldn’t count on that result holding up as more data comes in, but it does indicate that few minds were changed.

Overall, Biden was low energy and not sharp. His voice was raspy and he frequently had to clear his throat. (His people afterwards said he had a cold.) His lifelong trouble finding words was worse than usual, leading to occasional incoherent statements like this:

For example, we have a thousand trillionaires in America – I mean, billionaires in America. And what’s happening? They’re in a situation where they, in fact, pay 8.2 percent in taxes. If they just paid 24 percent or 25 percent, either one of those numbers, they’d raised $500 million – billion dollars, I should say, in a 10-year period.

We’d be able to right – wipe out his debt. We’d be able to help make sure that – all those things we need to do, childcare, elder care, making sure that we continue to strengthen our healthcare system, making sure that we’re able to make every single solitary person eligible for what I’ve been able to do with the COVID – excuse me, with dealing with everything we have to do with.

Look, if – we finally beat Medicare. [time’s up]

Trump, meanwhile, seemed incapable of simply telling the truth. Here’s CNN’s post-debate fact checker:

Trump made more than 30 false claims at the Thursday debate. They included numerous claims that CNN and others have already debunked during the current presidential campaign or prior.

Trump’s repeat falsehoods included his assertions that some Democratic-led states allow babies to be executed after birth, that every legal scholar and everybody in general wanted Roe v. Wade overturned, that there were no terror attacks during his presidency, that Iran didn’t fund terror groups during his presidency, that the US has provided more aid to Ukraine than Europe has, that Biden for years referred to Black people as “super predators,” that Biden is planning to quadruple people’s taxes, that then-House Speaker Nancy Pelosi turned down 10,000 National Guard troops for the US Capitol on January 6, 2021, that Americans don’t pay the cost of his tariffs on China and other countries, that Europe accepts no American cars, that he is the president who got the Veterans Choice program through Congress, and that fraud marred the results of the 2020 election.

Trump also added some new false claims, such as his assertions that the US currently has its biggest budget deficit and its biggest trade deficit with China. Both records actually occurred under Trump.

Sadly, that kind of fact-checking was totally absent during the debate itself, as the moderators showed no interest in whether candidates answered their questions truthfully, or even answered them at all.

Democratic panic. Republicans seemed to worry not at all about Trump’s lies, just as they have not worried about his criminality. They long ago decided to nod their heads to whatever he says or does rather than worry about whether he’s talking about anything real. Some of them actually believe claims like the nonsense listed above. Those votes are not up for grabs, but I think it’s a mistake for Democrats to worry about them. They’re not a majority and Trump can’t win with the MAGA cultists alone.

Democrats, meanwhile, were shocked and saddened by Biden’s performance. Former Democratic Senator (and frequent MSNBC contributor) Claire McCaskill’s response was typical:

I have been a surrogate for some presidential candidates in my time, and I know what the job is after a debate for a surrogate. And I’ve never wanted to be a surrogate more than I do right now. Because when you’re a surrogate, you have to focus on the positives. But, as I have said very clearly and very plainly — and my job now is to be really honest — Joe Biden had one thing he had to do last night, and he didn’t do it.

The president had to reassure America that he was up to the job at his age. And he failed. … Based on what I’m hearing from a lot of people, some in high elected offices in this country, there is a lot more than hand-wringing going on. I do think people feel like we are confronting a crisis.

This debate felt like a gut punch to most people in this country, especially to those who are paying close attention and know how dangerous Trump is. And I think it’ll take a couple of days for people to recover from that punch.

From months now I’ve been chronicling the New York Times anti-Biden slant. So naturally they picked this moment to pile on. Their editorial board called on Biden to “leave the race“, and were echoed by NYT columnists Thomas Friedman, Frank Bruni, Nicholas Kristof, Maureen Dowd, and Lydia Polgreen. Jamelle Bouie, Michelle Goldberg, Bret Stephens, and Patrick Healey had a round-table discussion, with only Bouie expressing any doubt about the advisability of replacing Biden on the ticket. Ezra Klein, Michelle Cottle, and Ross Douthat had an even more one-sided conversation on Klein’s podcast. The NYT had to go to a guest essayist, Lincoln Project’s Stuart Stevens, to make the don’t-panic case.

The Times, of course, was not the only source of Biden-needs-to-quit thinking, which at times seemed to hit panic levels. I got up Friday morning feeling like something needed to happen right now. But then the voice of experience spoke up: For most of my life, decisions that I’ve made out of that sense of panic haven’t turned out very well.

We need to think about this.

Excuses for Biden. Hardly anybody is denying that the debate went badly for Biden. But the people who think it wasn’t that bad make a number of points.

  • The appearance was worse than the substance. Despite occasional moments like the one I quoted above, where words didn’t come together for Biden and he ran out of time, reading the transcript leaves me with a very different impression than watching the video. In the video, Biden’s voice is soft and raspy, he has to keep stopping to clear his throat, and he fails to deliver his lines with the proper force. In the transcript, he often does the things it seemed like he wasn’t doing: calling out Trump’s lies and countering with the appropriate examples. There was a problem, but it wasn’t with his mind.
  • He had a bad night. It happens. (In particular, it happened to Obama in his first debate with Romney in 2012.) But Biden did much better the next day at a rally in North Carolina, where (despite still needing to clear his throat) he forcefully delivered the sound bite I think his campaign needs to center on: “I know I’m not a young man, to state the obvious. I don’t walk as easy as I used to. I don’t speak as smoothly as I used to. I don’t debate as well as I used to. But I know what I do know: I know how to tell the truth. I know right from wrong. And I know how to do this job. I know how to get things done.”
  • He had a cold. This sounds like a lame excuse, but it does match what we saw and heard: raspy voice, low energy, etc.
  • There’s time to fix this. Obama came back from his debate failure, which happened after the convention in early October.

But that last point raises an important question: Is Biden’s problem fixable? Did he indeed just have a bad night, or did the debate reveal who he really is now?

How I’m thinking about this. Three weeks ago, I wrote a piece called “To Stop Fascism, Unite Around the Old Guy” in which I argued against the view that Biden should withdraw from the race. Much of what I said then is still true: Biden has a good record to run on, there’s no obvious savior waiting in the wings to replace him, and an open convention would risk splintering the party. [1]

But the first point I made is now open to question: “Biden is fine.” Is he? I was basing my analysis on the idea that the Biden-is-losing-it theory was a right-wing construction equivalent to Hillary’s emails. I had been impressed by the State of the Union address, and believed that he would continue to rise to the occasion whenever he needed to. I urged people to watch the upcoming debate: “If you’re expecting Biden to be a doddering old man, I think you’ll be surprised.”

That prediction doesn’t look so good now. The debate was an occasion, and Biden didn’t rise to it. Going forward, is that the exception or the rule? If we can count on Biden having a good second debate, a good convention speech, and a bunch of rallies like Friday’s, then the first debate will be a distant memory by the time people vote in November. In short, we’re fine if this is the real Biden, and not the man we saw Thursday night.

But is that true?

And this is a point where I have to admit that I’m not in a position to know. Other people are. Jill is, obviously. The White House staff is, and probably most of the cabinet. So are major elected Democrats like Kamala Harris, Chuck Schumer, Hakeem Jeffries, Nancy Pelosi, and several others.

What I’m noticing is that, after reacting with uncertainty Friday morning, those people are circling the wagons around Biden. The Biden-should-quit voices are mainly coming from outside his circle, people who probably don’t know any more than I do.

You might say, “Of course the party leaders and his staff have to say that.” But (other than Harris, who would hurt her own prospects by appearing disloyal) they don’t, really. Party leaders could be non-committal, saying things like “I trust President Biden. I think he’ll make the right decision now the way he always does, and I’m going to support him either way.” [2] They could be converging on the White House to do an intervention, but that doesn’t seem to be happening.

Similarly, staffers can’t express their doubts in live interviews, but they could leak. We could be seeing Washington Post stories about “informed sources in the White House” getting increasingly worried about Biden. But we’re not.

You might suppose that the insiders have an affection for Biden and don’t want to hurt his feelings. And I might believe that about Jill (though I suspect even she would rather see him avoid humiliation, if that’s what’s coming). But picture Nancy Pelosi for a moment. Do you think she’d sacrifice an election because she didn’t want to hurt somebody’s feelings? That’s not the woman I’ve been watching all these years.

In short, I think I have to trust the insiders here. That’s not a comfortable position to be in. But it’s the one that makes sense to me.

[1] Replacing Biden with Harris could happen fairly cleanly: Biden endorses her and his convention delegates follow his lead. Done right, Biden’s exit could generate a wave of positive emotion that he could transfer to Harris, who would be stepping up to answer the call of History.

But Harris also has a low approval rating and didn’t run a great primary campaign in 2020, so many Democrats don’t feel confident in her beating Trump. Those people call for Biden to endorse no one and let an open convention choose among many candidates.

Jamelle Bouie spelled out the problem with that plan:

There is a real risk that the process of choosing a new nominee could tear open the visible seams in the Democratic Party. I have noticed that only a handful of calls for Biden to leave are followed by “and Vice President Harris should take his place.” More often, there is a call for a contested convention. But why, exactly, should Harris step aside? Why should Harris not be considered the presumptive nominee on account of her service as vice president and her presence on the 2020 ticket? And should Harris be muscled out, how does this affect a new nominee’s relationship with key parts of the Democratic base, specifically those Black voters for whom Harris’s presence on the ticket was an affirmation of Biden’s political commitment to their communities?

Elie Mystal put it more bluntly:

Listening to white folks blithely talk about pushing Biden off a cliff, skipping over Harris, and trotting out some white person like ain’t nobody gonna notice that is some *hilarious* shit. Some of y’all need to phone a friend. A black one.

The nominee is going to be Biden. And if he doesn’t want to run anymore (and I don’t think he thinks a bad 90 minutes is career altering, even if others do) it’s going to be Harris. And that is the sum total of viable options. Send your Aaron Sorkin script back for editing.

And race is only one issue. If multiple candidates ran, they would face pressure to differentiate themselves from each other. So, for example, we might have the pro-Israel candidate and the anti-Israel candidate. Picking either one would alienate a slice of the party the nominee would need in November.

[2] Friday morning, a few were making those non-committal statements. But by Saturday they had gotten behind Biden. Hakeem Jeffries, for example, made a classic non-commitment statement on Friday:

I’m looking forward to hearing from President Biden. And until he articulates a way forward in terms of his vision for America at this moment, I’m going to reserve comment about anything relative to where we are at this moment, other than to say I stand behind the ticket.

Yesterday, though, he described the debate as “a setback”, but

A setback is nothing more than a setup for a comeback. And the reality is, Joe Biden has confronted and had to come back from tragedy, trials, from tribulations throughout his entire life.

July 1, 2024 – 9:04 am Categories: Articles | Comments (42)

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The Monday Morning Teaser

It’s been a tough week. Thursday’s debate was disappointing, to put it mildly, and the airwaves are full of calls for Biden to step aside. The Supreme Court threw hundreds of pages worth of major decisions at us over three days, ranging from the deeply objectionable (Bribery is fine now.) to non-decisions that punt a major issue to the other side of the election. (Emergency services can stop airlifting pregnant women out of Idaho for a few months.) And they still haven’t told us whether Trump can shoot somebody on Fifth Avenue and get away with it — or, more specifically, whether Jack Smith can prosecute him for his conspiracy to steal the 2020 election.

So there are two featured articles this week. The first “They Both Lost. Now What?” covers the debate, and revisits my article three weeks ago against Biden leaving the race. Thursday didn’t come out the way I had imagined it would, so I need to think things through again. That should be out shortly.

The second, “Down to the Wire”, covers the Court decisions. I confess I didn’t read everything that came out Wednesday through Friday, so in places I’m relying on secondary sources. I’ll aim to get that out between 10 and 11 EDT.

The weekly summary is going to be short and fail to do justice to the rest of the world. I’ll try to get that out between noon and 1.

July 1, 2024 – 8:34 am Categories: Morning tease | Post a comment

Something Other

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.

June 24, 2024 – 11:59 am Categories: Weekly summaries | Comments (2)

The Limits of Originalism

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.

June 24, 2024 – 10:05 am Categories: Articles | Comments (9)

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The Monday Morning Teaser

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.

June 24, 2024 – 8:37 am Categories: Morning tease | Comments (1)

Like a Duck

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.

June 17, 2024 – 11:20 am Categories: Weekly summaries | Comments (6)

This week’s legal decisions

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.”

June 17, 2024 – 9:24 am Categories: Articles | Comments (13)

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The Monday Morning Teaser

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.

June 17, 2024 – 8:13 am Categories: Morning tease | Post a comment