This week we were all talking about a girl whose name none of us know: the pregnant 10-year-old who was denied an abortion in Ohio and had to go to Indiana. Maybe years from now she’ll decide to tell her story, but until then I hope we never know her name.
She was significant because she became a symbol of the fact that abortion decisions are not as simple as the Mike Pences and Kristi Noems would have you believe. Each story of a woman or girl who is pregnant but doesn’t want to become a mother is unique. Any one-size-fits-all decision made by a legislature is going to lead to outcomes we can all recognize as wrong — like forcing a 10-year-old to carry her rapist’s baby.
The aspect of the story most interesting to me, though, was watching how right-wing media handled the story, because the girl’s existence called into question one of the false assumptions central to the right-wing narrative: Right and Wrong are simple concepts, and it’s easy to draw the line between them.
For that reason, the story had to be short-circuited somehow: swept under the rug, denied, or diverted into some other story. That’s what I examine in the featured post “No Victims Allowed”, which should be out shortly.
The weekly summary will cover new developments in the 1-6 hearings and related investigations, the new Covid surge, the Uvalde shooting report, the continuing aftershocks of the Court’s reversal of Roe, and a few other things, before closing with some of the most spectacular photos ever, courtesy of the James Webb space telescope. That should be out noonish, EDT.
Even the most stalwart conservative who dares not venture out in the street at night and hesitates on occasion to drink the water or breathe the air must now wonder if keeping public services at a minimum is really a practical formula for expanding his personal liberty.
I discuss the symbolic meaning of Highland Park (home of Ferris Bueller and Joel Goodsen) in the featured post. But I wanted to keep that post short, so I’ve got more to say here about guns.
Friday, former Japanese Prime Minister Shinzo Abe was assassinated. Still an influential politician after his retirement, Abe was giving a campaign speech for his party’s candidates when someone killed him with the homemade gun shown below. The gun would only allow two shots, so no one else was injured.
This kind of thinking is similar to the claims that Covid vaccines and masks don’t work, because vaccinated people can still get sick, even if they wear masks. It exemplifies the conservative tendency to think in absolutes while ignoring numbers. (Scientific American analyzed statistics from March and deduced that vaccinated-and-boosted Americans were 17 times less likely to die of Covid than their unvaccinated countrymen. That’s not a guarantee, but I see it as an advantage well worth the inconvenience.)
It’s true that Japan and Denmark have both controlled guns much more tightly than the US, and so have fewer civilian guns. The US has 120 guns per 100 residents, Denmark 9.9, and Japan 0.3. Even those numbers don’t capture the full difference, since millions of American guns are powerful semi-automatics like AR-15 rifles or Glock handguns.
As a result, gun violence in both countries is rare and incidents are less deadly than in the US. In 2017, (the most recent year Wikipedia had statistics for) the US had 12.21 gun deaths per 100K residents per year, 4.46 of which were murders. In 2015, Denmark had 0.91 gun deaths and .18 gun murders per 100K residents. Japan in 2015 had 0.02 gun deaths and no gun murders. According to the NYT, Japan has had only 14 gun-related deaths since 2017, fewer than the number of Americans who died in the Uvalde shooting alone.
The Danish mall shooter apparently used a hunting rifle that was not semi-automatic and was purchased illegally. He managed to kill three people before being subdued. Abe’s assassin used a homemade zip gun that gave him only two shots.
The Abe shooting could be a dictionary example of an exception that proves the rule. Months of planning and preparation allowed his shooter to get those two shots off. Contrast the Abe attack with the Gabby Giffords assassination attempt in Tucson in 2011, when a shooter with a legally purchased semi-automatic handgun got off dozens of shots, killing six and wounding 13 others.
[A]n American-style shooter can, virtually on a whim, readily arm themselves with the firepower to kill large numbers of people before police can respond, targeting victims even hundreds of yards away.
But a Japanese shooter may require long stretches of dangerous preparation to build their weapon. They then must secret it to within feet of their victim and squeeze off what may be their only shot before they become effectively defenseless, and a bystander overpowers them.
It is also worth noting that, contrary to NRA propaganda, a disarmed citizenry has not made either Denmark or Japan vulnerable to tyranny. In 2021 the US had a democracy index of 7.85, noticeably lower than Denmark’s 9.09 and Japan’s 8.15. In neither country has a leader defeated at the polls tried to hang onto power by force, as Donald Trump recently did.
Quite the opposite of promoting democracy, America’s loose gun culture has made our politicians more distant and less approachable. Our presidents talk to us from behind shields and after we’ve been searched, because it’s not safe to do anything else.
Our gun culture is also related to the trigger-happy nature of our police. Police in America are now killing more than 1000 people per year. That’s a per capita rate a bit higher than countries we think of as repressive, like Pakistan and Egypt. By contrast, Denmark had no police killings in 2019, and Japan had two in 2018, the most recent years I could find statistics for.
Living with the risk of being killed by the police doesn’t sound like freedom to me. But it’s necessary, police tell us, because every suspect they meet might be armed and ready to shoot them.
and January 6
The next hearing is tomorrow at 1 p.m. It’s supposed to be focused on the role of extremist groups like the Proud Boys and Oath Keepers. Rep. Jamie Raskin said:
One of the things that people are going to learn is the fundamental importance of a meeting that took place in the White House [on Dec. 18, 2020].
That was the meeting when “Team Crazy” — Rudy Giuliani, Sidney Powell, Michael Flynn — urged Trump to take radical actions like seizing voting machines. The next day, Trump sent out his tweet inviting his followers to a protest rally in DC on January 6, promising it would “be wild”.
We’re also likely to see video from Pat Cipollone’s testimony Friday. Cipollone was Trump’s White House Counsel and figured in several of the stories told by Cassidy Hutchinson. (She described his attempts to put the brakes on before too many laws got broken.) Rep. Adam Kinzinger has said Cipollone’s testimony didn’t contradict what the committee had previously heard. I assume that means that when they asked him about the actions and statements Cassidy Hutchinson attributed to him, he didn’t say no.
We now know the reason Cassidy Hutchinson’s testimony was rushed into an “emergency” session: The Committee was afraid of TrumpWorld’s escalating witness tampering.
This isn’t a January 6 story exactly, but it’s part of the whole abuse-of-power theme. The IRS randomly selects a handful of taxpayers, about 1 in 30,000 for extreme audits. By some bizarre “coincidence”, both Jim Comey and Andy McCabe — FBI directors Trump blamed for the Russia investigation — got “randomly” selected. The Treasury Department inspector general will investigate whether the White House used inappropriate influence.
It’s only sort of a resignation, though, because he will continue as “interim” prime minister until the Party can settle on a new leader, which might not happen for months.
Jonathan Pie is a fictional news commentator created by comedian Tom Walker. His “Bye-bye Boris” rant is epic. From an American point of view, it’s hard not to notice how much of Pie’s characterization of Johnson and the Tories also applies to Donald Trump and the Republicans who still bow down to him.
Lies on top of lies on top of lies. He lies and then gets people to lie on his behalf and then lies about the lying. … who is so blatant about his dishonesty that when accused of lying to Parliament, he simply tries to change the rules to make it OK to lie to Parliament. …
The devastating cries over the last few days from the Tory Party of “Enough is enough” and “one step too far” are coming from the same people who have sat and watched him take a flame-thrower to their party and our constitution for three fucking years. … All of them, talking about trust and integrity. If you cared so much about trust and integrity, then why the fuck did you put Boris Johnson in #10 in the first place?
and responses to Roe
So many red states are restricting or banning abortion that it’s hard to keep up. NBC has a state-by-state rundown as of Friday. CNN covers the legal challenges to those laws. In some states, the state constitution may protect reproductive rights even if the federal constitution no longer does.
The first real test of abortion’s new electoral significance will come in a few weeks in Kansas. On August 2, Kansans will vote on a constitutional amendment that will not outlaw abortion itself, but will give the legislature the power to do so — power it will almost certainly use.
YES, which supports amending the Kansas constitution to state, that nothing in the state constitution creates a right to abortion or requires government funding for abortion and that the state legislature has the authority to pass laws regarding abortion, or
NO, which opposes amending the Kansas constitution, thereby maintaining the legal precedent established in Hodes & Nauser v. Schmidt, that there is a right to abortions in the Kansas Bill of Rights.
It’s hard to know what to make of President Biden’s response to the Dobbs decision overturning Roe. He waited three days to comment, but said more-or-less the right thing when he did, denouncing “the outrageous behavior of the Supreme Court” and calling on Congress to put aside the filibuster and protect reproductive rights by statute.
He issued an executive order on Friday, but it doesn’t have a lot of teeth. It’s mostly about instructing HHS and DoJ to identify actions the government can take, rather than telling them to do anything. Maybe those departments will come back in two weeks with a list of meaningful actions. Or maybe not. One way of the other, it raises the question: We all saw this coming after Alito’s draft leaked in May. Why wasn’t there a contingency plan in place?
Now quite possibly Biden has concluded that anything he can do without Congress will be set aside by the Supreme Court anyway, and he may be right. But my personal opinion is that he should force the Court’s theocrat majority to show its hand. Trump understood the importance of putting up a fight, even if you were going to lose; Biden doesn’t seem to.
Any time liberal protesters inconvenience a conservative official, it’s going to get national attention. (Generally, conservative protesters have to shoot somebody to get similar coverage.)
Wednesday night, reproductive-rights protesters learned that Supreme Court Justice Brett Kavanaugh was eating at Morton’s Steakhouse in downtown DC. They showed up in front of the restaurant and appear not to have assaulted anybody or broken anything. Kavanaugh avoided them by slipping out the back. Sources differ about whether he finished his meal first.
Anyway, this is now an outrage in right-wing media, with Fox News’ Steve Doocy hilariously denouncing the protesters for violating Kavanaugh’s “privacy”. Such moments make me miss Jen Psaki, who I’m sure would have had the perfect response.
Pete Buttigieg, though, did pretty well with the question yesterday on Fox News.
Look, when public officials go into public life, we should expect two things. One, that you should always be free from violence, harassment, and intimidation. And two, you’re never going to be free from criticism or peaceful protest, people exercising their First Amendment rights.
Implicit in that answer is that Supreme Court justices need to develop the same kind of thick skin politicians have, now that they’ve decided to start running the country.
It was going to happen: Chaz Stevens is asking a Florida high school that he attended if he can lead a Satanist prayer at the 50-yard-line at one of its football games. “There’s been no word back from them on that,” Stevens said.
Jonathan Rauch argues for a federal abortion compromise based on the Defense of Marriage Act:
Congress could take important steps to localize the issue. It could make abortion bans unenforceable across state lines, for example, which would please pro-choicers. It could clarify that states have the power to restrict abortion within their boundaries, which would please pro-lifers. Such measures allowing states to go their separate ways would provide time and political space for a durable policy consensus to form.
Rauch anticipates that consensus eventually mirroring Roe, just as the debate that raged during the DOMA years eventually settled on legal same-sex marriage. (According to Wikipedia, Mississippi and Arkansas are the only states where a majority opposes same-sex marriage, and those margins are narrow. Support is over 80% in Massachusetts, Minnesota, and Washington.)
Here’s why I don’t buy that comparison: The main thing same-sex marriage had going against it in the 1990s was that most people had never seen one. That made the practice easy to demonize in the most outlandish terms: In 2004, as the first American same-sex marriages were being performed in Massachusetts, religious-Right leader James Dobson claimed they would cause the American family to crumble, “presaging the fall of Western civilization itself”.
Lots of people really believed that kind of nonsense. But those arguments collapsed as soon as same-sex marriages became real events rather than apocalyptic fantasies. It was hard for theocrats to claim that civilization would fall in New York, after it had obviously not fallen in Massachusetts. Once same-sex marriage became that woman at the office, or that gay couple down the street, the panic was hard to sustain.
Legal abortions, on the other hand, have already been happening for 50 years. I fail to see why a DOMA-like era will usher in a new consensus.
and the pandemic
It’s hard to know what to make of the numbers: deaths remain in the 300-350-per-day range they’ve been in for weeks, hospitalizations and positivity rates are rising, and nobody knows what the case numbers mean any more, now that so many people with minor cases never tell the medical system they’ve tested positive at home.
The unemployment rate held steady at 3.6%, as analysts expected, while the alternative U6 measure of unemployment, which includes discouraged and some part-time workers, fell sharply to 6.7% — an all-time low that suggests the labor market remains exceptionally tight.
That alternate measure is known to economists as U6. The number you usually hear is U3.
More and more Democrats are discussing whether Biden should run for reelection — and mostly saying “no”. Personally, I think Biden has been dealt a difficult hand and does not get nearly enough credit for cleaning up Trump’s mess. But I also think he shouldn’t run. I believe his heart is in the right place, but that he’s not an effective spokesman for Democratic ideals.
I think alternative candidates should start declaring, without waiting for Biden to decide what he’s doing.
The situation reminds me of one early in Lyndon Johnson’s career. The congressman from his district died, and his widow was dithering about whether she would run. If she ran, she would be the obvious favorite.
Some mentor figure, I forget who, told LBJ not to wait for her decision. He should announce his own candidacy, and make it clear that the campaign would be a real battle rather than a coronation. If he did that, the widow probably wouldn’t run. And that’s how it worked out.
Obviously, people inside the administration like Kamala Harris and Pete Buttigieg can’t do that without appearing disloyal. But there’s no reason why Democrats in Congress or in governorships shouldn’t try it.
Musk’s problem is that he overbid, and the market has turned against him. He offered $54.20 per share for the Twitter shares he doesn’t already own, but Friday’s closing price was $36.81. He needs to either sell or borrow against his Tesla stock to finance the purchase, but that share price also has dropped: from $985 per share to $752.
An unsuccessful Republican candidate in Georgia’s recent gubernatorial primary made an issue of the Georgia Guidestone monument, calling it “satanic” and promising to have it torn down. Wednesday it was bombed, reminding me at least of when the Taliban blew up the Bamiyan Buddha statues.
A new Arizona law makes it illegal to film police encounters within eight feet unless you’re the one being questioned.
GOP Senate candidate and ex-football-star Herschell Walker hasn’t just been lying to the public about his three secret children (that we know of). He’s been lying to his campaign staff. Quoting an anonymous source, The Daily Beast reported:
He spouts falsehoods “like he’s breathing,” this adviser said—so much so that his own campaign stopped believing him long ago.
“He’s lied so much that we don’t know what’s true,” the person said, adding that aides have “zero” trust in the candidate. Three people interviewed for this article independently called him a “pathological liar.”
The Walker campaign declined comment. But hours after this story published, [Scott] Paradise—the campaign manager—issued a statement broadly criticizing, but not denying, the story.
An article in Friday’s NYT combines high-tech, cloak-and-dagger tactics, and issues of cultural appropriation: The British Museum displays the Elgin Marbles, statuary that was originally in the Parthenon, but was bought from the Turks by a British ambassador (Thomas Bruce, earl of Elgin) in the early 1800s. Greece holds that the Ottoman Empire was an invading power, and had no right to sell the statues; it wants them back.
Repatriating them would require an act of Parliament, and the British Museum doesn’t want to give them back, for a variety of reasons, which I find unconvincing. For one: The marbles have been in England so long that they have put down cultural roots there as well. Keats wrote a poem about them, and Rodin was inspired by seeing them in the British Museum. But if you make that case, you also have to acknowledge another part of that cultural heritage: Byron’s characterization of Elgin as a “filthy jackal” in “The Curse of Minerva“.
For Elgin’s fame thus grateful Pallas pleads, Below, his name—above, behold his deeds! Be ever hailed with equal honour here The Gothic monarch and the Pictish peer: arms gave the first his right, the last had none, But basely stole what less barbarians won. So when the lion quits his fell repast, Next prowls the wolf, the filthy jackal last
Byron envisioned an angry Athena withdrawing wisdom from Britain, resulting in the loss of both its empire and its industry — which has pretty much come to pass.
Enter high tech. Roger Michel, executive director of the Institute of Digital Archaeology, suggests a possible solution: Do detailed 3-D scans, and have his robot sculptors make near-perfect copies. Send the Marbles to the Acropolis Museum in Athens, and let the British Museum display the copies. “When two people both want the same cake, baking a second, identical cake is one obvious solution.”
This scenario opens up philosophical issues about the meaning of “identical”. (What happens to the Louvre if robot reproduction eventually allows anybody to own a brushstroke-by-brushstroke Mona Lisa copy that only a laboratory can distinguish from the original?) And since Michel’s plan involves repatriating the originals, the British Museum isn’t cooperating. That’s where the cloak-and-dagger comes in.
In March, after the museum refused a formal request to scan the pieces, Mr. Michel and Alexy Karenowska, the technical director of the Institute, showed up in the Duveen Gallery of the British Museum as visitors and resorted to guerrilla tactics. While security staff looked on, the two used standard iPhones and iPads, as many of the latest models are equipped with Lidar sensors and photogrammetry software, to create 3-D digital images.
Then the robots got to work. Two samples will be displayed somewhere in London by the end of the month. Next, Michel plans to produce two more duplicates, which will (in some ways) be more authentic than the originals.
Later this summer, Mr. Michel plans to have the robot fabricate two more copies and touch them up to show how the originals would have looked, with any absent pieces restored and damage repaired.
But wait, there are more issues: If the Marbles aren’t Michel’s, and aren’t even the British Museum’s, what right does he have to make these copies?
The Greek government’s apparent reluctance to weigh in troubles Bernard Means, director of the Virtual Creation Lab at Virginia Commonwealth University. Dr. Means said he would only have attempted such a project with the consultation and full support of Greece. “Otherwise,” he said, “the effort is suggestive of that colonial mind-set, where those who appropriated objects without the informed consent of the colonizers feel they have the right to do with the objects as they please — often in the guise of science, and even if well-intentioned.”
Highland Park is one more example of a simple truth: Our inability to enforce sensible rules is destroying our liberty.
Many years ago, when my young body still tolerated harsh environments, I used to go to Burning Man. I happened to be there the first year (don’t ask me when it was) that the organizers laid out streets.
The difference it made was amazing: The year before, you’d leave your tent in daylight, go have a bunch of adventures, and then return in the dark. In the meantime, more tents had been pitched, some of the objects you had taken for landmarks had moved, and finding your way home had turned into an adventure of its own. Every night, the camp was full of lost people tripping over each other’s tent stakes.
But then: streets. Now you had a clear path home, and even an address of sorts. Staying out late and coming back exhausted (or impaired) was a workable plan. You didn’t have to allocate a big chunk of time for stumbling around in the dark.
Experiencing those first streets of Black Rock City taught me an important lesson: Accepting a simple rule — don’t camp in the streets — made us all more free to do the things we actually wanted to do.
Once you understand that idea, you can see it everywhere: Traffic rules, for example, are what makes the road system usable. Even if all the same slabs of concrete stayed in place, it would take forever to drive from New England to Florida, as I do every December, if there were no traffic rules. In theory, getting rid of the rules means I could drive 100 mph and get there much faster. But there’s no way I would do that in reality, for fear that some other guy was using my lane to go 100 mph in the opposite direction.
Without the rules, the whole plan of driving to Florida would be unworkable. I would lose that option, and hence be less free. Because freedom isn’t maximized by having no rules; it’s maximized by having the right rules.
The economist John Kenneth Galbraith put it this way in 1969 when he wrote the introduction to the second edition of his 1958 book The Affluent Society:
Even the most stalwart conservative who dares not venture out in the street at night and hesitates on occasion to drink the water or breathe the air must now wonder if keeping public services at a minimum is really a practical formula for expanding his personal liberty.
It turns out that having really low taxes, and being free to burn or toss into the river whatever we want to get rid of, diminishes our freedom to do more important things, like drink and breathe.
The last few years, our political discourse has been dominated by the loud voices of people too immature to understand this simple notion. (Five of them have even made it onto the Supreme Court.) Throughout the pandemic, for example, sensible folks have been searching for public-health rules that would allow us all to do more things safely. Maybe, for example, it could be safe to eat in a restaurant if we knew everybody would be vaccinated, or go to a movie if everybody would be vaccinated and masked.
But no, we couldn’t do that, because those would be RULES, and rules restrict our FREEDOM.
In my case, being in my sixties and married to someone with a few additional risk factors, I had so much FREEDOM I could barely leave the apartment.
This week we got an even clearer example of how the no-rules notion of freedom in fact makes us less free: the Highland Park shooting. A rooftop gunman killed seven during a Fourth of July parade in an upscale suburb along Lake Michigan. Forty-six others were either wounded by gunfire or injured in the ensuing panic.
Different shootings affect people differently, independent of the number killed or injured. This one, I think, is going to stick with me. I suspect it’s going to stick with a lot of people.
I don’t think I’ve ever been to Highland Park, and you probably haven’t either. But you’ve seen it.The movies use Chicago’s North Shore suburbs to symbolize affluent communities so sheltered from the scary aspects of modern life that teens have to seek out adventure for themselves. Ferris Bueller lived in Highland Park; so did Joel Goodsen from Risky Business. That idyllic family life The Good Wife had before her crooked-politician husband went to jail and everything fell apart? It was in Highland Park. The town sits between Lake Forest, where 1980 Best Picture Ordinary People was set, and Winnetka, site of the Home Alone house. (But parts of that movie were shot in Highland Park too.)
During their glory days with the Bulls, basketball legends Michael Jordan and Scotty Pippen had Highland Park mansions. Jefferson Airplane’s Grace Slick was born there. About 30K people live there now, and the 2010 census says the median household income is over $100K.
Here’s what I’m trying to get across: If a mass shooting can happen in Highland Park, it can happen anywhere. It can happen in your town too.
And who hasn’t been to a Fourth of July parade? Or sat in a crowded park waiting for the fireworks to start? The last time you did that, did you think you were taking a chance? Putting your family at risk? Did you plan which way you’d all run if gunfire broke out?
Now you will. We all will. Or maybe we’ll just stop having Fourth of July parades at all. After all, our inability to make sensible rules about guns is leaving us with damn little real freedom to celebrate.
It’s been another week with too much news: the Highland Park shooting; the Abe assassination; Boris Johnson resigning, sort of; wondering what Pat Cipollone told the 1-6 Committee; Georgia handing out subpoenas to Trump’s people; states racing to take away women’s rights, now that they’re allowed to; a surprisingly good June jobs report; and probably a bunch of stuff I’ve forgotten.
I’ll do my best to cover it in the weekly summary. This week’s featured post is short: I use the Highland Park shooting as an example of how our inability to enforce sensible rules makes us less free. Yes, you can easily walk into a store and buy an AR-15. But what you can’t do is take your kids to a Fourth of July parade without regularly glancing up at the rooftops and planning your escape route in case all hell breaks loose. That’s not freedom.
The featured post should be out shortly. The weekly summary should take until noon or so EDT.
Some years ago, I remarked that “[w]e’re all textualists now.” … It seems I was wrong. The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the “major questions doctrine” magically appear as get-out-of-text-free cards.
It’s traditional on the 4th of July to say something patriotic and upbeat about America. But I don’t have it in me this year. As historian Michael Beschloss put it on MSNBC this week:
We’re living through a time where I can’t predict to you whether we’ll be living in a democracy five years from now or not. I hope we are.
This week everybody was talking about Cassidy Hutchinson
I discuss her testimony to the 1-6 Committee in the featured post. But here I’ll mention a couple of other things about Tuesday’s hearing.
One of the more amazing moments was video of Michael Flynn repeatedly invoking the Fifth Amendment (against self-incrimination) to avoid answering what ought to be softball questions, like “Do you believe in the peaceful transition of power in the United States of America?” WTF, General Flynn?
The closed captioning on at least one stream of the hearing provided a little comic relief: Somebody forgot to tell the automated speech-to-text app about White House Counsel Pat Cipollone, so it struggled whenever anyone said his name. My favorite of its many attempts was “passive bologna”. I think Pat has a new nickname.
Last week I focused on three major decisions: overturning Roe, telling Maine it had to support religious schools (in certain circumstances), and tossing out New York’s gun law. Two more important decisions have happened since then: supporting a public-school football coach’s right to lead public prayers on the 50-yard line, and blocking the EPA from pushing utilities to shift away from coal-fired power plants.
Both rulings were typical of this term: their direct effects were less significant than the principles they laid down, and how those principles might be used in future decisions. (Even the Roe reversal, significant as that is on its own, presages a still broader rollback of rights.)
Next term could be even worse: The Court has accepted a case that tests the right of state legislatures to handle federal elections however they want, independent of any previous laws or the state constitution that brought the legislature into existence. Some legislatures in swing states (Wisconsin, for example) are so gerrymandered that the voters have no real say any more. If this case goes wrong, those legislatures could deliver their states’ electoral votes as well, disenfranchising voters in presidential elections.
It’s hard to know what to make of the praying-coach decision, Kennedy v. Bremerton School District, because Neil Gorsuch’s majority opinion so badly misstates the facts of the case. Gorsuch says Coach Kennedy “offered his prayers quietly while his students were otherwise occupied.” If that were true, Kennedy would never have lost his job and there would be no case to decide. But in reality, the coach’s “quiet, personal prayer” looked like this:
Bremerton, Washington is not far from Seattle, and a Seattle Times columnist tells the real story, going back to a 2015 Times article.
It was an account of a news conference Kennedy gave before the team’s big homecoming game against Centralia. “Football coach vows to pray” was the print headline.
It describes — in Kennedy’s own words — how he was inspired to start holding midfield prayers with students after he saw an evangelical Christian movie called “Facing the Giants,” in which a losing team finds God and goes on to win the state championship.
Kennedy “has held his postgame ritual at midfield after each game for a motivational talk and prayer ever since,” the story recounted. By doing so, Kennedy said he is “helping these kids be better people.”
So, the coach’s intention was never the personal “free exercise” of religion the First Amendment protects. He was abusing his publicly-financed position in order to influence his students to participate in a religious ritual, precisely the “establishment of religion” the First Amendment bans. This was not an obscure point that the lawyers overlooked — it was why the appeals court ruled against Kennedy.
Since the decision, I’ve seen lots of people on social media say that Muslims, Pagans, and Satanists should start leading students in prayer, now that the Court has said it’s OK. But that’s not going to work, because Muslims, Pagans, and Satanists won’t be able to find a Supreme Court justice willing to lie for them the way Gorsuch lied for Kennedy.
Dating myself a little, I’m recalling the cereal commercials that always ended “Silly rabbit, Trix are for kids.” Similarly, “religious liberty” is for Christians, as Muslims, Pagans, and Satanists will discover if they try to imitate Coach Kennedy.
The decision in West Virginia v EPA has no immediate consequence: In 2015, Obama’s EPA put forward a plan that would force utilities to lower carbon emissions by shifting from high-carbon generation (like coal-fired plants) to low-carbon generation (like renewables, nuclear, or from coal to natural gas). Red states sued to block the plan, the Supreme Court put a temporary stay on it, and then the Trump administration reversed it. In the meantime, the market forced the same shift the Obama administration had wanted to mandate.
So why is this a case? Well, the Biden White House is considering an updated version of the plan, which the Court is trying to scuttle preemptively.
More importantly, though, Chief Justice Roberts used this occasion to announce a newly invented legal principle: the major questions doctrine:
In certain extraordinary cases … [a regulating] agency must point to “clear congressional authorization” for the power it claims.
This is a relative of the “nondelegation doctrine” of the infamous Lochner Court, which Neil Gorsuch has been trying to revive since he came to the Supreme Court. (Gorsuch’s concurrence makes the connection more explicit.)
Justice Kagan’s dissent describes the situation in more detail: In the Clean Air Act, Congress understood that new environmental dangers would appear, and new regulatory tactics would become necessary. So it wrote a special section into the law, section 111, to give the EPA authority to handle such situations. This is the authority the EPA was using when it issued the Clean Power Plan.
The major questions doctrine says that authorization is not clear enough. Kagan writes:
The majority’s decision rests on one claim alone: that generation shifting is just too new and too big a deal for Congress to have authorized it in Section 111’s general terms. But that is wrong. A key reason Congress makes broad delegations like Section 111 is so an agency can respond, appropriately and commensurately, to new and big problems. Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues—even significant ones—as and when they arise. That is what Congress did in enacting Section 111. The majority today overrides that legislative choice. In so doing, it deprives EPA of the power needed—and the power granted—to curb the emission of greenhouse gases.
Where in the Constitution does either “major questions” or “non-delegation” reside? Well, nowhere exactly. It’s supposedly implicit in the separation of powers. Why either doctrine is more obvious than the right to privacy is lost on me.
What these doctrines are is a major power grab by the conservative court. No criteria defines what makes a law’s delegation of power too “unclear” or an agency’s regulation too “major” to be invalid under these doctrines. So basically it’s open season on regulations, and the Court can invalidate whichever ones it doesn’t like.
One observation about the EPA ruling: If Congress is supposed to authorize policy changes at a level that previously has been left to administrative agencies, then the Senate filibuster has to go. A filibuster-gridlocked Senate is not nimble enough to address the regulatory challenges of fast-changing fields like climate change or technology.
To me, that statement is independent of partisanship. If the Supreme Court is going to force Congress to take a more hands-on approach to governance, then Congress has to be able to pass legislation. If Republicans get control of Congress again, they will probably pass laws that I consider bad. But even that would be action that the public could see and respond to, maybe by electing better people to Congress. I have more faith in such a back-and-forth process than in the current nothing-can-be-done logjam, which is more likely to cause voters to give up in despair.
Ezra Klein raised a good point on his July 1 podcast (where he interviewed Kate Shaw, who is a law professor and has her own podcast “Strict Scrutiny”): If the conservative majority is serious about this new focus on history as the determining factor in its decisions, then the Court needs to have world-class historians on its staff, rather than just law clerks.
After all, the justices were not chosen for their historical expertise, and their clerks are recent law-school graduates who have probably never studied American history to any depth. That’s why the historical debates between the conservative rulings and the liberal dissents sound so amateurish on both sides. (Robert Spitzer disparaged Justice Scalia’s Heller decision — the granddaddy of originalist opinions and the model for Thomas’ majority opinion in Bruen — as “law office history“.)
When the current court does history, it’s as if the bankers at the Federal Reserve decided not to bother consulting economists, or using IT people to keep their computer models running. (“I’ve calculated on this napkin that we need to raise interest rates another half percent.”)
Of course, maybe that’s the point. Maybe the history lessons in the recent decisions aren’t intended to be accurate. Maybe they’re just stories that allow the conservative majority to justify whatever it wants to do.
Polls show abortion is rising as an election issue. A lot of pundits are calling on Democrats to make a clear commitment on the issue, more or less along the lines of the Republicans’ “Contract with America” in 1994. Being vaguely pro-choice and encouraging people to vote isn’t enough.
Josh Marshall (hardly a radical progressive) suggests this phrasing:
If the Democrats hold the House and add two Senators in November I will vote to pass a law making Roe’s protections the law nationwide and change the filibuster rules to guarantee that bill gets an up or down vote. And I will do that in January 2023.
As I mentioned in the Supreme Court note above, an ambitious and extremist Supreme Court means that the other branches of government have to step up and compete for power. If any vagueness in the laws is going to give this Court an opening it is eager to fill, then Congress has to be able to pass new laws as developments warrant. The filibuster absolutely has to go.
The Indianapolis Star reports that a 10-year-old girl who was six weeks and three days pregnant traveled to Indiana in order to get around Ohio’s six-week abortion ban. The girl was referred by a child-abuse doctor in Ohio.
Sunday, South Dakota Governor Kristi Noem was questioned about her state’s abortion ban, which criminalizes any abortion not necessary to save a woman’s (or girl’s) life. Asked how that 10-year-old would fare in South Dakota, Noem dodged the question.
But the messiness of real life is why this issue isn’t going to go away by November. (Ten-year-olds do get pregnant. Some fetuses can’t be saved, and endanger their mothers without any upside. Some men will kill their girlfriends rather than take responsibility for a child.) There’s going to be a steady stream of cases where radical anti-abortion laws lead to results that the public isn’t going to like. It’s not going to be as simple as “save the babies”.
The satire site McSweeney’s takes on the we-will-adopt-your-baby offers from anti-abortion couples, by describing all the things the couples won’t adopt.
We want that baby when it’s nice and cute and fully formed, but we aren’t planning on adopting anything else. Obviously, we can’t adopt your morning sickness, so when you wake up at 5 a.m. to puke your guts out before work, and when you also puke your guts out at work in the employee bathroom, we won’t adopt that.
… Oh, and if you have a miscarriage and nearly bleed out in your bathroom before the paramedics can get to you? That part is not a tiny little chubby baby, so we won’t be adopting it.
One particularly annoying anti-abortion argument keeps popping up: What about the lost potential of the aborted fetus? The memes are like “What if that baby would have grown up to cure cancer?” or “What if they had aborted Jesus?”
I’ve begun responding to these by pointing to the lost potential of women who are thrown off their life path by an unplanned pregnancy. “It’s more likely that cancer would have been cured by a woman who had to leave medical school to raise an unwanted child.” Or “Maybe Mary could have saved the world herself if God hadn’t forced motherhood on her.”
and the pandemic
Numbers continue to be flat-ish, but to me they look ready for a jump upward after the holiday weekend. Cases are up 13% in the last two weeks, and deaths up 24%. More and more people I know are getting sick, and I wonder how many of their cases show up in the official statistics. I believe a lot of people with minor symptoms test positive at home and never enter the medical system.
In Colorado, Republicans rejected candidates for governor and senator who claim Trump won the 2020 elections. The GOP Senate nominee largely supports reproductive rights, and defeated a candidate who wants to ban abortion nationally (and who was at the 1-6 rally). Republicans rejected a secretary of state candidate who is under indictment for tampering with voting machines in an attempt to prove one of Trump’s election-fraud theories.
Mississippi Republican Michael Guest was renominated for his House seat, in spite of his minor rebellion against Trump: He voted to establish a bipartisan commission to investigate 1-6, a measure that MAGA Republicans are probably sorry they torpedoed.
The more moderate candidate won the Republican nomination for governor in Illinois, though Rep. Mary Miller, the woman who last week declared the Dobbs decision “a victory for white life”, defeated a less Trumpy congressman in a newly formed district that forced two sitting representatives to face off. (The district includes my hometown.) Progressive candidates won Democratic nominations for Congress in two districts in the Chicago area.
Illinois was one state where Democrats tried to game the system by helping the more radical Republican in the gubernatorial primary, in the belief that such a candidate would be easier to beat. This is a dangerous practice, and I’m happy that it failed.
With Luhansk Province now in hand, Russian forces can aim squarely southwest at the remaining Ukrainian-held parts of the neighboring province of Donetsk, the other territory that makes up the Donbas.
You can see where Mr Putin is heading. He will take as much of Ukraine as he can, declare victory and then call on Western nations to impose his terms on Ukraine. In exchange, he will spare the rest of the world from ruin, hunger, cold and the threat of nuclear Armageddon.
Dozens of white supremacists marched through Boston on Saturday. The group wore white masks and were seen boarding Orange Line trains at Haymarket Station. Some carried police shields and flags. They are members of a group called Patriot Front.
Gallup reports that only 81% of Americans say they believe in God, down from 87% in 2017, and the lowest number since Gallup started asking the question in 1944. That number looks likely to fall further, because the people least like to believe are the young: only 68% of adults ages 18-29.
In Florida, the other shoe is dropping. After raising public anger about largely imaginary liberal indoctrination through “critical race theory” or “grooming”, the DeSantis administration is instituting indoctrination of its own.
New civics training for Florida public school teachers comes with a dose of Christian dogma, some teachers say, and they worry that it also sanitizes history and promotes inaccuracies.
Teachers who spoke to the Herald/Times said they don’t object to the state’s new standards for civics, but they do take issue with how the state wants them to be taught. “It was very skewed,” said Barbara Segal, a 12th-grade government teacher at Fort Lauderdale High School. “There was a very strong Christian fundamentalist way toward analyzing different quotes and different documents. That was concerning.”
Meanwhile, the Texas Education Agency is taking flak for considering changing the word “slavery” to “involuntary relocation” in the second-grade curriculum standards.
In Wisconsin, a novel about the internment of Japanese-Americans during World War II has been kicked out of the curriculum because it’s “unbalanced” and presents only one side of the issue. A parent in the district commented: “The other side is racism.”
and let’s close with something too small to work
In this age of miniaturization, smaller is often better. But once in a while the shrinking process goes too far. Well, it’s good to know that Nature also makes this mistake occasionally: Witness the pumpkin toadlet, a frog about the size of Skittle. It looks very froggish, but it doesn’t have that whole jumping thing down yet. I can’t explain why it’s so much fun to watch them try, but it just is.
Cassidy Hutchinson’s testimony Tuesday damaged both Trump’s image and his legal position.
The top assistant to Trump Chief of Staff Mark Meadows, whose desk was just steps away from the Oval Office, testified to the 1-6 Committee Tuesday [videotranscript]. She made an impressive witness and told a compelling story.
In my mind (and I suspect in Liz Cheney’s as well), these hearings serve two parallel purposes:
assembling evidence that will force the Justice Department’s hand and get Trump indicted,
breaking his hold on the Republican Party so that he will never return to power.
Cassidy Hutchinson’s testimony served both. Which purpose you find most important determined which part of her testimony you focused on.
Personally, I want to see Trump in jail, because I think that’s necessary to deter future fascist presidents from arranging their promotion to Führer. So I focused on the legally significant claims:
Trump had been warned before January 6 about the potential for violence.
When he told his rally crowd to march on the Capitol, he knew they had weapons.
He tried to stop the Secret Service from taking those weapons away.
Only the Secret Service prevented Trump from going to the Capitol with the mob.
He didn’t want to tell the mob to leave the Capitol, because (in Meadows’ words) “He thinks Mike deserves it. He doesn’t think they’re doing anything wrong.”
We’re still guessing what Trump planned to do if he got to the Capitol, but Hutchinson testified “I know that there was a conversation about him going into the House chamber at one point.” She said that on January 2 Rudy Giuliani told her about plans for the 6th: “The President’s going to be there. He’s going to look powerful. He’s — he’s going to be with the members. He’s going to be with the Senators.”
Breaking into the Capitol at the head of an armed mob to prevent Congress finalizing the election he lost — that sounds like something from the final days of the Roman Republic.
But if you’re mainly focused on GOP politics, probably the most significant aspect of Hutchinson’s testimony was how humiliating it was for Trump. In a dispassionate voice, she told about incidents when Trump behaved like a bratty toddler.
She described helping the White House valet clean ketchup off the wall of the Oval Office dining nook, after Trump had thrown his lunch at the wall. (He was upset because Bill Barr had told the public that his election-fraud claims were false.) She said that it was not the only time Trump had broken White House dishes during a fit of anger.
Putting this in presidential perspective: Remember what a scandal it was when Obama put his feet up on the Resolute Desk? “This arrogant, immature & self-centered man has no sense of honor, or of simple decency,” declared OutragedPatriots.com.
Imagine if our first Black president had broken White House china in a temper tantrum and left ketchup stains on the walls!
And then there was Hutchinson’s second-hand account of Trump trying to force the Secret Service to drive him to the Capitol.
And when [Secret Service Agent] Bobby [Engel] had relayed to him we’re not, we don’t have the assets to do it, it’s not secure, we’re going back to the West Wing, the president had a very strong, a very angry response to that.
Tony [Ornato] described him as being irate. The president said something to the effect of “I’m the f’ing president, take me up to the Capitol now” to which Bobby responded, “Sir, we have to go back to the West Wing.” The president reached up towards the front of the vehicle to grab at the steering wheel. Mr. Engel grabbed his arm, said, “Sir, you need to take your hand off the steering wheel. We’re going back to the West Wing. We’re not going to the Capitol.”
Mr. Trump then used his free hand to lunge towards Bobby Engel. And Mr. — when Mr. Ornato had recounted this story to me, he had motioned towards his clavicles.
Trump has always been more concerned about his image than about the law, so TrumpWorld responded to this account rather than the parts of Hutchinson’s testimony that were more legally damaging.
An anonymous source countered Hutchinson’s testimony-under-oath by claiming that “Two Secret Service agents are prepared to testify before Congress that then-President Donald Trump did not lunge at a steering wheel or assault them.” This is a very specific denial that I could imagine as part of testimony that supported 99% of what Hutchinson claimed. (“It was more of a reach than a lunge, and I wouldn’t describe that as an assault.”)
CNN then found other anonymous Secret Service agents who backed up Hutchinson’s account. Whether the incident happened exactly as she described it or not, it is clear that Hutchinson did not make the story up. It was circulating in the White House, as she said. She never claimed to be in the car, witnessing the tantrum herself.
We’ll see if any of this additional testimony actually happens. After all, Trump and his people have a long history of promising proof that never appears. Hutchinson made her statements under oath, and that has to give them more credibility than anonymous sources describing what somebody else might be willing to say.
In addition, I find it striking that no one from TrumpWorld stepped up to dispute the legally damaging parts of Hutchinson’s testimony. It’s scary that a guy who can’t be trusted with the White House china had the nuclear codes, but breaking dishes isn’t illegal.
Here’s a point that the I don’t think is getting enough stress in the public conversation: This is not a debate between two versions of what happened on January 6. The committee is presenting a narrative of what happened, and Trump’s people are refusing to discuss the matter — not just refusing to testify under oath, but refusing to comment at all. Trump complains about the hearings being “one-sided”, but he has chosen not to present a side.
If he had the confidence and courage to go under oath, as Hillary Clinton did during the Benghazi hearings, Trump (or Mark Meadows or Rudy Giuliani) could tell the committee (and the country) an alternate story, if he has one.
But even short of testimony, Fox News would readily give Trump all the air time he wants, with none of that annoying cross-examination or fact checks or follow-up questions or risk of perjury. He could explain why he didn’t believe his own experts when they told him that his fraud claims were false, and that Mike Pence had no power to reject electoral votes certified by the states. He could tell us which of his many debunked fraud claims he still believes, what the fake electors were for, what he intended the crowd to do when they got to the Capitol, when he first learned that violence had broken out, what he was thinking when he attacked Vice President Pence in a tweet (and in particular, did he know at the time that the crowd was already calling for Pence to be hung?), why he waited so long to ask the rioters to go home, and so on.
But he won’t do any that. His “side of the story” never gets any more detailed than saying that he did nothing wrong.
He refuses to go on the record in any form (and certainly not under oath) because he knows that he can’t defend any detailed account in which he did nothing wrong.
He knows he’s guilty.
All of which raises the question: Will it make any difference? Will the Justice Department indict Trump? Or anybody inside the White House who wasn’t physically present at the Capitol Insurrection? Lawrence Tribe says yes. Jeffrey Toobin urges DoJ not to. Jack Goldsmith says it’s a tough decision.
It’s the Fourth of July, and I don’t think I have ever been less excited to be an American.
Anyway, it was an eventful week. Tuesday was Cassidy Hutchinson’s testimony to the 1-6 Committee, which was really our first view inside the Trump White House. Her testimony damaged both Trump’s legal defenses and his public image. I’ll describe that in the featured post, which should be out shortly.
Last week I covered three major Supreme Court decisions: the reversal of Roe, tossing out New York’s gun law, and forcing Maine to subsidize religious schools. All of them were major steps backwards for America, and are a big part of why this Independence Day feels so dismal. This week the march towards Gilead continued: a public school football coach can lead students in public prayer during a school event, and the EPA has lost a tool for fighting climate change. I’ve decided not to go into as much detail about these, and to cover them in the weekly summary.
Also in the summary: Both sides continue to react and respond to the Court’s Roe reversal. Russia is slowly advancing in eastern Ukraine. Most of the worst candidates in Tuesday’s primary elections lost. And Covid looks set to take off again after the holiday weekend.
I have an unexpected meeting this morning, so I don’t know when I’ll get the summary out. I’ll aim for noon, but who knows?
The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.
I discuss the opinions themselves in the first featured post. Here I want to consider consequences. All three of these decisions look like the first of many: As sweeping as the Dobbs decision is, it sets up a reconsideration of all rights based on a legal doctrine known as substantive due process (which I explained in March): the right to access contraceptives, to marry a person of the same sex or a different race, and for consenting adults to choose their own sexual practices. Carson will make it difficult to deny government funding to religious organizations in a wide variety of settings. Bruen calls a long list of gun regulations into question.
Planned Parenthood provides an interactive map that allows you to see the current abortion restrictions in any state. Abortion is already illegal in the black states, and severely restricted in the dark red states (many of which will probably ban it entirely before long).
Exactly what illegality means is still being worked out in many states. Mother Jones raises a good question: “If Abortion is Illegal, Will Every Miscarriage Be a Potential Crime?” If it is, who is the criminal — the woman, or just the doctor? What if the abortion takes place in a different state, where it is legal? My social media is full of people in blue states offering to help women come to their state for abortions. Will they be accessories, who dare not show their faces in Texas or Mississippi for fear of arrest?
What if a miscarriage (or a birth defect) results from negligence rather than intent? Is that manslaughter? As Dana Sussman of National Advocates for Pregnant Women puts it: “You can’t add fetuses to the community of individuals who are entitled to constitutional rights without diminishing the rights of the person carrying that fetus.”
The impact this decision will have on the midterm elections, or on all future elections, is hard to gauge. In particular, what happens to educated suburban women, the “soccer moms” who supported Bush and Romney but had trouble stomaching Trump? Will they turn out in force and vote Democratic, or will their generally conservative leanings on economic issues keep them voting Republican?
A brief message to pro-choice women: Make sure the men in your life know how seriously you take the Court’s decision, and the new laws that it will inspire.
I say this because my 65 years of male experience have taught me something about how men think. A man, even one who ought to know you better than this, is likely to imagine that losing reproductive rights isn’t that big a deal to you because (1) you want to have a child anyway; or (2) you’re unlikely to get pregnant; or (3) you’re past childbearing age. He may not grasp that you take this assault on your rights personally, or be able to imagine why. But he may listen if you tell him. (If he won’t listen, you might want to reconsider his role in your life.)
Susan Collins now feels she was “misled” by Brett Kavanaugh and possibly other justices during their confirmation hearings. Of course, everyone in the world was telling her at the time that she was being a gullible fool, but she still doesn’t own up to that. I am reminded of her vote for the Trump tax cut, which Mitch McConnell got in exchange for promises that turned out to be worthless. But Collins dismissed criticism of her gullibility as sexist.
And just this morning, the Court launched another attack on the separation of church and state by siding with a high school football coach who led prayers at the 50-yard-line after games. The coach is, of course, Christian. No one from any other religion would imagine that he had such a right.
and the continuing revelations of the 1-6 hearings
Both were gripping hearings. The fourth hearing centered on Trump’s pressure on state and local officials to change the election results. As always, most of the witnesses were Republicans who wanted Trump to win, but wouldn’t cheat for him.
Rusty Bowers is the Speaker of the House in Arizona. He testified about how Trump and Rudy Giuliani pressured him to call a special session of the legislature, so that Arizona could decertify its Biden electors. They promised him evidence of massive voter fraud, but never delivered any. Bowers gave an emotional statement about how his Mormon faith teaches that the Constitution is divinely inspired, and that he would never go against the Constitution just “because somebody asked me”.
Georgia Secretary of State Brad Raffensperger told the story of the famous phone call where Trump refused to listen to his refutation of Trump’s election-fraud claims, and urged him to “find” enough votes for Trump to win the state. His subordinate Gabriel Sterling explained why he publicly warned Trump that “somebody’s going to get killed” if he kept pushing his election-fraud deceptions.
But the heart-wrenching moment of the fourth hearing was the testimony of Shaye Moss (supplemented by the taped testimony of her mother), who was a Georgia election worker that Trump targeted falsely as a perpetrator of the “election fraud” that kept him from winning Georgia. Trump had to know, if he bothered to think about it at all, what his followers would do.
Moss testified about the impact Trump’s lies had on her life, including telling about a panicked phone call she got from her grandmother:
I received a call from my grandmother. This woman is my everything. I’ve never even heard her or seen her cry ever in my life. And she called me screaming at the top of her lungs, like, “Shaye, Shaye, oh my gosh, Shaye.” Just freaking me out saying that there are people at her home and they, you know, they knocked on the door and of course she opened it seeing who was there, who it was.
And they just started pushing their way through, claiming that they were coming in to make a citizen’s arrest. They needed to find me and my mom. They knew we were there. And she was just, like,screaming and didn’t know what to do. And I wasn’t there. So, you know, I just felt so helpless and so horrible for her.
Both Shaye and her mother (who also was an election worker and also was targeted by Trump) said that they were still afraid to go out in public, and afraid to let anyone know who they are. It was easy to see the signs of depression in her testimony.
I felt horrible. I felt like it was all my fault, like if I would have never decided to be an elections worker, like, I could have — like, anything else, but that’s what I decided to do. And now people are lying and spreading rumors and lies and attacking my mom, I’m her only child, going to my grandmother’s house.
I’m her only grandchild. And — and my kid is just — I felt so bad. I — I just felt bad for my mom, and I felt horrible for picking this job and being the one that always wants to help and always there, never missing not one election. I just felt like it was — it was my fault for putting my family in this situation.
The President of the United States did this. We’ve gotten used to Trump falsely and baselessly attacking political rivals or well-known journalists or even non-political celebrities like LeBron James. But this was him picking out an ordinary American who did nothing wrong, and just ruining her life.
The fifth hearing centered on the Justice Department, and Trump’s effort to get DoJ officials to back up election-fraud claims that they had investigated and knew were lies. This effort culminated in a January 3 meeting at the White House, in which Trump proposed replacing Acting Attorney General Jeff Rosen, who wouldn’t make false claims on his behalf, with Jeff Clark, who would.
Ultimately it fell apart not because anyone convinced him the scheme was wrong, but because it wouldn’t work. The entire DoJ leadership would resign, including Office of Legal Counsel head Steven Engel. Engel warned Trump:
look, all anyone is going to sort of think about when they see this — no one is going to read this letter [that Clark wanted to send to leaders of the Georgia legislature, falsely claiming that the DoJ had found evidence of fraud]
All anyone is going to think is that you went through two attorneys general in two weeks until you found the environmental guy to sign this thing. And so, the story is not going to be that the Department of Justice has found massive corruption that would have changed the result of the election. It’s going to be the disaster of Jeff Clark.
Video was shown of the committee asking Clark about these events: He repeatedly pleaded the Fifth and executive privilege (which are contradictory claims; if no crime is involved, the Fifth doesn’t apply; if a crime is involved, there’s no executive privilege).
And the grand finale of Thursday’s session was the list of GOP congresspeople who sought pardons from Trump: Mo Brooks, Matt Gaetz, Andy Biggs, Louie Gohmert, Scott Perry, and Marjorie Taylor Green.
What did they think they had done, that they would need a pardon for?
They’re accomplishing more than you think. That’s the topic of the second featured post.
and gun legislation
Any other week, this would be a big story. Today, it’s hard to find space for it.
Two weeks ago a bipartisan group of senators announced that it had settled on a framework for legislation to do at least something in response to the Uvalde school shooting and the surge of other mass shootings. Last week it looked like the agreement might blow up as they tried to write a bill based on that framework. This week it passed both houses of Congress and is awaiting President Biden’s signature.
The bill is simultaneously an accomplishment and a disappointment. Here’s what the bill does:
requires enhanced background checks for young adults 18-21 to buy a gun, and gives authorities ten days (up from three) to perform the checks;
gives states $750 million in incentives to implement red-flag laws, which temporarily take guns away from people a judge deems dangerous;
appropriates money for mental health and school safety;
extends federal law that stops domestic abusers from buying guns, so that it now covers dating partners as well as spouses, live-in partners, and co-parents;
makes certain kinds of interstate gun trafficking a federal crime.
What it doesn’t do is ban assault weapons or high-capacity magazines, establish universal background checks on gun purchases, prevent assault-weapon purchases by young adults 18-21, or enact a federal red-flag law.
As small as these steps are, the bill is the first tightening of gun laws since the Clinton administration. The fact that 15 Republican senators and 14 Republican representatives were willing to vote for it — in spite of heated opposition from the NRA and some wild attacks from Fox News — is significant. The next few elections will be tests of the gun lobby’s power: If these senators are ousted in Republican primaries by pro-gun challengers, this might be the last federal gun-control legislation for another few decades. If they aren’t, the NRA’s stranglehold on the GOP might be broken.
and you also might be interested in …
The pandemic keeps chugging along at the level of about 100K new cases per day. Deaths are increasing slightly, running around 350 per day.
Do our Lord Jesus Christ have a mental illness because he said he’s the father, the son and the Holy Spirit? To me, those are 3 different personalities.
I thought I had heard every possible explanation of the Trinity, but that one is new to me. Georgia Republicans must be so proud, particularly the Christian ones.
I don’t like to read too much into what are obviously slips of the tongue, because we all have them, and a harsh standard of judgment would hurt everybody. But this is hard to ignore: Appearing with President Trump Saturday in Mendon, Illinois — not far from where I grew up; the rally was at the county fairgrounds, where I remember seeing a talent show and a tractor pull and eating cotton candy — Rep. Mary Miller said:
I want to thank you for the historic victory for white life in the Supreme Court yesterday.
Apparently she meant to say “right to life”, not “white life”. But according to NBC, the crowd — which had no way of knowing that something different was in her script — cheered. “Victory for white life” sounded good to them.
Here’s proof that anything is musical if you have an ear for it. The Floppotron 3.0 orchestra uses 512 floppy disk drives, 16 hard drives, and four flatbed scanners to play the Imperial March from Star Wars. Somebody had to hear all those noises and imagine what could be done with them.
You may not see it, if you don’t understand how conservatives change their minds.
After more than two years of Covid, persistent inflation, and a year or so of Democrats failing to either eliminate the Senate filibuster or pass anything significant in spite of it, lots of us have gotten depressed. One result of that widespread depression is that every news story is seen through a lens that is dim to the point of blackness: Nothing good is happening, because nothing good can happen. That’s just how the world is. Even stuff that looks good for a while will ultimately turn out badly.
So it’s no wonder that even the January 6 hearings — which have contained startling new information and dramatic testimony, presented with considerable narrative skill — are often being construed as yet another disappointment, yet another example of America’s endemic hopelessness: Sure, the ratings have been better than expected, but the only people watching are the people who don’t need to watch. They were already convinced Trump was guilty. That’s why they’re watching.
Fox News, on the other hand, is pretending the hearings aren’t happening, and the MAGA cultists are averting their eyes. Sean Hannity and Tucker Carlson are talking about Biden falling off his bicycle or some other trivia. So what’s being accomplished?
Let me suggest a radical reinterpretation of these facts: MAGAworld refusing to engage is a good sign. This is exactly what you should have expected to see if things were going well.
That reframing depends on understanding two things: First, nothing gets watched by everybody, and yet somehow the information gets out. You didn’t have to watch the Super Bowl to learn that the Rams won. People who have never seen Star Wars know who Luke Skywalker and Darth Vader are; if you talk about a “flaw in the Death Star”, they’ll get the metaphor. Hit songs you don’t like nonetheless get into your head. Personally, I have done my best not to keep up with the Kardashians, but there seems to be no way to avoid it.
So don’t think Trumpists aren’t learning anything from these hearings.
But the more important thing you need to appreciate is how conservatives change their minds. They do it without ever admitting they were wrong. Typically the process goes like this:
“I believe X, and anybody who denies X hates America.”
Silence.
“I never believed X. The people behind X were never true conservatives.”
Blocking out the hearings is Step 2. They’re looking away because they know they have no answers. If they thought they could take on this argument and win, at least in their own eyes, they’d be all over it. Fox News could be doing nightly counter-programming, tearing apart the committee’s witnesses and letting John Eastman and Rudy Giuliani and Jeff Clark explain their side of the story. Mike Pence and Pat Cipollone could be begging to testify under oath, so they could refute all the other witnesses’ testimony.
It’s not happening. Even the most blinder-wearing Trumpist understands that his side doesn’t dare take the field in this battle. Even if they don’t understand why, it’s got to be undermining their confidence.
Instead, there’s silence. Step 2.
The clearest historical example of the three-step process is White Evangelicals and segregation. During the 50s and 60s when the issue was being decided, White Evangelicals almost unanimously defended Jim Crow. Jerry Falwell, for example, preached in 1958:
If Chief Justice Warren and his associates had known God’s word and had desired to do the Lord’s will, I am quite confident that the 1954 decision [to desegregate public schools] would never have been made. The facilities should be separate. When God has drawn a line of distinction, we should not attempt to cross that line.
But you know what you won’t find? A come-to-Jesus moment when some major preacher announced that he had been wrong about race, begged God’s forgiveness for his errors, and implored his congregation to turn themselves around in a similar way.
It never happened.
Instead, sometime in the 70s most right-wing preachers just stopped talking about the bad old days of Jim Crow. (Falwell’s segregationist sermons quietly disappeared from his church’s web site. Today, the only place you’ll find the quote above is in anti-Falwell articles.) And years later, when they started talking about the Civil Rights movement again, they had always been on the right side of it. After all, Martin Luther King Jr. was a Baptist, right?
Same thing with George W. Bush and the Iraq War. In 2002, nobody was hotter to invade Iraq than conservatives, and after the initial invasion overran the country quickly with few American casualties, right-wingers were arguing about just how high Bush should rank on the list of our greatest presidents. (Probably not in the Washington/Lincoln stratosphere. But maybe in the Reagan/Truman tier.)
Sometime during his second term, though, they started to go silent about Bush’s greatness, and by 2010, the Tea Party was claiming that Bush had never really been a conservative at all. Bush went from the highest presidential approval rating ever recorded — 90% in 2001 — to one of the lowest — 25% in 2008. During that whole time, though, I don’t remember hearing anyone admit that they’d been wrong about him.
There was no I-have-seen-the-light moment about Iraq comparable to Walter Cronkite turning against the Vietnam War. Conservatives just went silent for a while, and when they spoke up again, it was to claim that they had always been on the other side. Donald Trump is a perfect example. At first he was for the invasion. Then he thought it was a good idea that Bush had screwed up. Then he had always been against it.
So if you’re depressed that no MAGA types are facing up to the way that Trump fooled them, don’t be. That was never going to happen. But it doesn’t mean that Trump won’t someday be a friendless pariah.
I feel very confident in predicting that there will never be a we-were-wrong-about-Trump moment, either for the GOP in general or for your cousin who posted all those MAGA memes on social media. But you know what could happen? They might focus their outrage on something else for a while — critical race theory or transgender people or something — and then at some point start saying, “Trump did a lot of good things, and I like his Supreme Court picks, but I never bought all his bullshit.”
Scrapping abortions rights got the headlines. But don’t ignore the Court’s assault on gun regulations and the separation of church and state.
Late June tends to be a big time for the Supreme Court. Like freshmen who have put off writing their term papers until the last minute, the Court typically unleashes a flurry of decisions just before leaving town for the summer.
The end of this term has been more significant than most. Last week, three major decisions were published, along with several lesser decisions. The Dobbs decision reversing Roe v Wade was immediately consequential, as abortion has already effectively become illegal in a number of states, with more to follow soon. But it also laid the groundwork for future decisions reversing a number of rights: the right to marry someone of the same sex or a different race, to access contraception, or to choose (with your consenting partner) your own sexual practices.
The week’s other two decisions had fewer immediate consequences, but similarly looked like the first steps down a long road. Carson v Makin directly affects only a few families in rural Maine, but announces the Court’s intention to drastically redraw the line between Church and State. NY State Rifle & Pistol v Bruen tosses out a New York gun regulation that has stood for a century, but similarly calls all gun regulations into question.
Justice Alito’s majority opinion tried to minimize the consequences of this decision, which on the surface only [only!] reversed Roe, but also created a blueprint for throwing out all the substantive-due-process rights. Justice Thomas, on the other hand was explicit about where he wants the Court to go next:
in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,”, we have a duty to “correct the error” established in those precedents. After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.
Thomas forgot to mention one other substantive-due-process case: Loving v Virginia, which makes his own interracial marriage legal. (I can see how that might start a difficult conversation: “Sorry, honey, but we were never really married.”) Given the anti-miscegenation laws that existed when the 14th Amendment passed in 1868, it’s hard to see how Loving survives the kind of historical analysis the Court did this week in both Dobbs and Bruen.
Leaning the other way, Justice Kavanaugh not only ignored future reversals, but tried to gloss over the radical nature of this one:
On the question of abortion, the Constitution is therefore neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress—like the numerous other difficult questions of American social and economic policy that the Constitution does not address.
The obvious implication of that statement is that Kavanaugh would not overrule Congress if it did codify reproductive rights. However, given how duplicitous Kavanaugh has already been on this issue, I wouldn’t count on him following through if such a case reached the Court.
He also waxed philosophical:
The Constitution does not grant the nine unelected Members of this Court the unilateral authority to rewrite the Constitution to create new rights and liberties based on our own moral or policy views.
I’ll be interested to see if Kavanaugh stands by this position the next time a corporate personhood case comes before the Court. The Constitution says nothing about corporations, and yet conservative judges have had no trouble reading between the lines to find “new rights and liberties” for these wealthy and immortal beings.
As I predicted in March, Chief Justice Roberts concurred in upholding Mississippi’s ban on abortions after 15 weeks, but not in overturning Roe completely.
Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further—certainly not all the way to viability. Mississippi’s law allows a woman three months to obtain an abortion, well beyond the point at which it is considered “late” to discover a pregnancy.
That’s typical Roberts, as you’ll see below in the Carson case. He also would destroy Roe, but do it over a period of years by pecking it to death. In this dissent, he makes a doctrine out of that approach:
If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.
Going back to the corporate personhood example, Roberts didn’t recommend this kind of restraint in Citizens United.
The Court’s three liberal justices — Breyer, Kagan, and Sotomayor — wrote a common dissent. Interestingly, they agreed with Thomas that abortion rights are tied to all the other substantive-due-process rights.
The lone rationale for what the majority does today is that the right to elect an abortion is not “deeply rooted in history”: Not until Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty. The same could be said, though, of most of the rights the majority claims it is not tampering with. The majority could write just as long an opinion showing, for example, that until the mid-20th century, “there was no support in American law for a constitutional right to obtain [contraceptives].” So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.
The dissent challenges the legitimacy of ignoring stare decisis to reverse the Roe and Casey precedents.
No recent developments, in either law or fact, have eroded or cast doubt on those precedents. Nothing, in short, has changed. … The Court reverses course today for one reason and one reason only: because the composition of this Court has changed. Stare decisis, this Court has often said, “contributes to the actual and perceived integrity of the judicial process” by ensuring that decisions are “founded in the law rather than in the proclivities of individuals.” Today, the proclivities of individuals rule.
It attacks Alito’s history-alone reasoning. If “liberty” means exactly what it did in 1868, that has a lot of unfortunate consequences, particularly for women.
The Court [in Casey] understood, as the majority today does not, that the men who ratified the Fourteenth Amendment and wrote the state laws of the time did not view women as full and equal citizens. A woman then, Casey wrote, “had no legal existence separate from her husband.” Women were seen only “as the center of home and family life,” without “full and independent legal status under the Constitution.” But that could not be true any longer: The State could not now insist on the historically dominant “vision of the woman’s role.”
Guns. In Bruen, Justice Thomas writes for the six conservative justices. Thomas is the justice whose thought process seems most alien to me, and here he loses me early on:
In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.
Heller is the 2008 case in which Justice Scalia invented an individual right to bear arms, independent of any notion of “a well-regulated militia”, as if the Founders just threw that phrase into the Second Amendment on a whim.
Judges and legal scholars before Scalia had laughed at this interpretation, which had not figured in any previous Supreme Court decision since the beginning of the Republic. In 1990, retired Chief Justice Warren Burger, who had been appointed by Richard Nixon and at the time was not anyone’s idea of a liberal, called such an interpretation of the Second Amendment “a fraud on the American public“. John Paul Stevens, who wrote the primary dissent in Heller, called it “the Supreme Court’s worst decision of my tenure“.
And then we get to “the Second Amendment’s plain text”. I have explained previously (and at length) why I don’t think the text of the Second Amendment means anything at this point. (Briefly, the Founders’ vision of the role of the militia bears no resemblance to any institution that currently exists: not the National Guard, and certainly not self-appointed yahoos who run around in the woods wearing camo. History just went a different way. The Second Amendment, basically, is a signpost on a road not taken.) So the idea that the Second Amendment has a “clear text” that “covers” something in today’s world — that’s just wrong. If we can’t repeal it and start over, the most sensible approach would be to ignore it.
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.”
The regulation in question in this case is New York’s state law that requires gun owners to have a license, and which denies licenses for people to carry guns outside their homes unless they “demonstrate a special need for self-protection distinguishable from that of the general community.” The two New Yorkers bringing suit claim that it should be up to them to decide if they need a gun for self-defense, not up to the state.
Thomas then has to judge whether this regulation is “consistent with the Nation’s historical tradition of firearm regulation”. But he then edits that history in a very convenient way: Pre-colonial English history is too early to matter (though it wasn’t when assessing abortion laws in Dobbs). Gun regulations in the Wild West come too late. Even colonial and federal-era history can be swept away with the proper hand-waving.
Thus, even if these colonial laws prohibited the carrying of handguns because they were considered “dangerous and unusual weapons” in the 1690s, they provide no justification for laws restricting the public carry of weapons that are unquestionably in common use today.
And two post-Civil-War cases in Texas “support New York’s proper-cause requirement”, but they can be dismissed as “outliers”. When the Kansas Supreme Court upheld a “complete ban on public carry enacted by the city of Salina in 1901”, its decision was “clearly erroneous”. And the New York law Thomas is overturning was passed in 1911. (Justice Breyer’s dissent correctly sums up Thomas’ historical analysis as “a laundry list of reasons to discount seemingly relevant historical evidence.” The dissent in Dobbs makes fun of how Thomas’ cramped view of history in this case contrasts with Alito’s expansive citation of sources back to the Middle Ages in Dobbs. Thomas, naturally, signed on to Alito’s opinion, and his concurrence did not correct Alito’s historical analysis.)
Thomas’ whole historical method ignores the possibility that early American legislators believed they had a perfect right to regulate firearms, but didn’t see any special need at the time. (Breyer: “In 1790, most of America’s relatively small population of just four million people lived on farms or in small towns. Even New York City, the largest American city then, as it is now, had a population of just 33,000 people. Small founding-era towns are unlikely to have faced the same degrees and types of risks from gun violence as major metropolitan areas do today, so the types of regulations they adopted are unlikely to address modern needs.”)
And so, having adopted Heller’s interpretation of the Second Amendment and eliminated any conflicting examples from consideration, Thomas reaches his conclusion.
At the end of this long journey through the Anglo-American history of public carry, we conclude that respondents have not met their burden to identify an American tradition justifying the State’s proper-cause requirement. The Second Amendment guaranteed to “all Americans” the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions. Those restrictions, for example, limited the intent for which one could carry arms, the manner by which one carried arms, or the exceptional circumstances under which one could not carry arms, such as before justices of the peace and other government officials. Apart from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense. Nor, subject to a few late-in-time outliers, have American governments required law-abiding, responsible citizens to “demonstrate a special need for self-protection distinguishable from that of the general community” in order to carry arms in public.
Justice Breyer’s dissent raises the central failing of Thomas’ dogmatic approach.
The question before us concerns the extent to which the Second Amendment prevents democratically elected officials from enacting laws to address the serious problem of gun violence. And yet the Court today purports to answer that question without discussing the nature or severity of that problem.
In other words, Thomas loses himself in estimating how many angels could dance on a pinhead in the 1790s, without any concern for what is happening today. (Alito’s concurrence berates Breyer for even daring to consider the present-day problem the law in question is trying to address.) Breyer finds that “decisions about how, when, and where to regulate guns [are] more appropriately legislative work”, and that judges should show “modesty and restraint” in overruling legislatures who take on that work. And he raises this key question:
[W]ill the Court’s approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history?
Church and State. Because John Roberts doesn’t sign on to decisions like Alito’s reversal of Roe, he has gotten an image as the “moderate” on the Court. I don’t think that’s exactly true. Roberts is every bit as radical as the five who signed Alito’s opinion. He just moves towards his extreme goals in a stealthier, more step-by-step fashion. Roberts is like the thief who doesn’t strip your whole orchard in one night; but he leaves a hole in the fence and keeps coming back.
Campaign finance is a good example. Roberts didn’t destroy Congress’ ability to control political contributions in one fell swoop. He ate away at it over a period of years.
His majority opinion in Carson v Makin is similarly one of a series of cases that eats away at separation of church and state. On the surface, this decision doesn’t do much: A handful of families who live in rural areas of Maine will be able to get state support to send their children to conservative Christian schools, in spite of the Maine legislature’s attempt not to fund such schools. (And even they won’t get support for the schools they want, because Maine’s law also disqualifies schools that discriminate against gays and lesbians.)
To get that tiny result, though, Roberts blows a big hole in the wall between church and state. New cases will be coming through that hole for years to come, and the principles established in Carson will funnel more and more public funding to the Religious Right.
Here’s the background: Some rural areas of Maine have so few students that it’s not worth supporting a public high school. Instead, some of them contract with high schools in neighboring districts to take their students. But some don’t even do that. If you live in one of those, you can get tuition reimbursement from the state to send your children to a private high school that meets certain requirements. One requirement is that the school be “nonsectarian”. That condition was added in 1981, after the state attorney general ruled that paying tuition to a sectarian school would violate the Establishment Clause of the First Amendment.
Maine has a fairly narrow definition of “sectarian”. It’s OK for a school to be founded by or associated with a church or other religious organization. But public money was banned from going to a school which
in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.
The two families that brought suit against this policy live in Glenburn (population 4,648) and Palermo (1,570). They want Maine to help them pay tuition to schools that clearly are sectarian. For example, one of the schools, Temple Academy, has as its mission statement:
Temple Academy exists to know the Lord Jesus Christ and to make Him known through accredited academic excellence and programs presented through our thoroughly Christian Biblical world view.
It goes on to pledge
To provide a sound academic education in which the subject areas are taught from a Christian point of view.
To help every student develop a truly Christian world view by integrating studies with the truths of Scripture.
So Temple is not like a nominally Catholic or Baptist school where students of other faiths might opt out religion classes or worship services. Students who attend any classes at all are being indoctrinated in a conservative Christian worldview, and part of every teacher’s job is to promote a particular version of Christianity.
Also, the Maine law is not like a voucher program, where the legislature delegates choice of schools to parents, understanding that some parents will choose sectarian schools. Maine’s legislature tried NOT to fund religious indoctrination; but Roberts’ decision says that it MUST.
This is new, and it is radical.
Justice Breyer’s dissent (Breyer, who is retiring and will be replaced next term by Ketanji Brown Jackson, is going out with a bang) is a good introduction to how the Court has historically interpreted the First Amendment, which bars any government “establishment of religion” but also guarantees individual citizens “free exercise” of their religious faith. Breyer says that these two clauses are “often in tension” but express “complementary values”. Quoting previous Court decisions, Breyer imagines what motivated the amendment’s two religion clauses.
Together they attempt to chart a “course of constitutional neutrality” with respect to government and religion. They were written to help create an American Nation free of the religious conflict that had long plagued European nations with “governmentally established religion[s].” Through the Clauses, the Framers sought to avoid the “anguish, hardship and bitter strife” that resulted from the “union of Church and State” in those countries.
“Conflict” is a bit of an understatement here. In England, the Anglican/Catholic/Puritan struggle dominated the 1600s, resulting in the beheading of Charles I, a long civil war, and the Glorious Revolution of 1688. On the Continent, the Thirty Years War killed at least 4.5 million people. The Founders knew this history and desperately wanted to avoid repeating it.
Previous Courts held that the tension between the two religion clauses created “play in the joints”. In other words, states had room to navigate between them. One state might choose to draw the line in a different place than another.
States enjoy a degree of freedom to navigate the Clauses’ competing prohibitions.
Roberts started taking that freedom away when he wrote the majority opinion in the 2017 Trinity Lutheran case, where Missouri was forced to include religious schools in a grant program to make playgrounds safer. Breyer can live with that outcome (in 2017 he wrote a partial concurrence), but doesn’t think that decision forces this one.
Any Establishment Clause concerns arising from providing money to religious schools for the creation of safer play yards are readily distinguishable from those raised by providing money to religious schools through the program at issue here—a tuition program designed to ensure that all children receive their constitutionally guaranteed right to a free public education. After all, cities and States normally pay for police forces, fire protection, paved streets, municipal transport, and hosts of other services that benefit churches as well as secular organizations. But paying the salary of a religious teacher as part of a public school tuition program is a different matter.
It’s striking that in this case (as in the gun case above) it is Breyer and the liberals, not Roberts (or Thomas) and the conservatives, who are defending states rights.
We have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education.
The cases Roberts cites as precedents, Breyer says, don’t justify this shift from permission to requirement.
In the majority’s view, the fact that private individuals, not Maine itself, choose to spend the State’s money on religious education saves Maine’s program from Establishment Clause condemnation. But that fact, as I have said, simply permits Maine to route funds to religious schools. It does not require Maine to spend its money in that way.
This particular decision may not affect many Americans. But Breyer sees clearly where Roberts is headed.
What happens once “may” becomes “must”? Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools? Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education? What other social benefits are there the State’s provision of which means—under the majority’s interpretation of the Free Exercise Clause—that the State must pay parents for the religious equivalent of the secular benefit provided? The concept of “play in the joints” means that courts need not, and should not, answer with “must” these questions that can more appropriately be answered with “may.”
And doesn’t Roberts’ policy implicitly favor more popular religions?
Members of minority religions, with too few adherents to establish schools, may see injustice in the fact that only those belonging to more popular religions can use state money for religious education.
After all, who but Christians will be able to find a market for religious schools in rural Maine? This is a problem I have had with the conservative view of “religious freedom” all along: In practice, it only gives rights to conservative Christians — or, completely by accident, to other religious groups who happen to agree with conservative Christians on a particular issue like abortion or homosexuality.
So it may be amusing to imagine how this ruling might someday be used to make Evangelical taxpayers support a Muslim madrassah, or some other school they would abhor. But I question whether such a thing will ever happen. This Court’s sectarian majority believes in special rights for Christians. It will find ways around extending those rights to anyone else.
Here’s how Sherry Kolb put it in “Are Religious Abortions Protected?“, where she examines the argument (raised in a recent lawsuit filed by a Florida synagogue) that a Jewish doctor may feel religiously obligated to perform an abortion in situations where a state has banned them.
Despite appearances to the contrary, this Court is not especially friendly to Free Exercise claims. … Its rulings instead reflect its friendliness to conservative Christianity and, accordingly, to Judaism and Islam where the ask is minimal or the traditions happen to be the same. Christians can violate the anti-discrimination laws for religious reasons because they are Christians. The sooner we come to understand that the Court is all about Christianity rather than some capacious vision of religious liberty for all, the sooner we will begin the process of finding solutions to our modern-day theocracy problem that do not ask the Court to behave with integrity or consistency.
The Weekly Sift 