Digesting Dobbs‘ legal fallout
Most of my favorite podcasters have annoying mannerisms, but substance too good to get hung up on it. For a ConLaw geek, Akhil Amar’s Amarica’s Constitution fits that to a "T".
Amar glories in saying "I told you so" (not in those words) over and over and over, but as they say, "it ain’t bragging if you can do it." He definitely is one of our nation’s top Constitutional Law scholars.
Amar is a "pro-choice" liberal who recognized that Roe was a real dog’s breakfast. So I took seriously his July 6 ruminations on the rationale of Dobbs, which he considers justified if flawed (for context, note that finding little flaws in justified opinions is roughly half of what legal teaching is about).
If the court takes the Dobbs reasoning elsewhere, it portends more reversals of precedent, though not necessarily contraception, miscegenation, sodomy or same-sex marriage. (For instance, in what state in 2022 would laws against them pass to create a test case? And if such a law were passed, there’s more to stare decisis analysis than "was this wrong when decided?" or even "was this egregiously wrong when decided?")
But the originalist approaches of the conservative majority are going to be less deferential to precedent than to the original meaning of the constitutional provision in question. And that’s as it should be because the constitution, not precedent, is the supreme law of the land, and to it Justices take an oath. (It’s understood, though, that lower courts are bound by precedent from higher courts.)
I’m not sure what precedents will be at most risk, but I think we’re going to find out.
Dobbs cultural fallout
“Men, it’s on us now,” someone said on Twitter just hours after Roe v. Wade was overturned on June 24. “Either start wearing contraceptives or get a vasectomy.” In the two weeks since, the suggestion that men can or should express solidarity with women by getting vasectomies to prevent unwanted pregnancies has proliferated online. The tone varies from flirty (“getting a vasectomy is the new 6-foot-4”) to pointed (“i don’t want to hear a peep out of anyone with a dick until the vasectomy appointment is scheduled”), but the overarching message is the same: “If you create sperm and can get someone pregnant, go get a vasectomy,” one viral tweet read. “We are tired.”
… Google Trends shows a small increase in vasectomy searches during the first week of May, when the draft decision first leaked, followed by a second, larger one starting in late June. Doctors have also reported higher interest in the procedure. “We have never seen a vasectomy spike like this in response to a single political or social event,” the Florida-based urologist Doug Stein told me.
Doctors like Stein, who has been dubbed “The Vasectomy King” by local press, have spent years evangelizing for the procedure. Now their cause is suddenly ascendant. The nation’s vasectomy influencers are in the spotlight.
Well, I certainly didn’t see that coming, though I suppose it was unrealistic to expect an outbreak of chastity.
Remember, young Lothario: vasectomy is forever. Maybe you should just keep it in your pants until you’re ready to start adulting. Not that adulting is always easy.
Adulting in America
If you’re an adult in America today, you’ve learned how to speak furtively of what is happening, how to deploy discretion in repeating what you’ve heard, this secret grammar of mass murder. Time was that a horror like the 2006 slaying of five Amish schoolgirls by a deranged gunman would hold up daily affairs for at least a few moments; even little ones could detect a disruption in the normal order of things. By now we know that if the kids are young enough to miss the news, you might as well let them, because there will—not might, but will—come a day when the reality of their situation finds them.
Elizabeth Bruenig, Living in an Age of Mass Shootings
Too much more about Orange Man and Kindred Spirits
Among tax lawyers, the most invasive type of random audit carried out by the I.R.S. is known, only partly jokingly, as “an autopsy without the benefit of death.”
The odds of being selected for that audit in any given year are tiny — out of nearly 153 million individual returns filed for 2017, for example, the I.R.S. targeted about 5,000, or roughly one out of 30,600.
One of the few who received a bureaucratic letter with the news that his 2017 return would be under intensive scrutiny was James B. Comey, who had been fired as F.B.I. director that year by President Donald J. Trump. …
Among those who were chosen to have their 2019 returns scrutinized was the man who had been Mr. Comey’s deputy at the bureau: Andrew G. McCabe, who served several months as acting F.B.I. director after Mr. Comey’s firing.
Mr. McCabe was later dismissed by the Trump Justice Department after its watchdog accused him of misleading internal F.B.I. investigators ….
Michael S. Schmidt, Comey and McCabe, Who Infuriated Trump, Both Faced Intensive I.R.S. Audits
Weaponizing the IRS is neither unprecedented nor the exlusive mark of one of the two corrupt and feckless major parties. But this is unusually blatant.
The IRS Commissioner appointed by Trump has ordered an Inspector General investigation, but it’s a stretch for me to believe that a hit-job like this didn’t come through his own office.
Roped, broke and branded
Mr Trump prizes no supporters more than those who once rejected him but then roped, broke and branded themselves. He has endorsed [Harriet] Hageman and appeared last month at a rally in Casper with her. Ms Hageman, a lawyer, stoked the crowd by itemising things to revile, from illegal immigration to Anthony Fauci. But one bit of elaboration popped out when she said Mr Trump knew she would represent “your fallacies”, quickly amending that to “families”.
I see nothing sad in his leaving but that he was very entertaining and had one of the best political acts—shambolic upper-class boyo, utterly lost in his personal sphere, just like you and no better than you—in modern British history.
Peggy Noonan on the downfall of Boris Johnson
Boris and Donald
The actual law-breaking and lies about law-breaking were cast in even worse light by the news today that the opposition leader, Keir Starmer, has been cleared by the police from the charge that he too had violated the lockdown rules. Starmer, to heighten the contrast, had publicly stated that he’d resign his position if he were found guilty. The difference between Keir and Boris (and I’ve known both for decades) is pretty obvious: Keir is a somewhat dull, decent bloke and Boris is an entitled, colorful charlatan.
But the glee of the elites and the mainstream media at this likable rogue’s political demise obscures something important. They were wrong to conflate him with Trump. Boris is a liar the way Bill Clinton was a liar: he lied to get himself out of trouble he’d gotten himself into. And, like Clinton, Boris had some relationship to reality — even as he tried to bluff and bluster his way through it.
Trump’s lies were far, far graver and bolder: that he’d won an election in a landslide (when he lost), and that our entire electoral system is rigged. And Trump, unlike Boris, is truly pathological and psychologically broken — incapable of distinguishing his own egomaniac fantasies from the real world.
Andrew Sullivan (emphasis added)
Not that the emphasized sentence is not how Oxford-educated pundits say "poopy-head" or "full of cooties." It’s an actual opinion — which I fully share — of psychological incapacity, which if true leads inexorably to the conclusion that Trump’s unfit to occupy the White House. That was essentially my objection to Trump from the beginning (probably 2016, when it became harder to write him off as a joke), though through a combination of luck and some adults in the room, we didn’t see the lunacy on full display until after he lost in 2020.
I thought in 2016 that his nomination, and then his election, were raised middle-fingers to America’s competent governing class. I slowly came to appreciate why a lot of American’s left-behind might want to do that, and I hope that both parties will pay attention to their legitimate grievances (i.e., the economic ones, not any racial resentments).
But God deliver us from any more Trump!
Anyway, Sullivan’s Substack this week is far more about Boris Johnson than about Trump, and gives Johnson credit for his many accomplishments. Then he pivots back:
Which brings me, of course, to the obvious analogy to the American right. The Tories were thrilled to ride Boris’ coat-tails into office — he did deliver Brexit and a smashing election victory — but they did not turn into a cult. He had to face a feisty press and weekly grillings in parliament, in which his relationship to reality was constantly tested. His own Conservative MPs — many of whom owed him their seats and careers — enabled him to a point, but they never lost their minds or, ultimately, their consciences.
Trump and the GOP? A sadder, darker, weirder story. Trump’s lies are far, far worse. Boris never questioned the results of a referendum or an election — and neither did his opponents. He didn’t marshal an armed mob to ransack parliament when his own MPs turned on him. The final straw for Boris was when he lied that he hadn’t been briefed about a minor Tory sex scandal, and apologized.
Trump, meanwhile, has unrelentingly sustained the biggest, most dangerous lie of all: that our entire democracy is rigged, that he won in a landslide in 2020, and that the GOP should seek to win the next election by any means, fair or foul. His lies are proactive and corrosive to democracy for the future. They have to be huge to work. And they are.
Why We Did It
I don’t know if this is David French’s original thought or Tim Miller’s original thought or the result of French reflecting on Miller, but darn, it’s good!
Ask any person to describe themselves, and they’ll likely respond with a mix of characteristics and virtues. They’ll describe their profession (lawyer, banker, plumber), their relationships (husband, father, grandfather), and their politics (Republican, Democrat), and if asked they might even describe their perceived virtues (honesty, fidelity, fortitude).
But what if the virtues conflict with other core parts of a person’s identity? …
[D]uring the Trump years, honesty and independence directly and starkly clashed with status. Time and again, men and women in America’s political class found that they couldn’t possess both virtue and power. They had to make a choice.
During the Trump years, the collision between status and virtue was constant and relentless. Trump never gave anyone a breather. He was never chagrined or mollified by scandal. He never apologized. He never turned over a new leaf. He just charged from one lie to another, and his demands for absolute loyalty left his defenders and followers with little ability to separate themselves from his worst moments while still remaining in the Republican tent.
As we’ve seen from days of courageous testimony before the January 6 House Select Committee, it is quite possible to say “I’m a Republican, and I’m honest.” But with each passing week—and with each new revelation—it grows more difficult to say “I’m a Trump Republican, and I’m honest.” Status conflicts with virtue, and status wins.
David French at his best, reviewing (and highly recommending) Tim Miller’s Why We Did It: A Travelogue From the Republican Road to Hell.
Thriving on toxicity
Somehow this seems to fit here, with the preceding two as preface:
There are species of bacteria that actually thrive in the toxic emissions from hydrothermal vents deep below the ocean. What would be killing sulphuric acid to most animals is food for them. We have created a similarly hostile climate in media and politics: high pressure, extreme temperature swings, and a toxic atmosphere. We should not be surprised, then, that unlovely creatures are the only ones who can thrive in this space.
Decent people with dignity are easy marks for outrage mobs, cancel culture, and the clickbait press. But fools with no shame are impervious to such a climate. Men and women of character tend to stay away, and if they don’t, are much more subject to the extortionate pressures of the political world. If your reputation is already poor, you can chase celebrity, frolicking among the deep-sea plumes, while your more delicate competitors are floating on the surface, poisoned.
- Public health officials in Oregon announced they would be delaying a meeting because to rush and get everything done for it was a white trait. Here’s what a high ranking Oregon Health Authority official wrote to postpone the upcoming confab: "We recognize that urgency is a white supremacy value that can get in the way of more intentional and thoughtful work, and we want to attend to this dynamic. Therefore, we will reach out at a later date to reschedule." The KKK would unironically love this explanation.
- Tucker and conservative media have a hammer and keep looking for nails … Carlson is right that there is social breakdown that contributed to this shooting: After police took away the boy’s knives amid his various threats of violence, the Highland Park shooter’s dad helped buy him a gun.
- “Joy too can be an act of resistance. I want to talk about personal acts of reclamation because sometimes people will say, ‘There’s nothing I can do. I feel so powerless.’ There is no act too small that you can engage in. Even today, I have a personal errand, I need to redo my nails. And I’ve decided that I’m going to use my new manicure as almost like a personal act of reclamation for me and my story.” — Alexandria Ocasio-Cortez
Nellie had many more (including side-eyes at Elon Musk’s non-marital fertility), but I started feeling guilty about sharing so much paid content.
Penultimately, just a bit more, now from Andrew Sullivan’s miscellany:
- “From an empirical, non-woke perspective, the ‘Kill TERFs’ movement is pretty astonishing. It’s a bunch of biological males, threatening to brutalize biological females, for saying that female sex is real,” – Wilfred Reilly.
- “There is considerable overlap between the intelligence of the smartest bears and the dumbest tourists,” a Yosemite Park ranger when asked why it was so tough to design a bear-proof trash bin.
Happy as something unimportant
and free as a thing unimportant.
As something no one prizes
and which does not prize itself.
As something mocked by all
and which mocks at their mockery.
As laughter without serious reason.
As a yell able to outyell itself.
Happy as no matter what,
as any no matter what.
as a dog’s tail.
Anna Swir via Poetry Foundation
If people have always said it, it is probably true; it is the distilled wisdom of the ages. If people have not always said it, but everybody is saying it now, it is probably a lie; it is the concentrated madness of the moment.
Anthony Esolen, Out of the Ashes
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