Tag: Supreme Court

Immigration

The firehose of commentary on last Thursday’s birthright citizenship/nationwide injunction Supreme Court argument is now more a squirt gun. But I’ve had two very smart takes clipped for days now, and I think it’s time to get them out to readers:

Justice Ketanji Brown Jackson put it well in [last Thursday’s] argument:

[T]he real concern, I think, is that your argument [meaning that of the federal government] seems to turn our justice system, in my view at least, into a “catch me if you can” kind of regime from the standpoint of the executive, where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people’s rights.

Justice Kagan says let’s assume for the purpose of this that you’re wrong about the merits, that the government is not allowed to do this under the Constitution. And yet it seems to me that your argument says we get to keep on doing it until everyone who is potentially harmed by it figures out how to… file a lawsuit, hire a lawyer, et cetera. And I don’t understand how that is remotely consistent with the rule of law

This is especially true when, as in the birthright citizenship case, there are hundreds of thousands of victims of the government’s illegal policies, and many of them are poor or otherwise unable to readily file a lawsuit.

Ilya Somin, A Simple Defense of Nationwide Injunctions

Only the Supreme Court, the Administration asserts, can declare the policy unconstitutional as to persons who are not party to any lawsuit, and only the Supreme Court can enjoin the government from revoking the citizenship of persons similarly-situated to Able, Baker, and Charlie but located in other judicial districts.

It’s not a totally unreasonable position: only the Supreme Court has truly nationwide jurisdiction, and it alone should be permitted to decide “the law of the land,” not some district court in Texas or Massachusetts or Colorado.

But Justice Kagan identified the fatal flaw in the argument:

If [the government] wins this challenge and we say that there is no nationwide injunction and it all has to be through individual cases, then I can’t see how an individual who is not being treated equivalently to the individual who brought the case would have any ability to bring the substantive question to us…. In a case like this, the government has no incentive to bring this case to the Supreme Court because it’s not really losing anything. It’s losing a lot of individual cases, which still allow it to enforce its EO against the vast majority of people to whom it applies. . . . I’m suggesting that in a case in which the government is losing constantly, there’s nobody else who’s going to appeal; they’re all winning! It’s up to you, [the government], to decide whether to take this case to us. If I were in your shoes, there is no way I’d approach the Supreme Court with this case.

Which is exactly what happened here! …

… paradoxically enough, the more egregious the executive’s conduct – the more obviously and incontrovertibly unconstitutional it is – the more likely it is that it will lose every case, which will mean that the question of its constitutionality never gets to the Supreme Court for a conclusive ruling.

Clever, no? Another seam, or fault-line, in the web of constitutional protections and the separation of powers has been exposed.

I regard this as a fatal objection to a rule prohibiting non-party injunctions in all cases because it fails what we might call the Hitler Test: if we are ever so unfortunate as to have a president who wanted to do Hitler-ian things, would this rule help to prevent that from happening or not? It’s not a terribly high bar, but a rule prohibiting non-party injunctions in all cases doesn’t make it over.

David Post, Nationwide Injunctions and the Rule of Law

I have almost no doubt that the Trump administration will never bring the merits of its absurd birthright citizenship theories to the Supreme Court so long as it can continue acting on them against everyone who lacks the moxie or the wherewithal to file a lawsuit and get an injunction preventing enforcement against them personally. It will feel just fine if 10,000 successful plaintiffs can’t be deported so long as hundreds of thousands or millions can be plausibly threatened because they haven’t sued.

By the way: there are almost no honest politicians in the immigration fights. Everyone knows how to reduce illegal immigration to almost nothing: Congress must make e-Verify mandatory. They won’t do it because the economy relies on the mostly-menial labor of illegal immigrants, but they will bluff and bluster. And I’d give you pretty good odds that Donald J. Trump won’t deport them all for that reason, too. There will be just enough performative cruelty to keep MAGA happy.

Your enemies are not demonic, and they are not all-powerful and the right hasn’t always lost and the left hasn’t always won. But if you convince yourself of that, you give yourselves all sorts of permission to do a lot of stupid and terrible things under the rubric of “Do you know what time it is?”

Jonah Goldberg.

Regarding said “lot of stupid and terrible things,” my failure to call out anything about the current regime does not mean I approve. There’s just too much, and on some of the apparent illegalities I don’t want to abuse my credentials without thinking it through.

I don’t do any of the major social media, but I have two sub-domains of the domain you’re currently reading: (a) You can read most of my reflexive stuff, especially political here. (b) I also post some things on the only social medium I frequent, because people there are quirky, pleasant and real.

Wednesday, 3/12/25

Trump-related

As is my wavering intent, I have moved my more vitriolic criticisms of Trump 2.0 to another blog. What remains is relatively temperate.

As the twig is bent …

“Dennis Burnham, who lived next door, was a toddler when his mother briefly put him in a playpen in their garden. She returned a few minutes later to find the current U.S. president, then aged five or six, standing at his fence throwing rocks at the little boy. Another neighbor, Steven Nachtigall, now a 66-year-old doctor, said he never forgot Trump … once jumping off his bike and beating up another boy: ‘It was so unusual and terrifying at that age,’” – Trump Revealed.

“When I look at myself in the first grade and I look at myself now, I’m basically the same,” – Donald J Trump.

Andrew Sullivan

Tripping over a very low bar

It doesn’t take much to persuade me that some new development in this Administration is really bad. But it takes more than this:

Defense Secretary Pete Hegseth’s appointment today of his personal lawyer, Timothy Parlatore, as a Navy commander in the Judge Advocate General’s Corps reflects not just the norm-breaking approach that Hegseth is bringing to the job, but an odious philosophy of warfare. Like his new boss at the Pentagon, Parlatore has a pattern of providing support to soldiers accused of grave misconduct, even war crimes. He notably represented Eddie Gallagher, a Navy SEAL court-martialed on charges including the murder of a captured fighter (though he was found guilty only of one, lesser charge), along with a second SEAL accused of serious sexual offenses. Elevating a lawyer with this record does not bode well for the armed services Hegseth hopes to build.

Jason Dempsey at the Atlantic.

If we really believe that every criminal defendant deserves competent legal counsel, we must stop insinuating that lawyers who have represented criminals are complicit in their crime and therefore evil. But we’ve done so (albeit selectively, sorted by tribe) all my adult life, and it has always bugged me — even before I was a lawyer.

Dare I think this nasty habit reflects what we really believe:

  1. We should have kangaroo courts or even summary executions without trial — except for members of our respective tribes.
  2. Anyone who facilitates real courts and frustrates summary executions is a money-grubbing lowlife.

For my friends, anything; for my enemies, the law

For all of Trump’s talk about rooting out “anti-Christian bias” from the United States, one of his administration’s first executive actions violated the free speech and religious freedom rights of several Christian congregations. It turns out that Trump wants to protect only his Christian allies from government reprisals. Dissenting believers will face his wrath, and the wrath of the state.

David French, who has the receipts.

This is one of the reasons I don’t buy Aaron Renn’s positive world/neutral world/negative world chronology of Christianity’s status in the US. True and consistent Christianity has never been viewed positively, and the negativity has come from the right as well as the left, albeit for different reasons.

The Plight of the Never-Trump Pundit

I woke up excited to write about the day’s most important political news—before remembering that I said most of what I wanted to say on the subject a few weeks ago.

Never Trumpers who work in media will face that problem every day for the next four years. Good luck finding something new and interesting to say as the president vindicates your arguments against him again and again and again.

Nick Catoggio

The Trumposcene is a great time not to be a professional pundit. Yes, I opine, but I don’t have to do it on a schedule, whether or not I’m feelin’ it.

And I mostly borrow.

Not Trump-related

Resurrecting de Gaulle

[T]he American right should consciously support a stronger France. It should encourage a special relationship between the two republics, support French primacy on the continent, treat Paris rather than Brussels as the European capital and the French military as the keystone of Europe’s security.

In effect, we should revisit Charles de Gaulle’s bid to maintain more French independence within the Western alliance, which made him a thorn in the American side during the Cold War, and recognize that he was right. It was not actually in America’s long-term interests to make Europe our full dependent, because vassaldom encourages weakness, and weakness reduces the value of the alliance in a world that America can no longer simply bestride alone.

…

The French military is limited but still “indisputably the most capable in Western Europe,” as Michael Shurkin noted in a 2023 analysis for War on the Rocks, with a resilient capacity for expeditionary action. Its nuclear-energy strategy has granted it a degree of energy independence that contrasts sharply with the reckless folly of German “green” de-industralization. Its pro-natal policies have given it a sustained demographic advantage; it is aging, but its fertility isn’t collapsing in the style of Italy, Spain or now Poland.

Then, psychologically, France lacks the crippling sense of historical guilt that still pervades Germany, and the junior-partner complex that has made Britain an unsuccessful adjunct of recent American foreign policy mistakes. It embodies two distinct forms of universalism, Roman Catholic and republican, that have more historical appeal across Europe than the Anglo-American style of empire. And the rapid renovation of Notre-Dame de Paris joined to the recent “gentle revival” of Catholic practice amid secularized conditions suggest stronger possibilities for spiritual renewal as well.

This last point is crucial for American conservatives. The current European establishment, secular and socially liberal even in its “conservative” forms, often feels like a natural ally not of the United States in full but of American progressivism alone. So the American right should wish to see a more substantial European conservatism re-emerge — more ambitious than today’s populist factions, and capable, as the right-wing Frenchman Pascal-Emmanuel Gobry put it this week, of affirming Europe’s “Greco-Roman and Judeo-Christian” roots in contrast to Anglo-American progressivism.

Ross Douthat

ACB

After Justice Amy Coney Barrett voted against the Administration on one of the many Trump 2.0 “Emergency Docket” cases, she has been attacked I’m told, by the kinds of trolls who trot out canards like “DEI hire” in place of “treacherous bitch.” (I’m not referring to Prof. Josh Blackman, who criticizes the decision on more defensible grounds.)

Kevin D. Williamson is having none of it:

Supreme Court Justice Amy Coney Barrett, who joined with the chief justice to rule against Trump in the matter of his attempt to unilaterally freeze certain federal spending, is a great loyalist—but not the kind of loyalist Donald Trump’s ghastly little sycophants demand that she be. Justice Barrett is loyal to her oath of office, to the law, to the Constitution, to certain principles governing her view of the judge’s role in American life—all of which amounts to approximately squat in the Trumpist mind, which demands only—exclusively—that she be loyal to Trump, and that she practice that loyalty by giving him what he wants in court, the statute books—and the Constitution—be damned. 

The usual dopes demand that she give Trump what he wants because he is “the man who put her on the Supreme Court.” Mike Davis of the Article III Project (not the author of Late Victorian Holocausts; his organization works to recruit Trump-friendly judges) sneers that the justice is “weak and timid” and, because he is a right-wing public intellectual in 2025, that “she is a rattled law professor with her head up her ass.” Davis, a former clerk for Justice Neil Gorsuch, presumably is not as titanically stupid as he sounds, but there is a reason Justice Barrett is on the Supreme Court and he is a right-wing media gadfly who describes his job as “punching back at the left’s attacks.”

There is a word for men such as Davis et al.: subjects.

Kevin D. Williamson

Debasing education

Even though I am certainly angry at those students who choose to cheat, the fact is that I also care about them and feel a certain degree of compassion for them. I don’t want them to miss out on the opportunity to become educated, not even as the result of their own poor choices. It’s a bit of a Catch-22. How can we expect them to make good choices, about their studies or anything else, if they have not yet been given the tools to think critically? How can we expect them to grasp what education means when we, as educators, haven’t begun to undo the years of cognitive and spiritual damage inflicted by a society that treats schooling as a means to a high-paying job, maybe some social status, but nothing more? Or, worse, to see it as bearing no value at all, as if it were a kind of confidence trick, an elaborate sham?

Troy Jollimore via Alan Jacobs

Moral clarity

A devil is no less a devil if the lie he tells flatters you and stands to help you defeat your enemies and achieve power.

Rod Dreher, Something Demonic Is In The Air, 1/13/2021

I don’t think Rod’s vision is as clear now as it was then.

I suffer more from the humiliations inflicted by my country than from those inflicted on her.

Simone Weil, from a letter to Georges Bernanos.

[N]one of the things that I care about most have ever proven susceptible to systematic exposition.

Alan Jacobs, Breaking Bread With the Dead

I don’t do any of the major social media, but I have two sub-domains of the domain you’re currently reading: (a) You can read most of my reflexive stuff, especially political here. (b) I also post some things on the only social medium I frequent, because people there are quirky, pleasant and real.

Musings, 2/21/25

Can there be a lawful order to act unethically?

I’m struggling with the agreement between Sarah Isgur and David French on the Advisory Opinions podcast that the orders from the Trump Department of Justice to dismiss the charges against New York City Mayor Eric Adams was a lawful order, even if compliance by federal prosecutors would have been unethical. I’d like to think that an order to a professional to do something unethical is ipso facto not a lawful order.

If nothing else, this confirms the wisdom of not allowing non-lawyers to own a law firm (e.g., Model Rules of Professional Conduct 1.17(b)) lest this kind of thing pervade the legal profession rather than remaining an application of the unitary executive theory to the Department of Justice.

This is why we can’t have nice things

Speaking of unitary executive theory, I have more or less been persuaded to become a “soft unitarian.” But the test case that Donald Trump has set up by firing the head of the Special Counsel’s office is straining my recently-acquired conviction.

Mafia Don has fired Hampton Dellinger, current head of the Office of Special Counsel, without invoking “inefficiency, neglect of duty, or malfeasance in office” as required by statute. A federal District Court has ordered that he be reinstated. A federal Court of Appeals has rejected Trump’s appeal on technical grounds (the District Court decision is only preliminary, not final). He now seeks review by the US Supreme Court.

I shudder because unitary executive theory makes the substance of his appeal plausible.

So here’s the deal on the Constitutional issues.

The Constitution establishes three branches of the federal government: Congress (Article I), the Executive (Article II), and the Judiciary (Article III). The opening words of Article II are “The executive Power shall be vested in a President of the United States of America.“

So what is the status of supposedly “independent” agencies, created by Congress, like the Office of Special Council? Are they a fourth branch of government, hiding in the shadows of the constitution, or are they simply unconstitutional because all executive power is vested in the presidency? If the latter (which is substantially the position of President after President since the Office was created, but nobody before The Don cared so little about chaos to provoke a fight over it), then what checks the power of the Presidency? Are we doomed to live under a kakistocracy if the President goes haywire?

The conventional answer is that Congress’s impeachment power checks the power of the presidency. If you are satisfied that this Congress has the cojones to impeach this president, you are living in a different reality than I am.

As I sit here in my easy chair, six years retired and 43 years out of law school, the best response I can come up with for SCOTUS is (1) refuse to hear the case because the District Court decision is only preliminary or (2) take the case and rule that independent agencies are not exercising executive power, but rather are serving as a check on executive power, and thus really are “hiding in the shadows” of the Constitution.

I think this would be a satisfactory ground to uphold the District Court. But I remember how conservatives derided Justice Harry Blackmun’s finding a right to abortion in the “emanations of the penumbrae” of the constitution?

The electorate having decided that Mafia Don was the lesser evil (a perception I gradually came to find defensible within the 5 or 6 months preceding January 20) has thrust us into the Constitutional crisis of an utterly corrupt President who will never be impeached because not only can he suborn and fund primary candidates against those who would impeach him, but he can with winks, nods, and stochastically violent rhetoric unleash fanatics that make Congressmen literally fear for their families if they cross him.

A decision either way from the Supreme Court will deepen the crisis.

First, they came for the radical liberal communists …

Pundit tribalism

That issue—how intellectuals are supposed to comport themselves in their political engagements—is one that matters a lot to me. On top of the policy disagreements, what drove me away from the intellectual right two decades ago was the expectation, as an editor for First Things magazine, that I defend a political line in public. I wasn’t allowed to write a conservative case for not invading Iraq, for example, because that would risk making myself and the magazine appear “unreliable.” There was simply too much at stake, my boss told me, to risk a dissent from the conservative movement and its presidential champion. The War on Terror had to be won—and even more fundamentally, George W. Bush needed to have a successful presidency. We couldn’t risk contributing to its failure by directing criticisms its way.

Damon Linker

I’m very sympathetic to Linker about this kind of tribalism.

Our local rag used to have a very lively letters to the editor section (they don’t even have an opinion page anymore). When my religious Right co-belligerents expressed particularly idiotic opinions or called for perverse boycotts (example omitted because it was so idiotic you wouldn’t believe me), I tended to refute them vigorously, and at least once received an anonymous phone call implying that I was a Judas (no threat, just bile).

Why can’t the world be unanimously sane and moderate, just like Damon Linker and me?

Our four-party system

I enjoyed Ezra Klein’s little essay the other day as a partial explanation of how polarization got worse:

The two-party system of the 20th century was really a four-party system. The Democrats were split between the liberals we know today and the Dixiecrats, whose primary goal was upholding segregation. The Republicans were split between conservatives and Northern liberals. It is astonishing from our vantage point, but it was true for much of the 20th century: To say you were a Republican or a Democrat didn’t reveal whether you were a liberal or a conservative. As a senator, Joe Biden opposed the Roe v. Wade decision in 1973. President Richard Nixon proposed a universal health care bill and created the Environmental Protection Agency. George Wallace started out as a Democrat. Politics was different then.

Parties that contained so many different places and ideologies could not act in lock step, and so bipartisanship was common. The Civil Rights Act of 1964 was pushed by a Democratic president, but congressional Republicans were crucial to its passage. When Watergate began coming to light, Congress acted as a collective. Only four House Republicans voted against opening the impeachment inquiry into Nixon, and a delegation of congressional Republicans ultimately persuaded him to resign.

And it wasn’t just impeachment. When Nixon refused to spend the money Congress had appropriated — a policy known as impoundment — Congress acted to protect its power: The Congressional Budget and Impoundment Control Act of 1974 passed the House with only six “no” votes; it passed the Senate without a single vote in opposition.

(Emphasis added) I remember guys like Scoop Jackson, Dick Gephart, Mark Hatfield, Nelson Rockefeller, John Lindsey. Joe Manchin proves there’s no room for that kind any more. There’s just two tribes, each controlled from the wings, not the center.

Clamoring aboard the ARC

A Jordan Peterson-adjacent, Christian-coded “Alliance for Responsible Citizenship” recently convened. Two Orthodox Christian friends have diverging thoughts:

As I wrote yesterday, it is strange that it has taken a non-believing clown like Donald Trump to be the Great Disrupter. We do not have to agree with everything he does …, but I believe people like me can work with people like him in ways we simply could not do with those who were in power before.

Rod Dreher, whose “responsible citizen” culture-warring is a bone of contention between him and his friend Kingsnorth:

Jesus didn’t come to Earth to teach us how to be ‘responsible citizens’, of any political stripe. Responsible citizens don’t leave their own fathers unburied. They don’t hate their own mother and father, or give away all of their wealth, or compare the religious authorities to whitewashed tombs full of rotting flesh. And they don’t usually end up being crucified.

Paul Kingsnorth commenting in advance.

My sympathies lie almost completely with Kingsnorth, but I understand Dreher’s point — though I would rephrase it as “Unlike the Democrats, Trump is not actively and operationally hostile toward America’s motley array of ‘conservative’ Christians.”

Back in the days when I blogged longer-form original material more than curating other folks’ stuff, I declared myself a “Conscientious Objector to the Culture Wars” (a status that’s hard to maintain consistently) in a long-form blog that holds up well as a description of why I disengaged. This was about 80% Kingsnorthian a decade before I’d heard of the guy. It’s a posture that has spared me the ignominy of ever hallucinating that “we can work with” Trump 2.0 toward any truly edifying end.

(By the way: my shift from longer-form original material toward curation is, I think, a recognition that I’ve blogged most of my idées fixes in long-form and to my personal satisfaction; there’s no need to inflict them on others constantly, though I’m toying with a blogroll of my landmark posts.)

Just because …

… I thought this image was beautiful.

Jozef Pankiewicz, Market Square of Warsaw by Night, 1892 (Wikimedia Commons)

O Lord of hosts be with us, for we have none other help in times of sorrow but Thee. O Lord of hosts, have mercy on us.

I don’t do any of the major social media, but I have two sub-domains of the domain you’re currently reading: (a) You can read most of my reflexive stuff, especially political here. (b) I also post some things on the only social medium I frequent, because people there are quirky, pleasant and real.

Independence Day

Public Affairs

The Immunity Ruling

The mark of an iconic Supreme Court decision is timelessness. With every read, the opinion teaches new insights and provides new lessons on our Constitution. Each semester when I prepare a case like Marbury or McCulloch, I learn something new.

Opinions from Chief Justice Roberts, however, are just the opposite. They are best read once. After the first read, you will come away entirely persuaded that Roberts’s analysis was not only the best answer (to use the Loper Bright framing), but the only conceivable answer, as any contrary positions are unfounded. That’s the first read.

But when you read a Roberts decision a a second, a third, and a fourth time, all of the fancy veneers and window dressing start to come off ….

Josh Blackman.

On Trump v. United States, people I trust who’ve taken the time to work through the case (I was never a prosecutor, rarely a criminal defense attorney) say it’s going to be very hard to prosecute a President for anything. That is not the impression Justice Roberts created on first reading of his opinion.

That means, in essence, that “the President is not above the law” is substantially false now.

And that means that Trump may soon no longer be a convicted felon (because Judge Merchan admitted testimony of a sort that Justice Roberts dubiously says may not be admitted).

I guess we’ll just have to elect someone else. What crueler punishment for Trump than an emphatic electoral drubbing? (But what crueler punishment for the USA than to re-elect the zombie currently in the Oval Office?)

Some thoughts, though:

  1. I just about freaked out when, in law school, I learned that “immunity” was a thing. Lots of people are “above the law” in various circumstances, including crooked prosecutors, judges, policemen (“qualified immunity” in too many circumstances), trash-talking Congressmenpersons. I’ve even figured out why that’s often the lesser evil compared to no immunity. So get it out of your head that keening about “they made him above the law” communicates anything salient.
  2. This isn’t just about Trump. It’s about all Presidents. Good luck prosecuting Joe Biden, Cheeto Benito — or Mike Pence, or Barack Obama, for that matter.
  3. Do you really think that none of the Presidents in your lifetime until Trump has crimed — if only to protect the country from, for instance, terrorists whose location we knew?
  4. That we have an ex-President who is almost certainly guilty of vile, self-serving, delusional crimes is a very, very, very sorry commentary. That his crimes commend him to so many voters is even worse.
  5. Just about everyone agreed that the court would extend, and should extend, some measure of immunity from criminal prosecution to our Presidents. The decisions of the lower courts that Presidents have zero immunity were surprising (likelier, shocking) and unlikely to stand. But few expected the court to give Presidents the extensive practical immunity that emerges from the weeds when you get deeply enough into them.
  6. The lack of constitutional language making the President immune to criminal prosecution is barely interesting, let alone dispositive. There’s no “separation of powers” clause, either and for instance, but it’s fundamental to our system and implied by what is specified.
  7. If and when Trump issues a lawless order, the people he orders should consider refusing to carry it out because I don’t believe they’ll ride his immunity coat-tails. I can only hope that Project 2025 hasn’t vetted a full slate of Trumpist sociopaths who’ll never threaten mass walkouts.
  8. We need to get it through our heads that our Presidents are, pretty much, above the law and that we should try to elect people who aren’t, for instance, promising a retributive crime spree against their adversaries.
  9. When Trump crimes in his second term, I hope we’ll have a Congress willing to impeach, because the Senate will no longer have the excuse that the criminal justice system can deal with it.

I don’t mean to say it will all work out okay. We’re in unchartered territory with Zombie Joe v. Cheeto Benito and his merry band of Project 2025 vandals. I’ve been bearish on the USA for quite a while now, heaven help me — the cultural equivalent of “the financial doomsayers who has correctly predicted 10 of the last three recessions” (see below).

The Unitary Executive

Not unrelated to the matter of Presidential immunity is the “unitary executive” theory.

I thought I was fairly sophisticated on matters of Constitutional Law, but an article in the New York Times lays out with unusual clarity a sort of meta-battle going on in the legal ether above some recent SCOTUS decisions: Charlie Savage, Conservative Legal Movement’s Agenda Unites Court’s Rulings on Executive Power. That’s freebie “shared link,” by the way.

It leaves me feeling freshly conflicted about the independent regulatory agencies we have. They’re “a headless fourth branch of the U.S. government” as Justice Kavanaugh once put it in his pre-SCOTUS days. But the Project 2025 vandals are not at all conflicted; they want to domesticate all regulatory agencies. That would mean that we would have even wider swings in policy from Administration-to-Administration, as far fewer career civil servants would carry over, and far fewer good people would be willing to go into low-profile career governmental service.

I highly recommend the article, and plan to re-read it at least once in a few weeks.

UPDATE: A recommended companion read for Savage is from Josh Blackman again, The Goal Of The “Architects of the Supreme Court” Was Always Overruling Chevron, and not Overruling Roe.

Bare-faced lies

Earlier this year, New York Times columnist Paul Krugman was boasting of the personal time he spent with Biden, who he proclaimed to be “completely lucid and with excellent grasp of detail”. After the debate, Krugman called on Biden to step down. Senile dementia is a clever disease. Or maybe Krugman didn’t like the face he saw in the mirror the morning after Biden’s debate performance.

What astounded Krugman and his fellow bold-faced journalist types about Biden’s rotten debate performance wasn’t the obviousness of Biden’s mental decline, but the fear that they were now publicly shown to have been lying. Krugman’s fellow in-house NYT author of Soviet state propaganda, Thomas Friedman, who fancies himself an “old friend” of Biden’s, was writing fibs about Biden as late as last month while boasting of his long off-the-record conversations with the President about the future of the Middle East. It took Friedman less than 24 hours to proclaim that Biden’s debate performance had made him “weep”. Poor man — no doubt it did. David Remnick of The New Yorker, who authored a door-stopper-sized hagiography of Barack Obama during the President’s first year in office, was equally quick to go public with his discovery that Joe Biden was maybe not exactly up to sorting marbles by size or colour, just in time to become a virgin for the next election.

It’s hard to be revealed as a fibber — especially when your job is ostensibly to tell the truth. But the sight of journalistic worthies suddenly grabbing hand towels to cover their proximity to power was not by itself enough to explain the Night of the Journalistic Long Knives.

David Samuels

Whataboutism comes home

On the center-left, Mark Leibovich isn’t pulling his punches in a piece on the Democrats sticking with Biden: “Since President Joe Biden’s debate debacle on Thursday, I’ve learned two things for sure: first, that Republicans are not the only party being led by a geriatric egotist who puts himself before the country. And second, that Republicans are not the only party whose putative leaders have a toxic lemming mindset and are willing to lead American democracy off a cliff.” (The Atlantic)

The Free Press

History will, if necessary, judge between the harm wrought by the two geriatric egotists.

Without comment

Lighter fare

One movie is worth how many words?

The shocking decline of the city—driven by any number of factors, but most certainly liberal policies high among them—drove massive white flight and deindustrialization of the city. Vast numbers of New Yorkers moved to the suburbs in Long Island, New Jersey, or in enclaves in the outer boroughs.

(An interesting exercise is to look at the movies set in the Big Apple in the early sixties compared to those in the early 70s and you can see the suddenness of the decline. From Breakfast at Tiffanys, That Touch of Mink, and Barefoot in the Park_to _Death Wish, Taxi Driver, Dog Day Afternoon, and Serpico in about a decade.).

Jonah Goldberg

Past its sell-by date

MoveOn is the textbook example of an organization that has outlived its purpose. Founded more than a quarter-century ago to argue that the country needed to “move on” from Bill Clinton’s intern-diddling impeachment drama, it had two things that confer a very long life in American politics: office space and a good fundraising list. And so, while the country has moved on, MoveOn hasn’t. Which is weird, but this is America.

Kevin D. Williamson.

Frank Bruni’s beloved sentences this week

  • In The New Yorker, Susan B. Glasser reflected on a micro-tussle toward the end of last Thursday night’s presidential debate: “Is this how democracy dies, in a shouting match between two seniors about their golf game?” (Thanks to Mike Greenwald of Melville, N.Y., for nominating this.)
  • In The Connecticut Post, Colin McEnroe pondered the president’s proper course: “I’m guardedly a ‘replace him’ guy. Some of you may recall that in 2019, I compared Biden to a Subaru with 310,000 miles on the odometer … But Thursday night was 90 minutes of the ‘check engine’ light flashing desperately in the darkness.” (Holly Franquet, Fairfield, Conn.)
  • In The Atlantic, Caitlin Flanagan evaluated Americans’ attitudes toward NATO … NATO is the rotary phone of geopolitical alliances.” (Richard Reams, San Antonio)

Frank Bruni

Quickies

a matryoshka doll of mendacity

George Conway’s description of Trump, apropos of the New York records falsification case.

one of those financial doomsayers who has correctly predicted 10 of the last three recessions.

The Free Press

… Slate, which, as we all know, employs lab monkeys escaped from federal cocaine experiments as fact-checkers

Kevin D. Williamson

An aphorism can never be the whole truth; it is either a half-truth or a truth-and-a-half

Karl Kraus

(Economist World in Brief)

Plaintiff Accused of Being “Litigious” Sues for Slander

Eugene Volokh

Male and female

This view would understand the division of man into male and female as, of course, a biological actuality; i.e., this is the way it is. It seems to be a necessity; it is at least a convenience; and it is certainly a delight.

Thomas Howard, Chance or the Dance?, written before gender ideology was a thing.

I suffer more from the humiliations inflicted by my country than from those inflicted on her.

Simone Weil, from a letter to Georges Bernanos.

I don’t do any of the major social media, but I have two sub-domains of the domain you’re currently reading: (a) You can read most of my reflexive stuff, especially political here. (b) I also post some things on the only social medium I frequent, because people there are quirky, pleasant and real.

George Will’s Questions for Kagan

Why would nobody have the cajones to ask the questions George Will suggested Sunday and Monday?

Personal favorites (get a grip, Tipsy; not too many now!):

  • If Congress decides that interstate commerce is substantially affected by the costs of obesity, may Congress require obese people to purchase participation in programs such as Weight Watchers? If not, why not?
  • Can you name a human endeavor that Congress cannot regulate on the pretense that the endeavor affects interstate commerce? If courts reflexively defer to that congressional pretense, in what sense do we have limited government?
  • The Fifth Amendment mandates “just compensation” when government uses its eminent domain power to take private property for “public use.” In its 2005 Kelo decision, the court said government can seize property for the “public use” of transferring it to wealthier private interests who will pay more taxes to the government. Do you agree?
  • William Voegeli, contributing editor of the Claremont Review of Books, writes: “The astonishingly quick and complete transformation of the Civil Rights Act of 1964, from a law requiring all citizens be treated equally to a policy requiring that they be treated unequally, is one of the most audacious bait-and-switch operations in American political history.” Discuss.
  • Regarding campaign finance “reforms”: If allowing the political class to write laws regulating the quantity, content and timing of speech about the political class is the solution, what is the problem?
  • Incumbent legislators are constantly tinkering with the rules regulating campaigns that could cost them their jobs. Does this present an appearance of corruption?
  • Justice Thurgood Marshall, for whom you clerked, said: “You do what you think is right and let the law catch up.” Can you defend this approach to judging?
  • You have said: “There is no federal constitutional right to same-sex marriage.” But that depends on what the meaning of “is” is. There was no constitutional right to abortion until the court discovered one 185 years after the Constitution was ratified, when the right was spotted lurking in emanations of penumbras of other rights. What is to prevent the court from similarly discovering a right to same-sex marriage?
  • Bonus question: In Roe v. Wade, the court held that the abortion right is different in each of the three trimesters of pregnancy. Is it odd that the meaning of the Constitution’s text would be different if the number of months in the gestation of a human infant were a prime number?

Supreme Court Confirmation Hearing preview

We don’t even have a nominee yet, but the posturing — academic and political — is shaping up, as signaled on the editorial page of today’s Washington Post.

In the right corner, weighing in with the mantra of “commitment to the text of the Constitution and the vision of the Founding Fathers,” is senator Jeff Sessions from Alabama, ranking Republican on the Judiciary Committee.

In the left corner, weighing in with the historical untenability of ascribing to the Founders any unified “original intent,” is Joseph J. Ellis, a Pulitzer Prize-winning professor of history at Mount Holyoke College.

Ellis is would win the match on points, but Sessions has a knockout punch: by and large, Americans agree with him, whether or not original intent is tenable historically.

It is perhaps probably significant that neither one speaks of abortion, the issue that, whether explicitly or encoded, has dominated confirmation hearings for decades. The current hot button issues for Sessions are political speech, guns, and eminent domain.