Leftist pundits continue to bamboozle post-Americans about how the current Supreme Court comes to decisions

 This. is another one of those generous-excerpt posts, because Romesh Ponnuru of the American Enterprise Institute has offered up a prime example of how pundits committed to a secular future for the West get readers who have lost the capability to make necessary distinctions all riled up about the current makeup of the Supreme Court:

Pamela Paul’s recent op-ed in the New York Times was notable for two things. The first is an incendiary title (“Your Religious Values Are Not American Values”) that fortunately does not convey a tone sustained throughout the piece. Paul ends with a conclusion so tepid that nearly all the religious conservatives she means to denounce could agree with it: “This Fourth of July, let’s bear in mind that what many Americans value in this country is its inclusion and protection of all, regardless of their beliefs.”

The second is this passing smear, the most specific criticism she offers: “Unfortunately, the conservative majority of the Supreme Court has demonstrated that, like many Republican politicians, when it comes to freedom of religion — and yes, that must include freedom from religion — those justices are willing to put their own faith above all else.”

The link, where she supposedly demonstrates the accuracy of this accusation, goes to her own op-ed from two years ago furiously attacking the 6–3 decision in Kennedy v. Bremerton School District:

This court’s right-wing majority is following the dictum of our Trumpian age: Objective truth doesn’t matter. Subjective belief — specifically the beliefs of the court’s religious-right majority — does. The Kennedy decision wasn’t based on the facts but on belief in the face of facts. Moreover, those six justices are determined to foist their beliefs on the rest of the country.

Paul believes that the assistant football coach who brought the case, Joseph Kennedy, had coerced players to submit to his proselytizing: “Students who walked off the field rather than take part in Kennedy’s prayers may have risked losing playing time and perhaps a path to a football scholarship. No athlete on a public-school team should have to pray to play.”

Sorry, but none of this is what the case was about — although Justice Sotomayor’s dissent artfully misdirects its readers into thinking as Paul does.

The truth can be found in Justice Gorsuch’s opinion (and also in Ed Whelan’s coverage of the case for NRO). Here’s Gorsuch:

The contested exercise before us does not involve leading prayers with the team or before any other captive audience. . . . At the District’s request, he voluntarily discontinued the school tradition of locker-room prayers and his postgame religious talks to students. The District disciplined him only for his decision to persist in praying quietly without his players after three games in October 2015. [Emphasis in original.]

Maybe Paul would have had a point if Kennedy had continued his previous practice, been disciplined by the district for it, and then gotten the Supreme Court to rule that he had a First Amendment right to flout its directive. But that’s not what happened. The real scandal in the case is that three justices were willing to okay the district’s indefensible behavior — and that for two years running, many in the press, including Pamela Paul, keep distorting the facts of the case. “Objective truth doesn’t matter,” indeed.

Now, an interesting question arises, namely, whether Paul knew what the real gist of the case was, or whether she lazily didn't dig deep enough to find that out. I'm betting on the former. I'd say it bugs her so much that the coach still had the right to pray privately after games that she framed her column the way she did on purpose.

                

SCOTUS overturning Chevron really brought up the Left's stuff, didn't it?

 The actual case that was before the court:

Atlantic herring fishermen sued over federal rules requiring them to pay for independent observers to monitor their catch. The fishermen argued that the 1976 Magnuson-Stevens Fishery Conservation and Management Act did not authorize officials to create industry-funded monitoring requirements and that the National Marine Fisheries Service failed to follow proper rulemaking procedure.

In two related cases, the fishermen asked the court to overturn the 40-year-old Chevron doctrine, which stems from a unanimous Supreme Court case involving the energy giant in a dispute over the Clean Air Act. That ruling said judges should defer to the executive branch when laws passed by Congress are ambiguous.

Okay, now for some play-by-play commentary. The reason the Chevron case, and subsequent doctrine, needed to be overturned is that the onus for ambiguity need to be on Congress. Write laws with more clarity. That's what we hire you to do. 

Consider the wording that AP has chosen to frame the impact:

With a closely divided Congress, presidential administrations have increasingly turned to federal regulation to implement policy changes. Federal rules impact virtually every aspect of everyday life, from the food we eat and the cars we drive to the air we breathe and homes we live in.

I did the boldfacing. The damn sentence is just presented as something that ought to be taken as a given in "modern life." And that's horrifying.

Look, I'm no Lew Rockwell, but one doesn't have to be to be incensed at this framing. Us actual conservatives are Frank Meyer fusionists. Freedom to chose the cars we drive, the homes we live in, and the food we eat is of a seamless piece with a fealty to tradition and an insistence on a morality-driven policy orientation informed by a transcendent order. When such choices are taken out of our hands by the entity with a monopoly on the legitimate use of force, our ability to value our agency as individuals withers and we become cattle.

Here's a lady who's absolutely aghast about the matter:

“This case was never just about fish,’' said Meredith Moore of the environmental group Ocean Conservancy. Instead, businesses and other interest groups used the herring fishery “to attack the foundations of the public agencies that serve the American public and conserve our natural resources,’' she said.

 "Serve the American public." Get the paternalistic tone there? The pointy-heads know how we need to be "served," and they don't need your input.

But if you want to see some really apoplectic reaction to the recent decision, there's this post at Public Notice, a Substack that has a palpable aversion to freedom. It's titled "The Destruction of the Regulatory State Is Already Happening." 

Check out the opening paragraph. The boldface is once again mine:

It’s been barely a week since conservatives on the US Supreme Court radically upended the balance of power between the branches of government, giving the federal courts the exclusive power to interpret statutes rather than deferring to agency experts. And we’re already seeing impacts on the ground.

Rexford Tugwell and Frances Perkins, call your offices! 

There's a section of the post that author Lisa Needham calls "Bigotry From the Bench" that gets to the heart of what has her howling like a coyote with its leg caught in a trap:

Unsurprisingly, much of the assault on administration rules relates to any regulation that would protect transgender people. 

Four days after Loper Bright was handed down, another Trump appointee, Judge John W. Broomes in Kansas, enjoined the Department of Education from enforcing its Nondiscrimination on the Basis of Sex in Education Programs rule in Kansas, Alaska, Utah, and Wyoming. The Department of Education spent two years finalizing the rule, which would have prohibited discrimination based on gender identity under Title IX. 

The unofficial text of the rule, which runs 1,577 pages with supporting material, is jam-packed with legal analysis. Hundreds of pages are spent explaining how the DOE considered and addressed public comments and the document details the mental health impact of discrimination against LGBTQ students. 

 Broomes’s expertise is in natural resource law, a background that does not lend itself to a detailed understanding of Title IX, sex discrimination, or gender identity. But none of that matters. 

His opinion sneers about “self-professed and potentially ever-changing gender identity” and insists that things like using correct pronouns for students and allowing them to use the bathroom that conforms with their gender identity is an issue of “vast economic” significance. Given that the only costs of the rule are things like updated administrative guidance and perhaps hiring additional Title IX staff, the idea it is a vast economic question is, to put it politely, a reach. Instead, Broomes sided with the conservative plaintiffs, including Moms for Liberty and an Oklahoma student who asserted that using the correct pronouns for other students violated her religious beliefs.  

Because of this mix of conservative state litigants, private anti-trans groups, and an Oklahoma student, the extent of Broomes’s injunction is even weirder than the patchwork blocking of the HHS rule. 

Besides blocking the rule entirely in four states, the rule is also blocked for the schools attended by the members of two private plaintiffs, Young America’s Foundation and Female Athletes United, and all schools attended by the children of members of Moms for Liberty. So now, if you are a transgender student unlucky enough to attend school anywhere in the country where a child of a Moms for Liberty student also attends, you’re out of luck. If your school is free of children of book-banners, you get the protection of the federal rule — unless you live in Kansas, Alaska, Utah, and Wyoming, in which case it doesn’t matter what school you go to. 

On full display here is the Left's refusal to address the fact that, until ten years ago at the outside, no culture in human history had ever codified a demographic called "transgender," as well as an assumption that human beings can invent themselves with no acknowledgement of a divine architecture to the universe.   

The Left is demonstrating (once again) that its core principle is a hatred of human liberty.

That's nothing new, but the problem is exacerbated by the fact that the Trumpist Right can't even remember what the term "core principles" means. 

Disentangling the Alitos' situation from the Very Stable Genius's fortunes

 I may have mentioned this before here at LITD in some context, but I'll draw your attention presently to a post I wrote at The Freemen Newsletter last November titled "The Conflation Problem."

I do know that I've discussed the problem here before. It started once the GOP went all in for Trumpism, and has only gotten worse in the nine-year interim.

The Washington Post and CNN et al love nothing more than to brand drool-besotted yay-hoos like Marjorie Taylor Greene and Charlie Kirk as conservatives. And the drool-besotted yay-hoos love nothing more than to brand the likes of Liz Cheney as traitorous decidedly non conservatives.

The task of disentangling the real deal from Trumpism is one of the main things I write about, and discuss with my colleagues.

A lot of principled - I think - folks have made some kind of Faustian bargain in order to reach the widest audience. 

For instance, Guy Benson is a sociocultural observer with his head on straight, but he unfortunately has chosen to have the garbage site Townhall be a main outlet for his columns.

But his piece today is so important that I'm going to hold my nose and link and excerpt anyway.

It's on the business about the Alitos' flags, and it's rich with substantiation for his position, which is that it's all designed to erode the Supreme Court's independence and fealty to the Consittution:

Let's be explicitly clear: They are not doing so because they are genuinely concerned about "ethics." They are not doing so because there are clear violations or conflicts of interests at play (this cynical brigade has shown zero interest in similar or more flagrant potential issues involving the Court's leftist contingent).  They are doing so because the Court's conservative majority is denying them the outcomes they desire.  It's that simple.  They are laboring to tear down an institution that stands in the way of their extreme ideological project because they view and demand power as their ideological birthright. 

This is dangerous, both to "our democracy," about which they purport to care very deeply, and to the targeted justices.  We've witnessed the Democrats' Senate leader specifically threaten members of the Court by name, earning a rare rebuke from the Chief Justice.  We've seen ugly, menacing protests outside the family homes of various justices.  And we've even seen a thwarted assassination attempt against Justice Brett Kavanaugh, which garnered shockingly little coverage.  As always, "civility" and "rhetoric" media panics cut in one direction among the progressives who run America's widely-distrusted, 'elite' newsrooms.  And it's from those newsrooms that the current, ludicrous controversy has emanated -- driven by activists, and picked up by elected Democrats.  It's ginned-up nonsense.  It's embarrassing.  And it's all so transparent.  The country is supposed to be scandalized by an upside-down American flag flown outside of Justice Sam Alito's home in early January 2021.  The country was then instructed to be further appalled by the discovery of another, 'insurrectionist-linked' flag flying at his vacation home.  

Justice Alito has explained the 2021 incident, drawing incredulous heckles from the Left, but it turns out that his account aligns with contemporaneous reporting from the Washington Post.  Indeed, back at the time, the Post looked into the matter and found the episode so unremarkable that they didn't even run a story on it.  But here we are, years later, and the manufactured outrage machine insists that everyone simply ignore this [the fact that WaPo determined it was a non-story at the time].

It getting 'out of hand' was the whole point, of course.  But the fact remains that the Post dug into this flap more than three years ago and declined to report on it after concluding that the upside-down flag was hoisted by the justice's wife, over a neighborhood dispute.  The dispute, it seems, originated from bouts of profane rudeness from left-wing residents: "Alito said that a neighbor had posted a sign saying 'F**k Trump' near a school bus stop and then a sign attacking his wife, Martha-Ann Alito. On a walk, the justice told Fox, the Alitos got into an argument with the neighbor, who used the term 'c**t' at one point. His wife then flew the inverted flag," which is a sign of distress.  But the New York Times' breathless reporting in recent days is designed to conjure up the impression that Alito is a pro-Capitol-riot, 'stop the steal' lunatic.  Facts that were explored and dismissed at the time have been resurrected and distorted, as part of a shameless political hit job.  As for the other 'problematic flag,' what an embarrassing attack:

Rather than retreat in humiliation, the Times doubled down this week with a follow-up report of yet another flag—this one right-side up—spotted at the Alitos’ vacation home in New Jersey. The left tells us that the 1775 Pine Tree flag was spotted among Jan. 6 protesters! And moreover, that its catch phrase, “an appeal to heaven,” derives from a radical character—John Locke. The Times somehow fails to let readers know that the flag is a longtime symbol of independence; that it was designed by George Washington’s secretary; was flown on ships commissioned by Washington; has been honored, commemorated and flown over state capitols; and is the official maritime flag of the Commonwealth of Massachusetts. It is currently displayed outside the office of the speaker of the House. Dozens of historic flags were toted to the Capitol on Jan. 6, as were copies of the Constitution and pictures of the American eagle. Are they all now symbols of “insurrection”?

Benson then notes that the Appeal to Heaven flew at San Francisco City Hall last year.

Another big story of the current news cycle is the conclusion of Trump's falsifying-of-business-records trial in New York. 

Now, I'm inclined to think that serious, respect-worthy legal minds such as Andrew McCarthy have the better argument - namely, that Bragg and Merchan have been licking their chops at the prospect of incarcerating the Very Stable Genius, at the expense of a sound legal case. 

But there's the matter of focus, and I have trouble - as I have for some time - with Byron York's emphasis on the legal flimsiness and those who de-emphasize that. Today, at The Washington Examiner, he zeroes in on the change in George Conway's thinking:

“Not all that long ago, I thought that the trial currently being held … seemed the least serious of the cases against him,” wrote George Conway, the conservative lawyer-turned-Biden megadonor, in the Atlantic earlier this month. “But I feel the need to admit error. The truth is, I’ve come around to the view that People v. Trump is, in at least some ways, the perfect case to put Trump in the dock for the first time, and — I hope, but we’ll see — perhaps prison.”

Why is that? Conway, one of the more aggressive members of the anti-Trump resistance, wrote that he now believes the Manhattan case perfectly exposed what he says are Trump’s myriad lies. But for the resistance, the most salient fact about the Manhattan trial is this: It is happening. It is getting done before the election, which is the most important consideration for Democrats who pray that a Trump conviction could change the dynamics of a presidential race in which Trump leads President Joe Biden.

True enough, but there's something damn weasel-y about overlooking this major aspect of the matter:

 doesn’t it look a little incongruous for House Speaker Mike Johnson, who makes a point of putting his Christian faith front and center, to make the prosecution’s zeal the main point? Yes, there is a solid rule-of-law angle to this, and precedents could be set that would subject future presidents to ever-more-frivolous legal challenges.

And yes, Michael Cohen has done his credibility no favors over the past few years, but come on, nobody doubts that Trump had a tryst with Stormy Daniels (the included a bonus spanking with a rolled-up magazine) or a months-long affair with Karen McDougal, all while Melania was home with an infant Barron. Nobody doubts there were other dalliances as well.

For the I’m-not-voting-for-a-pastor crowd, I’d ask how confident they are that things would go well on a policy level in a. second Trump administration. 

Europe is finally waking up to the need to address the increasing menace from Russia, ramping up its production of materiel, as well as looking at how to effectively man the continent’s collective military force, to positioning nuclear missiles in a more forward manner,

No, I'm not for sleazy tactics in the bringing down of Donald Trump. But I'm damn sure all for bringing him down.  

Anybody who's cool with voting for someone so devoid of character and consistency, who thinks he could solve the world's hot-spot crises with the power of his charm, and that he could do so transactionally  - that is, in insisting on a quid pro quo for the aggressed-upon parties in each case - is no conservative.

"But it's going to be a binary choice in November."

No, it's not. You can stay home and rest well at night knowing the eternal record book shows that you weren't a party to either form of American ruination. 

 

 

 

 

 

 

 

Justice Alito has his head on straight

 There is an excellent account of the Wall Street Journal's sit-down with Supreme Court Justice Samuel Alito in yesterday's edition.

LITD could go for a whole lot of justices in his mold.

This is actually the third time this year the Journal has focused on his role on the bench:

“I marvel at all the nonsense that has been written about me in the last year,” Justice Samuel Alito says during an early July interview at the Journal’s New York offices. In the face of a political onslaught, he observes, “the traditional idea about how judges and justices should behave is they should be mute” and leave it to others, especially “the organized bar,” to defend them. “But that’s just not happening. And so at a certain point I’ve said to myself, nobody else is going to do this, so I have to defend myself.”

He does so with a candor that is refreshing and can be startling. He spoke with us on the record for four hours in two wide-ranging sessions, the first in April in his chambers at the court. In the interim, he wrote an op-ed for these pages responding in detail to a hit piece from ProPublica, a self-styled “independent, nonprofit newsroom that produces investigative journalism with moral force.” Many of the court’s critics claim to want more “transparency.” Their hostile reactions to our April interview and his June op-ed suggest—no surprise—that they’re really after ideologically congenial rulings, not to mention conformist press coverage.

Even among his fellow originalists / textualists, he has a distinct approach:

Justice Alito, 73, was appointed in early 2006 and is now the second most senior associate justice. He has emerged as an important voice on the court with a distinctive interpretive method that is rooted in originalism and textualism—adherence to the text, respectively, of the Constitution and statutes—but in some ways more pragmatic than that of Justice Clarence Thomas or Neil Gorsuch.

“There are very serious differences” in how the six conservative justices approach cases, Justice Alito says. The simplest difference involves respect for precedent: Justice Thomas “gives less weight to stare decisis than a lot of other justices.” It is, “in its way, a virtue of his jurisprudence,” Justice Alito says. “He sticks to his guns.”

That’s why Justice Thomas writes many lone concurrences. In Dobbs v. Jackson Women’s Health Organization (2022), he argued that “in future cases, we should reconsider all of this Court’s substantive due process precedents,” including those involving same-sex marriage, contraception and consensual sodomy. Justice Alito’s majority opinion carefully distinguished those issues from abortion. Justice Thomas often disregards precedents with which he disagrees and follows his own route to the majority’s destination—to cite a recurring example, by relying on the 14th Amendment’s Privileges or Immunities Clause rather than the Due Process Clause. The disadvantage of this approach, Justice Alito says, “is that you drop out of the conversation, and . . . lose your ability to help to shape what comes next in the application of that rule.”

Of Gorsuch, he says that he's "definitely not a consequentialist."  He says Chief Justice Roberts "puts a high premium on consensus."

But the exhilarating parts of what he had to say for me were his discussions of how he came about his own opinions.

Another prime example is National Pork Producers Council v. Ross, which upheld a California law banning the sale of meat from pigs that are “confined in a cruel manner”—almost all of which is produced in other states. The council argued that the law violated the Dormant Commerce Clause, a doctrine that limits states’ authority to enact policies that burden interstate commerce. 

Justice Alito, who agreed with that view, says “it’s no secret that Justice Thomas and Justice Gorsuch don’t think that there is such a thing as the Dormant Commerce Clause.” Justices Barrett, Sonia Sotomayor and Elena Kagan signed on to parts of Justice Gorsuch’s opinion, providing a majority that let the law stand.

“I have not joined Justice Thomas, Justice [Antonin] Scalia, Justice Gorsuch in saying we should get rid of the Dormant Commerce Clause,” Justice Alito says. “I’ve written this in the Tennessee wine case—that the Constitution surely was meant to contain some principle that prevents the balkanization of the economy. That was one of the main reasons for calling the Constitutional Convention in Philadelphia.”

He refers to his 7-2 ruling in Tennessee Wine and Spirits Retailers Assn. v. Thomas (2019). In dissent, Justices Gorsuch and Thomas cited the 21st Amendment, which repealed Prohibition and gave states broad authority to regulate alcohol. Justice Alito’s majority opinion treated that provision “as one part of a unified constitutional scheme,” within which the lawmakers who ratified the 21st Amendment understood that “the Commerce Clause did not permit the States to impose protectionist measures clothed as police-power regulations.”

And then he states the thunderous truth about abortion and same-sex marriage:

That demonstrates a central feature of Justice Alito’s jurisprudence: its emphasis on historical context. “I think history often tells us what the Constitution means,” he says, “or at least it can tell us what the Constitution doesn’t mean.” His dissent in Obergefell v. Hodges (2015) is a case in point. “It’s perfectly clear that nobody in 1868 thought that the 14th Amendment was going to protect the right to same-sex marriage,” he says. Before this century, “no society—even those that did not have a moral objection to same-sex conduct, like ancient Greece—had recognized same-sex marriage.” The first country to legalize it was the Netherlands, effective in 2001. 

The same attention to history informs Justice Alito’s textualism. “I reject the idea that a statute should be interpreted simply by looking up the words in the dictionary and applying that mechanically,” he says. Justice Gorsuch did something like that in Bostock v. Clayton County (2020), in which the court held that Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination “because of . . . sex,” covers “sexual orientation and gender identity.” 

Justice Gorsuch reasoned that because sex is essential to the definition of both categories, such discrimination is “because of” sex. But in 1964 homosexuality was subject to widespread disapprobation, and gender identity “hardly existed as a concept, even among professionals in the field,” as Justice Alito says. “When it’s very clear that the author of the text . . . cannot have meant something, then I don’t think we should adopt that interpretation, even if a purely semantic interpretation of the statute would lead you to a different result.”

Justice Alito’s respect for precedent has limits: “Some decisions—and I think that Roe and Casey fell in this category—are so egregiously wrong, so clearly wrong, that’s a very strong factor in support of overruling.” Those are the 1973 and 1992 abortion cases that Dobbs overturned, with Justice Alito writing for a majority of five. Chief Justice Roberts provided a sixth vote to uphold Mississippi’s 15-week abortion ban but urged “a more measured course” that would narrow the precedents while deferring the question of whether to overturn them altogether.

This is a serious person. He understands that the document by which he and his colleagues are supposed to assess the legality of anything that comes before them has to be consulted on its own terms. It is the most visionary undertaking by human beings establishing a country anywhere, at any time in history. If we go playing fast and loose with so much as a word of it, all bets are off and we're in uncharted territory.

Justice Alito doesn't want that, and neither does LITD. 

 

 

Two more excellent Supreme Court rulings

 This:

The Supreme Court on Friday invalidated President Joe Biden’s student loan debt relief plan, meaning the long-delayed proposal intended to implement a campaign trail promise will not go into effect.

The justices, divided 6-3 on ideological lines, ruled in one of two cases that the program was an unlawful exercise of presidential power because it had not been explicitly approved by Congress.

The court rejected the Biden administration's arguments that the plan was lawful under a 2003 law called the Higher Education Relief Opportunities for Students Act, or HEROES Act. The law says the government can provide relief to recipients of student loans when there is a “national emergency,” allowing it to act to ensure people are not in “a worse position financially” as a result of the emergency.

Chief Justice John Roberts said the HEROES Act language was not specific enough, writing that the court's precedent "requires that Congress speak clearly before a department secretary can unilaterally alter large sections of the American economy."

The plan, which would have allowed eligible borrowers to cancel up to $20,000 in debt and would have cost more than $400 billion, has been blocked since the 8th U.S. Circuit Court of Appeals issued a temporary hold in October.

About 43 million Americans would have been eligible to participate.

The student loan proposal is important politically to Biden, as tackling student loan debt was a key pledge he made on the campaign trail in 2020 to energize younger voters.

And this:

The Supreme Court ruled Friday that an evangelical Christian web designer could not be forced to work on wedding sites celebrating same-sex couples because it would violate her First Amendment right against compelled speech.

The 6-3 decision settled the 2016 case brought by Lorie Smith, 39, who sued the Colorado Civil Rights Commission over the state’s anti-discrimination laws that barred her from advertising that she won’t create websites for couples of the same sex. 

But the high court found that to compel Smith to make sites “celebrating other marriages she does not” would be “an impermissible abridgment of the First Amendment’s right to speak freely,” Justice Neil Gorsuch wrote for the majority.

Under Colorado’s Anti-Discrimination Act, businesses are barred from denying the public goods and services based on race, gender, sexual orientation and religion — and they can’t post notices doing so either.

But Smith — a married mother of one who owns graphic design firm 303 Creative LLC — has claimed the Centennial State law clashes with her right to refuse business that conflicts with her religious beliefs.

 Some thoughts:

• The student loan forgiveness scheme was rank redistribution. The money owed doesn't just go away. The obligation to pay it back is merely shifted to taxpayers.
• As I noted last August, this was bound to become a court case. Biden never offered even a  flimsy attempt at justifying a purely executive-branch move. Congress was completely sidelined.
• As I also noted then, student loan forgiveness encourages a shrugging-off-responsibility mindset throughout our society. If a precedent is set, how long is it before progressive policy types start opining that car loans and home loans need forgiving? It erodes the principle at the heart of the free market: that an economic transaction occurs when two parties, a buyer and seller, agree on the value of the good or service to bee exchanged, and each understands the obligations he or she is undertaking.
• Administrative bloat is the main reason the cost of higher education has gone up so much.
• Let's nip in the bud any notion that taking a pass on providing wedding services for a same-sex couple is discrimination in the sense that denying lodging, a restaurant table, or the opportunity to look at houses to buy in particular neighborhoods was when racial bigotry met little challenge in this country. There is no explanation for such denials but bigotry. Romans 1 and Leviticus 18 and 20 are, for Christians, God-breathed pronouncements about wrong ways for human beings to use their sexuality. 
• All three of these decisions came down 6 -3, as was entirely predictable.
• No, this doesn't mean the Very Stable Genius was a great president. Any Republican president circa 2017 - 2020 would have made similarly great federal court appointments.

In many ways, these decisions and the one yesterday regarding affirmative action offer us an opportunity to revisit the whole concept of rights - what a right is, what, by definition, cannot be a right, how humankind came to get clear about these matters. I think this will be the subject of my next Precipice post, which I shall spend the afternoon composing. 

Thoughts on Ketanji Brown Jackson's dissent in the SCOTUS affirmative action decision

 First, although I'm assuming LITD readers are up to speed on the story that will be driving the news cycle this evening, here's the gist of what went down:

The Supreme Court on Thursday struck down affirmative action programs at the University of North Carolina and Harvard in a major victory for conservative activists, ending the systematic consideration of race in the admissions process.

The court ruled that both programs violate the Equal Protection Clause of the Constitution and are therefore unlawful. The vote was 6-3 in the UNC case and 6-2 in the Harvard case, in which liberal Justice Ketanji Brown Jackson was recused.

Now, the short version of my reaction to Jackson's dissent: disappointment. I'd extended grace when she was confirmed to the court. I'd genuinely hoped she would have more depth as a jurist than to be the you-bet-race-is-an-undeniable-factor-in-American-legal-considerations voice.

Alas, that seems to be exactly the role she's assumed:

“Given the lengthy history of state-sponsored, race-based preferences in America, to say that anyone is now victimized if a college considers whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the well-documented ‘intergenerational transmission of inequality’ that still plagues our citizenry.”

And

“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat,” she wrote. “But deeming race irrelevant in law does not make it so in life. And having so detached itself from this country’s actual past and present experiences, the Court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America’s real-world problems.”

Look, it's obvious that black Americans, taken collectively, bear sociocultural distinctions within the overall national fabric. I'd be the last person to deny that. The recognizable marks of black contribution to that fabric, in terms of music, food, colloquial customs and speech are as strong as those for the various ethnicities and nationalities that came here voluntarily. And that - the fact that most black Americans' ancestors did not come here voluntarily - means that those marks must be regarded in ways the others are not. 

But the assumption behind the American experiment is that the sovereign individual is much more than the trappings of the circumstances that help define who she or he is. 

Furthermore, the whole notion of law is based on fairness. A person ought to be able to assume that he or she will have his or her case heard by the entity in our society with a monopoly on the legitimate use of force  - that is, government  - in an impartial manner. 

That means that the law must disregard questions of who had what kind of leg up at birth or during one's upbringing. The law must assume each one of us is a creature of agency, capable of exercising the faculties that differentiate human beings from lower animals when making choices. 

This is what Jackson's colleague Clarence Thomas gets at in his opinion which concurs with the majority's:

In his concurring opinion, Thomas called out Jackson for her focus on "the historical subjugation of black Americans, invoking statistical racial gaps to argue in favor of defining and categorizing individuals by their race."

"As she sees things, we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black Americans still determining our lives today," Thomas wrote.

"I strongly disagree," Thomas said.

Jackson thinks, in a subsequent footnote, she's setting Thomas straight:

"The takeaway is that those who demand that no one think about race [a classic pink-elephant paradox] refuse to see, much less solve for, the elephant in the room—the race-linked disparities that continue to impede achievement of our great Nation's full potential," Jackson's footnote reads.

In her own dissent of the UNC case, Jackson pointed to a number of statistics that show the wealth and health disparities between white and Black Americans, arguing, "Today's gaps exist because that freedom was denied far longer than it was ever afforded." Jackson warned that the majority opinion "will delay the day that every American has an equal opportunity to thrive, regardless of race."

See what she does there? She winds up using collectivist, demographics-based phenomena to try to justify the law performing tweaks on the bedrock notion of individuals standing before the law as such. 

And then there's the feigned pity which is at the core of what affirmative action, certainly in 2023 America, is all about, as articulated by Glenn Loury:

Racial preferences persist because they represent the path of least resistance. If an administrator of a selective institution saw that blacks were a minuscule percent of his student body, he would want to change that. If he found that admitting African-American students at a lower percentile of performance would ease his public-relations problem, then he would do it. But when thousands of people in that same situation make the same decision and place it beyond criticism, the goal of equality suffers. Failing to address ourselves to the developmental disparities manifest in test scores, as well as failing to change the dynamics of human development at the root of black underrepresentation in elite and selective venues, means failing to solve the inequality problem.

Head counts are no substitute for performance, and everyone knows it. No policy can paper over the racial dimension of academic disparities. True equality would seek to remedy the foundational circumstances reflected in the underrepresentation of African-Americans at the Bronx High School of Science, Brooklyn Tech, Holy Cross, or Harvard. I’m for racial equality, not patronization. Don’t patronize my people, inflict on us the consequences of a soft bigotry of low expectations, or presume that we’re not capable of manifesting excellence in the same way as any other people. Don’t judge blacks by a different standard.

Two competing narratives exist to explain racial inequality: a bias narrative and a development narrative. The bias narrative holds that, even today, white supremacy and institutional racism keep black people from gaining entry into elite and selective venues and that the remedy for this is affirmative action. This was correct half a century ago. But does any serious person today really believe that Brown University, where I teach, is a racist institution? Does any serious person believe that the bias narrative accounts for what, in the absence of racial preferences, would be the relatively low number of African-Americans at Harvard, while Asian-American students there are excelling at some of the most difficult intellectual tasks that humans can be asked to perform? I don’t think so.

The development narrative holds instead that realities of racial inequality are a consequence of underdevelopment. That underdevelopment certainly has a genealogy rooted in bias. Historically, blacks were not afforded equal opportunity in the housing market, were not given a fair chance to accumulate wealth, and didn’t inherit from their ancestors that to which they were due, because their ancestors were enslaved and not compensated properly for their labor. Some of the social and cultural factors that might impair the development of black intellectual performance have their roots in this history. But the problem of inequality for African-Americans today is not mainly the expression of a racist society. And jiggering the test-score standards for people to get into elite institutions is not a remedy for it.

So, in the first highly charged SCOTUS case having to do with race since she came on board, Jackson has let me down. I wanted to think maybe she had the fealty-to-what-the-Consituition-says chops to not be some kind of Ibram X. Kendi-type race hustler. 

I guess not. 

 

 

 

 

While I'm definitely not a Republican anymore, stunts like this confirm for me that the Left's intolerance is as big a post-American problem as Trumpsim

 Something I've noticed about progressivism for the forty years since I became a conservative is the satisfaction that preening, grandstanding and assuming the authority to arbitrate what's acceptable and what's not gives to its adherents.

The latest example is this:

Penguin Random House on Monday said it is committed to publishing a coming book by Supreme Court Justice Amy Coney Barrett despite a dissenting online open letter that has garnered more than 600 signatures, including many from the publishing world.

The letter, which asks Penguin Random House to re-evaluate its decision to publish the book, argues that Justice Barrett’s vote in June in favor of overturning Roe v. Wade represented an attack on human rights, including the rights to “privacy, self determination, and bodily autonomy along with the federal right to an abortion in the United States.”

By Monday afternoon, the letter had attracted more than 625 signatures from authors, translators and agents. The signatories included more than 75 who identified themselves as Penguin Random House employees. The publisher employs approximately 11,000 globally, including more than 5,000 in the U.S., according to the company. 

The book is being published by the Sentinel imprint of Bertelsmann SE’s Penguin Random House. “We remain fully committed to publishing authors who, like Justice Barrett, substantively shape today’s most important conversations,” said Adrian Zackheim, publisher of Sentinel, a leading conservative house, in the publisher’s first public comments on the situation.

Mr. Zackheim said Justice Barrett’s book is still being written and would likely be published in 2024. Although he declined to provide details about the work’s content, Politico in April 2021 described it as focused on why judges shouldn’t allow their decisions to be shaped by personal feelings. 

A Penguin Random House spokeswoman said Mr. Zackheim was speaking on behalf of Penguin Random House U.S. On Monday, PEN America issued a statement rejecting calls to cancel the book. Penguin Random House is the world’s largest consumer book publisher.  

Efforts to reach Justice Barrett were unsuccessful. 

Never mind Justice Barrett's remarkable career as a jurist, let alone her success in the other roles in her life, such as wife, mother and person of faith.  To the Left, the fact that she voted on Dobbs based on her understanding that the reasoning behind Roe was faulty renders anything else about her moot.

The you-will-get-your-mind-right determination of progressives to eradicate any dissenting perspective is every bit as poisonous as the lunacy that Trumpism has wrought. 

That's why, a week out, I'm still planning to sit out the midterm elections. 

That was not okay, Joe

 You don't let loose with an attack on the judicial branch of government on foreign soil, at a NATO summit, no less:

President Joe Biden said Thursday that the Supreme Court's decision ending a constitutional right to abortion is “destabilizing," but he maintained the ruling does not affect U.S. standing on the world stage as he took credit for modernizing the transatlantic alliance to adapt to new threats from Russia and China.

Biden was speaking to reporters at the conclusion of a five-day foreign trip to huddle with NATO allies in Madrid and the leaders of the Group of Seven advanced democratic economies in the Bavarian Alps, which came as the nation was still grappling with the fallout from Friday's Supreme Court decision.

“America is better positioned to lead the world than we ever have been,” Biden said. “But one thing that has been destabilizing is the outrageous behavior of the Supreme Court of United States in overruling not only Roe v. Wade, but essentially challenging the right to privacy.”

He added: “I could understand why the American people are frustrated because of what the Supreme Court did."

You seem to have learned well from your time as the Most Equal Comrade's veep. He of the apology tour  and the acceptance of the book Open Veins of Latin America: Five Centuries of the Pillage of a Continent from Hugo Chavez at an Americas summit, in full view of the world's press cameras.

It just makes anything you have to say about US leadership on the world stage come across like so much horses---. When you were running for president, you marketed yourself as the foil to Trump's chaos and bombast. You're not living up to your advertising. 

Another great SCOTUS ruling

 The robes - at least the majority - have been knocking it out of the park this week.

This is another one of those that, like the narrative that was ready to go upon issuance of the Dobbs ruling, that "abortion rights" were taken away, when what the Court ruled was that the Constitution does not say that abortion is a right, substantive due process fans notwithstanding, is already getting couched in certain corners as bad old fuddy-duddies standing in the way of what "needs" to happen. It's already getting framed as a setback in the "fight against climate change."  (BTW, I thought this new CNN CEO, Chris Licht, wanted to point the network in a more objective-journalism direction.)

No, what this does is go a long way toward dismantling the century-plus-old progressive vision of unelected pointy-headed bureaucratic "experts" in executive-branch positions making law:

Roberts led a 6-3 decision in West Virginia v EPAthat has significant repercussions for agency jurisdiction. The court ruled that the EPA could not use the Clean Air Act to regulate carbon emissions without a more specific grant of that authority from Congress, although Roberts kept the decision as narrow as he could:

The Supreme Court on Thursday limited the Environmental Protection Agency’s ability to regulate carbon emissions from power plants, dealing a blow to the Biden administration’s efforts to address climate change.

The vote was 6 to 3, with the court’s three liberal justices in dissent, saying that the majority had stripped the E.P.A. of “the power to respond to the most pressing environmental challenge of our time.”

The ruling appeared to curtail the agency’s ability to regulate the energy sector, limiting it to measures like emission controls at individual power plants and, unless Congress acts, ruling out more ambitious approaches like a cap-and-trade system at a time when experts are issuing increasingly dire warnings about the quickening pace of global warming.

The implications of the ruling could extend well beyond environmental policy and further signal that the court’s newly expanded conservative majority is deeply skeptical of the power of administrative agencies to address major issues facing the nation and the planet.

The New York Times notes that this draws a pretty clear line in the sand from this court about agency jurisdiction and authority. It also parallels the CDC eviction-moratoria case, they note, in which the court rebuked the CDC for overstepping its jurisdiction and authority, granted by Congress in its enabling statute. If Congress wanted to expand that authority, then Congress should have acted, Roberts ruled at that time.

Roberts writes today that not only did Congress not specifically authorize the EPA to regulate carbon emissions in the manner they planned in their Clean Power Plan, Congress explicitly rejected such proposals:

The dissent also cites our decision in American Elec. Power Co. v. Connecticut, 564 U. S. 410 (2011). Post, at 20. The question there, however, was whether Congress wanted district court judges to decide, under unwritten federal nuisance law, “whether and how to regulate carbon- dioxide emissions from power plants.” 564 U. S., at 426. We answered no, given the existence of Section 111(d). But we said nothing about the ways in which Congress intended EPA to exercise its power under that provision. And it is doubtful we had in mind that it would claim the authority to require a large shift from coal to natural gas, wind, and solar. After all, EPA had never regulated in that manner, despite having issued many prior rules governing power plants under Section 111. See, e.g., 71 Fed. Reg. 9866 (2006); 70 Fed. Reg. 28616; 44 Fed. Reg. 33580; 36 Fed. Reg. 24875 (1973).

Finally, we cannot ignore that the regulatory writ EPA newly uncovered conveniently enabled it to enact a program that, long after the dangers posed by greenhouse gas emissions “had become well known, Congress considered and rejected” multiple times. Brown & Williamson, 529 U. S., at 144; see also Alabama Assn., 594 U. S., at ___ (slip op., at 2); Bunte Brothers, 312 U. S., at 352 (lack of authority not previously exercised “reinforced by [agency’s] unsuccessful attempt . . . to secure from Congress an express grant of [the challenged] authority”). At bottom, the Clean Power Plan essentially adopted a cap-and-trade scheme, or set of state cap-and-trade schemes, for carbon. See 80 Fed. Reg. 64734 (“Emissions trading is . . . an integral part of our BSER analysis.”). Congress, however, has consistently rejected proposals to amend the Clean Air Act to create such a program. See, e.g., American Clean Energy and Security Act of 2009, H. R. 2454, 111th Cong., 1st Sess.; Clean Energy Jobs and American Power Act, S. 1733, 111th Cong., 1st Sess. (2009). It has also declined to enact similar measures, such as a carbon tax. See, e.g., Climate Protection Act of 2013, S. 332, 113th Cong., 1st Sess.; Save our Climate Act of 2011, H. R. 3242, 112th Cong., 1st Sess. “The importance of the issue,” along with the fact that the same basic scheme EPA adopted “has been the subject of an earnest and profound debate across the country, . . . makes the oblique form of the claimed delegation all the more suspect.” Gonzales, 546 U. S., at 267–268 (internal quotation marks omitted).

In this case, it wasn’t just the regulation that crossed the line, but also its arbitrary nature. The EPA attempted to impose caps that didn’t have any relation to the statute nor to a rational and objective standard, Roberts wrote:

First, unlike Section 111, the Acid Rain and NAAQS programs contemplate trading systems as a means of complying with an already established emissions limit, set either directly by Congress (as with Acid Rain, see 42 U. S. C. §7651c) or by reference to the safe concentration of the pollutant in the ambient air (as with the NAAQS). In Section 111, by contrast, it is EPA’s job to come up with the cap itself: the “numerical limit on emissions” that States must apply to each source. 80 Fed. Reg. 64768. We doubt that Congress directed the Agency to set an emissions cap at the level “which reflects the degree of emission limitation achievable through the application of [a cap-and-trade] system,” §7411(a)(1), for that degree is indeterminate. It is one thing for Congress to authorize regulated sources to use trading to comply with a preset cap, or a cap that must be based on some scientific, objective criterion, such as the NAAQS. It is quite another to simply authorize EPA to set the cap itself wherever the Agency sees fit.

Finally, Roberts concludes that any such policy with the magnitudes of impacts that this scheme has needs a specific and explicit act of Congress to authorize. This is the “major question” doctrine at work:

Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible “solution to the crisis of the day.” New York v. United States, 505 U. S. 144, 187 (1992). But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body. The judgment of the Court of Appeals for the District of Columbia Circuit is reversed, and the cases are remanded for further proceedings consistent with this opinion.

Justice Neil Gorsuch goes farther in rebuking the dissent. First, his concurrence offers a lengthy review and support for the major-questions doctrine as a means to rein in the increasingly expansive bureaucratic state, which he notes presents a threat to constitutional order and self-governance anyway. The doctrine is born of necessity to ensure that unelected officials remain responsive to both Congress and the president, and also that they do not intrude on matters that properly belong to the sovereign states.

Rexford Tugwell is surely rolling in his grave.