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. 

 

 

 

 

The special master to the Very Stable Genius's lawyers: we're not going to go off half-cocked on this

 Judge Dearie apparently intends to be a professional and have his ducks in a row:

 The senior federal judge tasked with reviewing the materials seized by the FBI from Donald Trump’s Mar-a-Lago estate sharply questioned the former president’s attorneys Tuesday during their first hearing before his courtroom.

Judge Raymond Dearie pushed Trump’s lawyers repeatedly for refusing to back up the former president’s claim that he declassified the highly sensitive national security-related records discovered in his residence.

But Dearie bristled at the effort by Trump’s lawyers to resist his request for proof that Trump actually attempted to declassify any of the 100 documents that the Justice Department recovered from his estate. Without evidence from Trump, Dearie said his only basis to judge the classification level of the records was the fact that they all bear markings designating them as highly sensitive national security secrets — including some that indicate they contain intelligence derived from human sources and foreign intercepts.

The early tension between Dearie and Trump’s legal team was an ominous sign for the former president, who demanded the special master review the documents taken from Mar-a-Lago and who proposed Dearie — a 1986 appointee of Ronald Reagan — to perform the task. Prosecutors had offered two other names, but acceded to Trump’s choice of Dearie.

The VSG's team is patently treading water. Any reasonable person is going to conclude that Dearie can't proceed with anything without proof.   

 

a few thoughts . . .

 . . . about you-know-what:

1.) News stories are circulating about how Clarence Thomas now wants to revisit Obergefell v Hodges and Griswold v Connecticut. He wishes to, not because he's a repressed, stodgy old fuddy-duddy who desires to oppress various groups of people, but because he's deeply concerned by the concept of substantive due process. Substantive due process uses the Fourteenth Amendment to ascribe to court cases outcomes never envisioned by the amendment's authors. 

2.) This is why John Hart Ely objected to Roe v Wade:

"What is frightening about Roe," noted the eminent constitutional scholar and Yale law professor John Hart Ely (who personally supported legalized abortion), "is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure. … It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be."

3.) I'm seeing a number of memes with the basic message that if opposition to Roe v Wade were really about babies and children, "we'd" have free prenatal care, more generous family leave policies, universal pre-K and such. A number of questions arise. I presume this "we" refers to society at large, but how do "we" accomplish these things? Does it not require bills to be put forth in local and/or state legislatures and/or the federal legislature, voted on and passed? Does that not require getting majorities of candidates favorable to such initiatives elected to these bodies? Perhaps we could go the Rexford Tugwell route and have unelected bureaucrats in executive-branch agencies impose these things, but I would wager that there's a great swath of the public that wouldn't go for that, me included. And wouldn't much of a policy like that require curtailing the free market? There's another aspect of it that I for one would vehemently oppose.

4.) All laws, pretty much by definition, set limits on what a citizen can do with his or her body. You are not allowed to point a gun at someone and exert pressure on the trigger with your finger. You are not allowed to depress the gas pedal of your automobile with your foot beyond the extent needed to drive the posted speed limit. You are not allowed to clutch an item of merchandise in a store, lift it with your arm and walk out without paying for it.

The current narrative about why Ilya Shapiro's tweet was inartful is not why it was inartful

 He might have done a little better job explaining it himself, but perhaps he didn't want to make his situation any stickier than it already was. 

Let's review exactly what it was that he said:

[Now former] Georgetown University Law Center professor Ilya Shapiro . . . 

fac[ed] criticism for tweeting that Biden “doesn’t fit into latest intersectionality hierarchy so we’ll get lesser black woman” . . . Following the tweet, Shapiro did apologize while under fire, calling his remarks “inartful.”

Now, it seems pretty obvious that he was saying that there are far more qualified black women than Ketanji Brown Jackson that Biden could have considered for a Supreme Court seat. Yes, there's a broader context, which is that he didn't much care for Biden using a demographic criterion in the first place for selecting a nominee.  But his specific remark was predicated on acknowledging that Biden was going to go forward with an identity-politics approach to the pick.

But such fine points of reality were of no help to the professor as the opprobrium came raining down on his head:

Outraged Georgetown students and faculty demanded his removal and ultimately, they got what they wanted. Shapiro was set to begin his job at the university this month after the investigation concluded but he decided to quit. He wrote an op-ed in The Wall Street Journal about his decision.

More on Shapiro’s decision from Insider:

Georgetown Law concluded its investigation and reappointed Shapiro to his role on June 2, but he ended up quitting on Monday, he wrote in a Wall Street Journal op-ed announcing his resignation.

“Dean William Treanor cleared me on the technicality that I wasn’t an employee when I tweeted, but the [report’s findings] implicitly repealed Georgetown’s Speech and Expression Policy and set me up for discipline the next time I transgress progressive orthodoxy,” he wrote.

“Instead of participating in that slow-motion firing, I’m resigning.”

Since this guy's career has been completely upended, keeping the record straight about this is kind of a big deal. Unaddressed misinterpretations can set precedents.  

The Ketanji Brown Jackson hearings - initial thoughts

 

1.) She certainly said the things a Constitutionalist like me would want to hear with regard to that document. ("The adherence to the text is a constraint on my authority - trying to figure out what those words mean as they were intended by the people who wrote them.")

2.) A couple of things about her I'm-not-a-biologist response to the question about the definition of a woman: She pretty much had to answer in some such fashion, knowing that a firestorm from the let's-pretend-gender-is-a-construct crowd would be inevitable if she didn't. Still, it shows that she defers to that crowd - that is, she knows which side her bread is buttered on. The last three SCOTUS nominees certainly wouldn't have answered it that way.

3.) Senators Cruz and Graham utterly beclowned themselves. Cruz's stunt - waving Ibram X. Kendi's Antiracist Baby book around - and Graham storming out of the room were cringeworthy. Lines of questioning from Tom Cotton and Josh Hawley, while not descending to the level of the aforementioned, were opportunistic and gratuitous.

4.) Whataboutism that would bring up the truly shameful treatment of Gorsuch at his hearings (and it was shameful, as was subsequent remarking on how angry he got; this man had been the subject of the most rotten kind of slander - namely, that he'd sexually attacked women in his youth) only perpetuates our societal brittleness. It ensures that neither side truly hears the other across the chasm that divides us, rendering it utterly ineffective for - well, whatever it is intended to be effective for. It persuades no one of anything.

5.) Look, she's going to be confirmed and take a seat on the Supreme Court. Biden certainly wasn't going to nominate anyone to her right. She's well-regarded by no less a personage than Paul Ryan, and comes from a family that's distinguished itself in fields such as education, law enforcement and law. We could have been saddled with worse.

Friday roundup

 There used to be a frequent commenter here at LITD who, when Supreme Court rulings like Roe v. Wade and Obergefell v. Hodges would come up, would chime in with some variant on "stare decisis, baby!" to which I'd respond by bringing up Dredd Scott or Plessey v. Ferguson, and a stalemate would ensue. For anyone interested in a sound contemplation of the concept, I recommend an essay at Law & Liberty by Marc O. DiGirolami entitled "Integrating Originalism and Stare Decisis." The author says that judges should heed the guidance of a "legal thread connecting a long and lasting line of cases," but also take heed of instances when their gut tells them that evil is afoot.

Peter Heck at The Resurgent on the latest degree to which Jen Hatmaker has departed from sound Christian doctrine:

[W]hat strikes me . . . is why someone like Hatmaker, who is so infatuated with gaining earthly audiences and inviting the thunderous applause of men that she willfully invents her own religion, is so stubborn in her desire to rebrand her humanist idolatry as Christianity.

If she wasn’t, this wouldn’t be a column worth writing. If she wasn’t, her Facebook meanderings would be indistinguishable from, and no more noteworthy than, the vast majority of posts made by the world for the world. But Hatmaker is intent not only on identifying herself as a Christian, but misleading whoever will pay attention to her that her mind is a better barometer for real faith than the teachings of Christ’s church.

The post-American public's estimation of the sports world is underwater:

The sports industry now has a negative image, on balance, among Americans as a whole, with 30% viewing it positively and 40% negatively, for a -10 net-positive score. This contrasts with the +20 net positive image it enjoyed in 2019, when 45% viewed it positively and 25% negatively.

This slide in the sports industry's image comes as professional and college leagues are struggling, and not always successfully, to maintain regular schedules and playing seasons amid the pandemic. Professional football, baseball and basketball games have also become focal points for public displays of support for the Black Lives Matter movement.

While it's not clear how much the various challenges and controversies swirling around the industry are each responsible for its slide in popularity, it is notable that sports has lost more support from Republicans and independents than from Democrats. In fact, Democrats' view of the sports industry has not changed significantly in the past year, while Republicans' has slipped from a +11 net-positive score in 2019 to a net -35 today, and independents' from +26 to -10.

I know that in some quarters Ben Sasse has come in for castigation for not seeming to maintain the fierce opposition to the Very Stable Genius on display in his legendary February 2016 open letter to Trump supporters , but I've never lost faith in him. There are a great many Republican legislators, state and federal, who I have watched with dismay suffocate their principles to climb aboard the Trump train, but I'm confident Ben has never done so. More than that, he acts on his principles in concrete ways, such as with his latest proposal:

Senator Ben Sasse (R., Neb.) called to repeal the 17th Amendment on Tuesday, which would eliminate the requirement that U.S. senators be elected by popular votes.

In a Wall Street Journal op-ed titled “Make the Senate Great Again,” Sasse called for an end to the amendment, among other changes to the Senate “aimed at promoting debate, not ending it.”

He also recommended abolishing standing committees, requiring senators to show up for debates, implementing 12-year term limits, and requiring senators to live together in dorms when in Washington.

“What would the Founding Fathers think of America if they came back to life?” Sasse wrote. “Their eyes would surely bug out first at our technology and wealth. But I suspect they’d also be stunned by the deformed structure of our government. The Congress they envisioned is all but dead. The Senate in particular is supposed to be the place where Americans hammer out our biggest challenges with debate. That hasn’t happened for decades—and the rot is bipartisan.”

Love this paragraph:

“Different states bring different solutions to the table, and that ought to be reflected in the Senate’s national debate,” he wrote. “The old saying used to be that all politics is local, but today—thanks to the internet, 24/7 cable news and a cottage industry dedicated to political addiction—politics is polarized and national. That would change if state legislatures had direct control over who serves in the Senate.”

A Chinese pharmaceutical company that is ultimately state-owned has been injecting thousands of people with experimental COVID-19 vaccines before Phase 3 clinical trials are completed. 

Dave Boucher and Todd Spangler at the Detroit Free Press enumerate the wild claims the VSG made at last night's rally about the auto industry in Michigan:

President Donald Trump made wildly inaccurate claims at a rally outside Saginaw on Thursday night, suggesting he has revitalized auto manufacturing in the state when it actually lost jobs even before coronavirus hit in March.

"We brought you a lot of car plants, we brought you a lot ... and we’re going to bring you a lot more," Trump began his speech at MBS International Airport in Freeland.

But only one new major assembly facility, a Jeep plant on Detroit's east side, has been announced during Trump's term, while General Motors underwent a divisive 40-day strike last year and announced the idling of four U.S. plants, including two in Michigan. One of those, Detroit-Hamtramck, has since been revived and is being retooled to build electric cars and SUVs. Warren transmission was revived most recently to make face masks, though its future is uncertain.

Navya, a French shuttle maker, announced it could employ 50 or so people at a plant in Saline, said Kristin Dziczek, vice president of industry, labor and economics with the Center for Automotive Research in Ann Arbor; Waymo, which makes self-driving cars, said last year it would employ 100 people at an assembly plant in Detroit and could someday expand that number to 400.

That's hardly a signal of a vast resurgence. Trump has also apparently made similar exaggerated claims in other campaign stops, with the Washington Post saying he has been "bragging about imaginary auto plants."

His signature foul mouth and his signature transactional framing of the case for his reelection were on display:

At another point in the wide-ranging speech, Trump repeated, "You better vote for me, I got you so many damn car plants."

Over 10 percent of Oregon residents have been told to flee the fires scorching their state. 

Tuesday roundup

Hold on to your wigs, folks. Today's roundup is a thunderous Niagara Falls-level cascade of must-reads. "Doozy" and "humdinger" fall far short of being adequate depictions.

I gave some thought to breaking this into individual posts. There will be some fairly lengthy excerpting to the linked source material. But I think consolidation in one spot is going to work best.

Matt Taibbi comes at his journalism and opinion writing from a left-of-center perspective, but he's certainly not one who can be pigeonholed. The son of an NBC News reporter, he spent several years in Russia, Uzbekistan (where he played professional baseball) and Mongolia (where he played professional basketball). He's a freelance writer and podcaster, with stints along the way at Rolling Stone and The New York Press. He doesn't mince words, which is probably the source of his appeal for Bill Maher, who had him cover the 2008 presidential election cycle for Real Time.

Lately he's been less inclined to guard his lefty bona fides than ever.

His latest at his Substack site is a righteous takedown of the book White Fragility by Robin DiAngelo. Searing stuff:

A core principle of the academic movement that shot through elite schools in America since the early nineties was the view that individual rights, humanism, and the democratic process are all just stalking-horses for white supremacy. The concept, as articulated in books like former corporate consultant Robin DiAngelo’s White Fragility(Amazon’s #1 seller!) reduces everything, even the smallest and most innocent human interactions, to racial power contests. 

It’s been mind-boggling to watch White Fragility celebrated in recent weeks. When it surged past a Hunger Games book on bestseller lists, USA Today cheered, “American readers are more interested in combatting racism than in literary escapism.” When DiAngelo appeared on The Tonight Show, Jimmy Fallon gushed, “I know… everyone wants to talk to you right now!” White Fragility has been pitched as an uncontroversial road-map for fighting racism, at a time when after the murder of George Floyd Americans are suddenly (and appropriately) interested in doing just that. Except this isn’t a straightforward book about examining one’s own prejudices. Have the people hyping this impressively crazy book actually read it?

DiAngelo isn’t the first person to make a buck pushing tricked-up pseudo-intellectual horseshit as corporate wisdom, but she might be the first to do it selling Hitlerian race theory. White Fragility has a simple message: there is no such thing as a universal human experience, and we are defined not by our individual personalities or moral choices, but only by our racial category. 

If your category is “white,” bad news: you have no identity apart from your participation in white supremacy (“Anti-blackness is foundational to our very identities… Whiteness has always been predicated on blackness”), which naturally means “a positive white identity is an impossible goal.” 

DiAngelo instructs us there is nothing to be done here, except “strive to be less white.” To deny this theory, or to have the effrontery to sneak away from the tedium of DiAngelo’s lecturing – what she describes as “leaving the stress-inducing situation” – is to affirm her conception of white supremacy. This intellectual equivalent of the “ordeal by water” (if you float, you’re a witch) is orthodoxy across much of academia.

DiAngelo’s writing style is pure pain. The lexicon favored by intersectional theorists of this type is built around the same principles as Orwell’s Newspeak: it banishes ambiguity, nuance, and feeling and structures itself around sterile word pairs, like racist and antiracist, platform and deplatform, center and silence, that reduce all thinking to a series of binary choices. Ironically, Donald Trump does something similar, only with words like “AMAZING!” and “SAD!” that are simultaneously more childish and livelier. 

Perhaps the most irritating thing about SCOTUS Chief Justice John Roberts's chiming in with the court's left-leaners in the June Medical Services v. Russo case is the fact that in a nearly identical case about a similar Texas law, he dissented when the majority upheld it. He was right to do so then, of course. His flimsy excuse for voting the other way this time is that, hey, a precedent was set. Stare decisis, you know. That's the kind of logic that would have kept Dredd Scott and Plessy v. Ferguson in place. A National Review editorial today points out that this fealty to precedent is not a consistent thing with him:

He has been perfectly willing to overrule precedents in the past. Some of them were of much longer standing. Janus v. AFSCME (2018), on public-sector unions, overruled Abood v. Detroit (1977). Some of them involved cases that presented nearly identical fact patterns. Gonzales v. Carhart(2007) upheld a ban on partial-birth abortion of a type that had been struck down in Stenberg v. Carhart (2000).

The piece says that Roberts "has reinforced the notion that he is the most politically calculating of the justices."

A die-hard lefty activist who started his path down that road going to Nicaragua in the 1980s to show solidarity with the Sandinistas and later went to Asia to expose working conditions in Nike factories has, at least on the subject of the global climate, had a conversion experience:

On behalf of environmentalists everywhere, I would like to formally apologize for the climate scare we created over the last 30 years. Climate change is happening. It’s just not the end of the world. It’s not even our most serious environmental problem. 

I may seem like a strange person to be saying all of this. I have been a climate activist for 20 years and an environmentalist for 30. 

But as an energy expert asked by Congress to provide objective expert testimony, and invited by the Intergovernmental Panel on Climate Change (IPCC) to serve as Expert Reviewer of its next Assessment Report, I feel an obligation to apologize for how badly we environmentalists have misled the public.

Here are some facts few people know:

• Humans are not causing a “sixth mass extinction” 
• The Amazon is not “the lungs of the world”
• Climate change is not making natural disasters worse
• Fires have declined 25% around the world since 2003
• The amount of land we use for meat — humankind’s biggest use of land — has declined by an area nearly as large as Alaska
• The build-up of wood fuel and more houses near forests, not climate change, explain why there are more, and more dangerous, fires in Australia and California
• Carbon emissions are declining in most rich nations and have been declining in Britain, Germany, and France since the mid-1970s 
• Netherlands became rich not poor while adapting to life below sea level
• We produce 25% more food than we need and food surpluses will continue to rise as the world gets hotter
• Habitat loss and the direct killing of wild animals are bigger threats to species than climate change
• Wood fuel is far worse for people and wildlife than fossil fuels
• Preventing future pandemics requires more not less “industrial” agriculture

I know that the above facts will sound like “climate denialism” to many people. But that just shows the power of climate alarmism. 

In reality, the above facts come from the best-available scientific studies, including those conducted by or accepted by the IPCC, the Food and Agriculture Organization of the United Nations (FAO), the International Union for the Conservation of Nature (IUCN) and other leading scientific bodies. 

Brace yourself, buddy. Your former associates are going to try to make your life miserable.

I really, really gave consideration to devoting an entire post to this one. We've had the book from Bolton, the letter from Mattis, the remarks from John Kelly, but there's never been anything so comprehensively indicting about what a threat to national security the Very Stable Genius is as this expose by Carl Bernstein at CNN:

In hundreds of highly classified phone calls with foreign heads of state, President Donald Trump was so consistently unprepared for discussion of serious issues, so often outplayed in his conversations with powerful leaders like Russian President Vladimir Putin and Turkish President Recep Erdogan, and so abusive to leaders of America's principal allies, that the calls helped convince some senior US officials -- including his former secretaries of state and defense, two national security advisers and his longest-serving chief of staff -- that the President himself posed a danger to the national security of the United States, according to White House and intelligence officials intimately familiar with the contents of the conversations. 

The calls caused former top Trump deputies -- including national security advisers H.R. McMaster and John Bolton, Defense Secretary James Mattis, Secretary of State Rex Tillerson, and White House chief of staff John Kelly, as well as intelligence officials -- to conclude that the President was often "delusional," as two sources put it, in his dealings with foreign leaders. The sources said there was little evidence that the President became more skillful or competent in his telephone conversations with most heads of state over time. Rather, he continued to believe that he could either charm, jawbone or bully almost any foreign leader into capitulating to his will, and often pursued goals more attuned to his own agenda than what many of his senior advisers considered the national interest.

Does this surprise you?

Trump incessantly boasted to his fellow heads of state, including Saudi Arabia's autocratic royal heir Mohammed bin Salman and North Korean dictator Kim Jong Un, about his own wealth, genius, "great" accomplishments as President, and the "idiocy" of his Oval Office predecessors, according to the sources.

In his conversations with both Putin and Erdogan, Trump took special delight in trashing former Presidents George W. Bush and Barack Obama and suggested that dealing directly with him -- Trump -- would be far more fruitful than during previous administrations. "They didn't know BS," he said of Bush and Obama -- one of several derisive tropes the sources said he favored when discussing his predecessors with the Turkish and Russian leaders.

Then-DNI Dan Coats expressed his worry to subordinates that the VSG was "undermining the coherent conduct of foreign relations and American objectives around the globe."

Big-time damage to our most important alliances:

Next to Erdogan, no foreign leader initiated more calls with Trump than Macron, the sources said, with the French President often trying to convince Trump to change course on environmental and security policy matters -- including climate change and US withdrawal from the Iranian multilateral nuclear accord. 

Macron usually got "nowhere" on substantive matters, while Trump became irritated at the French President's stream of requests and subjected him to self-serving harangues and lectures that were described by one source as personalized verbal "whippings," especially about France and other countries not meeting NATO spending targets, their liberal immigration policies or their trade imbalances with the US.

But his most vicious attacks, said the sources, were aimed at women heads of state. In conversations with both May and Merkel, the President demeaned and denigrated them in diatribes described as "near-sadistic" by one of the sources and confirmed by others. "Some of the things he said to Angela Merkel are just unbelievable: he called her 'stupid,' and accused her of being in the pocket of the Russians ... He's toughest [in the phone calls] with those he looks at as weaklings and weakest with the ones he ought to be tough with." 

The calls "are so unusual," confirmed a German official, that special measures were taken in Berlin to ensure that their contents remained secret. The official described Trump's behavior with Merkel in the calls as "very aggressive" and said that the circle of German officials involved in monitoring Merkel's calls with Trump has shrunk: "It's just a small circle of people who are involved and the reason, the main reason, is that they are indeed problematic." 

He thought he was sucking up to adversaries by bragging about himself. Such is his weird assumption bout he way anybody else but himself thinks:

The calls with Putin and Erdogan were particularly egregious in terms of Trump almost never being prepared substantively and thus leaving him susceptible to being taken advantage of in various ways, according to the sources -- in part because those conversations (as with most heads of state), were almost certainly recorded by the security services and other agencies of their countries.

In his phone exchanges with Putin, the sources reported, the President talked mostly about himself, frequently in over-the-top, self-aggrandizing terms: touting his "unprecedented" success in building the US economy; asserting in derisive language how much smarter and "stronger" he is than "the imbeciles" and "weaklings" who came before him in the presidency (especially Obama); reveling in his experience running the Miss Universe Pageant in Moscow, and obsequiously courting Putin's admiration and approval. Putin "just outplays" him, said a high-level administration official -- comparing the Russian leader to a chess grandmaster and Trump to an occasional player of checkers. While Putin "destabilizes the West," said this source, the President of the United States "sits there and thinks he can build himself up enough as a businessman and tough guy that Putin will respect him." (At times, the Putin-Trump conversations sounded like "two guys in a steam bath," a source added.) 

The pullout of US troops from Syria can be directly traced to his phone conversations with Erdogan.

He was far more interested in how Jared and Ivanka thought his phone calls went than in the views of Fiona Hill, Rex Tillerson and H.R. McMaster. He never read briefing materials to prepare him for calls.

States such as Oregon, Kansas, Texas and Arizona are reversing course on their re-openings in face of COVID-19 case upticks. 

Bostock v. Clayton County - initial thoughts

"what matters in the end is the answer to the question . . . How would the terms of a statute have been understood by ordinary people at the time of enactment...?"

- from Justice Alito's dissenting opinion

Brad Polumbo at the Washington Examiner tries to calm conservatives's nerves, saying

. . . they should hear Gorsuch out. His decision is based on razor-sharp logic, and it is entirely consistent with the conservative commitment to textualism — that the law means exactly what it says.

He provides a hypothetical situation the logic of which seems compelling on the surface:

For example, let's say an employer fired me, a gay man, after discovering that I had a husband. That would be anti-gay discrimination, but it would also be a form of sex discrimination because the employer is punishing me for having a husband —something it would be perfectly fine with a female employee doing. Similar logic applies to transgender employees — that by firing a transgender person, such as Stephens, for choosing to follow the women’s dress code, you are applying a standard you would never have enforced against a member of the female sex.

But in a piece for National Review last November, Princeton law professor Robert P. George blows a big hole in that line of reasoning, also using a straightforward hypothetical situation:

In the Title VII cases, Kagan proposes to test for sex discrimination by asking what would happen if an employee’s sex were flipped and all else were held constant. Thus, she would say, a company that fires Riley for being a woman who dates women is discriminating based on sex, because it would have kept Riley on if she were a man who dates women.

Clever, right? But the argument is fallacious. If it seems like a knockdown, that’s only because the objectionable moves were made offstage and then smuggled into the argument’s setup, diverting our gaze from the only fair reading of Title VII.

The whole appeal of Kagan’s argument is that it purports to flow directly from the text (“discriminate”), without any contestable moves along the way. Once you see that this is false, the argument loses all appeal, and its proponents have to fall back on dubious premises that cut against the only reasonable reading of the text. As we’ll see, the “textual” part of Kagan’s “textualist” case is doing no work whatsoever.

The hypothetical scenario described above doesn’t actually hold “all else constant.” In changing Riley’s sex while holding constant the sex of Riley’s dating partners, it flips a second factor, too: Riley’s “sexual orientation,” which has gone from homosexual to non-homosexual (or, if you prefer, from “gay” to “straight”).

As this shows — and here’s the decisive point — it’s impossible to hold all but sex fixed in these cases. In designing a hypothetical to use for comparison, we have two options: (1) change the employee’s sex and her orientation (but not her partners’ sex), or (2) change her sex and her partners’ sex (but not her orientation). Only the first path leads to Kagan’s preferred result, but nothing in the text compels it. On the contrary, only the second hypothetical keeps constant all the details that reasonable readers of Title VII would deem relevant based on the law’s text, logic, and history.

A few other observations:

Gorsuch, who wrote the majority opinion, and Roberts joined the court's four Democrat-appointed justices. This blows quite a hole in the argument that no matter how unfit a conservative finds Trump, that conservative needs to vote for him to ensure a "conservative" Supreme Court. Federal judges are not nearly as predictable as is often assumed.

Gorsuch assures us that, since none of the three cases bundled into Bostock v. Clayton County involved religious-freedom issues, any such case would be considered based on the "ministerial exemption" Title VII carve-out. The side wanting to knock that down is doing its homework, be assured.

Why culture matters for law: Interest groups lobby legislatures and laws get passed, or lower courts set precedents. Notions such as that just because someone feels - very strongly, perhaps - that he or she is actually of the sex other than the one his or her genitals and DNA indicate that that is so become ever more entrenched. Or consider how much harder it is to get people to take the long historical view with regard to homosexuals marrying since Obergefell v. Hodges. It's still as much a fact as it was before that decision that in no culture in the world, at no time in human history, did anyone entertain the notion that two people of the same sex could enter into the institution of marriage until the last 20 years at the outside.

Thursday roundup

This first item actually goes back to mid-March, but I recently came across it, and it makes a great deal of sense to me. Plus, the two participants in the conversation bring up From Dawn to Decadence by Jacques Barzun, one of my favorite books. Barzun's tome is a look at the 500 year period from 1500 to 2000, through the Renaissance and the Enlightenment and the Romantic period and the Industrial Revolution to - well, our present time of decadence.

It comes up in the course of this podcast interview by Richard Reinsch of Law & Liberty of New York Times columnist Ross Douthat, which also is presented in print form. They're discussing Douthat's new book, The Decadent Society: How We Became Victims of Our Own Success.

Douthat's central point is that American inventiveness has slowed down, a resulting ennui has settled in, and, well, you know what they say about idle hands.

A taste:

Ross Douthat:
So the Decadent Society is an attempt to, in a certain way, put a name on the weird anxiety that pervades the developed world, the Western world and the United States of America, where we have this combination of tremendous wealth and technological proficiency, which makes some people argue that these are the best times in the history of the world, but at the same time a lot of discontent, anxiety and ennui, which gets manifested in everything from the sort of populist and socialist rebellions in our politics, to rising rate of depression and suicide, and deaths of despair as they get called and so on. And so the argument I make in the book, is basically that we have entered a very particular kind of civilizational state that I’m calling “decadence” and I’m using that term to mean not chocolate dipped strawberries and weekends in Vegas, though those might be part of it, but a kind of stagnation, repetition, and decay at a high level of civilizational development.

Richard Reinsch:
One of the definitions, to talk about the definition of decadence you give in the book, you build on Jacques Barzun’s book, From Dawn to Decadence, which I think came out in 2000. I remember reading it in 2001 and that book has stuck with me. It’s one of the reasons why I really enjoyed reading your book because building on Barzun’s definition of decadence, Barzun talks about moving in fits and starts, but not really getting anywhere. The Decadent Society sees no path forward and it’s institutions function painfully. Maybe talk more about that because you also dismiss a definition of decadence that on my worst days, I find myself sort of glomming onto which is weak, sort of hedonistic luxuriating, weak and unable to defend ourselves. Unwilling to see the purpose in defending ourselves and so we’ll go into the good night, but maybe talk about that.

Ross Douthat:
Right. So yeah, I am very directly borrowing from Barzun and you could see this book, in part, as a sequel both to his book and in certain ways to Francis Fukuyama’s famous book, The End of History, which came out 10 years earlier. And the combination of those two arguments basically makes the case that Fukuyama was right, in a sense, not permanently and forever, but right that Western civilization has sort of passed beyond some of its great ideological debates and entered into a period of stability, that was also in danger of becoming a period of boredom and disappointment and sterility. And then Barzun, in a somewhat similar way, made the case that this is something that happens generally to civilizations at a certain point.

That they enter into periods where their once vigorous institutions become sclerotic, where their ambitious explorations hit frontiers that they can’t necessarily explore. And for us, I think that’s the most obvious in the demise of the space age basically, that we went from a period where people imagined that the frontier was going to open further into space. And now that’s sort of left to Silicon Valley billionaires to pursue and maybe they’re getting somewhere. But there’s no cultural imagination around space travel the way there was in the 1960s. So frontiers are closed. Institutions don’t work that well anymore. There’s sort of a loss of both pride in the past and confidence in the future and it doesn’t go all the way to the definition that you suggest only because I think that people sometimes underestimate how long a decadence period can last. So there’s an assumption that because you have institutions that don’t work as well anymore because you have a loss of civilizational confidence, there must be a kind of iron logic to history where the barbarians are waiting at the frontier and they’re going to come in and put the palaces to the torch.

And of course sometimes that happens. But you can also have empires and cultures go on a long time in periods that are essentially stagnant. The Roman empire goes 400 years from its Caligulan stage to the actual demise of the empire in the West. And in our case, we’re in this sort of unusual, not sort of, this entirely unusual position of being the first true world civilization, even more so than ancient Rome. And we also have a situation where a lot of empires and countries and cultures that might be seen as our rivals maybe are actually converging with us in decadence in different ways. That they aren’t poised to leap past us. And if that’s the case, then you could imagine what I call sustainable decadence as something that lasts if not centuries, at least some generations past our present moment where I’m writing.

Sheesh. Just about the time I consider that maybe alarm bells about mainstream media leftism are overblown, I run across something like this:

During a wildly offensive segment on Friday’s CBS This Morning, both the hosts and their left-wing guests repeatedly accused all white people of being born with racial “privilege” and taught to be racist as children. The discussion then turned to demanding white people “stop denying their racism” and admit to practicing discrimination.

The conversation occurred late in the 8:00 a.m. ET hour as part of CBS’s one-hour special, Race for Justice, examining race relations in the United States. It was particularly astonishing to watch wealthy co-host Gayle King – Oprah Winfrey’s best friend who once vacationed with the Obamas on a yacht – lead a segment lecturing others about their “privilege.”

“Nationwide protests against inequality are encouraging more people to have discussions not only about race but also white privilege,” King proclaimed. She then eagerly introduced two far-left authors to rant on the topic: “Robin DiAngelo is a sociologist and she’s author of this book, White Fragility: Why It’s So Hard for White People to Talk About Racism. I love this title. She joins us with the author of How to Be an Anti-Racist, CBS News contributor Ibram X. Kendi.”

“I would like you to explain what white privilege is exactly and why white people have such a hard time seeing it. Because it’s so clear to most black people I know,” King scolded. DiAngelo not only delivered the predictable left-wing talking points on the subject, she made sure to declare that dissent would not be tolerated:

White privilege is the automatic taken-for-granted advantage bestowed upon white people as a result of living in a society based on the premise of white as the human ideal, and that from its founding, established white advantage as a matter of law and today as a matter of policy and practice. And it doesn’t matter if you agree with it, if you want it, if you even are aware of it, it’s 24/7/365. And one of the reasons why it’s so hard for white people to see it – well, there are many reasons – but one is that it serves us not to see it. We come to feel entitled to that advantage. We’re told that we deserve it and that we earned it. And we take great umbrage when that is challenged.

King followed up by matter-of-factly citing an outrageous claim in DiAngelo’s book: “You write, too, Robin, in the book, that kids from the age between 3 and 4 are intuitively taught that being white is better, that you are superior. I thought that that was an interesting thing.” The supposed “journalist” didn’t even question the disgusting claim.

On Monday, the broadcast turned to radical “experts” to insist that white Americans have been “taught” to have “contempt for black life.”Later in the discussion, fellow co-host Anthony Mason turned to Kendi and fretted: “Ibram, you’ve said that to get – to end white privilege you have to deal with racism first, right?” Kendi – who has excused the anti-Semitism of Democratic Congresswoman Ilhan Omar and argued that common phrases like “blackmail” were racist – launched into a tirade convicting every white person in America of racism:

And I mean, as Robin, you know, talked about, it is critical for white people, for people in general, to stop denying their racist ideas, to stop denying the ways in which policies have benefited them, to stop denying their racism, and to realize that actually the heartbeat of racism itself is denial, and the sound of that heartbeat is “I’m not racist.” 

David Thornton at The Resurgent on how an agenda is driving the pronouncements of some public-heath officials:

There is a rumor going around on social media that the pandemic is over. That isn’t the case, but you’d never know it from public health officials around the country who seem to have tossed social distancing restrictions out in favor of the right to protest.

“A case in point is a recent article in Slate that details an open letter from infectious disease experts at the University of Washington, who write that “protests against systemic racism, which fosters the disproportionate burden of COVID-19 on Black communities and also perpetuates police violence, must be supported.” The letter has been signed by more than 1,000 medical experts from around the country.

Wait. Isn’t there a pandemic on?

Former NFL player and current Congressional candidate Burgess Owens has written a compelling piece at Newsweek entitled "Drew Brees Was Right The First Time."

Another piece from a while back (2018) that is quite relevant at the moment. David French at National Review on why qualified immunity should be ended.

The snowflake/jackboots score another one: a UCLA professor is suspended for refusing to grant some kind of special leniency to black students on their final exams, because George Floyd.