To write dissents to stand as historical record

Supreme Court Justice Stephen Breyer has announced he will retire at the end of the court’s term in June. Joan McCarter of Daily Kos linked to a confirmation on NBC News, then discussed possible reasons for his decision. There is the obvious reason to retire while Biden and a Democratic Senate can choose another liberal to replace him. There is also annoyance at what the current conservative majority is doing – taking cases with the intent to overturn precedent, taking cases that haven’t yet been through an appeals court, and the increased use of the shadow docket to hand down rulings with no public argument or transparency. McCarter also reported that Breyer’s decision thwarts the plans of Moscow Mitch. Mitch has already threatened that if the Republicans take the Senate in 2022 he would make sure none of Biden’s nominees to the Supremes would be confirmed.. Yup, the ten month refusal he pulled on Obama would be stretched to two years. Various sources have reported that Biden has declared his nominee will be a black woman. Rebekah Sager of Kos reported there are some mighty fine choices for a black woman justice. Sager discussed Ketanji Brown Jackson and Leondra Kruger as worthy candidates, then lists several more. Leah McElrath tweeted some comments that apply no matter who the nominee is:

The specifics of the candidate’s views are less important than their ability to question and draw out the harms of the cases to be brought forth in the foreseeable future and to write dissents to stand as historical record saying: We saw. We tried. The judicial trajectory for the next couple of decades is all but pre-determined, barring a major disruption. The work of civil rights activists now is going to be VERY different than it was for my generation. The work now is largely to be the shoulders for those who come next. This isn’t what anyone wants to hear, but this is where we are—and where we were on the morning of November 9, 2016. The urgency of defeating Trump because of SCOTUS was always about MUCH more than Roe v Wade. It was always about saving a CENTURY worth of progressive gains. The regressive right is now positioned to dismantle it all. We will fight to minimize harm, but most of what we will be doing is fighting—and losing—because fighting is the right thing to do. Most of the fights of the next couple of decades will be about legacy, not progress.

This person would be named to the Court to write strong dissents against a regressive bulldozer to leave instructions for future generations while having little current effect. I hope she’s up to it. Bruce Hinze summarized on McElrath’s thread:

Important thread: the way ahead is hard. Many legal doctrines that have underpinned our lives for almost 100 years will be summarily discarded. Our fight is to grimly bear witness, to fight knowing we will lose, to make it possible for future generations to restore.

Erika Wilson, a law professor, saw the conversation about a black woman might be nominated to the Supremes and also saw the Supremes agreed to hear cases on Affirmative Action at Harvard and UNC. She tweeted a thread about enrolling at UCLA under their “race-neutral” admissions policy and being one of 14 black people in a schools with 1,000 students.

I felt immense pressure to perform. I was hit hard by stereotype threat. It felt like being in a fishbowl. It was weird discussing cases like Brown being the only Blk person in the room. The experience really taught me how much the stigma is BEING BLACK, not affirmative action. Meritocracy is a social construct undergirded by anti-blackness & white supremacy. The club or institution can't be as elite or exclusive if Blk folks are in it. I say all that to say Affirmative action is actually a conservative measure used to mitigate the realities of structural racism that lead to Black exclusion from "elite" institutions. Race-conscious measures are a legitimate & necessary form of reparatory relief.

Bill in Portland, Maine, in his Cheers and Jeers column for Kos, included a cheer that San Jose, California has passed an ordinance requiring gun owners to pay a fee and to carry liability insurance. Mayor Sam Liccardo said the goal is to reduce the risk of gun harm and to relieve taxpayers the financial cost of gun violence. David Neiwert of Kos explained why citizen militias are not legal. The “well regulated” part in the Second Amedment is not about the members carefully training themselves. It is about permission and oversight by the state government for purposes the state deems appropriate. And all 50 states outlaw these militias. Increasingly these militias are not confined to one state. For example militia members from multiple states did their planning in Ohio and training in Michigan to kidnap Michigan Gov. Gretchen Whitmer. These groups see themselves as adjuncts to the military and law enforcement. But they are accountable to no one. They declare they defend communities, bu their violent presence erodes communities and democratic institutions. If they are illegal in every state why aren’t they shut down? Neiwert wrote there are several factors. Law enforcement may not know the law since these militias have been tolerated for so long now. Though all 50 states have laws, they are all a bit different, leading to confusion. The militias themselves have been pushing the false idea they are protected by the Second Amendment. There is a lack of political will and “constitutional sheriffs” who are on the side of the militias. All those reasons are enough for Congress to act. There is a proposed bill with enforcement and the ability for the injured to sue. Alas, we know how likely it is for this Congress to act. April Siese of Kos reported that the Bipartisan Infrastructure Law (the big part that passed) includes $12 billion for carbon capture and storage (CCS). Fossil fuel companies like this technology because it gives them the ability to claim they are a tiny bit more green than they actually are. CCS is simply too expensive to get to the scale we would need and even then can’t reduce emissions to zero. We should stop development into the idea and stop prolonging the end of fossil fuels. A few days ago Moscow Mitch made a comment about “African Americans” and “Americans.” He was roundly scolded for the implication that the first group was not a part of the second. Chitown Kev, in a pundit roundup for Kos, quoted Leonard Pitts on the issue:

But if you think McConnell is the only one who needs to be reminded that, as Black poet Langston Hughes once put it, “I, too, sing America,” you haven’t been paying attention. You missed Chuck Todd of NBC’s “Meet The Press” describing how “parents” are worried about critical race theory while “parents of color” might have a different view. You also missed CBS News’ tweet asking, “How young is too young to teach kids about race?” As if children of color don’t learn about race about the same time they learn about walking. Finally, you’ve missed all those news stories where reporters talk about “working-class voters,” “suburban moms” or “evangelicals” when they mean “white” — as if Black and brown people did not work, live outside the city or go to church.

Sager reported that Glenn Youngkin, new Republican governor of Virginia, has set up a “tip line” so conservative Virginians could rat out educators that might be teaching something about race. Monica Hutchinson, a parent of two black children, is outraged at Youngkin, but not surprised. Sager wrote:

When it comes to the topic of American history, which includes the subject of enslaved people and systemic racism, by the way, Hutchinson, who’s attended the recent explosive school board meetings, says “no one is trying to make your child feel bad. But, how do you think our children feel when you refuse to address the past and they’re forced to relive that trauma?” Hutchinson says she doesn’t think it’s even about white kids feeling bad; it’s about them coming home after learning about the history of white Americans and looking at their parents and grandparents and wondering where they stood in times of segregation. “It’s all about denying the truth,” she says, adding: “They talk about the rights of students, but, the rights of which students? And when they talk about how CRT will teach Black kids to be victims, I say it will not. It will teach them that after all of the barriers they’ve had, they’ve made it. They’re survivors.”

Will Bunch of the Philadelphia Inquirer tweeted a promo for one of his articles:

Banning civil-rights history and books from Maus to The Bluest Eye. Va. begging parents to reports teachers, like the Stasi Something terrible is sweeping across America at the start of 2022. What explains the frightening new McCarthyism?

I tried to look at another Inquirer article today. Now that I have a browser with a built in ad-blocker I got a message saying the Inquirer earns money through ads. Subscribe or turn off your blocker. While I understand their point of view at the moment, when faced with their choice, my answer is neither. Marissa Higgins of Kos reported that the school board of Mukilteo, Washington has downgraded the novel To Kill a Mockingbird by Harper Lee from required to optional. A teacher may teach it but no longer must teach it. The change isn’t because of the racism, but because it “perpetuates a ‘white savior’ complex, racial slurs (the N-word), and portrays Black characters as one-dimensional.” Those opposed to the change say the better way would be to keep Mockingbird as required and put alongside it a book by a black author, such as Invisible Man bu Ralph Ellison. In response to the news that a House committee in Florida passed a “Don’t Say Gay” bill, McElrath tweeted:

“According to the @TrevorProject, LGBTQ+ youth who learned about LGBTQ+ people or issues in school had 23% lower odds of reporting a suicide attempt in the last year than those who did not.” Which is the point. They don’t want LGBTQ people to exist. Literally. The research on the impact of positive impact of acceptance on the lives of LGBTQ youth is clear. You only promote policies that deny LGBTQ youth education—and even the ability to discuss their own lives—when you either don’t care if they live or die or if you want them to die.

McElrath also tweeted a half-minute advertisement from Field Team 6 for the upcoming show America Needs a Queen, Drag Queens do Democracy.

Promoting a proven hoax

I had a quiet Christmas with Sister and Niece, who came to visit for a few hours. We had a simple meal and talked, and not much beyond that. Haggard Hawks, who enjoys language facts, tweeted a thread about tidbits related to the song the Twelve Days of Christmas. For example:

The ‘four calling birds’ in the Twelve Days of Christmas were originally ‘colly birds’. COLLY is a dialect word meaning sooty or stained with coal dust, and is recorded in the 18th and 19th centuries as a nickname for a blackbird.

Lucy Saunders tweeted a thread of photos of a team of Star Wars Storm Trooper action figures assembling an artificial Christmas tree. Be sure to check out what the dolls in the background are doing. I finished the book Playing the Palace by Paul Rudnick. Back in June, I wrote that my bookstore had a table of LGBTQ books for Pride Month I saw two books of gay romance in which one of the couple was an American and the other was the openly gay crown prince of Britain. I bought one – this one – and later saw reviews saying the other one was better. Not that this one was bad. It was an enjoyable, breezy read that took only a few days to get through. Carter is the American. He works as an “event architect” – setting up and running whatever sort of event a customer might want to hold. He’s at the United Nations building in New York installing all the decorations for Prince Edgar’s speech. Edgar shows up early to practice that speech and Carter, with some acting in his background, gives Edgar some tips on how not to be so bland and boring. It proceeds as romance novels do, including the expected mishaps and ending. What makes one romance novel different from another is the setting and how that affects the characters. So there is discussion of what it is like to be a royal in England and how said royal is affected. It seemed real enough to me and I assume Rudnick did research with actual royal watchers to get details right. But I think he got one important detail wrong. Carter is staying at Buckingham Palace as Edgar introduces him to what his job entails and to get England used to them as a couple. Of course, many of those events go wrong (as in let’s see how many roadblocks the author can throw up). The night before one of these events, which turns into a climactic scene, Carter sneaks out of the palace. My reaction was nope, can’t happen. I’m sure the palace, with both the queen and crown prince in residence, has very tight security. Someone near the building exits or on the grounds (there is a reason why tourists can see the Changing of the Guard at Buckingham Palace) would have seen him and either detained him or became his security detail (and by this time Carter is on a first-name basis with the prince’s personal team). Even if that night’s incident is allowed to happen that security detail would have been a witness, gotten more info on the perpetrators, and given a report to the prince and queen in the morning. Beyond that it was a cute story. And the idea that the crown prince, and eventually king, of Britain could be gay and be a trailblazer for LGBTQ and human rights is refreshing. Mark Sumner of Daily Kos discussed something that Drewtoothpaste uncovered – one way to track this pandemic is to chart the number of reviews on Amazon for Yankee Candles in which the reviewer says the candles have no scent. Yankee Candles are known to be highly scented, though there is debate on whether those scents are pleasing. December, with omicron rising, brought a fresh batch of bad reviews. Hunter of Kos, prompted by a report on CNN discussed that the Republican Party is now a fully fascist movement. That CNN report says that Republican candidates have near-unversally adopted the Big Lie. Hunter wrote that CNN is good at identifying the claims are false and at noting if a candidate admits the nasty guy lost the race he will lose his primary. But Hunter wrote that CNN missed the larger context, which Hunter supplied. The second paragraph of my quote is important.

The only reason to demand fealty to an abject hoax even after it has been proven, proven for all the world to see, that the hoax has resulted in violence and an attempted coup is because you believe the same violence and sedition may prove useful in the future. It would have cost the party not a damn thing to reject Trump's criminal farce after violent insurrection proved the party could not serve both his whims and their country, but they did not. Across the country, they repeat it. They endorse it. They look to use it in their own campaigns. ... That is the context. A fascist coup. It is not a coup "in slow motion"—it is being carried out with the same speed that past versions were. A first attempt, an evaluation of what didn't work, a purge of those unwilling to go along, new laws passed wherever the coup supporters have enough power to do it, in order to dismantle the specific roadblocks that held things up, an absolutely rabid demonization campaign against whichever public officials foiled the attempt, and an unrelenting campaign to drill the same pro-coup hoaxes even deeper into the public brain. This is how it's done. These candidates are promoting a proven hoax, even after it led to violence, even after members of their party specifically used it to incite violence. There is no innocuous explanation. They are using a hoax intended to discredit democracy and replace it with something else. This is propagandism. It is specifically crafted to deceive. Call these candidates what they are: anti-American. Enemies of our Constitution. Cowards. Corrupt. There is no excuse for promoting, defending, or even staying silent on a hoax of this magnitude. The only reason to do it is a belief that your own political career is of more value than the peaceful transfers of power that America once held sacrosanct.

Darrell Lucas of the Kos community, quoted and discussed a tweet from Liz Harrington, a nasty guy spokesperson, who quoted the start of a nasty guy rant:

All the Democrats want to do is put people in jail. They are vicious, violent, and Radical Left thugs. They are destroying people’s lives, which is the only thing they are good at.

I note this is pure projection: One person accusing his opponents of doing what he feels constrained by society from doing. Lucas quoted former FBI Counterintelligence Chief Frank Figliuzzi who sees a bomb about to go off – a person who believes he is cornered by the House January 6 Commission and various other legal cases and is about to become violent. Melissa Block of NPR explored the Big Lie. The webpage for this radio segment is a news story rather than a transcript of the audio. Rich Hasen of the Fair Elections and Free Speech Center said he is scared about American democracy because of the metastasizing of the Big Lie. He feels he is sounding an alarm and no one is listening. Timothy Snyder of Yale said the nasty guy is exploiting an old tactic of inverting the lie. Snyder said:

Part of the character of the “big lie” is that it turns the powerful person into the victim. And then that allows the powerful person to actually exact revenge, like it's a promise for the future.

The original big lie is in Hitler’s Mein Kampf. He blamed Jews for all of Germany’s woes. Snyder said:

The lie is so big that it reorders the world. And so part of telling the big lie is that you immediately say it's the other side that tells the big lie. Sadly, but it's just a matter of record, all of that is in Mein Kampf.

The nasty guy’s big lie has now been firmly anchored in public opinion – 36% of Americans and 78% of Republicans do not believe that Biden legitimately won the election. That has driven new voter suppression and election control laws in red states. Snyder said the likely scenario for 2024 is the candidate who lost by every measure still becomes president. Yet, the Democratic controlled Congress hasn’t passed voting rights laws. Carol Anderson, professor of African-American Studies at Emory University said it is about devaluing black people. She said:

This is about, “My nation is about the real Americans. And all of those folks aren't real Americans.” It is so vile. It is so racist. And it works. That's the thing, it works.

Rep. Adam Kinzinger, one of two Republicans on the Jan. 6 Commission compared the Big Lie to a cancer eating the Republican Party. He said:

More importantly in my mind, what is the rot in the system that led up to Jan. 6? And where have we come since? And how do we stop anything like this from happening again? 'Cause even though Jan. 6 technically failed, there's a lot of areas where you can learn from, if your goal is to overthrow a legitimate election and potentially do it successfully next time.

A failed coup is practice for a successful one. Leah McElrath quoted a tweet from Bree Newsome Bass:

The most misunderstood thing about those of us who are always considered “alarmist” is that we don’t want to be right. We want to warn people in the hopes a different direction is taken.

McElrath added:

Many of us literally pray to be wrong. We also often self-censor and are selective about what we discuss publicly. We speak out NOT to fear monger but rather, as @BreeNewsome notes, to warn—in the hope of encouraging action to shift trajectory from the worst of what we foresee.

Joan McCarter of Kos reported on the need to expand the Supreme Court and began by saying:

If there is anyone in Washington, D.C. as stubborn, arrogant, and thick-headed as Sen. Joe Manchin this week, it’s Supreme Court Associate Justice Stephen Breyer. The 83-year-old remains doggedly committed to the fantasy that if he says the judicial confirmation process should not be politicized, it won’t be. As if the last decade of Sen. Mitch McConnell flexing his power hadn’t happened.

Greg Dworkin, in a pundit roundup for Kos, quoted Kurt Bardella of USA Today:

From Meadows to Manchin, absolutely nobody is afraid of this White House or of Democrats in general. Republicans, on the other hand, have taken the politics of fear and turned them into a Jedi-level art form. Fear is their weapon of choice, and they love nothing more than using it to bludgeon Democrats over and over and over again.

Michael Harriot tweeted:

After the ‘08 Recession, we gave trillions to the banking & auto industries. When COVID hit, we gave families’ stimmys & forgivable loans to businesses. Apparently, just handing out money can fix any financial issue & stimulate ANY economy. This tweet is about reparations.

In another roundup Dworkin quoted Dan Froomkin of Press Watch who commented on an article Nina Bernstein wrote for the New York Times in 1999. Bernstein’s article was about then-mayor Rudy Giuliani’s intention of locking the homeless out of shelters for minor violations and the effect that had on a family of eight.

Simply by describing the facts, Bernstein was making Giuliani’s plan look cruel. And that created problems for her in the newsroom. “Getting it in the paper involved overcoming lots of editor pushback,” Bernstein recalled. She and I spoke on the phone and exchanged emails. It was a problem she ran into with some frequency: “To write factually, up close, with what I like to call intelligent compassion about these people’s lives basically invited charges of partisanship.”

Alyza Michael Enriquez tells the story of their transition. They declared being transgender but didn’t feel right in a female body or a male body. It took a while to find the words and a while more to properly explain it to a doctor. They wanted something in between to express being non-binary. Instead of taking full doses of testosterone to fully transition they took microdoses.

Only to add an undue burden

The Supreme Court ended its term today by issuing rulings in the last of its cases. The big ruling was on abortion rights. It was good to see an 8-member court didn't need that 9th member. The vote was 5 to 3. The ruling tackled restrictions place on abortions to protect the health of the woman who experience complications, as the law in Texas put it. Ginsburg, Sotomayor, Kagan, Breyer, and Kennedy concluded that reasoning was bunk and only served to add undue burden to getting an abortion.

Two provisions in the Texas law were struck down – an abortion clinic must meet hospital standards and the doctor must have admitting privileges at a nearby hospital. There are 23 other states with one or both of those provisions (Michigan has one of them). All these state are affected by this ruling.

Now on to tackle the waiting requirement that women must be given pre-abortion "counseling" much of which is inaccurate or outright lies. Those kinds of laws are in 27 states. But that will take another case.

When the Texas law went into effect about 20 abortion clinics closed. That was about half of the clinics in Texas. If the Court ruled in favor of the law Texas would have been left with only 8-9 clinics. Those that closed will not necessarily reopen, at least won't do so quickly. For example, the staff may have gotten other jobs.

Lyle Denniston of SCOTUSBlog explains the ruling. Thomas had dissented, arguing that the Court had a tendency of treating abortion rights more favorably than other rights. I'm not sure what that means and Denniston doesn't provide details.

The dissent by Alito and joined by Roberts and Thomas was mostly that the Court shouldn't have taken the case. This case went before the Fifth Circuit and failed. Some of the same doctors filed a new challenge. This dissent argued because some of the same doctors were involved it should not have been allowed to proceed. This follows the old judicial doctrine that when one loses one can't sue again. The majority rejected that idea for this case.

Melissa McEwen, writing for Blue Nation Review, has a full-throated defense of the right to abortion. We value lives differently – we value citizens over non-citizens, free citizens over inmates, wealthy over poor, those with health insurance over those who don't. And we value the life of the fetus over that of the mother, "a living, breathing, thinking adult woman whose life is considered to be worth less than a potential life."

I've read enough of McEwen's writings to know that while she recognizes society values the life of a wealthy person over the life of a poor person she certainly does not agree that such difference in value is a good thing or healthy for that society.

Peering into a 220 year old head

Antonin Scalia, the most conservative of the Supremes, gave a little speech a the UC Hastings College of Law. He defined what was meant by "originalism" -- the idea that guides him that says we must follow the original intent of the Constitution. He makes that a bit clearer. It doesn't matter what the actual words in the Constitution say. What does matter is what was going on in the heads of the guys writing it.

For example, the Constitution says, "…nor deny to any person within its jurisdiction the equal protection of the laws." Obviously, that meant white Protestant landowners and certainly not women or gays. Therefore legal protections cannot be extended to women and gays. Strange that Scalia was part of the gang that decided Halliburton was in the minds of the founders and can spend freely on campaigns as a person.

This was apparently partly in response to Justice Stephen Breyer, who has written a book about how the Constitution cannot remain an 18th Century document. It must either evolve with the society or that society will see the court as irrelevant. Definitely not "originalism" thinking. This is apparently Breyer's second book.