We don't have a 6-3 Conservative Court. We have a 3-3-3 Court.

Thomas, Alito, and Gorsuch are on the right. Roberts, Kavanaugh, and Barrett are somewhere to the left of the right. And Breyer, Sotomayor, and Kagan will do anything to form a majority.

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On Thursday, June 17, the new Roberts Court formally revealed itself. In three cases, the Court largely split into three triads: a conservative wing, a moderate wing, and a principle-fluid progressive wing.

First, consider Fulton v. City of Philadelphia. Justices Thomas, Alito, and Gorsuch would have overruled Smith. Justices Barrett and Kavanaugh concurred, and explained why they would not overrule Smith. The two newest members of the Court also joined the Chief's meaningless majority opinion that set zero precedents. And Justices Breyer, Sotomayor, and Kagan were willing to rule against LGBT rights in order to avoid a far more expansive precedent.

Second, consider Nestle v. Doe. In Part III of the plurality, Justices Thomas and Gorsuch would have gone further, and held that Congress, and not the Courts, should create causes of action. Justice Alito ostensibly dissented, but he agreed that Part III of Justice Thomas's opinion "make strong arguments that federal courts should never recognize new claims under the ATS." Chief Justice Roberts and Justice Barrett did not join Part III. Justice Kavanaugh did. Here, there was no conservative majority, so Justice Sotomayor was free to write a vigorous dissent, joined by Justices Breyer and Kagan.

Third, consider California v. Texas. In dissent, Justices Alito and Gorsuch found standing and would have ruled for the Plaintiffs. Justice Thomas wrote a very begrudging concurrence, but in light of his Article III sticklerism, he could not go along with the dissenters. Chief Justice Roberts and Justices Kavanaugh and Barrett lined up with the Court's progressives on a hyper-narrow decision that made some important concessions on the nature of the mandate.

We do not have a 6-3 conservative Court. The Chief may have been conservative at one point, but he has embarked on a life-long odyssey to pilot the Court to middling moderation. Justice Kavanaugh was always cut from the same cloth as Chief Justice Roberts. He played the part to get the job, but has consistently showed his true colors. And Justice Barrett is not who conservative thought they were getting. Her $2 million book advance may seem like a bad deal in a couple years. (See my fourth point here).

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  1. Will this 3-3-3 label still work if the Court overturns Roe in the coming year?

    Plus, I’m hesitant to complain to much about conservative justices upholding precedent in the name of stability. Conservatives conserve, to their detriment usually, but it’s in the name. Prof. B., I think, falls into the trap that unless we go back to “originalist understanding X” of something it’s not real conservatism.

    Richard Epstein has said of many liberal court decisions (I paraphrase) that the intruder broke into the home, but has lived their so long, that he’s now co-owner of the house.

    1. We have 9-0 lawyer dumbass, rent seeking, big government biased, Washington degenerate Supreme Court.

      1. Cuckoo for Coco Puffs!

        1. Accepting the reality, I am a male, Hon.

          1. But do you require the other males you’re with to practice safe sex?

            1. KryKry. Sorry. I like good looking women. You are both male, and a Democrat, making you ugly. There is no hope for you.

              1. But do any of them like you?

                1. It’s the dog that didn’t bark.

    2. I would bet against them overturning Roe v. Wade. My take on this entire term is that they’re doing everything possible to avoid sweeping rulings. Yesterday, they bounced one case on standing and declined to revisit an important establishment precedent. So I think on Roe they will find a way to leave the status quo more or less intact.

      Who knows, when Kavanaugh told Susan Collins he considered Roe v. Wade to be the law of the land, he may have been telling the truth.

      As for Epstein’s quote, ever hear of the concept of adverse possession?

      1. As I understand it, adverse possession only happens if you refrain from making efforts to expel the trespasser. Your failure to make the effort in response to their open act of possession constitutes acceptance of it.

        Opponents of Roe v Wade never stopped their efforts to get it overturned, to you can’t really analogize this to adverse possession.

        It’s more like we kept calling the damned police on the trespasser, and the police refused to do anything about it.

        1. Because the police chief was the squatter, of course…

      2. Yep, my opinion is that they will (likely) not overturn Roe. Would be nice if they did, and it would just go back to the state anyway, too much howling and discontent. They are being jawboned and threatened with court packing as it is.

        Squatter’s rights? I’m not sure the comparison fits per se, but I get your point.

        1. I don’t see Roe being overturned either. Too many of the instruments of cultural transmission are wholly owned by the left, and the left likes abortion, so we are indoctrinated to support it. The indoctrination doesn’t fully take on a majority of the population, but it’s enough to fatally (No pun intended.) undermine efforts to overturn it.

          As well, this is one of those topics where our ruling class, left AND right are culturally distinct from the population as a whole, though the members who depend on votes from the right have to pretend otherwise. And though the Court sometimes claims to pay attention to public opinion, the only “public” whose opinion they care about on most issues is the ruling class.

          1. We could quote de Tocqueville here, and (while you’re mostly accurate) when you get down to brass tacks, what is really preventing the overturning of Roe is fear of leftist violence combined with a desire for institutional respect.

            1. Where the respect desired is not from the general public, but the ruling class. But, yes, generally that’s right.

              I think Heller might have come out of the 2nd amendment being one of the few issues where the fear of right-wing violence exceeded the fear of left-wing violence.

              1. GCA68 did not lead to right-wing violence. Nor the Brady Law or the federal assault weapons ban.

            2. “what is really preventing the overturning of Roe is ”

              the disastrous pre-modern world a post-Roe one would be.

              1. Where most states would keep it legal?

                1. That’s of little help if you’re a poor woman living 500 miles from the nearest abortion clinic.

                  1. Yeah, well it’s not much help guns being legal in Montana if you live in Hawaii, either. The difference is that the 2nd amendment can actually be found in the Constitution, unlike the ‘right’ to an abortion.

                    1. It’s weird how the 2A needed to be incorporated…such a head scratcher. 😉

                      And Roe will be overturned because TRAP laws have done the heavy lifting. I predict abortion in cases of rape and incest will still be protected which will prevent a blue tsunami as suburban mothers would vote Democrat if Texas and Florida and Georgia Republicans outlawed abortion in cases of rape and incest.

                  2. For the money your side spends on lawyers and such, you could pay airfare or busfare for a lot of those women.

            3. mad_kalak : what is really preventing the overturning of Roe is fear of leftist violence combined with a desire for institutional respect.

              You left out the part where Roe has broad and substantial public support with the American people. It always has and always will. Subtract the posturing of people who enjoy this most consumer-friendly of branding righteousness and that support would grow more sizable still.

              Today’s Right has enjoyed a long run leveraging the anger of a clear minority; let them find the “success” they claim to seek and they’ll reap a tsunami of anger from a clear majority. Republican politicians know this. Probably Republican Justices know it as well.

              1. How many of that “majority” are worthless third worlders who vote for free stuff and are only here because of lies from the left?

              2. “what is really preventing the overturning of Roe is fear of leftist violence combined with a desire for institutional respect.”

                Which is why I say that we are inexorably heading to a Wiemar Republic. How’d that turn out the last time?

                1. Ed is all apocalypse, all the time.

                2. As I recall, what ended the Wiemar Republic was rightist violence, rightist demagogues, rightist lies, and rightist propaganda. There were people who actually believed the “stab in the back” (Dolchstoss im Rücken) myth. Granted, that wasn’t as ludicrous as Trump’s election lies, but it’s still amazing people can be so gullible and dumb.

                  1. Gullible and dumb: prepared to claim that all whites enjoy racial privilege and that the poverty of inner city blacks has nothing to do with destructive values.

                3. ED, wake up from your dreams of chicken little

              3. grb, support for abortion always depends on how you ask the question, and how particular you get. I wouldn’t consider broad or much less substantial.

                That said, you’re correct that court rulings shouldn’t depend on public opinion, but of course they do.

                1. mad_kalak : grb, support for abortion always depends on how you ask the question,

                  I concede the point. Posit late-late-term abortions and eliminate any medical cause requiring that medical decision, and you may squeak out a polling win – particularly with abortion safely secured as a legal right. Ask whether abortion should be illegal and you ALWAYS lose. Those numbers regularly run with a two-thirds majority that is pro-choice. I would consider that both broad & substantial, but you’re welcome to use what words you chose.

                  1. The polls I’ve seen have support for legal abortion drop below 50% after the 1st trimester, and are kind of shaky even in the 1st trimester for purely elective abortion.

                    See this Gallup poll, for instance.

                    Notice how “legal under all circumstances polls at 29%? Legal only under certain circumstances polls at 50%.

                    Further down it’s broken down more: 29% legal under all circumstances, 14% legal under most, 35% legal only in a few circumstances, and 20% never legal.

                    Breaking it down by trimester. 34% think it should be illegal in the first trimester, 65% think it should be illegal in the 2nd trimester, and 81% think it should be illegal in the 3rd.

                    Even in the 1st trimester, 53% think purely elective abortions should be illegal.

                    You can draw three conclusions from these numbers: First, support for elective abortions is very shallow, limited to just the 1st trimester. Support for genuinely medically necessary abortions is very deep. And people give contradictory answers to pollsters. (Because the cross tabs don’t agree with the bottom line questions.)

                    1. The problem is pro-lifers logic is for it to be illegal under all circumstances except life of the mother.

                  2. https://news.gallup.com/poll/154838/Pro-Choice-Americans-Record-Low.aspx

                    While Americans’ identification as “pro-choice” has waned over the past year, their fundamental views about the morality and legality of abortion have held steady. Half of Americans, 51%, consider abortion morally wrong and 38% say it is morally acceptable — nearly identical to the results in May 2011.

                    Gallup’s longest-running measure of abortion views, established in 1975, asks Americans if abortion should be legal in all circumstances, legal only under certain circumstances, or illegal in all circumstances. Since 2001, at least half of Americans have consistently chosen the middle position, saying abortion should be legal under certain circumstances, and the 52% saying this today is similar to the 50% in May 2011. The 25% currently wanting abortion to be legal in all cases and the 20% in favor of making it illegal in all cases are also similar to last year’s findings.

                    Only “legal under certain circumstances”, hardly a pro-choice position.

          2. With a fertility rate that dropped *another* 4% last year — to a lifetime average of 1.6 children per woman (2.1 is required for population stability), you might see some second thoughts as to Roe.

            1. With a fertility rate that dropped *another* 4% last year — to a lifetime average of 1.6 children per woman (2.1 is required for population stability), you might see some second thoughts as to Roe.

              Only if you’re of the mindset that an individual’s choice to have a family or not is of public concern. But that’s a pretty statist way of thinking so you can’t possibly be of that mindset.

              To normal ,not psychotic people, a desire for population stability doesn’t dictate control of personal actions. Just like we rightly criticize the chinese one-child rule, most normal people would also be against forced births for population stability.

              Furthermore, abortion availability (which you seem to be blaming) isn’t even the cause of people’s choices to not have as many children as in the past. Economics on the other hand has does dictate reproductive choices. But one side doesn’t want to address the economic issues.

              If you are sooooo concerned about population stability, then the simple answer is to allow more immigrants to replace the population loses due to less child rearing. But again — one side doesn’t want to address that.

              It’s much easier to distract from the real issues with talk about abortion than to address what is really causing population decline.

              1. Solving the problem of 100 IQ whites not having enough children by importing 80 IQ Africans and mestizos is not a particularly winning strategy.

                1. It’s always the sub-100 IQ whites saying this kind of thing, of course.

            2. Don’t worry Mr Ed.
              Little brown children are already racing to the border to take their place

        2. If there are any “rights” that are sacrosanct to the left, it’s killing third trimester fetuses and ejaculating into another man’s rectum with no protection.

        3. If it gets overturned i guarantee conservatives will try to either 1. prosecute their residents who get abortions in other states or 2. try to get the federal government to ban abortion.

          1. On what basis will they prosecute actions in other states? What’s their jurisdictional claim? Can Utah prosecute Utahns who go to legal brothels in Nevada?

    3. “if the Court overturns Roe in the coming year”

      Its never happening, not this year, not ever, with Roberts on the Court. 4 votes maximum.

      The Federalist Society project has failed.

      1. Don’t be too disheartened, Bob, there are some liberal precedents that were never written because of the Court’s right of center majority. You may not have successfully recaptured lost ground, but you did manage to prevent some further ground from being lost. So it hasn’t been a total rout for your side.

      2. I don’t think it’s failed, it’s just getting started. These changes tend to be glacial. You want a Warren Burger for the right, and I don’t think that’s gonna happen.

        It’s really a waste of time without election integrity though, because courts are downstream of that.

        1. Sloppy election integrity gave us the Cheney administration, so you do have a point.

          1. Note how the right didn’t protest the audit in 2000 (which incidentally, butterfly ballots aside, did show Bush had more votes). Moreover, it wasn’t some threat to democracy for it to happen either.

            Cheney admin…that’s a good one. Consider it stolen!

            1. “Note how the right didn’t protest the audit in 2000”

              Were you off planet at that time?

              1. No, I was on the planet, they were objecting to a recount *prior* to the results being certified….not afterwards, which is where the left is at today…doing everything possible to prevent audits/recounts *after* the election.

                1. Has the left ‘protested’ any legally required recounts/audits?

                  1. You missed the Arizona’s AG’s response to the DOJ?

              2. Queenie lives in the Planet of the Pink Flamingos.

                1. Crazy Cockatoo’s Comment

                  1. Your life is a study in abject art.

                    1. Bonker’s Behar’s Bluster!

            2. Why would the right complain that the Bush/Cheney campaign chief for Florida “just happened” to be in charge of running elections and counting the votes in Florida?

          2. “Sloppy election integrity ”
            Obviously you believe all of the Gore-y BS about Florida and don’t care a with about the subsequent NY study that showed that Bush did win Florida

            1. That’s not a precisely accurate description of the post-election newspaper studies. They didn’t assess who “won.” They assessed what the outcome would be under various recount procedures.

              What they found was that under most procedures, including the ones actually requested by Gore, Bush would’ve eked out a narrow victory. So if SCOTUS hadn’t stopped the count when it did, Bush would still have won. But they did find some protocols under which Gore would’ve won.

            2. “Obviously you believe all of the Gore-y BS about Florida and don’t care a with about the subsequent NY study that showed that Bush did win Florida”

              Even more obviously, I don’t think that the election should be run by someone who has a stake in one of the candidates’ winning. If someone works on one of the campaigns, they should be disqualified from working the actual election.

      3. “The Federalist Society project has failed.”

        Completely wrong – the Federalist Society has succeeded beyond their imagination, which would be obvious to you if you understood what “success” meant to them. If you want proof, look at the Roberts court’s jurisprudence on campaign finance, labor rights, mandatory arbitration, class actions, and corporate liability generally. It’s been a long time since the rich and powerful were less accountable under the law than they are now. That’s the definition of success to the leaders and funders of the Federalist Society. Abortion, gay marriage, and other cultural grievances are just bait for the suckers.

        1. A common characteristic of an extremist is the inability to see victories as such, since they are so far to their extreme the shore from here to there is always vast to them.

          1. Pot meet kettle

      4. “The Federalist Society project has failed.”

        As occurs with a number of teams, the Federalists lost the season — every season — on draft day:

        Round 1: Racism
        Round 2: Superstition
        Round 3: Misogyny
        Round 4: Backwardness
        Round 5: Gay-Bashing
        Round 6: Xenophobia
        Round 7: White nationalism
        Round 8: Dogma
        Round 9: Backwater religious schooling
        Round 10: Can’t-keep-up rural and southern communities
        Round 11: Country music
        Round 12: Fox News
        Round 13: NASCAR
        Round 14: Confederate flag
        Round 15: Rush Limbaugh
        Round 16: Bator Award winners
        Round 17 (supplemental): Story Award winners
        Round 18 (supplemental): Josh Blackman

        That team never had a chance.

        1. Gay bashing? Opposition to being forced to bake gay wedding cakes is hardly an act of violence against a person because of how they identify.

          1. Approximately nobody was forced to bake wedding cakes, gay or otherwise. What happened was that people who’d publicly offered to make cakes in exchange or money were required to make cakes in exchange for money.

    4. I see no evidence that this Court has the gonads to overrule Roe.

    5. “Conservatives conserve, to their detriment usually, but it’s in the name.”

      There are actually different kinds of conservatives…I guess you could say it’s a diverse group.

      In addition to diverse perspectives, there are diverse attitudes.

      Conservatives may actually self-consciously pronounce themselves conservative and seek to stay pure, they may be kneejerk own-the-libs, types, or they may just be people whose views get them excommunicated from the ever-shifting progressive consensus.

      Many of the authors on this site (and the Reason site to which it’s attached) didn’t start off trying to “own the libs” and define their positions from there; they’re often genuinely distressed to find they’re not fitting in with the cool kids on the left.

      There are even some conservatives who are quite comfortable in their views but who are open to cooperating with progs on matters of common interest…even though they know they’ll never fit in and will always be seen as left-behind clingers, their patriotism makes them willing to cooperate with progs when, through some rare coincidence (albeit for the wrong reasons), the progs support something good.

  2. And Justice Barrett’s $2 million book deal is her 30 pieces of silver.

    1. Wait . . . you didn’t genuinely believe conservatives were going to reverse the tide of American progress, did you?

      1. they were all set to party like it was 1899!

      2. America is on its way out. “American progress” will be meaningless in 20 years. What will replace it is anyone’s guess.

    2. “And Justice Barrett’s $2 million book deal is her 30 pieces of silver.”

      A piece of silver that is worth $66,666 (2,000,000/30) would be awfully heavy and wouldn’t fit in your pocket very easily.

      1. That’s probably about right if you account for over 2000 years of inflation…

      2. One piece would weigh about 1 1/4 tons.

        1. Adjusted for inflation?

          In 1932, *gold* was $32/oz — and what is it now?

          1. Nearly infinite, if you want to buy a Gold Double Eagle.

    3. Do you think that some of the leftists here don’t recognize the literary reference of the 30 pieces of silver? Based on the responses, methinks so.

      1. Oh, I think we all get it; we just chose to talk about something else.

        But since you asked, can you list the similarities between Joseph and Jesus? I’ll get you started:

        The beloved son of the father, both were rejected by their brethren and sold for silver. Joseph’s imprisonment followed by his rise to power is a foreshadowing of the crucifixion followed by the resurrection. They each acquired a Gentile bride and became a blessing to the Gentiles. The Calvinists who raised me would also say that the brethren who rejected them ultimately were forced to worship them and acknowledge their kingship, though I understand that last one would be offensive to some here.

        See, it’s not that we’re not familiar with your Holy Book; surveys consistently show that we know it better than you do. It’s that we know it well enough to conclude that it’s dreck.

        1. Does “we” include the reverend Jesse Jackson, the people at Sojourners magazine, or the numerous liberal clerics and theologians who think Jesus wants high taxes?

          Or is the left simply a coalition of convenience, with the secular partners occasionally blurting out what they *really* think about the Christian (and Jewish) faith?

          1. How could anybody reach the notion that Jesus wants people to pay high taxes, just because he told his followers to pay their taxes?

  3. Too early to judge Amy.

    Gorsuch wrote the radical and execrable Bostock opinion so let’s not crown him the new Justice Thomas quite yet. Maybe he will redeem himself.

    Otherwise, I agree with the thrust of the post.

    This is perfect:

    “The Chief may have been conservative at one point, but he has embarked on a life-long odyssey to pilot the Court to middling moderation.”

    1. Gorsuch did the same hyper-literalism he does in every other case. It’s part of why he was picked. But as soon as it benefits an out group, conservatives lose their minds. So telling about their commitment to judicial principles. And their general world view that there must be some disfavored groups, disfavored for completely arbitrary reasons, that society permits all sorts of evils to happen to. And where the worst transgression is someone not in the group extending a benefit to them. Really dark stuff tbh.

      If Gorsuch is wrong about Bostock, that means you also can be fired for being in an interracial relationship under Title VII. But I’ve never seen a conservative admit this.

      1. That’s some serious projection about victimhood thinking, the left is all about “oppressor” and “oppressed” these days, in fact, it’s fundamental to their ideology at the moment. The right, in calling out the stupid hypocrisy of it by pointing out leftist oppression of X, Y, or Z must make you think they are engaging in it. Frankly, the right needs to be more Nietzsche-ian about things.

        Also I suspect because your analysis that a person can be fired for an interracial relationship under Title VII is not accurate, which is why you don’t have conservatives admit anything on it.

        1. “That’s some serious projection about victimhood thinking, the left is all about ‘oppressor’ and ‘oppressed’ these days, in fact, it’s fundamental to their ideology at the moment.”

          Speaking of projection… The right have been whining about how oppressed they are for a generation. First, it was the media that were out to get them, then the educated elites. Now it’s Big Tech that is the scary oppressive boogeyman of the right.

          1. Today’s Right doesn’t have a single arrow in their quiver that isn’t snowflake vicitimhood whining. Want proof? Just read all the Right-winger comments here. It’s all they do.

            1. Yeah, you couldn’t have asked for a better (albeit unintentional) rejoinder to mad kalak here than jimmy’s victimhood histrionics below.

                1. Moron’s Meandering Mumbling!

        2. Let’s go through this exercise again:

          Title VII says that you can’t take an adverse employment action because of an individuals race, sex, etc.

          They are in the exact same grammatical position. This is a fact. You can’t pretend it is not.

          Gorsuch points out that it is logically impossible to fire someone for being in a same sex relationship without it being because of sex. If you fire someone because they are a man married to a man. It necessarily is because of the individual’s sex. That is the only characteristic of your employee you are relying upon when you make that determination.

          Now let’s say Gorsuch is wrong about this reading of “because of sex.” What about “because of race?”

          If Gorsuch is wrong on the text, firing a black man because he married a white woman is not an adverse employment action because of the individual employee’s race.

          Since that textual reading is obviously ridiculous, you need to go to extra-textual sources. Something that conservatives said was not only a bad juridical philosophy, but actually unconstitutional and inherently illegitimate.

          Now the extra-textual sources would say because of the cultural and legal antipathy to gay people, Congress clearly couldn’t have intended “because of sex” to reach their conduct. Fair enough.

          But the same social and cultural historical argument applies to inter-racial relationships. Loving was decided three years after the 1964 Civil Rights Act. That struck down every anti-miscegenation law in the South. Most other states had only recently repealed or struck down their own laws in the prior 15 years. Cultural views on inter-racial relationships were still overwhelmingly negative, and inter-racial marriage was still very rare.

          So if we’re using extraneous historical knowledge to interpret Title VII, the answer must also necessarily be that Congress didn’t intend “because of race” to reach inter-racial relationships because of the widespread legal and cultural antipathy to such relationships.

          1. “Gorsuch points out that it is logically impossible to fire someone for being in a same sex relationship without it being because of sex.”

            Let’s say somebody obtains a job, lying about their sex on their resume, and cross dressing to pass long enough to get the job. Ordinarily, lying about ANYTHING on your resume would be grounds for firing if uncovered, even if it wasn’t terribly relevant, because it reveals you’re willing to lie to your employer. But this can’t be, because it’s only a lie because of your sex?

            1. Are we using the Brett Bellmore all trans people are lying formulation or are you envisioning some kind of Mrs Doubtfire situation?

              1. A trans person (I’ll use your term, not call them mentally ill, which is what they are) is lying to himself/herself and trying to get the rest of us to lie to him/her because sex is determined at the cellular level.

                Absent Star Wars level technology, it is impossible to change your sex. You can change your “gender identity” but that’s just like changing the curtains on stage, backstage, the props and scenery remain the same.

                1. “I’ll use your term, not call them mentally ill, which is what they are.”

                  Is this diagnosis based on your extensive training in the fields of medicine and psychology?

                  1. The same APA that changed homosexuality from a mental illness to something heroic after political pressure from the homos?

                    1. The guy who wants to murder his political opponents has some thoughts on human psychology, everyone.

                    2. Says the guy who is a supporter of white genocide.

                    3. Yeah. When have I ever said I wanted people, specifically white people, murdered or expelled? Whereas you have on multiple occasions referenced your desire to have other killed.

                2. mad_kalak : “because sex is determined at the cellular level”

                  Why bother saying something so egregiously false? Sex may start at the cellular level, but it’s manifested in two ways: The anatomical features we all find so delightful to dally over, and raw need that is hardwired into the brain.

                  And it’s been clear since the very beginning of history that those two manifestations sometimes don’t align. Of course this isn’t something seen in humans alone; homosexual behavior has been observed in over 450 species of animals.

                  Of course that still leaves you the option of characterizing a biological fact with slurs, or penalizing people over the most basic of needs, but why bother? That’s my question: Why do you, Mad_Kalak, feel that particular need? That’s so very puzzling, I’m almost tempted to describe it as “mentally ill”, like you do above. But in the end I don’t. (You have to be very careful with that sort of thing)

                  1. “And it’s been clear since the very beginning of history that those two manifestations sometimes don’t align. ”

                    You’re not making any sense here at all, but if you’re trying to talk about rare intersex abnormalities, think about it a little bit longer and you’ll see that it has no relevance at all to the transgender issue. But it’s always trotted out as a rebuttal because there’s nothing actually rational to say.

                    1. M L : “You’re not making any sense here at all…”

                      Uh huh. You’ll excuse me for not being crushed by that harsh judgement, because you’re full of shit. I was born with male equipage and the desire for females hardwired in my brain. It wasn’t something I turned my thoughts to around puberty and flipped a coin to come to a decision. It was as innate as all those salmon swimming upstream.

                      But there are people born with physical traits of one gender and the innate desire for that gender – and this happens just as naturally in humans as with those 450 species of animals I mentioned above.

                      Now maybe you’ve never met a homosexual person, never read a bit of history, and have zero knowledge about biology. Maybe you’re honest-to-god clueless as you seem. But I don’t believe it. It’s more likely your obliviousness is another one of those pretend-games the Right likes to play – because they enjoy being stupid.

                    2. Oh I see where your brain is farting now. Mad Kalak was talking about biological sex, and “trans” issues. Then you came and decided to talk about a totally different topic, sexual orientation, and pretend that it was somehow relevant. What a moron.

                    3. He’s talking about intersex persons ya goof. How did you not get that?

                3. ” because sex is determined at the cellular level. ”

                  Like hair color or boob size? Lord knows those are fixed forever.

                4. “A trans person (I’ll use your term, not call them mentally ill, which is what they are) is lying to himself/herself and trying to get the rest of us to lie to him/her because sex is determined at the cellular level.”

                  Speaking of mentally ill, how about someone who’s THAT interested in someone else’s personal anatomy?

                  “Absent Star Wars level technology, it is impossible to change your sex.”

                  What Star Wars technology are you talking about? There’s hardly any women in that whole galaxy! Padme Amidala, her (unnamed) handmaidens, Mon Mothma, Leia Organa. Maybe Zam Wessell.

                  1. Oops. Skipped over Aunt Beru.

              2. The Brett Bellmore position is that the trans people are delusional, not lying. Lying requires being aware of the truth.

                No, for purposes of argument assume this isn’t somebody who’s delusional, they genuinely were lying. Say they wanted into a job with an informal sex quota, like teaching at a kindergarten.

                1. Then that would be okay under Title VII.

                  I have a sincere question: why do you think you’re so competent in so many fields you have no training in? Like it’s unbelievable how certain you are, with zero experience and training that you’re smarter than psychologists, medical doctors, historians, lawyers (remember that time you stupidly suggested that doctrines aren’t part of the law?), and any number of other disciplines? Like seriously how can someone have so much arrogance and inability to admit some people know better than him?

                  1. That’s Brett alright, but many conservatives these days.

                2. “The Brett Bellmore position is that the trans people are delusional, not lying. Lying requires being aware of the truth.”

                  The Brett Bellmore position is to be delusional.

          2. “That is the only characteristic of your employee you are relying upon when you make that determination.”

            Wrong. If the local ice cream shop does not want to hire a man because he is pretending to be a woman with a short skirt, face stubble and badly applied eyeliner, they are not relying “only” upon his sex in making this determination. They are relying upon his mentally ill, developmentally impaired, socially dysfunctional, self-destructive behavior.

            It’s true that his sex is a necessary condition, but it is not a sufficient one since they would obviously hire males generally. A necessary condition is also referred to in this context as a “but-for cause” also called cause-in-fact.

            But-for causation is an important legal concept, but it is supplemented by another type of causation known as proximate cause. Generally when looking at damages and whether a certain harm was caused by a certain act or omission, both types of causation would need to be met. That’s because but-for causation does not always make sense, and is not enough in and of itself to necessarily dispose of causation.

            For example, say you negligently drop a glass bottle and don’t pick it up. You are liable for someone stepping on it and cutting themselves. But say the sunlight refracts through the broken glass, ignites a pile of oil-soaked rags and burns down a building. There are a couple of reasons you may not be liable, even though your negligent action was a but-for cause. First, the causation may not be considered direct/close enough because the resulting type of harm was not foreseeable. Second, the causation may not be direct/close enough because there was a “superseding cause” in the negligently left out flammable material. You could come up with more egregious examples. Just think about the “butterfly effect” idea where a butterfly flaps its wings in Thailand and makes you die in a car accident, or whatever.

            Arguably, the ice cream shop refusing to hire a trans person due to their being trans, is not “because of [their] sex.” Their sex, while it could be a but-for “cause,” might be considered too remote from the real cause, which is their behavior, and one could argue that is a superseding cause. Would it be “foreseeable” that merely being male would cause you to not be hired by the ice cream shop? Of course not, for 99.9% of males it would not be relevant.

            These arguments may be a fun bit of mental masturbation, but the reality is that they mean very little, I think. Progressives and those on the left do not care about following any fixed meaning of the law, as they openly declare with the idea of living constitutionalism, but instead focus on buzzwords like “empathy” and “equity.” They will just come up with whatever argument sounds the best to justify their preferred outcome (I don’t pretend the right is immune from this but the commitments to original meaning vs living whatever illustrates the general approach). So when folks like Gorsuch try to carefully follow the law and construct a consistent paradigm for doing so, it’s like playing by the rules of checkers while your opponent is playing backgammon and cheats beside. Not only that but the idea of “living constitutionalism” has, on the whole, carried the day through our 230 year history and the idea of following a fixed original meaning has not.

            1. Importing the proximate cause formulations for negligence has nothing to do with a statutory cause of action in employment discrimination where the goal is determining the motive of the firing. And the Court has long ago dealt with the mixed motive problem and developed a burden shifting framework to address it.

              Further as even Justice Scalia acknowledged in Price Waterhouse:

              “ No one contends, however, that sex must be the sole cause of a decision before there is a Title VII violation. This is a separate question from whether consideration of sex must be a cause of the decision. Under the accepted approach to causation that I have discussed, sex is a cause for the employment decision whenever, either by itself or in combination with other factors it made a difference to the decision. Discrimination need not be the sole cause in order for liability to arise, but merely a necessary element of the set of factors that caused the decision, i.e., a but-for cause.”

              The same obviously applies to race. If the only factors in your employment decisions are 1) your employee’ race 2) the race of their partner, the race of the employee is a necessary element to in the employment decision, and a different result would have occurred if they were a different race.

              1. The “but-for cause” formulation was imported from negligence and tort law — so why not proximate cause?

                It seems to me, the law of anti-discrimination has now developed so fully, that we are seeing “but-for cause” break down and its limitations reached, just as in the much older area of law it was borrowed from.

                1. Because the concept makes no sense in direct evidence cases: it’s about the motive not an improbable chain of events or a harm that it’s not proportional to the act.

            2. ” If the local ice cream shop does not want to hire a man because he is pretending to be a woman with a short skirt, face stubble and badly applied eyeliner, they are not relying “only” upon his sex in making this determination. They are relying upon his mentally ill, developmentally impaired, socially dysfunctional, self-destructive behavior.”

              Is that why they told you you didn’t get the job?

        3. No its true Bostock states that its gender discrimination if you get fired solely on the basis on the gender of who you are having sex. If this wasn’t the case then it would do the same to the race discrimination in title VII

      2. “If Gorsuch is wrong about Bostock, that means you also can be fired for being in an interracial relationship under Title VII. But I’ve never seen a conservative admit this.

        You can be fired for being in an interracial relationship under Title VII.

        In fact, when the CRA was passed in 1964, several states banned interractial marriage, and no one thought the CRA was challenging or overturning that in any way.

        Guess what, the CRA does not cover every obnoxious behavior that is in the world. Nor does the Constitution. “It’s not fair” or “I don’t like it” is not a method of interpreting statutes. That is why Congress can amend or legislate new laws if new problems come up.

        1. And that’s based on extra-textual sources. But there is no way to get to that result based on the text itself. Is there any possible way “I’m firing you because you’re black and dating a white person” isn’t because of the employee’s race?

          1. Apparently the drafters not only thought it was possible to interpret it that way, they thought it was obviously correct and it didn’t occur to anyone at the time to think otherwise.

          2. The statute bars discimination on the basis of race. It is not discriminatory, at least under the plain language of the Act, to say, “I will hire people of all races, so long as they do not marry outside their race.” That is not discrimination, at least in 1964, since everyone is being treated the same.

            The problem is the Courts since then have tried to read Loving v. Virginia back into Title VII. And then Gorsuch is stuck with that, so he is forced to come to his conclusion. The problem is not that his analysis is textualist, it is that he is allowing non-textual interpretations that have built up over the years to be introduced into a purely textual analysis.

            Once you do that, it is simple historical fact that no one in 1964 ever thought that they were voting to outlaw discrimination against homosexuals, which at the time was criminal in many states.

            Now to be practical, other than Bob Jones University, I have never heard of anyone who (a) is willing to employ blacks but (b) only if they do not marry whites (or vice-versa). That certainly was not on the radar in 1964. The issue then was trying to make blacks equal to whites in certain areas, such as employment, housing and public accomodations.

            1. Just to add, textualist does not mean that you utterly ignore the context of the words and how they were enacted. My favorite example is the Ex Post Facto clause, which pre-dates the Bill of Rights.
              Ex Post Facto literally means retroactive, and so taken literally, it implies that all retroactive laws are unconstitutional. (Thomas has hinted he thinks this.) But the Supreme Court in Calder v. Bull (1798) held that it only applies to criminal laws (and punishments). The reason is that the history of that term in England and the colonies made clear that that is what it meant when it was passed.

              1. That’s a bad example because that’s a legal term of art. The law has always had different approaches to interpretation of terms of art that have long histories. But “Because of” simply means “because of.” And there is no way for you to fire someone purely for being in an inter-racial relationship and not have it be because of their race.

                1. But there is a way. They didn’t just “oops” in 1964 and wrote something different than what they meant.

                  1. What they meant was “because of” not “solely because of” (indeed according to the Court in Price Waterhouse, an amendment to add the word solely was rejected). So you’re stuck with words not meaning what they say by importing the racial animus of the times.

            2. How is it not “because of an individual’s race?” The race is the key fact about the employee the employer is relying upon. There are no other facts he has other than the employee’s race and the race of his partner.

          3. ” Is there any possible way ‘I’m firing you because you’re black and dating a white person’ isn’t because of the employee’s race?”

            It’s because of the date’s race, duh

      3. “And their general world view that there must be some disfavored groups, disfavored for completely arbitrary reasons, that society permits all sorts of evils to happen to.”

        Disfavored groups like clingers who are on the wrong side of history and will soon be stomped?

        Did that guy stop posting? Are you going to claim he’s totally unrepresentative of the otherwise-tolerant and loving left?

        https://www.washingtonpost.com/news/the-switch/wp/2014/10/21/liberals-are-more-likely-to-unfriend-you-over-politics-online-and-off/

        1. Wait, there he is just below.

      4. Can you identify any out group other than white people? A group that is regularly denigrated and stereotyped by the official media?

  4. We don’t have a conservative Court.

    We don’t have a conservative government.

    We don’t have a conservative citizenry.

    We don’t have a conservative victory in the culture war.

    We don’t have a conservative future.

    Welcome to the reality-based world.

    1. We do, however, have a problem with the conservative minority.

      Thanks to the archaic voting system and profit-based media they have tremendous power relative to their size. They are aware of it, they are drunk with it, and they will do and say anything to hold onto it.

      1. It is cute watching people like you fool themselves into thinking they are in power.

        1. What you responded to is where I wrote that “we” (meaning non-conservatives) are not in power. For the reasons stated.

          Your reading comprehension is low.

    2. I know that you have nothing better to do with your free time than to troll the VC for over a decade, but responding to this post with more respect than it deserves, I have to say that it’s kinda sad that you don’t see how dark the future is for the USA. Your extreme bias has blinded you.

  5. Like so many of Prof. Blackman’s posts this one contains a kernel of important insight (3-3-3 grouping) obscured by an unwavering hatred of the Chief and an unwillingness to admit the possibility of the left-most Justices having non-political principles.

    Whether the 3-3-3 grouping will be an enduring characteristic of the current court is still an open question. Whether Prof. Blackman will ever be able to write rationally about Chief Justice Roberts is not: he won’t.

    1. It’s also notable that Blackman, and other conservatives pundits, fail to realize that Roberts is, and always has been, playing an extremely long game to bend the law in a more conservative arc. People on the left seem to understand this. Weird that conservatives don’t when they don’t immediately get what they want every single time.

      Although today Blackman is just real mad that the Court trashed the ACA suit he spend so much time pretending was legit. Since he can’t very well trash The Natural ACB or Clarence Thomas. He has to go in on the Chief.

      1. Why didn’t he characterize CT’s separate concurring opinion in California v Texas as “virtue signaling”?

      2. “playing an extremely long game”

        So long no one currently alive will ever benefit.

        Underpants Gnome theory of judging.

        1. Write narrow opinion that does little but has some microscopic “doctrine” language that is a “win”
        2. ?
        3. Conservatives triumph!

        1. Yes. Shelby County and Rucho, were so narrow.

          1. “left in place North Carolina’s congressional districts, which favor the Republican Party, and Maryland’s congressional districts, which favor the Democratic Party.[5]”

            Yes, a clear conservative victory. 12 Dems and 6 GOP reps

            Wait, that is a 2 to 1 Dem advantage.

            Weird victory.

            1. And ended any federal judicial challenge to state legislative gerrymandering in a state like Wisconsin where Republicans only need 40% of the vote to get a majority of the assembly.

            2. Again, you need to think long term. Roberts has been your best ally the whole time.

            3. So if partisan gerrymandering hurts the GOP on balance at a 2 to 1 ratio, surely you would have no problem with it being banned, right? Or do you just not understand that Supreme Court decisions establish precedents applicable beyond the named parties to the case?

              1. The alternative is “independent” commissions which always get captured by liberal activists. No thanks.

                Plus, there is no Constitutional basis to eliminate the right of a state to do redistricting any way they want.

                1. And Roberts wanted to get rid of those, but couldn’t get Kennedy.

                2. No, Bob, it just looks like that because given honest district lines, liberals tend to win elections. Your side only stays in power through dishonest lines.

                  1. Gas lighting is Saracsto’s gig.

                    Both sides use partisan criteria to shape districts.

                    Hawaii has one GOP state senator but even Trump got 35% of the vote. But its not gerrymandered.

                    1. I’m just as opposed to gerrymandering when Democrats do it as when Republicans do it. Although the fact that Trump got 35% of the vote, standing alone, tells us little since many voters split their vote. If you have numbers for the breakdown of Democrat/Republican races for state senate statewide, that would be a better indicator.

                    2. “Hawaii has one GOP state senator but even Trump got 35% of the vote. But its not gerrymandered.”

                      If the lines were drawn fairly, they’d expect to have 0, seeing as how they are outnumbered. But wait, Hawaii’s districts are based on the island maps, no? How do you want them to draw the election map so that the 35% of voters who are Republican can capture a majority of a district?

                3. “The alternative is “independent” commissions”

                  No, there are lots of other alternatives – the plaintiffs in Rucho were not seeking an independent commission. So far as post hoc rationalizations go, this one is pretty weak.

                  1. You cannot have political actors [legislators] re-district without taking politics into account. Its not possible, goes against human nature.

                    So, courts will have to decide every re-districting in every case in every state. Democracy!

                    1. One simple way to ease the effect of gerrymandering is to have the lines drawn by the losers instead of the winners.

                    2. Its not possible, goes against human nature.

                      Shorter Bob: “I’m an unprincipled partisan, so everyone else must be.”

      3. I think he might have started out playing an extremely long game. And got so sucked into the game that he lost sight of the goal.

        Roberts’ original ACA ruling was an abomination.

        In the case of the NFA, the Court declined to declare what was called by Congress a “tax” to be an unconstitutional penalty, because Congress had called it a tax, and it was capable of yielding some trivial amount of revenue. Roberts did them one better, because in the ACA Congress had actually been quite specific that the provision WAS a penalty, and he interpreted it to be a tax anyway to save it.

        And the ACA had been deliberately enacted without a severability clause, in a kind of constitutional game of chicken with the Court. So the constitutionality of the entire act really was on the line. Well, we know who chickened out there, don’t we? And, as the ACA was an entitlement program, the closest thing to political immortality, that really was the last realistic chance to kill it.

        Now, once the Republicans zeroed out the penaltax without repealing the ACA, you’re kind of short on highly defensible reasons to strike the whole thing down, unless you’re just going whole hog on restoring enumerated powers doctrine and overturning Wickard. So I’m not shocked at the Court preserving it at this point.

        But Roberts’ original ruling? Yes, totally, properly, shocking.

        1. “Roberts’ original ACA ruling was an abomination. ”

          He did a very conservative thing to do, at two levels. One, he followed an old canon of construction and two he made for a less blatantly political decision. If you want to end the ACA you’re going to have to do it *politically.* That’s hardly an ‘abomination.’

          1. Tony Kennedy voted against Obamacare. Tony freaking Kennedy, Mr. Gay White Knight, Mr. Uphold Abortion.

            “very conservative thing to do”

            How come only liberals ever praise this conservative thing?

            1. “Tony Kennedy voted against Obamacare”

              Yeah, he’s not chief justice and often ruled to the Right.

              “How come only liberals ever praise this conservative thing?”

              Because the movement is full of ever-lurching extremists?

              1. the [conservative] movement is full of…extremists

                Between John Roberts’s pathetic “middling moderation” and being called “extremist” by the likes of you, it’s an easy choice.

                “There are two sides to every issue: one side is right and the other is wrong, but the middle is always evil.” (Ayn Rand)

                1. Lol at using an Ayn Rand as a guide for the concepts of good and evil. A person for whom pure selfishness was the highest virtue and that no one owes any duties to anyone else.

                2. Shorter Ed: Yeah I’m an extremist!

        2. “Roberts’ original ACA ruling was an abomination. ”

          Since it was based on the Constitution, and facts, you would think that.

      4. fail to realize that Roberts is, and always has been, playing an extremely long game to bend the law in a more conservative arc.

        No. You’re making the same mistake Blackman is. Roberts is not engaged in some long term strategy. He is deciding the cases that come before him. He is conservative temperamentally, not just ideologically, so he likes to be cautious and not make sweeping decisions that overturn decades of precedent if he doesn’t have to. But that’s not evidence of a secret plan.

  6. I doubt the conservatives here will agree with me, but since conservatives (thanks to anti-democratic institutions like the electoral college and two senators per state) have far more control over the other two branches than they should, why shouldn’t liberals have the courts? You want checks and balances, at least one branch should be controlled by liberals. Otherwise you’ll have three conservative branches basically rubber stamping each other, and almost entirely in opposition to what a majority of Americans actually think is good policy.

    1. Because they view any liberal power in government as inherently illegitimate.

      1. Legitimate? Well now, that depends on if there is a 3 a.m. vote dump caught on camera after kicking the observers out and then fighting every effort for an audit in court. But I digress….

        1. But I digress….into fantasy because I view any liberal power in government as inherently illegitimate.

          Yes, we know.

        2. Oh stop.

          You discredit yourself with this kind of BS.

          Where is the kraken?

          1. Prepping for a sanctions hearing on July 6.

          2. Don’t conflate my complaints with a good old fashioned Philadelphia election as Mark Twain called it with the failure of “the kraken” which was a stupid moniker.

            If the right was going to win in 2020 it had to, in effect, steal back what the left had stolen, and that wasn’t going to happen through the courts.

            1. What? What does that even mean? Steal back what?

              1. First, Republican state legislators would have to declare the ballots flawed and seat their own electors, effectively stealing the election back. They could do this trivially, legally, today. They could call it the “Very Cool And Very Legal Act” (VCAVLA).

                1. This of course is legally impossible.

            2. “Don’t equate me with that Kraken stuff, my conspiracy theory is far more extreme!”

            3. “If the right was going to win in 2020 it had to, in effect, steal back what the left had stolen, and that wasn’t going to happen through the courts.”

              But the insurgents got distracted stealing podiums and other memorabilia, and didn’t capture the EC votes like they were supposed to.

        3. Yep. You have to make up bizarre stories to convince yourself it’s not legitimate even though the answer is staring you right in the face: most voters didn’t want the guy who stares at eclipses to be President any longer.

        4. Get back to us when there’s an actual 3 a.m. vote dump caught on camera after kicking the observers out and then fighting every effort for an audit in court.

          1. *ahem* The Georgia vote dump was caught on tape after observers were kicked out. What color is the sky on your planet Earth.

            And perhaps you’ve not noticed how the AZ state legislature had to go to court, repeatedly, to do the audit there?

            1. The one where they are looking for bamboo and watermarks? That one?

              1. The AZ election audit, done by the legitimate (there’s that word again) where they hand counted two million ballots by hand to see if it was legitimate (there’s that word again) that a county that has gone GOP since 1948 suddenly went to Biden? Yea that one.

                Anyway, what’s with the humor to deflect the very real analysis to looking at the paper ballots to see if they were all printed by the printers who were authorized to print them. Forensic analysis for paper and printing an ink is a very old and practiced thing. Would you complain if it was done in a criminal trial?

                Anyway, I get your bigger point. You’re setting yourself up so that no matter the outcome, you can dismiss it. I understand. Thing is, if it shows the AZ result is legitimate (there’s that word again) I will shrug and say “well, I guess so”. What will you say if it shows enough fraud that AZ shouldn’t have gone to Biden?

                1. “What will you say if it shows enough fraud that AZ shouldn’t have gone to Biden?”

                  It will say that. Because that’s what it’s designed to do from the beginning. It’s run by a bunch of amateur kooks pushing insane conspiracy theories. Its been plagued by highly misleading updates and straight up lies that have been disproved in real time.

                  https://mobile.twitter.com/stephen_richer/status/1393662268542386178

                  It’s so bad that actual Maricopa Republicans have trashed the thing.

                  You just don’t want to believe that Trump is such a ridiculous figure that even some traditionally Republican areas soured on him after four years.

                2. “The AZ election audit, done by the legitimate” ninjas!

                  “that a county that has gone GOP since 1948 suddenly went to Biden? ”

                  HRC lost the county by less than 2% four years prior, yeah it’s unpossible that that would shift *so much* in four years!

                  1. Conservatives: racism suddenly ended in the fifties and sixties. There’s no way that the attitudes of then could still be affecting society today.

                    Also conservatives: the politics of a county shifted quickly over the last four years? That’s impossible, must be fraud.

                    1. I get your point, but it wasn’t even a quick shift. It’s been trending closer and closer there (just like in GA). There’s simply no reason to posit fantastic conspiracy theories to explain what happened.

                    2. Agreed. AZ being blue was a possibility for awhile and Trump being Trump finally made it happen.

              2. Yes, and they’re also looking for weapons of mass destruction so we can invade Iraq. Maybe they’re hiding under the bed; I hear that’s where Melania hides when Donald is in the mood for sex.

                1. So we are resorting to the table pounding then, with some mocking attempts a humor?

                  1. Your fantasies are not really worth a lot of engagement.

                    They mostly discredit other posts you make, since you seem to have trouble letting your emotions dictate what you think is real, both factually and legally.

                  2. Kalak, your election fraud claims are no more meritorious than claims that Elvis and Bigfoot eloped to Tibet together and are now making babies in a Buddhist temple. And deserve no more respect.

                    Give it up. Correct, I’m not engaging them; they don’t deserve it.

                    1. This story about Elvis and Bigfoot making babies in a Buddhist temple is OBVIOUSLY false. Bigfoot is a Scientologist.

                  3. “So we are resorting to the table pounding then, with some mocking attempts a humor?”

                    If that’s all you’ve got. Hint: reality doesn’t care if you believe in it.

            2. ” What color is the sky on your planet Earth.”
              It’s black. Same as on your planet, unless you’ve imagined it differently.
              Some of us are constrained by reality.

            3. *ahem* The Georgia vote dump was caught on tape after observers were kicked out. What color is the sky on your planet Earth.

              My planet earth is the one where the Republican SoS, a Trump supporter, explained very clearly that this is not remotely what the video shows. No observers were “kicked out,” and there was no “vote dump.” Moreover, after the counting was done they did a full recount (as opposed to the sampling that’s usually done) and everything was in order.

              You’ve been lied to by dishonest grifters. I know it’s easier to believe that there’s a conspiracy than that you’ve been fooled — indeed, it’s so hard for people to admit that they’ve been fooled that con artists often take their marks for victims more than once — but you really were.

    2. If the majority oppose conservative values so strongly how do have so many U.S. Senators and majorities in statehouses? Why does the Court need to overturn so many state laws if the majority is on your side?

      1. Not nearly as difficult to explain as you seem to think. Most people eligible to vote don’t. The Republicans are very reliable in turning up to vote, and non-Republicans aren’t. So they show up to vote in numbers high enough to win many elections, because the non-Republicans didn’t show up. Then, the Republicans, having gotten themselves into power, pass laws allowing them to keep people from voting, and win again by being the only ones whose votes counted.

  7. “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

    Maybe the U.S. Constitution isn’t really the document cons would hope it would be.

    Maybe it never was.

    Sucks to be you.

  8. “Thomas, Alito, and Gorsuch are on the right. Roberts, Kavanaugh, and Barrett are somewhere to the left of the right.”

    So sad for Mr. Blackman. The Supreme Court is insufficiently fascist for his liking.

    1. Do you have idea what fascism means? Identify the policies of Mussolini, Hitler, and Franco that you think fit conservatives. Which minorities have we proposed by exterminated? Which economic sectors have been forcibly cartelized? Which newspapers or radio stations have been taken over by conservatives? Which secret prison holds the Dixie Chicks and Kathy Griffin?

      1. “Do you have idea what fascism means?”

        It means political thoughts different from mine, obviously. Why don’t you lecture me on the topic?

        1. If you object to being labeled as the “fascist” side, maybe don’t support the fascists? Just an idea you might try out.

  9. Pretty stinging indictment of what the right is if Roberts, Kavanaugh, and Barrett don’t count.

    1. Conservatism is when you own the libs. The more the libs are owned, the more conservativer it is

      1. Being liberal is about owning “racists” and “sexists.” The more you own, the more liberal you look.

        1. I mean I guess racists and sexists are owned when women and minorities have a more equitable share of society’s benefits? But that’s secondary to those groups getting an equitable share of society’s benefits. Owning people is not the primary reason for liberal policies.

          1. Sure it is. “Anti-racism” is basically sticking it to whitey. “Metoo” is generating a bunch of fake sexual harassment situations to stick it to men. Basically the entire left wing agenda is people who they think have been “victimized” sticking it to the “oppressors.” Prove me wrong.

            1. You know I’m a white man and I’ve never felt that anything is being stuck to me when society tries to discuss and remediate racism or sexual harassment. The fact that you feel “stuck to” says way more about you than it does anti-racism or the MeToo movement. I mean, hit dog holler and all that.

              1. You are probably just not awake to the many ways you have been rolled by the leftist inspired system. One day that will probably change when you end being the victim of one of their cancel campaigns.

                1. You are probably just not awake to the many ways you have been rolled by the leftist inspired system. One day that will probably change when you end being the victim of one of their cancel campaigns.

                  Or maybe some people aren’t perpetual victims looking for grievances. Again — if you feel threatened because the system is trying to adjust so that people who have been traditionally been treated as less than will now be treated int he same way as you….the problem lies with you not with the system.

                  You are definitely not awake enough to realize that no one is getting screwed….but now people who could get away with being boorish and cads are being held accountable. Boo fucking hoo !

                  And quite honestly, the right has been droning on and on since the fucking 90’s about this shit. Whether you call it PC run amok, or cancel culture, or whatever — it all boils down to the same thing…you want to be an unapologetic and offensive asshole to “others” and want no face no consequences for that.

                  That’s not how life works snowflake…so put on your big boy pants and learn how to behave like a respectful person in public (and online) or face social consequences when you pridefully make a public show of being a dickhead!

                  1. Unironic ‘wake up white people!’

                2. “You are probably just not awake to the many ways you have been rolled by the leftist inspired system. One day that will probably change when you end being the victim of one of their cancel campaigns.”

                  Your own side has propagandized you so thoroughly that you don’t even remember that they, not the left, invented “cancel campaigns” and thought there was nothing wrong with them when they were running them.

              2. LawTalkingGuy : You know I’m a white man and I’ve never felt that anything is being stuck to me when society tries to discuss and remediate racism or sexual harassment.

                Exactly. I really wonder how much effort our Jimmy must make to feel so “oppressed”. I’ve been a white-guy over sixty years and have never been oppressed a single minute – yet here’s Jimmy with his non-stop snowflake victimhood shtick. And it’s not just him alone; the whole Right-wing movement is one endless circle-jerk of victimhood tears.

                These people are so damn gullible their handlers can make-up a controversy out of whole cloth like “Critical Race Theory”, and they they are instantly Shocked! Enraged! Infuriated!

                The reason they’re so easy to con is because they’re scared shitless someone is trying to take something from them. I guess zero-sum is hardwired deep into the reptilian core of their brains. I don’t agree with everything from the Civil Rights movement but that fact doesn’t drive me to sputtering rage because I know no one is trying to steal from me. I’m not that big a dupe.

                Kevin Drum charted the manufacture of CRT as an issue. The graph should embarrass Right-types but it probably won’t. They seem to enjoy being manipulated.

                https://jabberwocking.com/critical-race-theory-is-just-the-latest-hysteria-about-black-people-from-fox-news/

                1. If anything, MeToo and people bringing racial issues to light has made me a better more aware person.

                  1. What it made you was a more useful, useful idiot. There is a big difference. If you want to be a tool, by all means, be a tool, but at least realize that is your status to the people filling your feedbag.

                    1. I’ll agree it’s useful to be more empathetic and to try to make sure you don’t make people uncomfortable and to sincerely understand the issues they face. Not sure how that’s idiotic.

                    2. I guess if it is possible to lack the mental acuity to realize you are being taken advantage of by people who have made up a completely fictional system, and that is sad because usually we look down at people who take advantage of others because they are simply gullible.

                    3. “What it made you was a more useful, useful idiot.”

                      Whereas you are the useless sort.

              3. It is the insistence that all whites are racists and we can’t do much about it. Oh and that BIPOCs cannot learn math because the subject is taught in a racist way, expecting correct answers and “show your work.” An honest discussion of racism would include the Democrats’ and labor union roles in oppressing blacks.

                1. To clarify, you’re objecting to the claim that “all whites are racist” by trying to point out some white people who were racist?

            2. ” ‘Anti-racism’ is basically sticking it to whitey. ‘Metoo’ is generating a bunch of fake sexual harassment situations to stick it to men. Basically the entire left wing agenda is people who they think have been “victimized” sticking it to the “oppressors.” Prove me wrong.

              You’re whining about how you’re being “victimized” by “oppressors”… how long have you been pursuing a left-wing agenda?

  10. ATTENTION AMERICANS!

    Wake up. Your institutions and government HATE you. The grand design of your forefathers has been completely turned against you. And, there is no way to vote yourself out of this anymore. That chance was lost 20 years ago.

    You want to protest an election where there is decent cause to question results? Too bad, you are an insurrectionist. Just ignore all thost antifa over there trying to burn down government buildings. No free speech for you!

    You want to practice your religion? Too bad, you are an evil bigoted superstition having fool. Your government might let you do so, but the left has set it up so every major corporation will fire you the second you get out of line.

    Want to live your life, left alone, by the federal overseers by fleeing to a state like Florida or Texas? Too bad, they will beat you down with national laws that rig the system so local democrats will eventually win.

    If you can’t see where this is going REAL AMERICAN and you do not start doing something about it, enjoy your gulag because that is coming soon enough.

    1. Any suggestions how to actually turn things around for the REAL AMERICANS?

      Whining on some innocuous, legal blog doesn’t seem to be working.

      1. REAL AMERICANS know what they need to do…

        1. Commit a bunch of crimes until they get what they want?

          1. When you only consume left wing propaganda that is exactly what you would think.

            1. I mean you’re obviously you’re using innuendo to heavily imply there needs to be some kind of violent action to set things in the way you would like them to be. All that violence against the government/leftists would constitute crimes.

              1. Blech double “you’re.”

              2. And of course that is what an avid consumer of the left wing media kool-aid would default to, so thanks for proving my point.

                1. Fine what does “ start doing something about it” imply beyond winning elections?

                  1. Just like apedad said obviously prayer is one of those things.

              3. But not burning down buildings or assaulting police officers.

            2. Jimmy the Dane : REAL AMERICANS know what they need to do…

              Sure. Make up a lot of childish nonsense about election fraud. You see, as much as they bloviate about “REAL AMERICANS”, it turns out actual real Americans outnumber them – and that’s how elections are decided. Not even Trump’s lies could change that…..

              1. A friend lives in S.F. He voted and followed it through the process. His wife is not a U.S. citizen and has never registered to vote, but her absentee ballot was recorded the day after the election.

                1. has never registered to vote, but her absentee ballot was recorded

                  You’re smarter than that. This cannot happen, and in any case, how could you possibly know that it did?

          1. And chew bubble gum….

        2. REAL AMERICANS know what they need to do…

          Leave the country?

          Move to the libertarian paradise that is Somalia where there are no lefty regulations and socialism etc ??

        3. “REAL AMERICANS know what they need to do…”

          If you’re the poster boy, what they need to do is add about 30 IQ points, and stop looking for ways to be victimized.

    2. “ATTENTION AMERICANS!

      Wake up. Your institutions and government HATE you. The grand design of your forefathers has been completely turned against you. And, there is no way to vote yourself out of this anymore. That chance was lost 20 years ago.”

      Lol, the victimhood histrionics!

      1. Lol, found the person who’s in prison and loves it

      2. So pointing out oppression is now just “victimhood histrionics”…..

        1. Yes, let’s remember the poor, white, American male. . .

          (tear rolls down the cheek)

          1. So when someone says they dream over unloading a firearm into a human because of their race, AND that speech is sponsored by a major educational institution, AND you can get professional development credits for attending, people ought to just ignore that because of…..reasons…..?

            1. That’s potential criminal activity – not oppression.

              Dumbass.

              1. No this describes a very real environment where a psychiatrist was paid real money, and supported by a big educational institution, to make such a comment, and the vast majority of the echo chamber thought it was just fine.

                Also you should know that this comment is of course not a crime in of itself. It is far from a true threat. But it is telling to the level of “acceptable” discourse that is permitted when talking about a certain race.

                1. Let’s say your story is true. That then leads to this question :

                  SO FREAK’N WHAT ?!?

                  You see, Jimmy, there are about 331 million people in the United States. If all you need to feed your victimhood addiction is to find one objectionable person in that number, then you will always succeed in being “oppressed” despite the fact absolutely no one is oppressing you. Now, that seems kind of a tawdry thrill to me, but what do I know? I’d be bored playing the victim day after day without cause. Obviously you feel different….

                  1. Of course my example was true. It has been featured prominently in the news, even your liberal press has had to cover.

                    https://www.nytimes.com/2021/06/06/nyregion/yale-psychiatrist-aruna-khilanani.html

                    Funny how the “it is not all….” argument fails when there is a “hate crime” which is supposed to be representative of our whole culture for some reason….

        2. “I’m not wallowing in victimhood, I’m just terribly oppressed!”

          Lol, conservatism really breeds a lack of self-awareness these days!

          1. So talking about systems of oppression isn’t fair game anymore? Have we moved into a post-victimhood society already?

            1. Here’s a pot that both criticizes kettles for being black constantly but just as constantly cries about his blackness.

              1. Just trying to understand your point here. So is it the talking about systems of oppression that is getting to you or discussing one particular system of oppression?

                1. I realize you’re struggling to get the point, hence mine about the lack of self-awareness.

                  1. Says the useful idiot that parrots liberal talking lines….

                    1. Don’t be mad you don’t get your double standard even when it’s pointed out to you.

                2. Jimmy the Dane : Just trying to understand your point here.

                  Nah, Jimmy, we’re all here trying to understand you. Do you take your clownish victimhood shtick seriously? And why do you want to be a victim so much anyway? What kind of sick pleasure do you derive from it? Why is your sordid little thrill worth so much pretense?

                  There are so many questions, but we want to understand.
                  (We really do)

                  1. Just point out who is the real victim here. Nothing wrong with that.

                    1. It’s you, because you keep victimizing yourself.

    3. Oh I forgot to mention:

      HAPPY JUNETEENTH DAY JIMMY!

      1. This further backs up my original supposition.

        1. Supposition means, “an uncertain belief,” so apparently you’re not sure what you’re talking about and since it’s a belief you have no facts to back it up.

          Got it.

        2. “This further backs up my original supposition.”

          You have a self-reinforcing schizophrenic condition.

    4. Take back America using this one simple trick (institutions and governments HATE him)!

    5. “Wake up. Your institutions and government HATE you. ”
      No, just you.

  11. It’s hard not to notice something about commenting here. The commenters that lean to the Right are mostly what any fair person would call extremists, full of wild conspiracy theories and far-right apolac. Mad kalak spins a conspiracy theory of Barrett selling out over her book deal and spouts Kraken nonsense; Jimmy sends a histrionic message of victimhood doom. Aktenturd tosses out his usual bigoted statements. Bob and Brett lament the RINO conspiracy. Etc.

    The people on the left commenting here for the most part don’t come off as far-left, don’t have symmetrical wacky conspiracy theories and doom.

    WTF is up with the Right right now? I really think it’s gone from a mainstream of critics of too much government power with a fringe of John Birch types to a mainstream of John Birch types with a fringe of reasonable governmental critics.

    1. Well, look at it in the bigger picture…with a little self reflection you’d notice that the grousing by the grognards here is merely a pale reflection of the histrionics of people such as yourself during 2016 to 2020, or to step back in time, during the Bush years.

      Frankly, I was more worried about Obama (rightfully so) than with Biden, who is a post turtle.

      1. Well, look at it in the bigger picture…with a little self reflection you’d notice that the grousing by the grognards here is merely a pale reflection of the histrionics of people such as yourself during 2016 to 2020, or to step back in time, during the Bush years.

        Talk about a false equivalence. For ever election in the history of man the losing side has discussed or talked about irregularities or wondered if there was something funny going on. But without proof of some sort that’s all it was — talk that died down soon after the election.

        How many times did the left storm the capitol during the Bush years? 0

        Even back then when some fringe lefites talked about Diebold flipping voets, the mainstream of the left as well as the Democratic politicians put a stop to that and dismissed it out of hand. And pooling showed that those beliefs were held by a small monitory of the left

        Today the republican party is not only not shutting it down, but fanning the flames of conspiracy. The mainstream of the GOP believes the Big Lie.

        One party has literally been taken over by conspiracy theorists who keep implying that they will resort to violence to get their way.
        The MAINSTREAM on the right in the USA is literally a lunatic fringe.

        So take your false equivalencies and shove them up your ass.

        1. Funny ask a black person how racism holds them back and get yelled at for being a racist. But acceptable game to say the same thing of a white person?

          And we are supposed to believe there is this giant system of racism keeping the black man down even though all the data seems to indicate otherwise (which is dismissed as being racist) but we can’t have the very real belief that the system that has been constructed to supposedly dismantle the questionable existing system of racism does not produce an environment that is hostile to people of another certain protected class?

          Do you realize how dumb you sound when you make the assumption that there is institutional racism and then dismiss it in the same sentence when someone says it applies to them in a different manner?

          1. If your analysis shows you that being white in America is holding you back, MY analysis is that you aren’t very good at analysis. Being a straight, white male person isn’t holding anybody back.
            Unless they’re an actor who wanted to play Malcolm X.

        2. “Today the republican party is not only not shutting it down, but fanning the flames of conspiracy. The mainstream of the GOP believes the Big Lie.

          One party has literally been taken over by conspiracy theorists who keep implying that they will resort to violence to get their way.
          The MAINSTREAM on the right in the USA is literally a lunatic fringe.”

          They started with a bit of distrust of the federal government, because they couldn’t control it and don’t understand why it does the things it does. So politicians started appealing to them with promises bring it down… they told stories of fraud, waste and abuse so they could get elected to defraud, waste, and abuse it themselves.
          You have a substantial portion of the US population that WANTS their government to fail, who sends representatives to Washington to bring about this result. This causes the government to perform poorly, which provides campaign fodder to people who are against the government in the first place “Send me to Washington so I can fight the inefficiency”.

    2. All that Jimmy did was put out some red meat and watch the jackals of the left on this board jump all over it in stereotypical fashion like they were programmed to do. It is funny the modern left is so tone deaf they can’t even recognize their own behavior.

      1. Ah yes, the puppetmaster defense.

        ‘I shit my pants to make you all dance to my tune! Don’t you all feel foolish now!’

        1. There is a difference between being a Master of Puppets and using it as a post-hoc defense….I’m sure that is lost on you though….

          1. I fucked those goats to see what you would say, and you didn’t disappoint!

            1. No one asked you to screw a goat, but how was it?

                1. You brought in the screwing of goats, so I assumed you had experience with the subject….

                  1. Sure you did, goat-fucker.

    3. “It’s hard not to notice something about commenting here.”

      I forget the term for what you’re exhibiting, but everybody thinks the extremists on their side are just eccentric, and the extremists on the other side are dangerous, and that they themselves aren’t extremists at all. It’s kind of darkly hilarious after cities burning last year, but it’s basic human nature.

      Well, pretty common human nature, anyway. I’m objective enough to know that I AM an extremist, most people can’t realize that of themselves.

      1. “I’m objective enough to know that I AM an extremist”

        Well, you’re half right.

      2. Lol the arrogance of thinking you’re objective.

      3. “I forget the term for what you’re exhibiting, but everybody thinks the extremists on their side are just eccentric, and the extremists on the other side are dangerous,”

        The first step is to realize that you don’t have to pick a side, and stick to it even when they’re stupid. On the voter registration form, there’s a way you can say “I’m not a member of any party”

      4. ” I’m objective enough to know that I AM an extremist”

        You’re quite adept at deluding yourself.

  12. So did CNN rip you off, or did you rip them off?

  13. Blackman’s article picked up by Politico.

    https://www.politico.com/news/2021/06/17/alito-supreme-court-trump-495121?utm_source=fark&utm_medium=website&utm_content=link&ICID=ref_fark

    Apparently Alito is very upset. One quote:

    “No one can fail to be impressed by the lengths to which this Court has been willing to go to defend the ACA against all threats,” Alito wrote. “A penalty is a tax. The United States is a State. And 18 States who bear costly burdens under the ACA cannot even get a foot in the door to raise a constitutional challenge. Fans of judicial inventiveness will applaud once again. But I must respectfully dissent.”

    WTF. The fact that the majority of congress and the majority of people who elected that congress — including Republicans — are in favor of the ACA.

  14. “And Breyer, Sotomayor, and Kagan will do anything to form a majority.”

    At least according to the fan fiction.

    1. Yeah, that’s kind of silly. They’ll do anything to form a majority where they approve of the outcome. They’re not going to join the right on the next gun case just to be on the winning side.

  15. Your piece is getting a late of hate from the Twitterverse, but there is one important thing you get right and that is that the contemporary left on the court has very few principles. It’s a continuation from the Kennedy/O’Connor days when Breyer, RBG, and the rest would often join any bit of nonsense to get the win.

    Oh, for the days when leftists were honest and didn’t play that game. But alas, there is no Douglas, Brennan, or Marshall on this Court.

    1. You have to love the citation of Douglas as the non-game playing justice! Lol.

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