Chemerinsky: Republican Justices Are "Partisan Hacks"

He challenged Justice Barrett to "give a single instance where the conservative justices on the court took positions that were at odds with the views of the Republican Party."

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Erwin Chemerinsky published an op-ed in the Los Angeles Times, titled "Are Supreme Court justices 'partisan hacks'? All the evidence says yes." Sometimes, headline writers exaggerate, and write sensational titles to draw people in. But not here. Chemerinsky makes this point in the very first paragraph:

If Supreme Court justices don't want to be seen as "partisan hacks," they should not act like them.

And Chemerinsky offers a challenge to Justice Barrett:

Barrett's protest against the justices being seen as "partisan hacks" rings hollow when that is what they have become. And it is risible to say that "judicial philosophies are not the same as political parties." I would challenge her to give a single instance where the conservative justices on the court took positions that were at odds with the views of the Republican Party.

Usually, law professors avoid speaking in absolutes. We use hedge words like "most" or "many" or "almost always." But Erwin threw down an absolute gauntlet. Is there a "single instance where the conservative justices on the court took positions that were at odds with the views of the Republican Party"? Can Barrett even name one? Sure. The Court turned away all of the 2020 election litigation. As did many conservative judges. Maybe Erwin would counter that those cases were not really from the Republican Party, but were from MAGA fringe. There are other examples.

In June, I offered a short list of what a real 6-3 Conservative Court would have done:

  1. The Court would have overruled Smith in Fulton, and GVR'd Ricks.
  2. The Court would have granted Dobbs in November 2020 without narrowing the QP, heard arguments in March 2021, and already overruled Whole Woman's Health. Then the Court would have GVR'd Cameron.
  3. The Court would have granted review in Small v. Memphis Light, Gas & Water in October, and would have already overruled TWA v. Hardison.
  4. The Court would have granted NYS Rifle & Pistol without narrowing the QP.
  5. The Court would have granted Students for Fair Admission without a CVSG.
  6. The Court would have granted review in Texas v. California, the original jurisdiction case that challenged the Golden State's "travel ban."

There are many more cases in which the Court did something the Republican Party–whatever it means–disfavored. In the past week, Justices Breyer, Thomas, and Barrett all made this point. I am grateful it is one on which all of the Justices agree.

NEXT: A Taxonomy to Assess the Usefulness of Amicus Briefs

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  1. Add Roberts’ Penaltax ruling.

    1. According the Blackman that should have been ruled unconstitutional and then that would have made everything the federal government had ever done unconstitutional with only the Second Amendment standing in the aftermath.

      1. I think you’re going to need to explain that one.

        1. What explanation so you need beyond “he’s an idiot” or it’s pure sarcasm to belittle the point without addressing it.

          1. Even idiots tend to develop their stupid talking points more than this.

  2. Chermerwhiskey is an impartial legal scholar, dispensing his wisdom in respected periodicals like the Los Angeles Times.

    1. Isn’t he Dean somewhere? Wherever that is should lose its accreditation, since he is an advocate, not an educator.

      1. It would not be bad if they were partisan hacks. Their views would reflect elections of the President and of the Congress.

        They are all the same. Mostly Ivy indoctrinated, big government biased, lawyer profession rent seekers. None can read the plain high school English of the constitution. They are unable to open a dictionary. This is especially true of the Fourteenth Amendment for some reason. Or how about the first grade vocabulary word, all, in Article I Section 1, giving all lawmaking power to the Congress and none to the Supreme Court. They just grab it, using men iwth guns to enforce their grabbiness.

        They are mind readers even of dead people. For example, they said, the word, persons, in the Fourteenth Amendment referred to black male slaves, not to females with regard to voting. If they are not, within a couple of years of living in degenerate Washington changes them totally. They are elitists. They are completely grandiose, believing they are qualified to set national policy on complicated technical subjects. They are all deniers. They will not accept that every self stated goal of every law subject is in failure. Administrative to Water Rights.

    2. Please don’t say things like this when I’m drinking!

  3. I mean…what a hack opinion piece..

    “I would challenge her to give a single instance where the conservative justices on the court took positions that were at odds with the views of the Republican Party.”

    He goes back to 2010, and misses the most obvious case…Obamacare.

    At this point he’s just whining that the justices don’t vote in alignment with his political beliefs.

    1. Trial balloon. We now know the justification the Democrats will use to expand the court. They will lead with extreme pieces like this but in the end a softened term will be bandied about and used to expand the court.

      fairness… racist… bigots… who needs AK here when the Democrats only speak in those terms

    2. The most obvious hack job is Bush v Gore which allowed a president to steal an election…and then the president that stole the election lied us into a war…and ended up being the worst president in history!! I only wish a General Milley were around in Bush’s first term to undermine the president!?!

      1. I’m not sure it’s accurate to say that the election was stolen. The margin of victory for whichever won it was within the margin of error of the process for counting votes. So Florida was effectively a tie as far as we can measure.

        By the time the USSC got involved enough ballots had been jostled and over handled and whatever to the point that the true outcome was impossible to determine. The Florida SC was trying to “steal” it for the Democrats and unfortunately for Gore yhe USSC trumped them in terms of power.

        And it’s also ridiculous to say that the outcome of that election led us into a war. What lead us into a war was 9/11, which would have happened regardless of the outcome of the election. If Gore had been in power do you think he would’ve declined a military response to that? No way.

        1. Gore would not have invaded Iraq…Iraq was the asinine war that allowed the Taliban to regroup in Pakistan.

          In 2020 Republicans supported recounts…in 2000 Republicans opposed recounts. Now had Harris done her job and overseen a statewide recount then she would have made decisions to benefit Bush which is not necessarily unethical…but the major study of the 2000 election shows Gore would have won by most recount standards.

          1. In 2000, Republicans opposed targeted recounts in only certain counties. That was a Gore move.

            Harris did not have to continue beyond the statutory deadline to submit the votes.

            Blame Gore for demanding only SOME counties get recounted.

            1. Nope, Harris refused to oversee a statewide recount…the notion Gore could have or would have attempted to block a statewide recount is absurd. But the fact you believe #fakenews that Gore didn’t want a statewide recount is more proof that Republicans believe every election since 1992 was either stolen or Democrats attempted to steal it and makes Trump’s behavior less “norm busting”.

              1. Look, you don’t get your own fictional past, or at least you’re not entitled to have the rest of us live in it.

                Under Florida law there’s a period after the election where candidates are entitled to demand a recount, after that a recount is discretionary on the part of the SoS.

                Gore waited until the end of the challenge period, and then called for a partial recount designed to increase his vote total even if Bush were the actual winner. He did this even though he could have demanded a state-wide recount, and he did it at the last minute so that Bush would have no time to respond in kind.

                It wasn’t enough to put him over the top, even with Palm Beach continually changing their vote counting criteria, and trying to count out of the view of election monitors.

                Then came the discretionary period, and Harris said, essentially, ‘We didn’t have a hurricane, no truck full of ballots overturned on the highway, nothing happened to require a recount except that one of the candidates didn’t like the outcome. I see no reason to hold another recount.’ And the state supreme court didn’t like it, and ordered a recount anyway.

                Which they ordered carried out in an unconstitutional manner, so the Supreme court called a halt.

                Sure, Gore wanted a state-wide recount after his partial recount gambit failed. What was there to lose? But he didn’t go in wanting a state-wide recount, he could have asked for that during the challenge period, if he’d actually wanted that. It was only a last minute gamble after his original strategy had failed.

        2. You’re assuming that Algore would have done more than send a “Strongly worded” letter to Al Queda and withdraw an Amassador for a few weeks.

          Based on proven behavior, striking back at the correct bad guys is not a Democrat value. Maybe Drone a few families and call it a day?

          1. Yeah, if only Obama had managed to relentlessly pursue and kill Bin Ladan after years and years of fruitless efforts by W. Bush . . . that would have totally destroyed your argument.

            Oh well…a loyal American can dream.

            [p.s. The most recent info I’ve read says that Obama was told that it was only 50:50 that Bin Laden was actually in the house. And the SEAL members thought the mission was so dangerous (and worthwhile!) that it was close to a suicide mission. But they all went. Eagerly and willingly. Shows the amazing bravery of our military fighters…and the guts Pres. Obama showed in that moment.]

            1. I don’t think anybody questioned Obama’s willingness to extra-judicially kill people, even outside war zones. He was kind of famous for things like launching Hellfire missiles at wedding receptions based on the location of a borrowed cell phone. And Biden seems to be following in his footsteps in that regard.

              He was also kind of casual about starting wars, (Excuse me, “kinetic actions”.) without consulting Congress.

              So, fair enough, not starting optional wars isn’t actually a Democratic thing. I’m not really sure where that idea would even come from.

            2. So relentless they let him sit there for years without doing shit. Wow.

              Given the successes of our “intelligence” services recently I’m assuming the 50/50 estimate came from them not knowing anything beyond maybe/maybe not.

      2. SC,
        Did you ever play out the scenario where the count was continued and Gore won. The state had already certified a board of electors. Therefore there would have been two slates of electors. The election would therefore have gone to the congress. Bush would have won the house, and Gore the Senate. At which point Jeb Bush would have been asked to choose which electors from FL should cast their votes in the EC. Jeb says that he would have chosen the Bush electors. … Same result in the end.

        As for your Miley wish. That would have been a coup d’etat as the Congress voted in favor of the attack on Afghanistan and the war in Iraq. It is pointless to try to rewrite history with fantasy

        1. Colin Powell opposed the Iraq War and considered resigning but unfortunately decided to stay in the administration in order to attempt to dissuade Bush and mitigate any negative consequences…unfortunately Powell failed on all counts. But many Democrats in Congress are feckless and didn’t want to oppose Bush with his upwards 80% approval in the aftermath of 9/11. Still, more Democrats in the House opposed the Iraq War than supported it while in the Senate it was 29 to 21.

          My recount scenario is Harris does her job like Raffensperger did his job in 2020. So I agree Jeb would behave unethically to help his brother…but had Harris been an ethical actor maybe she could have overseen a fair recount.

          1. There were recounts. Gore lost them all.

            Get over it. It was 20 years ago.

            1. Nope, Harris refused to do her job.

  4. Glossary, to the best of my knowledge:

    GVR: Grant, Vacate, Remand order
    QP: Question Presented
    CVSG: Call for the Views of the Solicitor General

    1. Also applicable to the Supreme Court: OMG, WTF, AYFKM.

      (Source: William Blackstone)

      (Not really)

      1. Once again, please stop saying things like this while I’m drinking!

    2. Also applicable to the Supreme Court: OMG, WTF, AYFKM.

      (Source: William Blackstone)

      (Not really)

      1. Thanks to both Davy and Cal.

  5. What an argument! “SCOTUS are not political hacks because they could have been even more political hacks.”
    SCOTUS is a political group. That is why there are such bitter fights over justices, because of an expectation (which increasingly is true) that they will vote their political ideology.

    1. Certainly Breyer advocates just such a pholosophy of rendering decisions.

      1. Breyer, to his credit, tells you in his opinions why he decided the case as he did. The conservative judges decide cases the same way (I.e. based on what they think is sound policy), but pretend that it’s because of some obscure definition in a 1797 dictionary or some such. It would be better if more judges were as honest as Breyer is.

        1. I grant Breyer his honesty.
          However are pretty arrogant to mind rape justices who have a different judicial philosophy and try to apply it in a way you don’t like.
          Are they honest about how they made their decision. I don’t know. BUT neither are you.

    2. There are bitter fights because the GOP nominates justices who follow the law, while Democrats nominate justices who “discover” rights, instead of having to actually vote on the rights.

      1. But GOP justices do not follow the law. They make it up, just as the linked article points out. They gutted the Voting Rights Act just because they wanted to.

        1. I suppose it might look that way if you just blew off their actual reasoning as mere pretext.

          1. What “actual reasoning?”

            The “equal dignity of the states?”

            “No one has gone off the road lately. Let’s take down the guardrails.”

            Shelby County was a joke.

            1. Look at Chemerisnsky’s argument against the equal dignity of the states: That, after the Civil war, the federal government walked all over some of the states. Why, they were treated almost like conquered territory, not co-equal states!

              1. Republicans gave us 2 Dakotas in order to keep a boot on the throat of the South. The fact there are 2 Dakotas is why I don’t get hung up on the racist origins of the Electoral College…because the Dakotas have essentially the opposite origins but the EC and 2 Dakotas have similar effects in present day America.

              2. Treating people the same isn’t leftists’ sort of thing. They like double standards and playing favorites.

                Their statue of justice has hawk-like eyesight so they can hunt down the wrong sort of people and so they know how to tilt the scales when pretending to weigh evidence.

            2. Here’s the basic problem with Shelby County, and why this particular section of the VRA was deemed unconstitutional.

              1. It was based on data that was more than 40 years out of date.

              2. If it used data from TODAY, comparing voter turnout rates by race…the VRA would look far different. States like Minnesota and Massachusetts would be subject to preclearance, while North Carolina and Ohio would be fine.

              1. OK, A.L.

                So what you are saying is that Congress should be addressing the issues you raise.

                But that has zip to do with constitutionality. I mean, if Congress has the right to subject MA to preclearance it obviously has the right to do the same to AL.

                IOW, what you say has shit to do with constitutionality.

                1. Using outdated numbers is arguably arbitrary and capricious, violating due process and equal protection interests.

                  1. violating due process and equal protection interests.

                    That makes no sense. No individual was deprived of due process or equal protection by the VRA.

                2. I seem to recall the original formulas were designed to single out the states intended, but there was no updating the determination based on changed facts.
                  If I recall Correctly SCOTUS invited Congress to revisit the formulas in light of changed circumstances. One option would be to extend pre clearance to all states.

                3. It has quite a lot to do with Constitutionality, Equal Rights, and actually fairly addressing the issues.

                  For example, if a GOP Congress suddenly passed a bill saying “California’s representantives don’t count for Congress,” what would be the response? It would be unconstitutional.

                  1. Stupid example, as usual, A.L.

                    The Constitution guarantees CA representatives.

                  2. Not according to Chemerinsky, I gather.

        2. What you really meant is that they came to a decision that you don’t like.

      2. Oh right. My guys are saints. Yours are sinners.

        GMAFB.

        1. Typical bernard11 aNaLySiS.

          1. Try to follow the discussion, Ben.

            I know it’s hard for you, but do your best.

      3. “GOP nominates justices who follow the law.”

        LOL.

      4. If GOP justices simply follow “the law” and the law is based on some kind of “originalist” reasoning, then we’ll never hear about the non-delegation doctrine from them again, because the most recent scholarship on delegation at the founding has completely refuted the idea. But that’s obviously not going to happen, they’re going to get more aggressive with it and just wave away or outright ignore all the contrary evidence and make up some bullshit about “structure” and “constitutional postulates”

    3. What an argument! “SCOTUS are not political hacks because they could have been even more political hacks.”

      I agree that it is entirely possible that partisan hacks can be partisan hacks even if you can find an instance or two of them acting without partisan hackery.

      How odd, then, that Prof. Chemerinsky chose to make the opposite argument.

  6. He challenged Justice Barrett to “give a single instance where the conservative justices on the court took positions that were at odds with the views of the Republican Party.”

    I would challenge him to show how this does not prove that conservative justices and the Republican party must therefore more closely follow the US Constitution.

  7. The challenge was to name the CONSERVATIVE justices who took positions opposed to the Republican Party’s positions on the same questions. My right-wing friends and most right-wing and conservative web-sites inform me (again and again and again) that John Roberts is not a conservative nor a real Republican; rather, he is, they say, a “RINO” (sometimes they use other terms like “coward”, “communist”, “traitor”, “cuck” and “faggot”). Therefore, instead of saying what a real 6-to-3 conservative court would do differently, tell us what a 5-to-4 conservative court would do differently!

  8. Counterpoint: Liberal law professors are partisan hacks.

    Hey, this is easy!

  9. Roberts and Gorsuch in Bostock.

    1. + 1000. The notion that those votes aligned with any branch of the Republican party is risible.

    2. I was thinking that, and wondering why it didn’t get a mention in the post.

  10. As aptly demonstrated by his myopic focus on the other side of the aisle and feigned ignorance that the liberal justices generally vote as an ideological bloc regardless of what it takes to get there, Erwin Chemerinsky is very near the last person that should be throwing this sort of stone in the glass house of rabid partisanship.

    1. So? The liberals are partisan also. That just reinforces the notion that SCOTUS is full of political hacks.

      1. Taking all that as true, that simply demonstrates the op-ed to be a shameless piece of partisan hackery. Which is basically a shorter version of what I said above.

      2. Yes, that is what this entire BS argument back and forth amounts to.
        F*ck the court system and just flip a coin.
        That would be more honest.

  11. You are confusing partisanship with ideology. Given that the Constitution and statutes are typically vague, it is no surprise that justices on all sides vote their ideology whenever there is wiggle room.

    A better test would be to find instances where justices had to flip-flop on their previously stated legal reasoning in order to fit their desired ideological outcomes. For example, I don’t think Scalia’s reasoning on the N&P clause in his Raich concurrence can be reconciled with his dissent in NFIB.

  12. Anything Erwin Chemerinsky doesn’t know about being a partisan hack probably isn’t worth knowing.

  13. Irwin is proof of the Peter Principle in action..he will likely top out as the Solicitor General….

  14. Notable that not a single example given in the OP is an actual decision. As for examples like not granting cert in Dobbs, that probably aligns with many in the Republican Party who would rather not have abortion bans percolating as an election issue. I don’t know that I agree with Prof. Chemerinsky, but none of those examples disprove his argument.

    1. So the opinion in Fulton is…not a decision?

  15. Erwin Chemerinsky writing an article critical of partisan hacks is the height of irony.

    Of course, if there’s a more hack-y justice than Sonia Sotomayor, I’d love to see it. Her judicial philosophy is to identify a historical grievance, real or imagined, and then overturn any law that doesn’t purport to resolve that grievance and uphold any law that does.

    1. How soon you forget RBG. Now there’s an ideologue if there ever was one. Talk about your hacks; the only reason she’s not hacking is because she’s dead.

  16. Look at his first example of a hack decision: “In 2010, in Citizens United vs. Federal Election Commission, the court ruled 5 to 4 that corporations can spend unlimited amounts to get candidates elected or defeated.”

    One of the amici on Citizens United’s side? Those notorious Republican party hacks, the ACLU.

    Typical of this piece, he doesn’t bother engaging with the other side’s reasoning. They just decided contrary to his own preferences, therefore they’re partisan hacks.

    “In decisions in 2013 and this year, the court’s conservative majority eviscerated the protections of the 1965 Voting Rights Act in a manner that helps Republicans and hurts voters of color and Democrats.”

    He literally reasons that Congress is not required to treat the states equally, because in the wake of the Civil war, Congress treated some of them as conquered territory. Gee, I guess that means that Congress could, today, have the army stand in a state legislative chamber, replacing members of the legislature until they voted “right”. Good to know, it could come in handy some day.

    The only hack here is Chemerinsky himself.

  17. Chemerinsky should stop being a dishonest drama queen long enough to learn to do Google searches.

    https://www.houstonchronicle.com/politics/texas/article/Ted-Cruz-furious-with-recent-Supreme-Court-15379294.php

  18. I distinctly remember a very recent American president being raked over the coals because he talked about “Obama judges” there was general outrage because it even hinted at such an idea. Funny how we forgot about that all of a sudden.

    1. The pattern, of course, is leftists are phony and the things they say are for show.

  19. So basically the left is in full on panic that Roe may lose a big chunk of its protection for abortion rights so they are stacking the editorials to make any win for Texas as being the fault of a partisan hack Republican Supreme Court.

    Can we rate his favorite Justices on their votes as well?

  20. How often and when have the purported liberal justices (or Chemerinsky) departed from Democratic Party positions? If they are no different that the purported conservative justices, then they too are “partisan hacks” to be accorded similar lack of respect and deference.

    Just like democracy still works when your side loses elections, the court still functions appropriately and as designed when they issue decisions you don’t like.

    Actual partisan hacks like Chemerinsky are a large part of the reason why some overcompensate by voting for people like Trump.

    1. Actual partisan hacks like Chemerinsky are a large part of the reason why some overcompensate by voting for people like Trump.

      What percentage of Trump voters do you think have ever even heard of Chemerinsky?

      1. I imagine few have heard of Chemerinsky, but many have repeatedly witnessed his hack ilk among the talking heads on mainstream media, particularly with all the Republicans “pouncing” and “seizing” whenever a Democrat or anyone on the remotely left screws up.

        It’s also not just Trump. Many recall how the left accused Bush of being a Nazi or similar type accusations against Romney, to say nothing of comments about the “deplorables” from Hillary. When attacks are in such obvious bad faith, people will look to populists there believe will also play dirty.

        1. Forget it, Branford.

          There are plenty of bad faith, ridiculous, attacks on Democrats coming from the right. Just turn on Fox.

          Or consider all the nonsense, some of it here, tools of the CCP, or having a “radical socialist agenda.”

          1. There are plenty of bad faith, ridiculous attacks on Republicans coming from the left. Just turn on CNN, MSNBC, etc. etc. etc. We don’t even have to go back to Branford’s examples. We currently have multiple left-wing hosts accusing Republicans of wanting to kill people with covid. So, Bernard, what’s your point? Both sides extensively engage in shameless ad hominems and bad faith attacks? I think we can agree on that.

  21. Simple narrative enforcing exercise.

    After years of being partisan hacks and losing the judiciary because of the activism of the 60’s and 70’s now they want to turn the phrase on its head and try to use it on Republicans.

    Notice how Roe is not repudiated in the op-ed despite the fact that has absolutely no constitutional grounding. Or any other example of a left wing, ends justify the means, type case. And there is a very, very long list of them.

  22. Talk about insulated and unwilling to bend one’s ideology! A tenured university professor (and dean) has little incentive to leave their comfortable bubble. At least SCOTUS does consider institutional integrity….and the impact on its precedents. Not ever decision is a close call. The ones that are will inevitably see some partisanship…but this has always worked both ways….why is it only now that Dean C sees fit to growl about it?

    1. This further reinforces to me that the modern left has absolutely no self awareness.

      1. The American right is famous for its self-awareness.

        1. So says the guy with no self awareness.

          1. Very clever retort.

  23. The Republican party favors only two things: tax cuts for rich people and preserving their own power. How can we know that? Because that’s all they could bring themselves to do when they held House, Senate and Presidency.

    They like railing against abortion, against immigration, for guns, for religious preferences, and so on, but all of that is just theater to get votes from stupid people, in service to preserving their own power (and sometimes to argue for more tax cuts for rich people).

    By contrast, the Democrats actually pass laws aimed at many things they profess to support, even with only tiny margins to do so and sometimes at the cost of losing power to demagogues.

    1. More proof the modern left has no self awareness.

    2. The elimination of the SALT deductions raised revenue by largely impacting the highest earners. It was loathed by many Democrats because it affected donors and champagne liberals in places like NY and CA, and emphasized just how highly taxed they were at the state level. In fact, it’s become so hard to reintroduce the SALT deductions because the government will lose so much revenue, and the Democrats need every pay for they can find to fund the “human infrastructure” bill.

      1. Yeah we need more elevated overpasses so house all the illegal immigrants coming in. That is going to take a lot of infrastructure.

  24. Dean Chemerinsky does seem to have inside knowledge on this particular subject.

  25. Liberals just can’t stand that the Constitution is a conservative document

    1. LOL. Area man passionate defender…

  26. It’s hard to imagine a less useful conversation.

    None of us are telepaths. All of us are a bit outcome-oriented in what we think is legit.

    So all you get is partisan yelling back and forth.

    1. Yes, Chermerinsky is to blame. So is Blackman for so eagerly picking it up.

      My side good your side bad is not going to be a factual or enlightening discussion.

      1. I thought it was worth pointing out that Citizens United, which Chemerinsky denounced as partisan hackery, was in fact regarded as a great victory by the ACLU. Until their left wing backers kicked the actual civil libertarians out, anyway.

        Was the ACLU typically known for right-wing political hackery? Not so far as I’ve noticed. So, why could the ACLU support this ruling while being shining examples of constitutional rectitude, while the actual justices who issued it had to have been hacks? No reason, he just pretends that only partisan Republicans defend the decision.

        His case denouncing the Supreme court’s VRA decisions is no better. Congress is entitled to treat states differently in an arbitrary fashion, because it did so during and right after the Civil war. Gosh, something relevant might have been going on then, that you can’t point to today, maybe? Might be a bit dicey treating some of the states as if they were recently conquered territory, perhaps?

        The bottom line is, he’s simply refusing to engage with the other side’s reasoning, if he doesn’t like a decision, it’s hackwork, period, end of story.

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