The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Thursday Open Thread

What's on your mind?

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NEXT: Stare Decisis in Obergefell and Dobbs

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  1. Which issue will history identify as the most important or direct precipitate of the Supreme Court enlargement of the 2020s?

    __ gun safety

    __ voter suppression

    __ abortion

    __ bigotry (racism, misogyny, xenophobia, gay-bashing, etc.)

    __ partisanship/gridlock/election results

    __ special privilege for religious claims

    1. Yawn. Troll better.

      1. There is more truth in those words than you could find in any religious text (Bible, Torah, you name it . . . all far more fictional). Feel free to rebut or (with a miracle) refute.

        1. The chances of "Supreme Court enlargement" are roughly the same as the Jets' chances of winning the Super Bowl.

          1. Another clinger who figures the American mainstream is going to stand aside and let a backwater minority consisting of bitter clingers call that bigoted, uneducated shots in modern America?

          2. Is your forecast of how the liberal-libertarian mainstream will use its increasing majority and popularity in modern America based on discussions with influential Democrats, on predictions that Republicans will suddenly reverse the culture war's tide, on prayer sessions, something you picked up at a Federalist Society holiday gathering, or on something you heard on Hannity, Carlson, or Ingraham?

            My thinking relies in part on direct experience with Democrats in a position to effect change. How about yours?

            1. My forecast is based on being able to count. Yours is trolling.

              1. Someone below this exchange wrote about Biden-ordered drone strikes against Supreme Court justices. Which did you label trolling, (1) the Jewish space laser-level comment authored by a fellow clinger or (2) the comment whose subject is on the front page of the Washington Post/a> today?

                A couple of the more objectionable right-wing bigots around here seem to bug you, Mr. Nieporent, but you are mostly just another clinger huddling with the other obsolete misfits for fleeting warmth at this separatist safe space for the intolerant and the vanquished.

                Good luck with your expectations of conservative victory (or even long-term relevance) in the American culture war -- including with respect to the Supreme Court and its size.

    2. I think AK is so tone deaf that he doesn't realize rigging the system to give the desired "liberal" result is an afront to democracy for about 60% of the voting public.

      1. Conservatives already rigged it with the electoral college, two senators per state, and gerrymandered house seats. We're just trying to rig it back.

        1. Conservatives already rigged it with the electoral college, two senators per state

          Tell us more about this circa-1789 "conservative" "rigging." I'll pour some hot cocoa.

        2. Tell us how you're ignorant of US history without telling us that you're ignorant of US history.

          Also, do you think that liberals don't gerrymander? Both parties are quite clearly pieces of shit when it comes to wanting mathematically fair representation.

          1. What, exactly, am I ignorant of? The system was designed to make it next to impossible for any significant change without near unanimous approval; the framers said as much. That favors conservatives, who don't want things to change. Ergo, my statement is factually accurate.

            1. You don't even know what the political makeup of the country was in the late 1700s, or how it's changed since then.

              You don't even know what you don't know, and have the gall to claim that you're "factually accurate."

              JFC. You're just as bad as the right-wing nutjobs around here, except you're on the other side.

              1. You don't know what I do or don't know about the political makeup of the country in the late 1700s, but that's irrelevant to this discussion anyway. The idea that it should be difficult to make change is a conservative idea, because in general, conservatives are against change. So whatever may have been the political makeup, they gave us a conservative Constitution. If you still don't get it, I'll try to use smaller words.

                And here's the bottom line: You're just fine with the idea that majority opinion is largely irrelevant under our political system. I'm not. It makes politics largely a shell game, and there's no reason the disenfranchised majority should play by your rules.

                1. Nationally, we are not a democracy, and that's just too bad for people like you who want to grab power. The framers were substantially smarter than you, and knew that pure democracies don't last.

                  If you think that you have the majority and can therefore run roughshod over everyone else, then pass a goddamn Amendment and get 3/4 of the States to ratify it.

                  If you don't have that majority, then you can quit your bitching, recognize that you aren't the majority that you think you are, and respect the form of Government that has worked generally pretty fucking well over the last 240+ years. Your fantasy of having California and New York running the entire nation will never, ever happen.

                  And you should be smart enough to recognize that as a GOOD thing for everyone.

                  Should be.

                2. To add to my point:

                  A reasonable person should be ok with the idea that we have some national polices which are conservative, and some which are liberal, and generally a healthy balance of both.

                  But you're fucking greedy and think that only what you want, matters. America doesn't always get it right, but overall the center is generally maintained. Only an idiot would want a circumstance where some people get everything, and others get nothing.

                  That's how countries fracture, and yet that's precisely what you want. Says enough anyone needs to know about your patriotism and wisdom.

                  1. Who said anything about wanting a pure democracy, or that some people should get everything while others get nothing? If and when I actually make those arguments feel free to respond to them; until then don't impute to me arguments I haven't made.

                    What I did say is that under our current system, majority opinion is largely irrelevant, which is true. And, contrary to your claim, that has made us the most politically dysfunctional country in the Western world. Our Congress can't even pass a budget. January 6 only happened because of the electoral college and, post-Trump, the notion that the EC protects us from dangerous demagogues is a laugh riot. We just narrowly averted yet another government shutdown. Maybe you think those are good things but there is something to be said for overall good governance.

                    And your attitude -- oh, you don't have a supermajority, tough -- is exactly why my side is increasingly ignoring your rules. They're a shell game. The only way to win is not to play.

                    1. "And your attitude -- oh, you don't have a supermajority, tough -- is exactly why my side is increasingly ignoring your rules. They're a shell game. The only way to win is not to play."

                      The right course of action is to remove those from office who are increasingly using their position only as a doorstop, with no intention of negotiating in good faith about (virtually) anything.

                      Instead, you've chosen to behave even worse than those with whom you disagree.

                      You've chosen to be the problem, instead of part of the solution.

                      That's on you.

      2. I actually think he realizes it full well, but is hoping the current wave of preference falsification will keep that ~60% disorganized enough to finish restructuring the system such that their opinions become irrelevant.

        1. ...'preference falsification?'

          1. Are you allergic to search engines? It's really not obscure at all.

      3. How about we "rig the system" so that 60% majorities do get their way.

        You would absolutely hate that, Jimmy.

        1. Um, wouldn't overturning Roe/Casey allow majorities to get their way?

          1. Well, given that the majority of the population supports legal abortion, no.

            1. given that a supermajority of the population in certain states supports legal abortion everywhere, both in their own states and in other states where a majority of the population does not support it.

              FTFY. And thank God for federalism.

              1. Fundamental rights, like the right to an abortion, should be at the national level. Imagine making free speech or religious freedom or trial by jury a state issue.

                1. Fundamental rights, like the right to an abortion, should be at the national level.

                  You're fighting the hypo. With Roe/Casey overturned, it's no longer deemed a fundamental right and thus individual state majorities would decide.

                  1. I'm not a legal positivist. If the Court decided that religious freedom only applies to Catholics, then religious freedom as we understand it would no longer be "deemed" a fundamental right. Your point is?

                    1. I think my point was self-contained. You said the majority should be considered at a national rather than a state level because it concerns a fundamental right. But in this scenario abortion isn't a fundamental right, so any supposed national majority is irrelevant to how individual states would decide to handle the matter.

            2. That of course makes no sense; are you confusing overturning Roe/Casey with outlawing abortion? If those decisions are overturned, then the majority of the population gets to enact whatever abortion policies they want. If that's legal abortion, then that's legal abortion.

              1. See my response to Life of Brian directly above at 7:35 a.m.

          2. A recent Washington Post-ABC News poll found that three-quarters of Americans say abortion access should be left to women and their doctors, while 20 percent say they should be regulated by law. The same poll found 60 percent for upholding Roe, while 27 percent of Americans say the court should overturn it. https://www.washingtonpost.com/politics/2021/11/16/post-abc-poll-abortion-supreme-court/

            That suggests to me that the individual rights of privacy and personal autonomy generically are more popular than the Roe decision itself.

  2. Which one of you guys is James Crumbley? Which one is Jennifer Crumbley?

    I know your lawyer won’t let you take credit right now. I’m just curious.

  3. I will reiterate what I wrote on another thread.

    To paraphrase Justice Kavanaugh, the Constitution is scrupulously neutral as to whether procreation is or is not a fundamental right. Does that mean that states have authority to mandate vasectomies and/or tubal ligations?

    1. I think at that point you're getting into 9th amendment territory. Unlike abortion, which was at least after 'quickening' a common law crime in the US about the time the Constitution was adopted.

      1. Doesn't work under your incorrect understanding of originalism. Is there any evidence of anything like a right to fertility in the late 1700s?

        1. Sure there was. It belonged to slave holders.

          1. I'm sorry, but absent any writings or court cases on the specific issue of the right not to be sterilized in slaveholders, any such finding would be evil tyrannical living constitutionalism.

        2. Is there anything like evidence that governments were messing with people's bodies in any way except as a punishment for crime? Or perhaps with soldiers in time of war?

          That's basically the problem with most unenumerated rights: They enumerated the rights thought most likely to be attacked, and the rights that were less threatened were less threatened, and so didn't build up a record of violations being rebuffed, because they weren't being violated.

          So, you have to look at what government didn't typically do on account of knowing it wasn't entitled to, rather than look for court records of what judges told government it couldn't do.

          1. Absence of evidence is not evidence of an unenumerated right, I'm afraid.
            Your living constitutionalism and penumbras disgust me.

            1. Absence of evidence of government ever having done something before IS evidence that it was understood not to be entitled to do it. Not conclusive evidence, but evidence. You'd have to look to other sources if you wanted proof.

              Like I said: Unenumerated rights will not generally have long court records of enforcement, because government wasn't violating those rights to create such a record.

              1. But you've got that exactly backward. The issue is not whether the government was actively messing with people's bodies; the issue is whether there was anything indicating it couldn't. Just because the state's never done something doesn't mean the Constitution forbids it.

                Besides which, so far as I know, Buck v. Bell is still good law, vile though it is.

              2. Absence of evidence of government ever having done something before IS evidence that it was understood not to be entitled to do it.

                Nope. That's just made-up historical reasoning from crazy town. Insist on that and you absolutely get a failing grade in any graduate history seminar. Of course, a good seminar would gently steer you away from that ledge, and give you tools to do better.

              3. Because the evidence is scanty, you content yourself with absence of government action being proof of government forbiddance?

                Such low standards, one might think you were outcome-oriented, and would accept anything because you believe this should be a rights...

              4. https://en.wikipedia.org/wiki/Troxel_v._Granville

                The Court held that "the interest of parents in the care, custody and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court."

                That would seem to include the right to procreate, in my opinion.

                1. A 2000 decision whose cites go back only to the 1920s?

                  What kind of hippy living constitutionalist radical are you?!

                  1. Again, you can't expect long litigation records when government embarks on novel rights violations. Doesn't mean they're not rights violations, just means you have to prove it by some means other than showing a court ruling to that effect.

                  2. when the court notes that such a right is "perhaps the oldest of the fundamental liberty interests recognized by this court"

                    I think we can safely assume such a recognition is much older than the 1920. And that the Justice's knowledge of fundamental rights in this country far exceeds yours.

                    1. Trusting of you.

                    2. And this is where Sarcastro assumes he knows more about fundamental rights in this country than a US Supreme Court Justice.

                      Wow. Such arrogance.

                    3. AL, stanning for blind trust in the Supreme Court's expertise when it comes to finding rights.

                      I'm sure abortion and gay marriage are a whole different matter when it comes who you get to trust about fundamental rights for him, though. He's not a guy into consistency of argument.

                    4. I am absolutely sure the SCOTUS knows far more about fundamental rights than you do. I don't need blind faith in the SCOTUS for that. Just logic.

                    5. Glad to hear you support the fundamental rights to privacy, marriage, and abortion!

                    6. Armchair, do, "fundamental rights," differ from Constitutional enumerated rights? Are they more inclusive? What are you talking about?

                2. No, because "care, custody and control" deals with children who are already here. It says nothing about the right to conceive children who aren't already here. Try again.

                  1. Perhaps you'd prefer Justice Douglas?

                    "This case touches a sensitive and important area of human rights. Oklahoma deprives certain individuals of a right which is basic to the perpetuation of a race the right to have offspring."

                    " The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands, it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty."

                    Notice.. "Rights and basic liberty" in the right to procreate.

                    1. And, that decision has just as much textual underpinning in the Constitution as Roe v. Wade does.

                      The argument that you (and Bellmore) don't seem to be getting is that emanations and penumbras, and the Ninth Amendment, cut both ways. It's true that the word "abortion" appears nowhere in the Constitution; it's also true that "procreation" appears nowhere in the Constitution. So, if you're going to read between the Constitutional lines, so to speak, and find a substantive right for one, it will apply with equal force to the other. You can't have it both ways. If procreation is a right, then not procreating is also a right.

                    2. You have a right to not procreate, sure. And there's an easy, 100% effective, way to ensure that right. I can guarantee I've utilized that right in order to not procreate with hundreds of millions, of people.

                      But what you're asking for is a right to a medical procedure, once you've failed to utilize the easy, 100% effective way. That's...different.

                      I have a right to procreate. That doesn't mean I can walk up to a fertility clinic and demand that they facilitate my right. That doesn't mean that Congress or the states can't pass laws regarding fertility clinics. Or even outright ban them in some situations, if it so chooses.

                      You've got a right not to procreate. That doesn't mean that you can walk up to a medical provider and demand they help you with your right. That doesn't mean that Congress or the States can't pass laws regarding those medical procedures.

                      See how that works?

                    3. But that's an issue as to "when" the right needs to be asserted and not whether the right exists. We haven't gotten to the "when" yet since we're still on the "whether". And you can only claim non-enumerated rights for one if you're going to claim them for the other.

                      If you're claiming a constitutional right to procreate, then you have to acknowledge a constitutional right not to procreate. And there's as much textual underpinning for one as there is for the other. Only after you concede a right to not procreate do we get to the question of when it needs to be asserted.

                    4. Sorry, I typed to fast. I meant to say "when and how".

                    5. "But that's an issue as to "when" the right needs to be asserted and not whether the right exists"

                      I already said the right exists. Twice in the same post. Here they are...
                      1) "You have a right to not procreate, sure."
                      2) "You've got a right not to procreate."

                      Your dispute makes no sense.

                    6. All right, so that then moves us to the next step of the analysis. (Your error, methinks, is in believing the analysis is over before it actually is.)

                      Since the right exists, what are the circumstances under which the state can regulate it? What is the standard under which the state can preclude someone from exercising a right? And (spoiler alert), once you've shown what the standard is, the next step will be to demonstrate how that standard applies to abortion.

                    7. "Since the right exists, what are the circumstances under which the state can regulate it?"

                      Once the people take actions to actually procreate.

                      Let's give an example. You as El Dudo say "I don't want to procreate". You as El Dudo then proceed in sexual relations with a woman. Sexual relations with women result in pregnancy. You as El Dudo say "I don't want to procreate, I demand the child be aborted! Or if the kid is born, I demand it be killed!"

                      Issue is, you've already procreated. See the problems here?

                      If you don't want to procreate, if you don't want to have children....then there are clear ways you can prevent that. But the retro-active type measures are problematic.

                    8. Yes, I see the problem here; it's that you're engaging in circular reasoning by assuming your conclusion: Procreation happens at conception; therefore procreation happens at conception. It's a textbook circular argument. Whereas the single most hotly contested part of this debate is what exactly has happened at the moment of conception. You say full personhood; someone else says not much at all until there's further fetal development. Not everyone agrees with your assumption that a zygote is a human being with the full panoply of human rights.

                      But the thing is, even if I were to agree with you that a zygote is fully human, there are circumstances in which killing people who are undoubtedly fully human is permissible. A soldier may kill in time of war. An executioner may implement the death penalty. A person may kill in self defense. In some situations a person may kill to prevent a greater harm. So, you still haven't shown that it's a person, and you haven't shown, if it is a person, whether killing it fits under the category of acceptable killings.

                      Again, your problem is that you think the analysis is over long before it actually is.

                    9. You understand that words have definitions, right Krycheck?

                      A person has a right to procreate. I think we've both accepted that that is one of his rights.
                      A person also has the right to not procreate. I think we've both accepted that that is one of his rights.

                      Do you believe that a man has the right to "not" procreate by demanding that a woman abort his child? If they have such a right to "not procreate" why can't they demand such actions?

                    10. Because that would be giving him the ability to force a woman to have an invasive procedure. I am opposed to requiring abortions for the same reason I am opposed to a ban on abortions: It essentially forces someone to do with her body something she doesn't want to do with it.

                      And yes, I understand the argument that it's unfair that his right to choose is over once conception has happened whereas she has up to nine months to think it over and change her mind. This is a situation in which biology is unfair but that's life. Ultimately, whatever happens is happening in her body and that gives her the right to make the choice. Plus it's not like he isn't on notice of the potential legal ramifications of unprotected sex.

                    11. If in 20 years wealthy people are still having babies through humping I would be very surprised. And once only poor people are having babies through humping conservatives might rethink the abortion issue. So wealthy people will discard suboptimal embryos while poor people will be stuck with whatever Jesus or Allah or Moses decides they get.

                    12. I am opposed to requiring abortions

                      My goodness gracious. How big of you. But wait -- it gets better:

                      for the same reason I am opposed to a ban on abortions: It essentially forces someone to do with her body something she doesn't want to do with it.

                      THAT'S why you're opposed to compulsory abortions? Not because a life is being extinguished that the mother wanted, hoped for, and dreamed about, but because someone is "doing something with her body" that she didn't want??!!??!???

                      I think this is the point where you try to convince us you're not an amoral monster.

                    13. LOB, if I disagree with your premise, that the fetus is a person, then yes, the only remaining issue is bodily autonomy.

                    14. If that was your best effort, I for one am unconvinced.

                    15. Well, then, it's a good thing I don't need to convince you, which I doubt would be possible anyway.

                      You expect others to accept your premise that the fetus is a person and abortion is murder. I'm not going to repeat myself since I already said why I disagree with you, but you can't seriously expect to win arguments just by expecting people to accept premises that they disagree with. I don't accept your premise, so I don't accept your conclusion.

                    16. Nah, you've upped the ante way past whether a fetus is a person. If someone were to detain an 8-month-pregnant woman who had already named the baby, decorated the room, etc., excise the baby in small pieces, and burn it in a campfire, you've basically told us that the only thing that would really bother you about all that is that the mother "didn't want to do that to her body."

                    17. If someone detained an eight month pregnant woman and did as you described, they would spend the rest of their life in prison for kidnapping with bodily injury, mayhem, aggravated battery, and probably a few other things. You get the same result whether abortion is murder or not. I most certainly did not say that the woman's bodily integrity is the only thing about that scenario that would bother me.

                    18. If someone detained an eight month pregnant woman and did as you described, [bad bad consequences]

                      Um, no, not when the "someone" in question is an arm of the government implementing forced abortions, which was the scenario you yourself raised and I reacted to. Try again.

                    19. Your 12:56 comment says nothing about the person being an arm of the government. If the government is doing that it raises a whole other set of issues. The bottom line, though, is that I would still be horrified whether or not the fetus is a person.

                      And in any event, I said earlier that I believe personhood kicks in at around viability, which an 8 month fetus is well past.

                    20. Your 12:56 comment says nothing about the person being an arm of the government.

                      As this subthread clearly shows, our entire exchange was predicated on your original outrageous statement about forced abortions. Why would I restate it in every post?

                      And in any event, I said earlier that I believe personhood kicks in at around viability, which an 8 month fetus is well past.

                      Ah, ok. So forced abortions do indeed just implicate a woman's bodily autonomy -- as long as they're not after the liturgically prescribed "around viability." Cf: "we've already established you're a whore -- now we're just haggling over price."

                3. SCOTUS recognized procreation as ¨one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race¨ in Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942).

              5. "Absence of evidence of government ever having done something before IS evidence that it was understood not to be entitled to do it."

                Tell us about SB 8 then and how private vigilantes suing people for the exercise of a currently-lawful constitutional right fits into your theory.

                Seems to me that, unless you're a hypocrite (which we all clearly know you are not, or something), that you'll be forced to admit SB 8 is prima facie unconstitutional until such a time that abortion is no longer considered a constitutional right.

                Oddly though, I don't recall you holding such a position.

            2. Expanding unenumerated rights because a preponderance of the people see it as such, long after the founding, is in keeping with the spirit of the constitution that the people reserve these rights.

              Expanding government powers into controlling new areas that were not considered proper back then, is in the opposite spirit of the constitution, that government should only gain power after well-pondered, supermajority approval.

              1. Jar jar: Dellow fellagates! I propose the Chancellor have unlimited power to deal with this menace!

                (Wild cheers rather than slow, well-pondered amendment process)

                Padme: So this is how Liberty dies, with thunderous applause.

              2. Krayt, when something doesn't work (like the Article V amendment process) people give up on it. Yeah, it works in the sense that people like you who are opposed to modernizing our polity are able to prevent it from happening. But if you think modernizing our polity is a good thing, as I do, then you just simply recognize that Article V doesn't allow it and achieve the same result by other means.

                1. You can't do what you want legally, so you'll do it "by other means"?

                  That's a disturbing attitude to have.

                  1. No, it's a recognition that Article V is a shell game and the only way to win is not to play.

                    1. I'm with Toranth. Your attitude is selfish, unpatriotic, and based on lies.

                      The Amendment process has worked a few dozen times. You're just looking for an excuse as to why you can't have everything you want RIGHT NOW.

                      Child, please. I despise The Doors, but you really can't always get what you want.

                    2. No, what's selfish is the idea that a small and shrinking flyover population should be able to veto what a majority of the country wants. The majority is entitled to self governance. It's the minority that's being the spoiled children here.

                    3. @ Jason

                      I agree with what you are saying, but your knowledge of, and appreciation for, classic rock is deficient. May I suggest you contact the Rev. AK for some remedial lessons. He will be very helpful.

                    4. ...
                      Welp, at least we know the value of your opinions on anything legal.

                    5. God you're right. As soon as I read your remark I said to myself "ugh it's the Rolling Stones."

                      Honestly not a fan of them either.

                      Pink Floyd, Styx, Kansas, Boston, etc are more my jam.

      2. No, Bellmore. He illustrates that a government power to compel carrying a dead fetus to term encompasses alike a government power to limit reproduction. Both are totalitarian government interventions against a private right to procreate.

        You ought to rethink your uncritical support for that totalitarianism.

        1. " He illustrates that a government power to compel carrying a dead fetus to term"

          You really don't understand what a heartbeat law means, do you? No government anywhere in the US compels you to continue carrying a dead fetus.

          1. So Brett, your preferred method of enforcement will be government databases recording the menstruation dates of all women of reproductive age? Like the Trump administration already did among would-be immigrants who were housed and monitored (but not imprisoned) in government-owned facilities.

            Or will it just be a less oppressive—barely offensive at all, by comparison—open-ended government power to invade after the fact the medical records of every woman who miscarries?

            Once again, rethink your uncritical support for reproductive totalitarianism.

            1. You're just not making any sense at all.

              Revise...

              1. Of course he's not making sense. Because his position is offensive enough that he needs to create fictional wrongs to balance things out, and make it look like he's reasonable.

                Government forcing women to carry dead babies. Government enforced menstrual records. Things nobody is doing anywhere.

                When government banned cocaine, (Which they shouldn't have done, and the federal government had no authority to do.) did they require everybody to submit a daily blood draw, to prove they weren't using it?

                Does the government engage in random strip searches for contraband? Go door to door searching people's homes without warrants in order to enforce laws?

                No, and a law against abortion is no different.

                1. Government enforced menstrual records. Things nobody is doing anywhere.

                  Bellmore, Google "Scott Lloyd." He was formerly head of Trump's Office of Refugee Resettlement. He is an anti-abortion crusader who got that job without a lick of relevant experience. And he did that, set up that very database, to monitor teen girls and try to prevent them from getting abortions they were legally entitled to. There was a lawsuit over it, which the 17-year-old plaintiff won.

                  I am neither kidding, nor making things up, nor speaking figuratively, when I tell you that whether you realize it or not, you are flacking for totalitarians.

              2. Your inability to understand what he wrote, and Brett’s flat refusal to, does not make what he wrote incoherent.

          2. One of the speakers during the hearing mentioned that the maternal mortality rate in Mississippi was seventy five times greater in carrying a child to term than what would occur during an early abortion. The conservative justices seem to have little regard for their health and well being. https://msdh.ms.gov/msdhsite/_static/31,0,299,324.html#InfantMortalityDocs

        2. Compel carrying a dead fetus?

          Dead as in dead man walking? Floating?

      3. A state prohibiting pre-viability abortions is just as destructive of individual liberty as would be a state compelling sterilization.

        Brett, do you regard Buck v. Bell as being correctly decided?

        1. No, obviously not. I believe we have an unenumerated right that that the government not mess with our bodies.

          But nobody is proposing a law forcing women to get pregnant. We're discussing whether pregnant women can kill their babies.

          1. The Commonwealth of Virginia took control of Carrie Buck's fertility. State interference with a woman's decision to carry a pregnancy to term or not is similarly intrusive.

            1. Yet neither is as intrusive as state-endorsed murder, which is how many people view abortion.

              1. People who view it as state endorsed murder are too silly to interact with. Even if it's murder -- which is far from clear -- the mere fact that the state doesn't ban something doesn't constitute an endorsement. The state hasn't banned Burger King; does that mean the state endorses Burger King? Nope, it means the state hasn't taken a position on the issue, and you may eat there or not eat there as you like.

                1. The Supreme Court didn't invent new emanations and penumbras to bless fast food burger chains.

            2. "Took control"; Such a vague way of putting it. After all, saving a life and taking a life are just "taking control of" a life, aren't they? Basically the same.

          2. ". . . kill their babies."

            Yeah, that's happening.

            1. Yes, it is happening.

          3. So which is it Brett, we have an unenumerated right that the government not mess with our bodies? Or government has an unlimited power to mess with a pregnant woman's body?

            And if a woman who has a baby is also pregnant, how would the pregnancy empower killing her baby? You talk nonsense.

            Rethink your uncritical support for reproductive totalitarianism.

            1. So which is it Brett, we have an unenumerated right that the government not mess with our bodies? Or government has an unlimited power to mess with a pregnant woman's body?

              With logic like that, who needs purple bananas?

            2. The government is not "messing with a pregnant woman's body" when it prohibits her from killing her baby. It's not doing anything to her body at all.

              It's rather like the government is not imprisoning you without a trial if they lock you out of the post office after hours. It's not drugging you by banning cocaine. (Mind, I think the *federal* government has no authority to ban drugs, outside DC and military bases.)

              Saying you can't do something isn't doing something to you.

              1. It's not doing anything to her body at all.

                This is...very bad biology.

                Fetuses do not exist in some void.

                Like I get the philosophical issue about where personhood begins, even if I think you're universalizing it in a pretty self-oriented manner.
                But you don't get your own reality.

                1. What the hell are you trying to say there? It makes no sense.

                  A government telling you, "If you get pregnant, you can't kill your baby." is no more forcing you to get pregnant, than a government telling you that you can't drive under 45 on the expressway is forcing you to make regular road trips. Prohibiting doing something is not the same as compelling doing something.

                  Women get pregnant without government aid or orders all the time. Once a pregnancy begins, it continues to delivery more or less automatically, it doesn't require regular affirmative actions to avoid ending it.

                  So, if a woman is pregnant today, and the government says, "You can't abort that baby." it's not the government saying, "Tomorrow you will get pregnant. Yes, and the next day, too, and every day thereafter for the next 9 months! And we'll put you in jail if you forget to."

                  1. What about an ectopic pregnancy? Can the government tell a woman with an ectopic pregnancy that she can't get an abortion? Why or why not?

                    1. The government can tell a man with cancer that he can't get the only drug that stands any chance of saving his life, so, why not? Thousands of people die every year because the only treatment that would save them is illegal.

                      But nobody proposes to do that.

                    2. Do I understand you correctly that you believe it is okay for the government to deny an abortion to a woman with an ectopic pregnancy?

                    3. By "okay" do you mean "legal" or do you mean "morally and ethically correct", AWD?

                      Because as Brett said, the government can already deny people the medical treatments they need to survive for other medical conditions. It happens all the time, so why is this medical condition different?

                    4. " Can the government tell a woman with an ectopic pregnancy that she can't get an abortion? Why or why not?"

                      What's the Constitutional argument that it can't? An ectopic pregnancy is unrelated to reproductive freedom, so it probably isn't covered under Roe and Casey?

                    5. I am skeptical that "it happens all the time," but even if I grant that as true, I don't get your argument. Are you saying that it's good and right that governments deny some people medical treatments they require to live, and we should be looking to extend that to other people, like women with ectopic pregnancies? Governments do a bad thing to this group of people, so you are okay if they then do the same bad thing to another group of people?

                    6. TIP, you don't think the woman with an ectopic pregnancy has a constitutional right to live?

                    7. AWD,
                      Unapproved cancer treatments are one of the most common examples, as treatments in use in other parts of the world are often denied permission to be used in the US for years. Take a look at "medical tourism" or "medical circumvention tourism".

                      And no, I do not approve of this behavior by the government. But I think that if it is legal for the FDA to deny treatment to people dying of cancer or other conditions, then it certainly would be legal for the FDA to deny ectopic pregnancy treatments.
                      It would be immoral - even straight evil - but just as legal.

                  2. Apparently Brett’s shtick in this thread is to pretend like every easily read and understood post he disagrees with is incomprehensible,

                2. Fetuses do not exist in some void.

                  No, they exist in a very specific void, within the uterus. "My body, my choice" is terrible reasoning for allowing abortion. In many (most?) instances, there was a choice with her body. The choice to allow the male organ which excretes the fertilizer.

                  Pregnancy is not just "some part of a woman's body". It's a living, growing organism, which is 50% mom, 50% dad.

                  Feel free to make other arguments, but this is a deeply flawed argument.

                  1. What about when the women is raped and didn't allow the fertilization?

                    Or carrying the pregnancy could endanger the woman's life?

                    1. "What about when the women is raped and didn't allow the fertilization?"

                      I don't think anybody disagrees that rape violates a woman's rights.

                    2. What about when the women is raped and didn't allow the fertilization?

                      I said, "In many (most?) instances, there was a choice with her body." Try this on for size, go fuck yourself.

    2. Yes, I believe. See Buck. = Does that mean that states have authority to mandate vasectomies and/or tubal ligations?

      1. Well, Buck has never been overruled. Will Justice Kavanaugh cite it as controlling authority for state womb control?

        1. "Will Justice Kavanaugh cite it as controlling authority for state womb control?"

          Who knows? Powell cited Korematsu in Bakke.

      2. Buck predated the right to reproduce being recognized as fundamental. That came in 1942 with Skinner v. Oklahoma ex rel. Williamson.

        1. Still a precedent on the book, not guilty. Now, I think the decision is morally abhorrent, but the fact remains, it is precedent.

    3. False analogy. The reason that the state cannot mandate vasectomies or tubal ligations is not the right to procreation but the right to bodily integrity. The state cannot mandate an invasion of your body. For the same reason, the state could not mandate a nose job or an appendectomy, neither of which relate to procreation. FWIW, the state also could not mandate an abortion.

      To make the analogy apt, could the state outlaw or regulate vasectomies or tubal ligations? The answer is yes, and they already do, since only licensed doctors may perform them.

      1. The Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." The principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions. In Jacobson v. Massachusetts, 197 U. S. 11, 197 U. S. 24-30 (1905), for instance, the Court balanced an individual's liberty interest in declining an unwanted smallpox vaccine against the State's interest in preventing disease. Decisions prior to the incorporation of the Fourth Amendment into the Fourteenth Amendment analyzed searches and seizures involving the body under the Due Process Clause and were thought to implicate substantial liberty interests. See, e.g., Breithaupt v. Abram, 352 U. S. 432, 352 U. S. 439 (1957) ("As against the right of an individual that his person be held inviolable . . . must be set the interests of society. . . .")

        Just this Term, in the course of holding that a State's procedures for administering antipsychotic medication to prisoners were sufficient to satisfy due process concerns, we recognized that prisoners possess "a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment."

        Washington v. Harper, 494 U. S. 210, 494 U. S. 221-222 (1990); see also id. at 494 U. S. 229 ("The forcible injection of medication into a nonconsenting person's body represents a substantial interference with that person's liberty"). Still other cases support the recognition of a general liberty interest in refusing medical treatment. Vitek v. Jones, 445 U. S. 480, 445 U. S. 494 (1980) (transfer to mental hospital coupled with mandatory behavior modification treatment implicated liberty interests); Parham v. J.R., 442 U. S. 584, 442 U. S. 600 (1979) ("a child, in common with adults, has a substantial liberty interest in not being confined unnecessarily for medical treatment").

        Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 278-79 (1990)

      2. And if the supposed reasoning behind abortion decisions was the actual reasoning, then they wouldn't be able to have such laws, the practice of medicine would have to be hugely deregulated relative to today.

        But that reasoning has never applied to anything but abortion, which suggests that it's nothing but an excuse.

      3. Regulate, sure. But can a state outlaw vasectomies or tubal ligations?

        1. If it has a reason to. At least on a Constitutional level. Abortion, unlike those two procedures, raises issues of another life.

          1. I agree there are competing interests. But doesn't that mean the woman has (at least) a bodily integrity constitutional liberty interest (and perhaps other liberty interests) in being able to obtain an abortion?

            1. No. The distinction that "not guilty" missed is between the state mandating an invasion of one's body, and the statute forbidding or regulating a voluntary invasion of it.

              States do the latter all the time. There are many illegal drugs, and no one thinks you have a Constitutional right to inject yourself with heroin, or even therapeutic drugs that are not approved by the FDA.

              Abortion, at least after a certain point, was outlawed for a long time in this country, both before and after the 14th Amendment was adopted. The notion that you have a right to an abortion under the 14th Amendment is intellectually indefensible.

              Nor do I think you have a "right" in the 14th Amendment sense to a vasectomy or a tubal ligation. Of course, as for any law, there has to be some rational basis for a law banning same. I suppose a state could outlaw them on the theory that they are permanent, as opposed to other forms of birth control, and the state wants to protect the person from a rash decision he or she may later regret. That might pass Constitutional muster, although barely.
              Otherwise, I cannot think of a reason to ban those two procedures. (Regulate, yes. The state can insist they only be done by a licensed professional, as such surgeries can entail considerable risk. That is in fact the law today, and no one seems to be complaining about it. )

              1. Do I have it right you are arguing that laws which proscribe medical procedures are subject to only rational-basis review? And that applies here even without regard to the interests in the life of the fetus?

                I'm not sure that is right, but even assuming it is, I can't see how the opposite view is intellectually dishonest. Ditto for the arguments that there are liberty interests in procreation and the impact on a woman's life in committing to raising a child.

                1. I was responding to a specific argument, that if the Constituion allows states to ban abortion, then it must allow them to mandate vasectomies. That is a specious argument, for the reasons I have stated.

                  As for banning medical procedures, yes, that is generally subject to rational basis review. Otherwise, the FDA would have serious Constitutional issues.

              2. "even therapeutic drugs that are not approved by the FDA." Actually, reasonable people do, because you do have that right. To hold otherwise is to say that the government rules over the people, rather than serves them. A government that serves you can never make it illegal for you to keep yourself alive. The only reason the government exists is to keep you alive. We aren't talking about the demense of The Crown, we are talking about governments created by the people, for the people.

              3. "There are many illegal drugs, and no one thinks you have a Constitutional right to inject yourself with heroin, or even therapeutic drugs that are not approved by the FDA."

                This is just factually incorrect. Plenty of folks do think this, some of whom post on this very site...

    4. Does that mean that states have authority to mandate vasectomies and/or tubal ligations?

      Do you think that the Constitution was intended to make all fundamental wrongs illegal? Anyway, would all men be mandated to have vasectomies or just some?

    5. "Does that mean that states have authority to mandate vasectomies and/or tubal ligations?"

      Probably.

      There are some restrictions on state powers in Article I of the US Constitution but none remotely applicable. Otherwise, the Constitution grants powers to the federal government or restricts the federal government in someway. The Bill of Rights [prior to the phony incorporation doctrine], including the 9th Amendment, have nothing to do with states, they are restrictions on the federal government only.

      The equal protection clause of 14A would ban a race based mandate but I would think a broad mandate would be legal for a state.

      1. You would be wrong. There are already a bunch of "bodily integrity" decisions, mostly under the 4th amendment.

        But any sort of permanent procedure, like compulsory tubal ligation or vasectomy, would fall afoul of both the life and property legs of the due process clause, probably even moreso than the liberty leg.

        The reason these things don't get litigated is that they have not, and will never, happen.

        The closest I can think of that would be remotely plausible would be some sort of compulsory barcoding system a la Idiocracy, and even that is never gonna happen.

        1. Compulsory sterilization has been litigated. See, Buck v. Bell, 274 U.S. 200 (1927) (upholding sterilization); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) (prohibiting sterilization).

  4. It was interesting to see editors' biases as the headlines scrolled past yesterday. Nobody in the media, or nobody writing headlines, imagined that abortion was anything other than a fundamental right to be protected from the court. Nothing about fetuses.

    Don't think I saw anything from Fox News yesterday so maybe it's a 99-1 score instead of a shutout.

    1. "Nobody in the media, or nobody writing headlines, imagined that abortion was anything other than a fundamental right to be protected from the court"

      I mean, they wrote that because it's literally the current state of the law. It would be weird to not acknowledge this fact.

    2. In our day the battle is...not...so much about God, though it’s often characterized that way. The real fight has to do with who’s right about the reality of the human person—those who posit him as but a physical combination of matter and energy or those who believe him, as the Eighth Psalm puts it, only “a little lower than the angels.” For centuries the Judeo-Christian view has been the defining assumption of Western civilization, enshrined, for example, in the metaphysical truth in the Declaration of Independence about our being endowed by our Creator with certain unalienable rights. From this assumption all sorts of understandings flow: about human rights, about human sexuality, about human flourishing and so on. Today, alas, traditional understandings once taken for granted are yielding to the prevailing notion that science has rendered all moral judgments subjective... (source)

      today: Who cares about a fetus? It's just a physical combination of matter and energy!
      tomorrow: Why can't we eliminate the undesirables / deplorable? After all, each of them is just a physical combination of matter and energy!

      The taking down of Thomas Jefferson's statues is not a good sign...

  5. Chinese Spy Boss’ Conviction Marks New Chapter in War on Espionage

    "After a federal jury convicted a Chinese spy boss of espionage earlier this month, counterintelligence officials told The Daily Beast that the case could be a seminal moment for the United States, as it works to combat a problem that has the FBI opening a new counterintelligence case into China every 12 hours.

    Yanjun Xu, a deputy director of a foreign intelligence branch of China’s Ministry of State Security (MSS), became the first Chinese intelligence official to be extradited (from Belgium), to the United States for trial and convicted."

    Not a very smart spy setting up a meeting in a location friendly to the US.

    But this case also shows the blatant aggressiveness the Chinese use to steal economic assets.

    The problem is the US and the rest of the world have become hugely dependent on Chinese consumer goods and investments.

    For decades now, China has been investing heavily in African countries, and not for altruistic reasons.

    https://www.thedailybeast.com/chinese-spy-boss-yanjun-xu-conviction-marks-new-chapter-in-war-on-espionage

    https://www.globalsecurity.org/wmd/library/news/china/2021/11/china-211129-globaltimes03.htm

    1. The problem is, we have a President whose son is a crackhead in deep with China, and dad has been getting a cut. The fish rots from the head.

      Our intelligence services will always be handicapped fighting China so long as our government is widely compromised this way.

      1. Gee Brett, you're right!

        This problem only started after 1/22/2021.

        You used to have some good, measured views but now you're just grouchy and spew whatever crap you can immediately think of.

        1. I said the government was widely compromised. Not just the Bidens, it's merely a new development that they have a handle on our President. They've bought and paid for officials further down the food chain for years.

          Diane Feinstein's driver was a Chinese spy. Rep. Swalwell fell for a Chinese honeypot operation. Cindy Yang was a major Republican donor who turned out to be working for a Chinese intelligence front organization. Numerous politicians on both sides of the aisle are raking in money from China.

          A lot of incidents, such as the OPM data breach, are really inexplicable until you understand how compromised our government is, that the Chinese aren't breaking into our computers, doors are being deliberately left open for them.

          It's as bad or worse than the problem with Russian spies during the Cold war.

          1. Sorry!

            When I read, "The problem is. . .," I thought you were addressing what the problem is.

      2. Brett,

        The problem is that you believe whatever conspiratorial BS your "news sources" spew out, without bothering with things like evidence.

        You really have gone off the deep end. Possibly you've never gotten over gloating over the 2016 election, and it's rotted your brain.

        1. What is it that Brett said that is not true?

          Are you saying Hunter Biden doesn't or did not have a substance abuse problem?

          Are you saying that Hunter isn't on the take from China?

          Are you saying that Joe wasn't taking a cut of the graft Hunter received?

          All of these things are very well documented, including, in some cases photographic evidence, and emails from and to Hunter.

          None of this is from 'conspiratorial' news sources, it's all over the place now, and not even refuted by the Bidens.

          Perhaps you are the one who's gone off the deep end.

          1. Other than the substance abuse, all the rest is right wing speculation.

            1. No, it's all documented. Mostly not in Democratic publications, sure, but amply documented.

              1. Given your sliding scale of skepticism, I remain unconvinced.

          2. I guess, "documented," doesn't mean what it formerly did.

    2. The problem is the US and the rest of the world have become hugely dependent on Chinese consumer goods and investments.

      Well, that's a problem if one likes war; it's an asset if one opposes war. Though I'd have phrased it as "China has become hugely dependent on the US and the rest of the world buying things from and selling things to China."

      1. David, therein lies the Achilles Heel for China. And I think it will ultimately lead to war. The fact is, alternate supply chains are being developed right nowin other low cost regions (i.e. Eastern Europe, South Asia). At some point in the not so distant future, dollars will move away from China to the new countries in the supply chain. David, this will happen sooner than you think.

        What then, do you suppose a country like China will do? The Chinese people's expectations on prosperity will be very, very hard to maintain. My reading of history is that when totalitarian regimes are faced with a restive populace, they go looking for foreign adventures to distract them.

        I thought your framing was 'spot on' (China is dependent on US and allies dollars/euro/yen). I am far less confident that your framing makes war less likely. I think it makes it more likely we will see war.

        My personal belief: War is coming in the South China sea.

        1. Add that China has, due to their one child policy, and sex-selective abortion, a VERY skewed sex ratio in the current generation.

          In the prime age for military service, they've got 115 men for every 100 women. And they're mostly bratty only children.

          The usual way to fix a skewed sex ratio is to kill off the excess males in war.

          1. Or they could simply encourage these young men to marry foreigners. Seems a bit easier and less costly than war.

            1. That would be great if they didn't still want to keep their population down, and if any sane person wanted to move to China.

      2. David,
        NHK reports that Chinese merchant vessels are "disappearing" fro the the screens of the companies that rountinely track commericial shipping.
        While I recognize that Japan has a "dog" in this fight, is this report evidence that the "supply chain crisis" is a Chinese economic warfare or cold war maneuver?

        1. Have a link? I scouted around but couldn't find anything.

          1. I hadn't heard anything about this, but google gives me this: China's disappearing ships: The latest headache for the global supply chain.

          2. As I said I heard this on the NHK (Japanese network) news report a couple of days ago.

    3. For decades now, China has been investing heavily in African countries, and not for altruistic reasons.

      Well, relatively few investments are made for altruistic reasons, whoever the investor is.

      1. Actually China has been using trade as a mode of exercising soft power over Africa since the second century BC. The intent was not benign or merely commercial.
        Source: "the roman empire and the silk routes" R. McLaughlin

        1. Research collaborations too.

  6. Chief Justice Roberts was the only member of the Court to mention that Mississippi had shifted gears between its cert petition and its merits brief with regard to overruling Roe and Casey. The cert petition posited that overruling the precedents would be unnecessary, mentioning the revisiting only briefly in a footnote. The Appellees' merits brief cites authority indicating that that is insufficient to confer jurisdiction to overrule.

    1. I noticed that too, not guilty....I thought he was nicely saying, "Yo, you guys pulled a switcheroo somewhere".

      I listened to the entire Dobbs transcript. Fascinating. But I truly think that Justice Sotomayor inadvertently scored an own goal with her 'the Court will be seen as political' preamble to her question.

  7. The anagram of Omicron is a proper and good meme. Perhaps the anagram of ABORTION is also, “The state of being orbate, or deprived of parents or children; privation, in general; bereavement.”

    Merry Christmas to all good people.

    1. Chag Semeach Hanukah! 🙂

      1. Choose reason!

  8. Prof. Volokh has a blog below about his testimony on 230 and wrote, "This would likely cover discriminatorily targeted ads for employment, housing, and the like (under (A))."

    Does anyone have an example of this?

    What is a "discriminatorily targeted ad?"

    1. Presumably an ad that is displayed (or not) to people based on any of the protected categories under those laws. Targeting an employment ad based on race, for example, suggests an intent to discriminate in hiring on a similar basis.

    2. On Facebook, you can target your advertising, so that only certain users see it. So you as an advertiser can tell Facebook, "Only show this ad for private schools to Facebook members who have viewed or liked posts about private school in the past, or who are Facebook friends with those who have." Perfectly reasonable way to avoid wasting advertising dollars on those who aren't interested in your service. But you can in theory also say, "Only show this ad to Facebook members who are straight/white/whatever." The disfavored people don't see your ad and you don't have to turn them away.

      1. If that's the case, then where's the problem?

        I haven't seen many black hair products advertised during NASCAR races.

        Discriminatorily targeted advertising just seems like smart business decision-making.

        And who's the "bad guy" here?

        The advertisers or Facebook?

        1. apedad, the problem is re-facilitating, "No Irish need apply."

          But don't worry. It is a problem which can be easily fixed. Just repeal Section 230 unconditionally.

          1. But "No Irish need apply" is different from "Italians are welcome to apply," which it seems what discriminatorily targeted advertising is.

            1. Discriminatory targeted ads is not "refraining from advertising a product to people who would be unlikely to buy a product".

              It is "Do not show my product to people that I want to avoid selling to".

              Advertising products for black people on BET but not CMT is probably smart business. Preventing black people from seeing your ad at all, even though they might be just as likely to buy your product, is discriminatory.

              1. Advertising products for black people on BET but not CMT is probably smart business. Preventing black people from seeing your ad at all, even though they might be just as likely to buy your product, is discriminatory.

                I'm not sure I see any meaningful distinction between the two things in terms of discrimination law. In both cases you're presenting an ad exclusively to one or more specific subset(s) of the general public for purposes of maximizing the value returned from your advertising dollar. In both cases the methodology used to select those subsets is an assumption about the viewers' interest in something (in the case of an ad aired on BET the assumption is that viewers of that channel are overwhelmingly black, while in the case of a targeted Facebook ad the assumption is based on interests/activities users have liked/viewed, etc on that platform). Neither strategy is going to 100% exclude those not in the targeted demographic, but both will mostly exclude them. The only real difference is that in the former case anyone with access to BET via their cable/satellite/streaming/whatever service MAY view the channel and ads aired on it, but in reality those who do so are primarily members of a specific targeted ethnic group.

                What if you chose to physically distribute advertising materials for your product at, say, a performance by a black rap/hip-hop artist, but not at one given by a white country/western artist? In effect it is just as discriminatory as the targeted FB ad based on interests shown by users in those two different artists.

                1. In effect it is just as discriminatory as the targeted FB ad based on interests shown by users in those two different artists.

                  Disparate impact and disparate treatment are not the same thing.

                  1. Disparate impact and disparate treatment are not the same thing.

                    Nor did I say they were, as impact on consumers was not the "effect" to which I was referring. I was referring to the fact that, in both cases, the company is limiting who sees its ads based on consumer's demonstrations of what they're interested in.

                    1. the company is limiting who sees its ads

                      Again, poor wording on my part. This should have been, "the company is choosing to distribute its ad to a group of select individuals, not actively hiding it from others".

                2. The only real difference is that in the former case anyone with access to BET via their cable/satellite/streaming/whatever service MAY view the channel and ads aired on it

                  That is the key difference. In one instance, you are advertising on a platform which has a general, self-selected, target audience. In the other case, you are actively attempting to prevent advertisement to a disfavored audience.

                  What if you chose to physically distribute advertising materials for your product at, say, a performance by a black rap/hip-hop artist, but not at one given by a white country/western artist? In effect it is just as discriminatory as the targeted FB ad based on interests shown by users in those two different artists.

                  This is not a good analogy. A better analogy is that you are physically distributing ads at a performance by a black rapper, but you explicitly refuse to distribute those materials to any white attendees. Or, white country singer and black attendees, or whatever.

                  1. In the other case, you are actively attempting to prevent advertisement to a disfavored audience.

                    That's a pretty odd characterization. In that case you're not "preventing" anything. It's not like the ads are being broadcast to the general public, but with a filter that prevents them from being received by some subset of that public. You're simply choosing to make the ad visible to some people. An analogy would be driving your new car to a friend's house to show it off to him, but not driving it to anyone else's house to do the same. You're not "preventing" everyone else from seeing something that they would otherwise be seeing had you not taken some preventative action. You're just choosing to not take the positive action of showing it to them.

                    This is not a good analogy.

                    And yet you offer no reasoning why.

                    A better analogy is that you are physically distributing ads at a performance by a black rapper, but you explicitly refuse to distribute those materials to any white attendees. Or, white country singer and black attendees, or whatever.

                    No, that's not a good analogy. In the FB case you're not determining who to serve up ads to based on a visual confirmation of their race. You're simply saying, "Show it to anyone who has indicated an interest in something that tends to mostly interest black people"...which fits the analogy of making adverting materials available (say, leaving a stack of them at the entrance to the venue...note that I never said anything about someone selectively handing them to only certain individuals) at an event that is expected to overwhelmingly be attended by black people.

                    1. You're simply choosing to make the ad visible to some people.

                      That was inaccurate wording on my part. I should have said, "...choosing to serve the ad up to some people."

                    2. No, that's not a good analogy. In the FB case you're not determining who to serve up ads to based on a visual confirmation of their race. You're simply saying, "Show it to anyone who has indicated an interest in something that tends to mostly interest black people"...which fits the analogy of making adverting materials available (say, leaving a stack of them at the entrance to the venue...note that I never said anything about someone selectively handing them to only certain individuals) at an event that is expected to overwhelmingly be attended by black people.

                      Bolded is exactly equivalent to having your ad on BET.

                      You're missing "targeted". Maybe you are putting mailers into everyone's mailbox, but only if you are sure they are white, based on some characteristic of the house/yard/vehicles/whatever. Or, only into the mailboxes of people who have posted BLM signs.

                      Note that I am not saying it's "racist", or effective, or should be regulated, just that there is a difference.

                    3. Bolded is exactly equivalent to having your ad on BET.

                      Uh, yeah. That's why I said it was quite different from your characterization of "but you explicitly refuse to distribute those materials to any white attendees", which makes it very different from taking out an add on BET. Are you sure you're even following your own argument here?

                      You're missing "targeted". Maybe you are putting mailers into everyone's mailbox, but only if you are sure they are white

                      That's just another inapt analogy based on the false premise that you "are sure they are {insert-ethnic-group-here}". You're not "sure" of anything in the BET and FB targeted advertising campaigns, nor are you actively hiding your advertising from anyone. You're just choosing to serve up advertising to a group of people that offers the greatest probability of the most members being potential customers.

                      note that I never said anything about someone selectively handing them to only certain individuals

                      You most certainly did:

                      "A better analogy is that you are physically distributing ads at a performance by a black rapper, but you explicitly refuse to distribute those materials to any white attendees."

            2. Concur.

              Suppose you are a property manager in an upper-middle class town, and manage multiple high-end apartment complexes. I can first slice Meta's data by income, then by race, and then by other characteristics like religion or race or political belief. Then I can more precisely target the people I want to apply for future vacancies (thus avoiding the problem of turning away someone who applies).

              Is that illegal? Maybe not. But I know that could have very bad outcomes. It sort of happens now, BTW, in the People's Republic of NJ. It is even more acute since we have a state-based eviction and rent moratorium through January 2022, with discussions in our People's Duma of extending it to January 2023. It is nuts. We have landlords being very - choosy (I almost used discriminating and stopped myself...heh, heh) - about who gets to rent their available apartments; and use somewhat unorthodox means to avoid running afoul of discrimination laws.

        2. If that's the case, then where's the problem?

          The problem is that U.S. discrimination laws tend to treat "employment, housing, and the like" quite differently from things like hair care products.

        3. There is a difference between advertising in a forum where there aren't many black participants (or the reverse) and telling the forum, "Don't show this ad to black people even if they're here."

  9. To paraphrase Dan Quayle, what is our South Texas College of Law alumni learning?

    This criminology professor may not be Saul Goodman, or even Daniel Muessig, but he put the crime in criminology: https://www.fox5atlanta.com/news/ggc-criminal-justice-professor-busted-for-felony-shoplifting

  10. Arizona cop who shot and killed Walmart customer in wheelchair fired from force

    WTF...

    https://www.foxnews.com/us/arizona-cop-shot-killed-walmart-customer-wheelchair-fired

    1. Good firing. Now a good prosecution is in order.

    2. Do yourself a favor and don't watch the video of the incident.

      There's no way he avoids being prosecuted for this. The officers had several minutes of opportunity to have used a taser on him while they were following him in the parking lot from one store to the other.

      That was nothing more than an execution, and it was disgusting.

  11. Several weeks ago, my wife and I attended a concert in a small community adjacent to Madison, WI and were required to show vaccination proof to enter the theater. Then a popular uptown bar announced it will require vaccination proof to enter and be served. Today a popular restaurant in the area did the same. I see a trend. The vaccinated are losing patience with the unvaccinated and we are ready to move on. There will always be places for the unvaccinated to eat and drink, but they will not have the freedom to go everywhere.

    1. It must have been frustrating for you to have your papers perfectly in order, but no one ordering you to show them. Congratulations on finding a few specialty businesses catering to your need.

    2. New Orleans is one place that mandates vaccination or a recent negative test to enter a bar or restaurant.

      1. As is Berkeley, CA... but you would have guessed that

    3. "Madison, WI "

      Lefty city. Leftists are always authoritarian.

      1. Yes, but we also have lots of businesses. City and surrounding areas are booming. Thats the hard part with the cities with all the jobs are full of lefties.

        1. Yawn. State government and a bloated university [fat on raising premiums to suck up loans] is your economy.

          1. tuition, not premiums

          2. Yes, let's just forget about tech and biotech firms. Many of which have strong ties to the UW. Forget that Madison is a major medical center with three hospitals. Forget about the UW being a major resource for agriculture in the state. Oh, we also have great football and basketball teams out of the UW.

            By the way that university, the UW, my alma mater, has had Nobel Prize winners and has done the basic research that went into transistors and genetic techniques used for any number of things. And so, it is a little more than bloated.

    4. Cool stories about places that absolutely exist and aren't made up.

      Who cares though?

      People should mind their own business. I’m vaccinated but I don't intend to patronize any establishments practicing medical apartheid.

      1. Maybe don't just knee-jerk call a commenter here a liar without a bit of evidence?

        1. Maybe commenters might want to substantiate their stories. Especially stores that perfectly fit what someone might want to hear.

          1. You think this story is some kind of cause for Moderation4ever? He's not seemed to be hard to the paint on vaccine mandates before.

            Some anecdotes are unbelievable and overly tailored. This is neither of those things. It's not suspiciously probative, or dramatic either.

            So what this looks like is you assume everyone is lying unless you hear otherwise. Or, more likely, you assume everyone is lying if you don't want it to be true.

            Curating your own reality is just sad.

            1. I question any story that confirms a bias. Especially stories by internet commenters. Especially stories where a series of connected events supposedly happened.

        2. Alright, who hacked Sarcastro's account?!

          1. You think I always call posters liars? I mean, I have, but it's rare, and I generally have the meta-discussion about why I think so.

    5. Collaborators. That's what those businesses are.

      1. Very nice. Very dramatic.

  12. VC Conspirators, maybe one of you can answer this one. Last evening, I listened to the entire Dobbs argument (thx to Professor Blackman for posting). A number of the questions had this format. There was a 15-120 second preamble statement, and then the Justice would ask a form of: Counselor, how do you react to that?

    Is that some kind of new trend, or are incredibly broad open end questions always asked at ScoTUS. I personally do not like that format, because I would much prefer precise questions on points of law (that is just me).

    But....Is this common for Justices to ask wide open questions like that?

    1. The Justices are using the time to express their opinion to and attempt to persuade the other Justices. They may not even be especially interested in the lawyer’s response.

      1. What a waste of time, ReaderY. Too bad, really for us.

      2. People often say this, that oral argument is just as much about speaking to, and convincing, the other justices as it is about questioning the parties, but it's never made much sense to me. Like, the justices work in the same building, they eat lunch together, they share drafts of opinions, they regularly sit in formal deliberations off limits to even their clerks. Surely, there are better ways to talk through these issues than passive aggressively sniping at each other through the questions they ask a third party.

        I don't really have a better explanation for why the justices' questions so often don't seem aimed at gaining a better understanding of the parties' positions, but the whole "no, they're actually talking to each other, and don't much care what the advocates have to say one way or another" doesn't seem consistent with the available facts either.

  13. Sotomayor -- I fear none of those things are written in the Constitution. They have all, like Marbury versus Madison, been discerned from the structure of the Constitution.

    That's the voice of tyranny. I have the power to create law or to strike down law overriding the will of the people. I need only invoke the magic word Constitution. It doesn't matter what the Constitution says, it means whatever I say it means.

    1. It's also the voice of the framers and ratifiers who wrote and approved a constitution of largely ill-defined values and government limitations.

      1. Yeah, who know what "the right of the people to keep and bear Arms shall not be infringed" could mean...

        1. Notable what you omitted.

  14. Serious question. For people who do not believe the Constitution protects any rights that would include abortion, consider an extrauterine (e.g. ectopic) pregnancy. This is a 100% fatal condition to the mother unless the pregnancy is terminated. Can a state prohibit performing an abortion is such an instance? If not, what constitutional provision supports that conclusion?

    1. Keep in mind that the government, as a result of medical regulation, has routinely prohibited life saving drugs and treatments. The FDA has kept Americans from getting life saving treatments available in other countries many times, and routinely delays their availability even after they've been proven safe abroad. People die as a result.

      If the only treatment that can save your life hasn't been approved in the US, you either go abroad to get it, or die.

      Certificate of need laws prohibit hospitals from obtaining life saving equipment without government permission, permission which often isn't forthcoming. People die as a result.

      So, it's not as though prohibiting an abortion where it was necessary to save the life of the mother would be a novel thing. It would simply be treating abortion like any other medical procedure. Sadly enough.

      But, again, it needs to be pointed out, (Contra Lathrop!) that no state anywhere proposes to prohibit abortions where they are actually necessary to save the mother's life. Not one, anywhere.

      Even though doing so would be in keeping with the normal regulation of medicine...

      1. But, access to some medical treatments are constitutionally protected, such as birth control under Griswold, the right to reproduce under Skinner.... despite what you suggest as "normal regulation of medicine."

        1. But, access to some medical treatments are constitutionally protected, such as birth control under Griswold, the right to reproduce under Skinner

          Skinner had nothing to do with any right of access to certain medical treatments. It had to do with the right to NOT be subject to certain medical treatments.

          1. WuzYoungOnceToo... what about Griswold?

            1. what about Griswold?

              What about it?

              1. Skinner recognized that procreation was a right protected by the Constitution, which includes the right to *not* procreate. It was in the context of non-consensual sterilization, but it applies both ways (i.e. non-consensual procreation).

                Griswold recognized a right to privacy protected by the Constitution, that included the right to birth control despite the fact birth control was illegal under state law. That rebuts the claim that states have plenary power to regulate any aspects of medical care they want to.

                Do you disagree with Griswold?

                1. Skinner recognized that procreation was a right protected by the Constitution, which includes the right to *not* procreate. It was in the context of non-consensual sterilization, but it applies both ways (i.e. non-consensual procreation).

                  Which has nothing at all do to with any right of "access to some medical treatments".

                2. Griswold recognized a right to privacy protected by the Constitution, that included the right to birth control despite the fact birth control was illegal under state law. That rebuts the claim that states have plenary power to regulate any aspects of medical care they want to.

                  Except that there was no claim that states have "plenary power to regulate any aspects of medical care they want to", except in your straw man.

                  Do you disagree with Griswold?

                  That is an utterly pointless and irrelevant question with regard to anything I've said, and an accurate answer would take more time and typing than I'm inclined to spend on pointless questions.

            2. And why are you side-stepping the fact that your citing of Skinner as involving some constitutional right to "access to some medical treatments" is a clear indication that you have no idea what you're talking about?

        2. "But, access to some medical treatments are constitutionally protected, such as birth control under Griswold,"

          Access to medical treatments that implicate sexual and reproductive freedom are protected.

          But AFAIK there is no heightened scrutiny for medical treatment generally. Maybe there should be.

          So I'm not sure why pregnancies that are risky to the mother raise constitutional issues beyond those implicating reproductive freedom.

          And as I pointed out elsewhere, preventing someone from terminating an ectopic pregnancy doesn't raise reproductive freedom issues.

      2. An ectopic pregnancy has zero change of resulting in reproduction.

        What's the argument that terminating an ectopic pregnancy is protected under Roe and Casey?

        A poorly considered law regulating medical treatments could probably prevent terminating an ectopic pregnancy under current law.

    2. This is a 100% fatal condition to the mother unless the pregnancy is terminated. Can a state prohibit performing an abortion is such an instance? If not, what constitutional provision supports that conclusion?

      Competing rights. Of course the state cannot prohibit you from seeking a procedure required to save your life from a 100% fatal condition. That's not even a serious question for any but the most ridiculously extreme positions wrt abortion.

        1. It is totally ridiculous, as is your response. Nowhere in that piece is it shown that the law in fact bars abortion in cases where continued pregnancy represents a "100% fatal condition to the mother". All it contains are a series of unsupported claims about the "medical emergency" provision and alleged confusion by some doctors. The actual text of that provision is never cited by the article, which is a clue as to its disingenuousness and reliance on its audience not bothering to look up and read the bill for themselves, and instead letting themselves be told what to think. As bad as the bill is overall (and I agree that it should and will be struck down) the "EXCEPTION FOR MEDICAL EMERGENCY provision in fact quite clearly applies to hypothetical life-threatening scenario in question.

          1. In fact the issues the article discusses are very real and the effects of the law beyond the text of the law have been reported since SB8’s passage. The incidence of cases like this will only increase and eventually people will die. Your denial of the fact is immaterial.

            1. In fact the issues the article discusses are very real

              Ah, the old "if accusations are made they must be true" mindset that propaganda pieces like that rely on.

              Absolutely no "facts" have been presented for me to deny, as unsubstantiated claims do not constitute "facts".

      1. OK... what if the condition is only 99% fatal... or 50% fatal...or 10% fatal? Where do you draw the line?

        1. OK... what if the condition is only 99% fatal... or 50% fatal...or 10% fatal? Where do you draw the line?

          At the point where competent and qualified physicians determine that allowing the pregnancy to continue represents a "medical emergency" wrt the life of the mother, a line that is routinely drawn all the time.

          1. Really? What is the specific constitutional basis for guaranteeing a right to abortion "where competent and qualified physicians determine that allowing the pregnancy to continue represents a 'medical emergency' wrt the life of the mother"?

            1. The fundamental right to life, for starters.

              As I said, that decision is made on a routine basis in the U.S. Are you proposing that it is unconstitutional? What exactly is it that you're trying to argue?

              1. "The fundamental right to life, for starters."
                Serious question.... Where is that in the constitution?

                1. "The fundamental right to life, for starters."
                  Serious question.... Where is that in the constitution?

                  That's may be a lot of things, but a serious question isn't one of them.

                  1. No, I was 100% serious. If you can't answer it just say so.

                    1. No, I was 100% serious.

                      That you might have been serious does not make it a serious question.

                      If you can't answer it just say so.

                      In light of your having demonstrated that you have no idea what you're talking about, as well as your making dishonest straw man arguments, you're hardly in a position to be engaging in snide condescension.

                    2. Are you attempting to argue that it falls under unenumerated rights?
                      Or are you suggesting it doesn't?

                      I think you're trying to be Socratic here, but I can't tell what you are aiming for.

            2. The pro life side has not had to really deal with the nuance of implementation, and the lack of responses here show how unprepared they are.

              1. The pro life side has not had to really deal with the nuance of implementation, and the lack of responses here show how unprepared they are.

                As always...you're lying your sorry ass off. There has been no "lack of response", which you know.

    3. It all has to do with the mother's state of mind. If she feels her life is in danger she has the perfect right to defend herself even with deadly force. I'm sure no one on this thread will dispute that.

    4. Catholic ethical teaching would not consider fetal death from rescue of a patient with an ectopic pregnancy. Look up the principle of double effect.
      Intended action: turn 100% mortality for the mother into 0.1% mortalilty. (still non-trivial at 0.1% because the diagnosis of ectopic often is only known after there is hemorrhaging within the abdomen.)
      Secondary effect: the primary aim is to excise a fatal and hemorrhaging ectopic pregnancy. The fetus is already doomed in the same manner that an infant with subchorionic hemorrhage (bleeding between the placenta and uterus) would be.
      The outcome from the primary intent and secondary effect are commensurate and balanced.

      Overall, maternal mortality is not that great, currently about 20/100,000 pregnancies. To put that in perspective, that is the mortality rate of a... 13 year old. If the median parturient is 25 years old, the annual mortality risk of being a 25 year old female is 10 times higher than the additional risk of carrying pregnancy to term. https://www.ssa.gov/oact/STATS/table4c6.html
      So while pregnancy is made out to be this terribly dangerous thing, compared to simply not dying during the same 9 month period, pregnancy ain't much.

  15. At common law to recover damages for defamation a plaintiff had to show (1) a defamatory statement (2) publicly made (3) about the plaintiff. No proof of damages was required.
    In view of its determination that freedom of speech is a fundamental right, the Supreme Court has drastically limited the common law action of defamation.
    Question:
    I am pretty sure that holding a public rally is also protected by the First Amendment. In view of that, isn't there something wrong with this:
    https://www.fox9.com/news/unite-the-right-civil-trial-verdict-white-nationalists-liable-on-4-counts-damages-awarded

    1. Grinberg, holding a, "peaceable," assembly (public rally) is the protected right. Nothing wrong with it. Not peaceable.

      1. So, just to be clear, Lathrop now supports civil penalties for people that organize rallies that also have violence occur at-or-nearby?

        1. Toranth, you aren't looking for clarity. You are obfuscating. As you obviously know, the government had a burden to get over the bar, by showing the organizers participated in organizing the violence. Apparently the government succeeded.

          1. The government had no burden of any sort. It was a private lawsuit.

            1. I was referring specifically to Lathrop's cheering of the result, in any case, which has nothing to do with the merits of the case or the participants.

              From his post, it seems that Lathrop now believes that the organizers of events that have violence occur nearby should be held responsible. In that world, I pity the organizers of any march, because "counter-protesters" and undesired radicals can now render them bankrupt.

            2. Thank you, DN.

  16. I would like to hear more about the bomb Chief Justice Roberts dropped in the Dobbs oral argument, when he said that Justice Blackman’s papers showed he had said thst the viability line in Roe was dicta.

    What did Justice Blackman actually say? In what context did he say it?

    Inquiring minds want to know.

  17. Today in dispatches from Portland...
    A City Planner fundamentally misunderstands the concept of "planning":

    Tue, Nov 30, 5:55 PM (2 days ago)
    Phil,
    If the plan is predicated on some future legislative action (such as a renewing the state of emergency) then that means the City planning was done in bad faith. City bureaus can't dictate legislative decisions to elected representatives, nor should bureaus contrive situations to force our elected officials to make future decision the bureau wants, each future legislative issue is decided on its individual merits. You have to plan assuming only your existing legal authorities will be available to you ."

    ...

    Nov 30, 2021, 6:12 PM (2 days ago)
    to me
    The code and/or emergency in place at the time of a submission is what a project is reviewed against. If the Commission office wants to invoke the emergency at this time to gain a waiver from land use codes they can do that.

  18. The Internet Said She Pulled a Gun on a Mom with Baby in Car During Heated Parking Spot Dispute. She’s Been Arrested.

    "Rossie Dennis, age 60, was arrested in Corpus Christi, Texas on Tuesday for aggravated assault with a deadly weapon after cops identified her as the person captured on a viral cellphone video pointing a handgun at a woman during a dispute over a parking spot at a grocery store."

    Gunnuts sure are nutty.

    https://lawandcrime.com/crime/the-internet-said-she-pulled-a-gun-on-a-mom-with-baby-in-car-during-heated-parking-spot-dispute-shes-been-arrested/?utm_source=mostpopular

    1. Now post an article about the guy who mowed down dozens of parade participants/attendees in WI with a comment about how murderously insane black people are.

      1. I thought you were going to say:
        ...with a comment about how if there was someone there with a firearm they could've stopped that monster.

        1. I wouldn't say that because it's one of the few instances where that likely wouldn't have made a difference, given the suddenness of the attack and the speed with which the vehicle was moving. Not that it couldn't have made a difference, but it just isn't a good example.

        2. How many more school shootings would it take for a gun nut to become a better person?

          More important, how many more school shootings will America's mainstream observe before putting gun nuttery on an extremely short leash?

          1. To the firearms fetishes, guns are objects of religious veneration, demanding ritual sacrifices of children. https://www.nybooks.com/daily/2012/12/15/our-moloch/

            1. Congratulations on being just as illiterate as the author of that bit of idiocy appears to be.

  19. I'm an undergrad who plans on attending law school in the fall. I'm currently working on a research paper for one of my poli sci classes (the course focuses on Civil Strife and Justice with a focus on Thomas Hobbes' Leviathan). My paper is about Reconstruction and the 14th Amendment in comparison with the Hobbesian state of nature and the social contract.

    I know the recent debates around the 14th Amendment and its proper originalist interpretation is a matter of interest to a lot of the VC bloggers (I rely heavily on a lot of scholarship from some of the VC bloggers and contributors). I've posted some of my notes at the link below and would appreciate any comments or constructive criticism. I'm gonna post more of my research notes and draft materials over the next few days if it is of any interest and people would like to subscribe. Thanks

    https://aota.substack.com/p/the-second-founding-reconstruction

    1. Good stuff, Andrew!

      Congress introduced three bills to deal with these issues: the Civil Rights Act of 1866 (which passed over President Andrew Johnson’s veto), the Privileges and Immunities Bill of 1866 (which did not pass), and the Second Freedmen’s Bureau Act of 1866 (which also passed over President Johnson’s veto)

      In tandem, these bills sought to rectify the issues I’ve laid out. However, the bills were likely unconstitutional, which led to the passage of the 14th Amendment to provide sound constitutional grounding for the bills and make sure other crucial rights and principles could not be undone by a simple change in political opinions

      I couldn't quite make the connection on how the three bills you talked about addressed the five violations of the Hobbesian commonwealth duties you laid out. Though maybe they only addressed some of them.

      I think it's a big swing to say that the Equal Protection Clause is 'Guaranteeing the Hobbesian social contract will be met.' Not to say it's not right!
      I would just make sure to give that statement some support

      But this is a pretty interesting paradigm under which to understand reconstruction and the 14A I has not seen before - badass!

      1. All helpful feedback!

        I didn't expand on those connections just due to time constraints in terms of speaking time but will explain how those bills worked in service of those goals in the paper.

        Agreed the Equal Protection Clause did not actually guarantee the social contract was suddenly, but rather should have said that it can be interpreted as an attempt to ensure the federal government would meet that obligation when the states would not.

        1. Read your paper and fully concur with Sarcastro's praise. That is some badass stuff. Very well done. I just read it and don't have any immediate feedback other than, again, great job. I'll think a little more about it and post any constructive feedback here.

          Thanks for sharing!

        2. That was good. My only thought is that Hobbes took an overly atomistic view of human relations in his notion of the State of Nature. Human beings have an innate disposition to form familial and clannish bonds. Thus the SoN is not so much man against man, but clan against clan.

          However, you can look at blacks and whites in the Reconstruction South as two distinct clans, and your broader analysis holds.

  20. There's been a lot of talk recently about "packing" or "expanding" the Supreme Court. But what about shrinking the Court? Specifically, let's say that Biden's mental decline accelerates to the point that he becomes an entirely different person, one who is, as some would say, "based". And then he decides that he really wants to take decisive action against the looming long-term threat posed by the right wing Court, by placing 4 of the conservative Justices on the presidential drone strike list. Unlike expanding the Court, this approach would have the advantage of not requiring passage through Congress.

    My question for anyone with insight on this is, would this actually be illegal? And if it is, is there any reason why he couldn't pardon anyone involved, including himself?

    1. I have always been a fan of the proposal that would provide for the Senate to sit as a discretionary court of last resort that could review a Supreme Court decision upon a 2/3 vote. The procedure would look similar to a court of impeachment and a majority could rule a that point. (I think the gatekeeper function to hearing the case should require a 2/3 majority, but once the Senate commits it needs to be able to issue a definitive ruling). This brings the question back to the political branches where these activist type rulings belong for a final disposition and would stop this inter-generational football of trying to overrule political precedent.

    2. It would certain fall afoul of the laws against murder (Federal, state, or both), seeing as US citizens inside the US are not illegal combatants that US is unable to detain through other means.
      Al-Awlaki's killing was never fully settled (I think there's still lawsuits going on), and the justifications relied heavily on military law - which would not be relevant in your example. Unless you think that Congress would pass a AUMF against the Supreme Court?

      Of course, if your "based Biden" did execute the operation entirely from DC, he might be able to pardon himself for it. The same way he could pardon his brownshirts for walking into Congress and beating all the Republicans with canes. It'd be traditional for the Left, and we'd see the traditional response, too.

      1. "It would certain fall afoul of the laws against murder"

        Would it? I'm not so sure about that. It would certainly be unprecedented to charge a president with a crime for ordering the military to kill a civilian. Every American president at least since WWII has ordered or authorized a killing against a political opponent (albeit often outside the US), and obviously none have been charged with a crime.

        I would agree that this would likely be *illegal* in the sense that it would be ultra vires. But I don't think it would actually be a crime. I'm not aware of a statute that would prohibit that sort of thing. And even if there was, it would arguably be subject to pardon.

        1. Are you claiming there are no US federal laws against murder?! That's a pretty odd claim. A quick check says 18 USC 1111 exists. Oh! And one specifically for Congress/SCOTUS: 18 USC 351.

          As I specifically mentioned Al-Awlaki, I would have hoped you'd at least look it up - but since you did, I'll explain: Anwar Al-Awlaki was a US citizen killed in Yemen by a targeted US drone strike. His killing was justified under the AUMF, treating him as a military combatant that the US government was unable to neutralize by other means. Even so, the killing was controversial, and still hasn't been fully settled in the courts.
          A US Supreme Court Justice, residing and working in the US, and not a member of an organization at war with the US, would in no way fall into those categories.

          The assassinations of foreigners outside the US have always been on shaky ground, and are currently technically illegal under many circumstances. In the IC, we get EO12333 training every year, and this point is specifically emphasized. However, the AUMF (however stretched) does allow for targeting killing of military targets - so, again, if you could get Congress to declare those justices members of an organization at war with the US government, and get them to flee the country, and then quit their jobs, then "based Biden" might be legally able to kill them... but not until then.

          And yes, as I said, since these are federal crimes, "based Biden" could probably pardon himself and his brownshirt executioners.

    3. The drone strikes would no doubt be illegal. And it would be the moral equivalent of assassinating doctors and abortion clinic staff.

    4. I'm not really keeping up with the left wing terminology these days, it's mutating too fast. Could you give me a quick rundown on what this "based" thing is about?

      1. Like much new slang, it is not very nuanced. It just means 'good' for a certain leftist subset.

        1. A little research reveals it's etymology is quite a ride.

          It went from black slang about cocaine->gamergate->alt-right->left.

          Kids these days.

          1. Interesting, I had assumed it was from "All your base are belong to us."

            When I first encountered that phrase (was that before memes were a thing, or was it the original meme?), I realized I was getting old, and was no longer in the demographic target of pop culture.

  21. (Un)Popular Idea:
    Require case citations that were a product of the Warren Court to have a special parenthetical statement similar to (enslaved party).

  22. Sixty-six years ago today Rosa Parks didn’t get up.

    1. Sixty seven year ago, about three dozen other people performed a similar activist type activity but got no coverage because of reasons.....

      1. The important point is that America's right-wing bigots have been largely leashed by their betters over time. Every American should celebrate this improvement.

    2. "Rosa Parks didn't do nuthin' but sit her Black ass down!"
      ~ Cedric The Entertainer as "Eddie" in Barbershop, 2002

      No, I'm not dissing Rosa Parks. I'm just recalling a very funny scene from an entertaining movie.

      1. Hey, at least you didn't beat the (redacted) out of her, like an Afro-Amurican.. let's go to the Wikipedia!

        At age 81, Parks was robbed and assaulted in her home in central Detroit on August 30, 1994. The assailant, Joseph Skipper, broke down the door but claimed he had chased away an intruder. He requested a reward and when Parks paid him, he demanded more. Parks refused and he attacked her. Hurt and badly shaken, Parks called a friend, who called the police. A neighborhood manhunt led to Skipper's capture and reported beating. Parks was treated at Detroit Receiving Hospital for facial injuries and swelling on the right side of her face. Parks said about the attack on her by the African-American man, "Many gains have been made ... But as you can see, at this time we still have a long way to go." Skipper was sentenced to 8 to 15 years and was transferred to prison in another state for his own safety.

        1. What are you trying to say here, exactly?

          Afro-Amurican

          Oh, I see.

          1. Not sure where you are going with this. Should he has used the Biden preferred n-word to describe the race of Rosa Parks?

            1. He's not seeking to make any point.

              1. Not sure what point he is trying to make, but you try to make some political hay out of a pull quote so I think it is worth pointing out that you seemed completely fine with Biden using what many consider to be an offensive term to refer to certain people of color, but here feign offense.

                1. No, it just shows he's not serious. I don't think it's the N-word, it's just not serious.

  23. "By a 5–2 vote, the (extremely conservative) Florida Supreme Court holds that criminal defendants who exercise their right against self-incrimination by refusing to admit guilt may be punished with higher sentences due to "lack of remorse.""

    Case: Alvin Davis v. State of Florida
    https://www.floridasupremecourt.org/content/download/812295/opinion/sc19-716.pdf

    1. sounds reasonable

    2. "By a 5–2 vote, the (extremely conservative) Florida Supreme Court holds that criminal defendants who exercise their right against self-incrimination by refusing to admit guilt may be punished with higher sentences due to "lack of remorse.""

      Case: Alvin Davis v. State of Florida
      https://www.floridasupremecourt.org/content/download/812295/opinion/sc19-716.pdf

      Why the quotation marks around that dishonest (mis)representation of the court's decision? Who exactly are you quoting?

      1. It was a tweet. I can't obviously link to both the tweet and the ruling in a single comment, so I chose the ruling.

        1. I can't obviously link to both the tweet and the ruling in a single comment

          I don't know about obviously linking, but you obviously can link to multiple things in a single comment.

          Interesting that you chose not to address the thoroughly dishonest (and just generally ignorant) mischaracterization of the decision.

          1. No, you cannot.

            More than one hyperlink in a comment results in it being automatically placed in moderation. Forever.

            What you find interesting about my choice to comment or not on a particular topic is your own fetish, and not my concern.

            1. What you find interesting about my choice to comment or not on a particular topic is your own fetish, and not my concern.

              So when you get caught peddling bullshit and also not having the intestinal fortitude to acknowledge it, calling you on it is a "fetish".

              What is it with clowns like you who seem so desperate to prove yourselves to be dim-witted, cowardly children?

              1. I quoted a tweet and provided a link to the ruling. I made no remark on the quality of the quotation, or its accuracy. I also made no remark on my own position on the matter, because I had yet to form one. I was hoping to gather the input of some of the people around here I actually respect.

                When I wish to express my opinion on something, even someone like you will be aware of it.

                In short: go fuck yourself.

                PS: Speaking of intestinal fortitude, I noticed that you glossed over your bullshit from your own mouth about being capable of including multiple links in a single comment.

                Hypocrite.

    3. This isn't just the Florida Supreme Court, you can be punished for refusing to confess in every jurisdiction.

      The justice system makes it very difficult for defendants to maintain their innocence.

      1. Hence why if you are accused of any crime you are better off just bargaining down to the lowest charge possible if the DA wants to make a deal. Your odds of winning at trial are something like 10-15% (at least from some old statistical analysis I saw back in 2010) and that is assuming you have sufficient resources to cover legal expenses (or a competent public defender).

      2. Especially if you're guilty.

        1. Not really. In many cases you can do more time if you are innocent than if you are guilty. One would think that would be a huge problem, but the folks that run the justice system just shrug it off.

          1. And the practice interferes with the truth-finding function of the system. It's harder for innocent people to get exonerated after they've been forced to confess.

    4. That’s a pretty terrible description of the decision. There is no right against self-incrimination to exercise after one has been convicted.

      1. Mark Joseph Stern covers courts and the law for Slate

        Well, there's your problem.

      2. " There is no right against self-incrimination to exercise after one has been convicted."

        No, but you can be punished for your pre-conviction silence. But that's not just the Florida Supreme court.

          1. By getting a lower sentence based on a guilty plea.

      3. What happens to possible appeal paths if one does admit guilt during sentencing?

  24. The ratio of post from Josh Blackman vs everyone else seems a little off kilter. Doesn't Blackman have a day job to do?

  25. Am coming to this thread late; hence my comment may be buried.

    Several questions: How many states have passed resolutions calling for a Convention of the States? How many states must do so before the next step in the process? What are the legal requirements (specific language) for these resolutions to pass muster? What role do Congress/POTUS/SCOTUS/governors play in this process?

    Whistling Willie

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