Felagund
2yr ago
I'd posted a while back about how Wizards of the Coast was making Aragorn black in the soon-to-be released Lord of the Rings Magic set.
Since then most of the new cards have been released.
There were several more race swaps—see, for example Theóden, along with many other Rohirrim, was made black, but not Éomer. If they had made them all black, this would have been closer to my original suggestion—that they change races, if they really must, do so in ways that make sense in the world. But they did not do that for some reason, and keeping Éomer white makes no sense, if you're changing the rest of the Rohirrim.
Nevertheless, I was surprised at how good the set was, if you ignore the race changes in the art, for fans of Lord of the Rings. They referenced all sorts of relatively obscure things, had cards that had thematic abilities, (for an especially fun example, see how Merry+his blade or Eowyn can defeat the Witch King, who is ordinarily rather invulnerable), or just had fun flavor text quoting from the book, or nice art. And was faithful to the lore in another respect where Rings of Power was not, although I don't remember such a character actually existing…
Ignoring the race issue, I was very impressed overall. I think it's interesting that they were willing to put so much effort into it, while at the same time having unnecessary race changes. I suppose it's not entirely the same people making the various decisions. But I had read it as first as "we don't care that much about Lord of the Rings," which now seems to be false. They must have cared both about signaling leftist politics and about making a good product, and so this was the result.
I might be willing to overlook the problems, because Tolkien is dearer to my heart.
Felagund
2yr ago
Well, Wizards of the Coast is making Aragorn Black.
This doesn't even make sense storyline wise. What with Aragorn being descended from the kings of Numenor, it's not as if he could be from some distant land. I suppose there is still the possibility that all the Numenoreans are black, but, Arwen's white in the same picture, and she, being the daughter of Elrond, is closely related to the line of the Numenorean kings.
It's clearly for the sake of diversity, but couldn't they just do things in their own intellectual property instead of messing with what belongs to others? There'd be no harm in making up a ton of new Magic characters who just happen to be black, instead of changing already beloved characters from who they are.
But at least, could they have gone with someone who it would not mess with the backstory, like Gandalf, who has no national origin? I suppose that would make the moniker of "The White" a little ironic, but that's still better than the current state, to me, at least.
This significantly decreased the chance that I get cards from that set. I play, (but I don't spend very much on it), but if this is supposed to appeal to a fanbase, whether to get them to start playing, or get them to spend more, it would probably be wise not to alienate them. Why not put your diversity where it won't hurt your bottom line?
Rings of Power had some questionable things racewise (and a whole lot more unquestionably bad things in other domains), but at least it wasn't doing this.
Felagund
1yr ago
A 126 page legal analysis of section 3 of amendment 14 of the constitution was released yesterday, arguing that Donald Trump, among others, is ineligible for public office, including the presidency. The authors are conservative, active in the Federalist society.
For reference, the relevant part of the constitution is
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Among the arguments made were that it is legally self-executing—that is, it applies, like the 35 year old minimum age, without an explicit system to handle it to be set up by congress. Further, they think that people at almost every step along the process, from state officials deciding who goes on the ballots, to those capable of bringing an Amendment 25 complaint have a duty to ensure that this provision is fulfilled.
In reference to Trump, they argued that the events on and surrounding January 6th intending to overturn the election would constitute "insurrection or rebellion" as understood at the time of the passing of the amendment.
I can't see this not being important, but I'm not sure how exactly it'll play out—we could get court cases, possibly going up to the supreme court (no idea how that would play out). We may see state officials refuse to put Trump on the ballot. I expect this to lead to a substantial increase in support for Trump if this is seen as illegitimate, as it undoubtedly will be. At the same time, if this happens during the primary elections, and Trump is not even on the ballot in some states, it might make it significantly easier for another candidate to become the Republican nominee, unless the national Republican party interferes with it.
Note on the link: the pdf isn't opening for me right now and the wayback machine isn't helping. It was fine earlier, not sure what the issue is.
Apparently, a lab in china has created a virus with a 100% kill rate in humanized mice. Combined with the fact that there's a decent chance that COVID was a lab leak, this sort of thing is extremely dangerous to be doing.
I'm not sure how best to make it so that people are not incentivized to do things like this, but ceasing to fund this variety of research (it looks like the US ended one program that was pushing this sort of thing last year), and instating some sort of legal liability on those who do this, and especially if they dispose of it badly, probably seem like good decisions.
Extremely dangerous diseases are among the top few things in being both disastrous to humanity (unlike climate change) and also relatively likely (unlike a massive asteroid hitting earth). Development of them is also something that is not excessively difficult to do. This is probably the closest thing we have so far to Bostrom's black ball metaphor. People joke about Yudkowskian airstrikes on data centers; would airstrikes on labs be similarly warranted? More seriously, though, there should be far more effort put into preventing this sort of thing than there currently is.
Bostrom's concerns should probably be something more important to be aware of. The ideal is just to not develop technology in specific fields to the point that killing millions is a cheap and easy thing to do. Of course, the tradeoff is totalitarianism, a terror of its own.
EDIT: Some of the comments have argued, relatively convincingly, that this particular news story was overblown and misleading.
Felagund
2yr ago
This feels to me a like a sort of post I don't like seeing others make. It's criticizing our common outgroup (generally speaking), progressives, and is kind of just irritated. It doesn't provide too much more value or insight than "hey, bad thing happened over there." I agree with it, of course, being its author, but I want to do better. Any thoughts about how I could talk about the same topic, while holding the same view, in a better way? Or is the answer just find other things to bring up?
Felagund
10mo ago
How do you justify this, given that you find the majority of her policy positions abhorrent?
Felagund
1yr ago
Many of us have been pointing at NRx for being esoterically or even exoterically Zionist for some time,
Why are the jews your only issue?
Like, objectively, there seem to be far more important things to life in the US than whatever minor portion of the budget gives aid to which parties in the middle east.
Felagund
1yr ago
Thursday's cases:
The abortion DIG I already wrote up. I still need to get to Friday's cases.
Ohio v. EPA
5-4, men vs. women. Gorsuch writes, Barrett dissents.
Another procedural case. The question is whether to stay the enforcement of the Clean Air Act as some states sue over it.
Specifically, the EPA threw out a bunch of State Implementation Plans when it wanted to put in place a Federal Imlementation Plan for preventing ozone pollution (ozone is bad at low altitudes). The states want it not to be enforced until they sue.
The court approves. Gorsuch, joined by the other men, argues that the harms go both ways, so the question goes to who is more likely to actually win the case. He think the states. Specifically, the states are arguing that the agency hasn't explained why the plan would remain in place for the remainder without needing additional evaluation or justification if some states drop out. He rejects the EPA's arguments that they offered a sufficient response (to the argument that the number of states involved might have affected the threshold, so it should be reevaluated), he rejects their claim that they were required to have submitted it during public comment (Gorsuch argues that there was a comment that was close enough), and he rejects their argument that they need to refile, as their grounds for objection arose after the period of public comment. He also rejects the dissent's argument that the complaint was not important, as it doesn't depend on the number of states, because the government did not make the arguments the dissent makes, and there is some reason to think that the different rules for harmless errors seem to be for "procedural determinations," not "actions." And so the stay is granted.
Barrett argues (as background) that the 23 states' SIP rejections were legitimate, and that the disapprovals are only temporarily stayed, not yet invalidated. Barrett rejects the Court's main complaint, the lack of reasonable response, as something that could not have been brought up earlier, and so requires a petition for reconsideration, as it's a new problem. (That is, there was no way to object that, before the public comment period was over.) Second, she doesn't think the comments applied specifically enough. She further thinks that they need to show that the actions were "arbitrary and capricious," which she doesn't think was the case: she doesn't think the cost-effectiveness thresholds were dependent upon which states were involved, but that they were based on national data, so it shouldn't matter which states were involved. It justified the severability in the plan. And they might not be important comments, and the agency only needs to respond to relevant and significant comments. Finally, there's a harmless-error rule in the Clean Air Act. (She argues contra Gorsuch that it applies.) She argues that the court itself is following a theory not advanced by the applicants' briefs, only the oral argument. And so it would be odd to expect the EPA to have forfeited when it never had the proper opportunity to respond. And she would exercise discretion anyway to look at the harmless-error rule, even had this not been brought up.
I'm more sympathetic to Barrett here.
Harrington v. Purdue Pharma L.P.
5-4, but not quite the usual lineup: Gorsuch, joined by Thomas, Alito, Barrett and Jackson. Kavanaugh dissents, joined by Roberts, Sotomayor, and Kagan.
The case is about bankruptcy law.
Based on Gorsuch's presentation of the history:
Purdue Pharma, held by the Sackler family, made billions from sales of Oxycontin, and so was a major force behind the opioid epidemic. A decade later, they admitted it was wrong to brand it as less addictive, and underwent thousands of lawsuits. In response, the Sacklers significantly increased the revenue that they took in from the company.
Purdue filed for bankruptcy. The Sackler family proposed to return 4 billion over the course of a decade of their 11 billion profit, asking to extinguish outstanding claims that the Purdue bankruptcy estate would have against the family, and "the Sackler discharge": to stop lawsuits against them from opioid victims. The Sackler discharge consisted of a release voiding current and future opioid-related claims, and an injunction enforcing the release "forever staying, restraining and enjoining" claims against them. Purdue agreed to this (of course) and included them in the bankruptcy plan. In that plan, Purdue wanted to reorganize as a company for opioid education and abatement. And they would pay victims between 3500 to 48000 over up to ten years. Opioid victims opposed the plan, as did some states. The bankruptcy court confirmed the plan. The district court vacated the plan. The Sacklers suggested upping the amount in Purdue's estate by another billion and a half, if the states would withdraw their objection, which events then took place. The Second circuit judged it good. Now SCOTUS addresses it.
Gorsuch turns to the text of the statute, saying what a bankruptcy plan may do. All agree that the Sackler discharge is justified in the final category: "(6) include any other appropriate provision not inconsistent with the applicable provisions of this title." Gorsuch argues that it is standard to interpret catchalls like this not in the most broad manner, but in context, involving only similar things to the preceding list. But the previous five all involve the rights, responsibilities, and relationship to creditors of the debtor (here, the debtor is the Purdue estate), not other parties. And the word "appropriate" qualifies it, it is not unbounded. The dissent claims that not all are about the debtor's rights and resonsibilities, as (3) may settle "derivative claims" against nondebtors, but Gorsuch responds that that involves only claims belonging to the estate. All agree that the bankruptcy plan can address claims held by Purdue. But not claims by others against others. Gorsuch rejects the dissent's arguments that the catchall should be read as anything that would help bankruptcy law in its purpose, by arguing that bankruptcy law is not intended to be limitless; it cannot just do whatever to manage bankruptcy, without regard to other legal mechanisms.
He argues further that there are other statutory reasons to reject the Sackler discharge. First, in general, the bankruptcy code only gives discharges to the debtor. But that isn't the case here. Second, it constrains the debtor: they must come forward on all assets, it doesn't dismiss charges around fraud or willful or malicious injury, does not affect trial by jury regarding injury or wrongful death. But the Sackler discharge does none of these—they pay much less, and even those sorts of claims are extinguished. And finally, bankruptcies involving asbestos have a specific provision that they may bar action against third parties, and so that shouldn't be allowed in general. Gorsuch turns to history, stating that there are no comparable cases prior to the enactment of this act under previous bankruptcy codes, so it should not be read as embracing it, when there's nothing explicit to that effect.
Gorsuch states that "plan proponents and the dissent resort to a policy argument." (Recall that in Rahimi last week, Kavanaugh, the author of this dissent, rejects policy.) That argument is that the Sacklers assert that they will give nothing unless the release and injunction are granted, and so this is better for victims. The Trustee argues that the Sacklers can still face lawsuits of their own, and they may even negotiate consensual releases to avoid the lawsuits. On the other hand, the U.S. Trustee argues that ruling in favor of the Purdue here, and allowing nonconsensual third-party releases allow winning immunity for claims that are not dischargeable in bankruptcy, and without all assets, which would allow corporations to misuse the system to avoid liability. Gorsuch rejects policy concerns, on both sides, as irrelevant; he's not Congress.
Kavanaugh's dissent is enormous—54 pages. 13 on the appropriateness of non-debtor releases, 13 on appropriateness in the case of Purdue, and 21 disagreeing with Gorsuch's (20 page) opinion. This might be the longest opinion of the year; it's at least the longest one I've read yet from this year, I'm pretty sure.
Kavanaugh opens by explaining bankruptcies. They exist to resolve collective-action problems, in the form of everyone trying to get in a claim, then the slowest get nothing once the first ones recover everything. Instead, creditors get a proceeding upon all of them. The parties make a plan, and that plan may release claims against the debtor. At least creditors holding at least 1/2 in number, 2/3 in a mount, and in every class must confirm the plan for it to go into effect. They are consensual, even if some dissent. This case is a mass-tort case. Sometimes, "it is not only the debtor company, but rather another closely related person or entity such as officers and directors who may hold valuable assets and also be potentially liable for the company's wrongdoing." But it can be hard to pass legal hurdles, or reach their assets, so settlements are often reached releasing them, in exchange for substantial payments. It also solves a collective-action problem, in that it allows them to be divided equitably. And so they have often found them appropriate, and have been in use in asbestos bankruptcies and other such cases. They are needed for fair recovery and distribution of claims. He argues, then, that they are "appropriate," as that is the key term in (6), and argues that that, as in previous cases, is a broad term. The second circuit has ruled that the released party must be (1) closely related to the debtor, (2) they must have claims "factually and legally" intertwined with the ones against the debtor, (3) the "scope of the releases" must be "tailored to only the claims that must be released to protect the plan,"(4) the court should approve only if it is essential to the plan's success, (5) and the court must consider whether they've paid substantially to the estate, (6) determine if it provides fair payment, and (7) show that creditors must approve with at least 75%.
1-4 are to solve collective action problems, 5 makes it not a free ride, 6 to ensure fair compensation, 7 to ensure most approve.
He highlights that in general, there are high approval rates. He highlights also that these bankruptcies, by default, involve releasing claims non-consensually, the only difference here is against whom.
Then he turns to Purdue Pharma and the Sacklers. Apparently, there are $40 trillion worth in claims. Over 95 percent approved of the plan. Claims against both Purdue Pharma and the Sacklers were released. This was needed to preserve Purdue's assets. Purdue had agreed to pay for liability and legal expenses that officers and directors of Purdue would undergo in the future, including against the Sacklers. So Purdue could pay a substantial amount of money from the Sacklers. "So releasing claims against the Sacklers is not meaningfully different from releasing claims against Purdue itself." Otherwise some could race to the courthouse and take all the assets. (Gorsuch had addressed this in a footnote, saying that the US Trtustee said that the agreement does not apply if the Sacklers did not act in good faith, and that bankruptcy courts could get rid of the claims in other ways.) Second, the agreement increases the funds in the Purdue estate, so that victims receive more. (The US would take the entire 1.8 billion first, otherwise.) Kavanaugh says that the Bankruptcy court said that victims would be unlikely to recover from the Sacklers the money otherwise, as their legal theories have weaknesses, and their assets are overseas and otherwise protected. And if they did, one large claim could wipe out most of their assets, leaving everyone else with virtually nothing. Over 95 percent approved. Only a few are opposing it now. And so, it is appropriate.
Now Kavanaugh turns to address the court. He doesn't think the ejusdem generis (that is "of the same kind") canon for interpretation of catchalls was applied there properly. The releases do still involve the debtor: they involve releases on Purdue's misconduct. But he reads the court's argument as wrong in two ways: First, they are not limited to the debtor, as (3) nonconsensually extinguishes derivative claims against nondebtors. He argues that the court is wrong in distinguishing derivative from nonderivative claims. Kavanaugh argues that three other types of release also argue against the court's interpretation. Consensual non-debtor releases happen, are uncontroversial, and are not explicitly authorized in the bankruptcy code (and so would fall into 6.) But that would seem different—why should that be permitted in bankruptcy plans? Full-satisfaction releases provide full payment, and then release the claim. But this too is not explicitly listed. Exculpation clauses "shield the estate's fiduciaries and other professionals from liability for their work on the reorganization plan," (in order to prevent liability in creating the bankruptcy process), also fall into the catchall, and involve claims against nondebtors.
And secondly, it is proper to look at the purpose of the statute when doing an "ejusdem generis."
He rejects the Court's other arguments: the asbestos portion explicitly says it is not to be taken to affect any of the rest of the statute. He reject's the court citing a passage which says that a plan's discharge of the debtor "does not affect the liability of any other entity on … such debt," as that is instead to be read as leaving those who were co-debtors with a bankrupt company with the debt they had taken on, instead of wiping it. He rejects the claim that this is a discharge, as discharges are technical, and involve getting rid of all debts. Released are narrower, and involve payment. Kavanaugh rejects also the court's saying they would need to file for bankruptcy, to pointing to where they could release a nondebtor from liability to the debtor. He argues that discharges are meaningfully different from releases, so it's not a problem that it releases all classes of torts, not just some. And he says that the court seems concerned that they did not pay enough, but that is no reason to categorically shut down such releases. He also disagrees on history and practice, as they have been in use throughout the history of the bankruptcy code, and changes in the current code from previous codes are relevant.
He says, "today's decision makes little sense legally, practically, or economically. " Among other things, it hurts the victims. More litigation is costly, even if things get worked out. It is hard to achieve a deal without such releases. There are unlikely to be any settlements. This will prevent exactly what the bankruptcy system is designed to do.
I don't really know how I feel about this case. Kavanaugh convinced fairly effectively that his preference is better for the victims, but I'm still not sure which is better law.
SEC v. Jarkesy
6-3. Roberts writes, joined by the conservatives. Gorsuch concurs, joined by Thomas, Sotomayor dissents, joined by the liberals.
The court argues that under the 7th amendment, the SEC needs juries, as it is trying people for fraud, which is
Roberts briefly notes that the seventh amendment was a product of the British trying people without juries in other courts that did not require it, and it was in this context that it was enacted. Its text is that in "suits at common law…the right of trial by jury shall be preserved." Common law there is not restricted to common law at the time of the founding, but is talking about law as opposed to equity, admiralty, and maritime jurisprudence. (He cites precedent for this.) So any suit that's not equity or admiralty jurisdiction is common law. This requires that it be legal in nature. The relevant factor (citing Tull) is that its remedy be legal, not equitable. Because the SEC seeks monetary damages as punishment, not solely to restore, it is legal. The facts are clearly legal, as both the conditions for penalties and the level of them have to do with punishing the defendant, rather than restoring to victims. (The SEC may give money to victims, but that's optional.) And so this must involve the Seventh Amendment. This also makes sense because securities fraud is closely related to common law fraud, even if the boundaries are not precisely the same. This is also evidence that it is legal in nature.
Roberts turns to address the contention of the Government and the dissent that the "public rights" exception applies. In such cases, Congress can give it to an agency, without the Seventh amendment. Private rights cannot be removed from Article III courts. But the court has recognized "public rights." These could historically be done exclusively by the executive and legislative branches. The example cited is compulsion of a customs collector to deliver a sum of public funds that he had failed to deliver; his land was seized to do so. Other examples also exist, such as a fine on a steamship company on those who brought the sick who had bad diseases (He rejects the dissent reading this broadly; the case cited here explicitly restricts itself to power over foreign commerce). Or the imposition of tarriffs. Some others involve Indian tribes, administration of public lands, and granting public benefits, like patent rights. While these are not worked out in full, Roberts emphasizes that these are exceptions, not the rule, and so require close attention. (The dissent would read this as Congress can do whatever, essentially, that public rights are whenever Congress passes a statute. This is, Roberts says, argued neither from constitutional text, ratification history, careful analysis, nor case-specific analysis. Rather, some unrelated cases, and Atlas Roofing. This, Roberts says, blurs distinctions in a legally unsound way. He also rejects an appeal to precedent, considering how new the relevant law is.)
There is relevant precedent. Granfinanciera, 35 years ago, did much the same as what they do in this case: it ruled that Article III judges are needed for fraudulent conveyance claims. They ruled in the same way then, for the same reasons: they were "quintessentially suits in common law."
He rejects the argument that Congress can form new statutory obligation—they can't make up a new penalty for the same old common law thing and so strip away protections.
The dissent depends mainly on Atlas Roofing. Roberts doesn't quite get to the point of arguing that Atlas Roofing is overturned, but he critiques it. He points out that its author thought so, when Granfinanciera was judged, in a footnote. Atlas Roofing claimed that what Congress was doing was outside the Seventh amendment in the OSH act, when it required how walls be built. They ruled that it was a new cause of action. Atlas Roofing acknowledges that common law actions need a jury, and so is not relevant here. It cannot support a broader rule. Roberts, in a footnote notes that the dissent treats it as widely respected, and in response provides a lengthy list of critiques of Atlas Roofing, then finishes the footnote by saying "We express no opinion on these various criticism." He then notes that subsequent precedent after Atlas Roofing have clarified that new statutory regimes are included, if the claims are "akin to common law claims," and that the public rights exception does not apply every time Congress gives an agency any adjudicatory power. Roberts also rejects the argument that public rights applies whenever more government efficiency is useful, which would gut the Seventh amendment altogether.
Roberts declines to reach the other two issues (nondelegation, and separation of powers), as this suffices to resolve the case.
Gorsuch concurs, with Thomas, writing "to highlight that other constitutional provisions reinforce the correctness of the Court's course." He points to Article III and the Due Process clause of the Fifth Amendment.
Gorsuch goes a little further into the process of Jarkesy's case. The Dodd Frank act in 2010 had given the SEC the ability to direct people through its own adjudicatory system, rather than through courts, which the SEC did in this case. They sent him to an "administrative law judge," but those judges are not as independent as article III judges, but serve an agency, and there is no jury. They have a significantly higher win rate. He lost, in doing so, many other procedural protections, such as being able to cross-examine witnesses, or discovery being a thing. Its judgment can be appealed to the Commission, but they may decline to review, or may increase the penalty. Afterward, he can go to court, but there he would not have had a jury.
Gorsuch then turns to history. The British would preferentially seek rulings not in local courts, but in vice-admiralty tribunals, without juries or properly independent judges, and with weaker standards of evidence. Those courts were supposed to be confined to maritime matters originally, but more and more things were allowed by Parliament to be litigated there over time, at least, in the American colonies. They preferred to avoid colonial juries, who "were not to be trusted." The British preferred to turn to them, as they were more successful there. This matter was among the causes motivating the declaration of independence. Article III served to avoid this, in its vesting the Judicial power in courts giving life-tenure and protected salary, to restrict the influence of the executive branch. Nor could Congress move other things out from judicial power. In response to additional concerns, the bill of rights was passed. The seventh amendment preserved juries, the fifth amendment ensured proper procedure.
Each of these three require ruling in favor of Jarkesy. First, since it is in the common law, it requires Article III judges, in article III courts. Second, it is neither equity nor admiralty, but before common law courts, so the Seventh Amendment guarantees a jury. And third, the Due Process clause requires common law, which would mean usual proceedings, not "ad hoc adjudication procedures before the same agency responsible for prosecuting the law, subject only to hands-off judicial review."
Gorsuch turns to public rights. The government suggests any new statutory obligations, civil penalties, and administrative agency suffice. Gorsuch agrees that they are not that, but specific classes. He mentions theories as to their origin—practical consideration in tax collection, or that they fall outside the traditional "life, liberty and property." But whatever the cause, they need "an unbroken historical pedigree." The things outside judicial courts at the time of the founding are what public rights actually are. But this is plainly not that. Gorsuch addresses their reasoning: the Court's precedent In Crowell v. Benson, the court allowed the Longshoremen's and Harbor Workers' Compensation to proceed. It had it vested in a commission. Gorsuch treats it as a bit sketchy ("took a dash of fiction and a pinch of surmise"), and involved some dubious things in relation to Article III judges. But at least it was only in admiralty jurisdiction. But swiftly, there were further encroachments. The most was in Atlas Roofing, which some read to suggest essentially anything in a statute is public right. But this was mostly rejected in Granfinanciera, which read Atlas Roofing as leaving "public rights" undefined. Various tests have occurred since then, but in this case they return to the proper understanding.
The court may not deprive the people of their constitutional rights. They do not treat the other rights so lightly. (See the 1st, 2nd, 4th, and 6th amendements.) The 5th and 7th should likewise be taken seriously.
Gorsuch says that the dissent's account is "astonishing." The Constitution, apparently imposes no limits on the government's power to seek penalties outside the ordinary courts of law. Not even the balancing tests after Atlas Roofing. No account of how at all this addresses the Founders' concerns, or where this rule comes from Article III, the Seventh Amendment, or due process. They cherry-pick the precedent. Misread Oceanic Steam Nav. Co. v. Stranahan, which is actually just one of the narrow questions. It's odd, Gorsuch says, if the public rights is really that broad, that the former courts would bother to look at all the things they did to justify their law, instead of following the simple rule of the dissent. Gorsuch notes (and I found this particularly pointed) that the dissent is not even consistent, as in other cases the same justices have often argued for the need for procedural safeguards, worried about governments abusing, and pressure from prosecutors, and been concerned with matters of procedure, and argued the importance of the jury-trial right. The dissent also gives no explanation why this does not extend to criminal matters. The dissent complains against turning to the founding, and says that it's rule would be easier. (Gorsuch cites himself saying in Rahimi that it would indeed be easier to implement a rule that the government always wins.) When the dissent complains that this is unworkable and unpredictable, he rejects their balancing test approach as no better. And the Court's approach to precedent is better, and, as they acknowledged in another case, consistent with stare decisis. He characterizes this as really about a "power grab," that the Constitution's promise of a jury trial would constrain governance too much.
It's well written.
Now, onto the dissent. After her intro, and introducing the facts, Sotomayor states that "longstanding precedent and established government practice uniformly support the constitutionality of administrative schemes like the SEC's." This, she cites, should have great weight.
Sotomayor says there are two relevant constitutional provisions: the 7th amendment, and the vesting clause of Article III. "The principal question" is about aricle III and the separation of powers. The amendment is about "suits at common law." As it is suits, it only involves judicial, and not administrative proceedings. And since it must be at common law, it must be legal in nature. When it is not in an Article III forum, the proper question for whether it is legal in nature is whether Congress properly assigned the matter to that forum consistent with Article III and the separation of powers. If Congress properly assigned the matter to an agency for adjudication, it therefore resolves the Seventh amendment challenge. So, then, the question is whether it can assign it to a non-Article III factfinder. These are permissible as public rights. Public rights, Sotomayor says, refer to "right of hte public," claims brought by or against the United States.
Sotomayor goes through precedent. Murray's Lessee, involving seizure of lands to make up for withheld funds, referring to "public rights." Then Oceanic Steam Nav. Co. v. Stranahan, upholding a customs offical's imposition of penalties. It rejected that "in cases of penalty or punishment enforcement must depend upon the exertion of judical power, either by civil or criminal process." There was already at the time delegation by Congress to executive officers to enforce penalties, without judicial power. Congress being able to assign that power has been repeatedly affirmed by SCOTUS. This was unanimous in Atlas Roofing, the last case involving the constitutionality of an "in-house adjudication of statutory claims." Two employers had argued that OSHA was unconstitutional, because seeking civil penalties for violation of a statute is a suit for a money judgment, which is in common law. SCOTUS upheld OSHA, due to public rights arguments. Sotomayor says that the majority "wishes away Atlas Roofing by burying it at the end of its opinion and minimizing the unbroken line of cases on which Atlas Roofing relied, and this undermines stare decisis and rule of law. Both this and Atlas Roofing involve "new causes of action, and remedies therefor, unknown to the common law." So it's fine to assign them elsewhere. "In a world where precedent means something this should end the case."
Sotomayor says that this has not been addressed since Atlas Roofing because it is so settled, and undisputable. Sotomayor does not think the majority suitably defines a public right, and does not explain why it exists. Atlas Roofing rejects the theory that public rights is limited to particular exercises of congressional power. The employers made the argument that they referred to several narrow roles like taxation; SCOTUS rejected that. And she does not think the majority can justify Atlas Roofing's decision. Sotomayor points out further that the majority skips several cases where they uphold adjudication in a non-Article III forum, in cases not able to be characterized as public right under the majority's definition. She asserts that it is actually the majority and concurrence that are picking and choosing, not her. She thinks their definition of public right is a "we know it when we see it."
Tull and Granfinanciera she thinks not relevant: the first involved a suit in federal court, and the second a dispute between private parties, and so do not involve the government in its sovereign capacity. Sotomayor argues that the Court has long endorsed imposing money penalties without needing judicial power. Tull was in federal court, so it isn't relevant to show that "statutory claims for civil penalties" is a "type of remedy at common law." Tull also agrees that it does not involve administrative proceedings. Granfinanciera only involves disputes in which the Federal Government is not a party in its sovereign capacity, and allows for claims analogous to common-law claims to be judged in non-Article III fora. (In a footnote, Sotomayor says that Granfinanciera reaffirms Atlas Roofing several times; disagreements are constrained.) Sotomayor says that Granfinanciera says how to identify public rights: from Congress, inhering in the Federal Government in its sovereign capacity, or when Congress, acting according to a valid purpose, created a private right integrated into a public regulatory scheme "as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary." Sotomayor sees the majority as dismissing the distinction between the two. The majority is wrong to have Granfinanciera decide the case, when it only specifies that its analysis applies when not involving the Federal Government. And so the majority fails to distinguish Atlas Roofing. "A faithful and straightforward application of this Court's longstanding precedent should have resolved this case." Following precedent keeps courts apolitical. Departure should have considered special justification. The majority's striking down the law is "a seismic shift." It "Pulls a rug out from under Congress" without acknowledging what it's upending. There are over 200 relevant statutes, and more than two dozen agencies that can impose civil penalties. It is a "massive sea change." Sotomayor does not like that the Court tells Congress how to structure agencies, or provide for the enforcement of rights. the SEC's scheme has benefits. This decision is a "power grab," an arrogation of Congress's policymaking role, and violates the separation of powers.
Thoughts: I think Sotomayor was more convincing as to what the precedent was saying, though not to the point that the majority didn't have a few points here or there. On the other hand, the majority was more convincing as to what the Constitution was saying, and unequivocally so. I think Gorsuch's account upheld the 5th circuit, though he didn't say as much, on all three possible grounds, which makes it considerably more radical. It's a good opinion, though. Also, Gorsuch thought Granfinanciera was 25 years old; it's 35. This is a big deal, though maybe not quite as big a deal as Sotomayor portrays, because Roberts restricts himself to the first ground. I think I was underestimating importance, despite already thinking it relatively important, prior to reading it.
Anyway, I still need to get to Friday's cases.
Felagund
2yr ago
Sure, I'll try my hand.
Let's start with the existence of God. What's seemed the strongest argument to me is just the question, why is there something rather than nothing?
Why does anything exist? What caused the big bang? The only answer that doesn't lead to an infinite regress, so far as I can tell, is that something must necessarily exist. The main candidates for this that I've heard of are a God of some form, or a Tegmark IV multiverse—the extreme of mathematical platonism, where everything possible exists.
(What about just things happening utterly randomly and causelessly? I'd be really worried about that breaking induction—why doesn't that happen again. To be clear, I'm not talking about the constrained randomness of quantum mechanics. What about a loop or an infinite regress? I'd think we can just collect all the terms and ask if that has a cause.)
The first hypothesis seems more likely than the second, because it seems to better explain why I'd find myself in an orderly world. There are many more ways to disorder something than to order them—e.g. there's only one world where the laws of physics continue as usual, but a much greater number where they broke down 3 seconds ago. I'd also be worried about whether things like Boltzmann brains could end up being common enough to harm our epistemology—not in itself a measure of likelihood, but one hurting pretty severely the ability to do epistemology, since again, the law of induction becomes pretty broken. I'm also unsure whether consciousness harms the ability encapsulate everything mathematically, which the Tegmark hypothesis would seem to require.
Let's say there's some a pretty good chance there's some necessarily existent thing out there. What sort of thing might it be? One perfect in every way seems like one of the relatively more likely possibilities, though it might be hard to say what's a perfection. Not sure how to do anything more exact here, but a pretty decent a priori probability is enough to matter, I'd think.
Okay, that's all towards some form of theism. What about Christianity in particular? The largest obstacle, I think, to most people is that miracles seem really unlikely. This is mitigated to a pretty substantial extent if you think that a god exists. Once there's a mechanism to account for miracles existing, that seems to raise the probability a good bit. If you will, it's no longer something beyond some unbreakable laws of physics, since it's something allowed under the true laws of physics that aren't usually in play. (If you still find it hard to believe that this sort of thing can happen, do you also treat the simulation hypothesis as absurd—at least, if it thinks that there could be intervention once in a while.) But in any case, some documentary evidence and some accompanying historical evidence seem rather sparse to believe in a resurrection from the dead. I think the accompanying teachings of the christian scriptures significantly raise the reasonableness of thinking that it took place, since it places it in a context where this is at least something not improbably, where this is the way to accomplish some aims. This is especially the case since descriptions of what took place were written hundreds of years beforehand—see Isaiah 52:13 through to the end of Isaiah 53. The gospels and epistles are also better than average for ancient historical texts in some other respects—they're written not too long after the death of Jesus, within the lifetime of those who knew him when he was alive. Paul, at one point, refers to 500 people who witnessed Christ after his death.
Let's say that all that argumentation fails. There still seem to be reasons that it might be a sensible thing to adhere to, even if you think it's relatively unlikely. Pascal's wager is formidable, for one. Ethics or purpose seem a good bit easier to come by, which, by no means necessary, do mean that those worlds might be ones that you should concern yourself with more.
Supreme Court Term Limits
In a thread recently a bunch of you considered the Biden Supreme Court term limits proposal not that bad. Steven Calabresi just wrote a piece on just how radical and worrying it is. I'd realized things were bad, but not how bad.
Let's set aside the minor things I was talking about before, like how the proposal would lead to two new justices each term in a way that would increase how politicized the court is. Those are dwarfed by Calabresi's concerns.
One thing I hadn't sufficiently thought about is the effects of this being a statutory and not constitutional proposal. The chief one, of course, is that they only need to get a trifecta, not a supermajority, to pass the bill. Well, how likely is that? Manifold puts it at a 21% chance of a democrat trifecta. And if that happens, there's a 65% chance they end lifetime appointments. If I can multiply, that's about a 14% chance of this happening. I assume themotte is numerate enough to realize that for sufficiently important events, that's really high.
Okay, so what would happen? Unfortunately, we don't actually have a draft bill on hand. What we know is that this proposal would add a justice to the court every two years, with 18 year terms. There are two problems with this, as stated: first, it's blatantly unconstitutional, and second, how do you get this to combine with the current system?
It would be unconstitutional because the Constitution provides for "in good behavior." Calabresi clarifies that under British law this would mean "life, unless you commit felonies," and in the context of the American Constitution would be likely to require impeachment. In order to evade that (recall, they do not plan for an amendment), they are likely to have them graduate to some nominal title like "senior justice" with basically no power (maybe still let them play a role in the "which state gets the water rights" disputes, but not anything else), because the Constitution gives Congress power to shape appellate jurisdiction.
The second issue is how to start this up. The way that has only minor harms is that they could make the limits start only for future justices. Maybe each seat switches to 18 year terms after the current inhabitant resigns or dies, with the term already partway through to align with the biennial appointments. But let's face it, there's no way they choose this. Their concerns lie entirely with the current court; the term limit proposal is merely a nice-looking vehicle to attack them through. It would make no sense for them to ignore the reason that they're passing this. What they'd actually do is immediately phase out people as soon as they reach 18 years. That would mean Thomas, Alito, and Roberts would be immediately gone. They would then promptly replace them with three new rubber-stamp progressives.
I imagine the court may well, when it would first have the opportunity, strike down the stripping of jurisdiction as unconstitutional. I'm not sure. But that wouldn't get rid of the three new justices just installed. The court would then sit at 6-6 (with, I imagine, the conservatives being significantly more willing to break ranks than the liberals). The first expansion of the court since the 9-justice court was established in 1869. This is the first serious threat at court packing in nearly a century, when FDR pushed for it. (I wish some amendment to stop court packing had been passed during the good while when it was uncontroversial.)
Of course, Republicans would, upon gaining their own trifecta however many years later, promptly then adjust the rules to their liking. The net result of this will in the long term be the end of the independence of the federal judiciary, seriously harming things like equality before the law. So much for caring about democracy and so forth.
Will this happen? Probably, if they get the chance. Sinema and Manchin will both be gone, so there's not much risk of filibusters surviving. Posing it as being about term limits, instead of court-packing, dramatically lowers how radical it seems, making them more likely to do it. And 36 senators have already signaled that they are already willing to substantially mess with the court by proposing the No Kings Act, so it's well within the Overton window. No chance Kamala is more moderate on all this than Biden is.
Okay, well, what can stop this disaster? The main things are: hold onto the Senate, hold onto the presidency, or get moderate democratic Senate candidates to say they won't go along with it. The last is tricky to do rhetorically ("term limits" sound good, as seen by the positive reception it got here). So it's not the easiest to convey that the democrats are now the party threatening our system of government. The easiest way currently is to win in the Senate. The Democrats have to basically hold onto every seat, including those in red states. Unfortunately, they have a moderately high chance of doing so, but Montana's Jon Tester, at least, has a greater than 50% chance of losing his seat. Should these fail, I hope one of the liberal justices can be convinced to break the usual custom against political advocacy to speak about how bad an idea this is. I'd also try convincing Obama to come out against it, if there's any way to do so, as he holds influence without (I imagine) being quite as scrutinized and purity-tested and generally pressured by whatever the current left-wing discourse is pushing.
As a final note, the No Kings Act is also pretty radical—stripping jurisdiction in immunity cases from the Supreme Court (leaving it at the circuit courts), and instructing Federal courts to ignore any presidential immunity. No way is that last part constitutional, and would even more quickly lead to the destruction of the federal judiciary and end of separation of powers, as (if allowed, which, they're also trying to make it logistically difficult to challenge), with the floodgates opened, acts of this form would be increasingly used to force the courts to do whatever the current congress feels like.
A terrible dereliction of their oaths to support the constitution, on the part of the democrats who support all this, and revelatory that all their claims about the importance of protecting our system of government and its norms has the enormous asterisk that they'll destroy it all, if they're inconvenient.
Pennsylvania's Commonwealth court just ruled that ballots that are in Allegheny or Philadelphia must be counted, even if they are undated or misdated. This only applies to ballots submitted on time, purportedly. The takes that I've generally seen online are that this is evidence that they have plans for fraud. The court argued this, though, on the grounds that dates are unnecessary, as the counties have other means of telling when votes were submitted (I think they scan a barcode when received). But what's certainly a problem is that this decision was written to apply only to Allegheny (where Pittsburgh is) and Philadelphia counties, the two counties that contribute the largest margin to the democrats. Given that they estimate that around 75% of mail-in ballots are for democrats in Pennsylvania, the most mail-in ballots are from suburban and urban voters, and that around 10000 ballots were not counted for that in 2022, this could have the effect of aiding the democrats by 5000 votes or so. Thankfully, this is only 0.07% of the vote, so not all that likely to be decisive.
The other interesting feature of this case is that the court ignored non-severability provisions, which said that if any provision of the act, or its application to any person or circumstance, was held invalid, the whole act is void. They did so merely by arguing for a presumption of severability in Pennsylvania laws, despite the explicit language to the contrary in this case. Voiding the act would have thrown out the entire mail-ballot system. Them striking down part of it, but not the whole thing, against the explicit text, seems the most sophistic part of the whole thing, to me.
This can still be appealed to the Supreme Court of Pennsylvania. It's blue, though, so I'm not expecting changes. Thankfully, it doesn't seem like, barring fraud, the effect will be too large.
Edit: Make sure you read the comments of @Rov_Scam, where he argues that I'm not representing this accurately or completely—I don't want to be misleading.
Felagund
11mo ago
I wonder what attacks on their campaign are most likely to stick. There is no record for the future, just vibes. Maybe the best attack on that is that she caves to pressure, especially from leftists? This sort of attack seems better to match the amount of agency she is projecting herself as having, and allows you to show why that's bad.
Debates soon would be good. Once they start actually taking positions, then you have positions to attack.
Felagund
1yr ago
simply because the earlier amendments require things like trials and forbid self incrimination.
They argue that if it conflicts with other portions of the constitution, it satisfies or supersedes them. I think they still think there are processes for dealing with these things and challenging actions of this sort, it just doesn't have to start with a conviction.
I can’t imagine that Trump or his supporters aren’t going to fight pretty hard against anyone refusing to put Trump on the ballot.
Certainly, as they should.
It’s definitely against the spirit of free elections to refuse to put a declared candidate who meets the qualifications in state law on the ballot.
Sure. But it might be what the constitution requires, if they authors are right on this. Keep in mind also that the constitution is "the supreme law of the land."
Without a conviction, and one that’s specifically mentioned in the constitution as disqualification for office, they’d have a very strong case.
This is another basis for disqualification from office.
Felagund
1yr ago
South Africa's Election
Since the 1994 election, the ANC (African National Congress) has been in power, and been running South Africa into the ground. Unemployment is sky-high, crime is rampant, power outages are now common (and usually scheduled), by the name of "load shedding", corruption is ubiquitous.
For the first time, in the election occurring one month from now, the ANC risks losing power. But this may not be a good thing, as more radical groups will be eager to form a coalition.
Some background on racial history may be needed.
There are four racial categories used by the government for people in South Africa:
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White people are of European descent, of course. There are two main populations: people of British ancestry, who more frequently speak English, and Afrikaners, who are descended mostly but not entirely from a mix of Dutch, German, and French ancestry, and speak Afrikaans, a language descended from Dutch. White South Africans have a distinct group identity. They don't think of themselves as European imperialists, or something. Afrikaners in particular see the Great Trek when they traveled inland after the coming of the British as important ethnic history.
Currently, white people make up about 8% of the South African population. This is the largest population of European descent anywhere in Africa. Demographically, they are relatively older and have lower fertility rates, so expect this percentage to shrink. Per wikipedia's data, they make up about 5% of those in the 2011 census who were under 15.
Also of note is that white South Africans are disproportionately wealthy. South Africa has one of the highest levels of inequality in the world. Some portion of this is due to legacy from Apartheid, as whites were privileged economically and lived in regions closer to economic activity, by statute. And, of course, European institutions were better set up to lead to economic prosperity.
(To prevent economic competition with black workers was actually one of the driving factors behind the establishment of Apartheid.)
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Unlike in the US, where colored is taken to be a slur of sorts, in South Africa, coloured is a distinct racial classifier. Coloured people are mixed race, descended from a variety of groups. They are the most ethnically and genetically diverse ethnic group on earth. Among the genetic influences are: the Khoekhoe pastoralists that once lived in western South Africa prior to the arrival of the Europeans, white European ancestry, ancestry from the black Bantu groups, both from eastern South Africa and from slaves imported from elsewhere in Africa, and east and south asian ancestry, especially Malaysians. This population is not homogeneous; different places may have different ratios. Coloured people primarily speak Afrikaans, and make up a large portion of the population in the Northern and Western Cape, the two westernmost provinces. They make up about 8% of the population.
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Black refers to the portion of people who have ancestry primarily from the Bantu ethnic groups of Africa. South Africa has many such groups—of the 11 official languages, 8 are Bantu. The largest and most important Bantu populations are the Xhosa and the Zulu peoples, who together are about half of the black population. (The Zulu have existed in their current form for surprisingly little time: the Zulu empire was built in the early 1800s, when the small Zulu clan, under Shaka, violently conquered and incorporated all their neighbors, before being conquered by Britain decades later.) About 81% of South Africa is black.
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And Asians, who make up about 2% of the population.
I'm not really entirely familiar to what extent more fine-grained ethnic distinctions matter to group identity and decision-making, as I don't live in South Africa.
Some Relevant History
Apartheid (pronounced uh-par-tate, not -tide) is infamous, of course. Running up until 1994, the Afrikaner National Party was in power, and had regulations keeping racial separation and government-backed privilege of whites in place. Among the key causes in its formation was white Afrikaners wishing not to compete for employment with black people in the early 20th century.
1994, with the end of Apartheid and the election of Nelson Mandela was a key moment. South Africa managed to transition relatively peacefully and democratically, as these things go, though not without incident.
The ANC, or African National Congress, was formed under Apartheid. It was communist (the Soviets trained them), and participated in violence. Nelson Mandela, though a peacemaker late in life, was much less of one earlier. And his wife, Winnie Mandela, was far more violent: she was known for necklacing, that is, drenching tires in gasoline, putting them around the necks of victims, and setting it on fire. But nevertheless, the transition in the 1990s was generally peaceful, with the Truth and Reconciliation Commission, and so forth. Since then, the ANC has remained in power. The ANC remains economically left-leaning. It has implement several racial programs, including Black Economic Empowerment, a form of affirmative action, which pushes black ownership and management, especially, among companies. (You may think that this would lead to whites struggling to find work, but this seems not to be the case; white unemployment is far lower than the national average, though still higher than in the US). The ANC has struggled with high levels of corruption.
Under the ANC, South Africa has struggled. Among the more visible parts of this is the electricity situation. Eskom, the state utility apparatus, has had pervasive issues with corruption. Contributing further to this is issues with crime: stealing electricity (that is, illegally hooking up lines to the power grid, to get free power) is common in the slums, increasing the load on the system, and people have been known to steal the copper from the power infrastructure in order to sell it.
Further, much of South Africa is doing poorly economically more broadly. The unemployment rate is somewhere around 32%, which is the highest in the world, slums exist, roads are often poorly maintained, and overall things aren't great. There has been some inflation of the rand (their currency), though certainly nowhere near hyper-inflation levels.
Crime rates are high in South Africa. Several South African Cities are listed as among the cities with highest murder rates in the world. Of course, the same could be said of the US cities, and it requires that you have a government capable enough of tracking and releasing those statistics even to show up, so that may not be the best measure. Nevertheless, crime rates are still high by any standard. People have gates with bars in front of their doors, and often fences around their property, at least, among the well-to-do. Many live in gated communities, with private security. There is four times as much private security as police officers.
All this said, South Africa is still among the most prosperous African countries, so there is illegal immigration.
Since 1994, South Africa has had four presidents, all of the ANC. First, and most famous, Nelson Mandela. Second, was Thabo Mbeki. Under both of these people, corruption was common, but it was under the third, and most controversial, Jacob Zuma (president 2007-2017), that it became the most extensive and well known.
While most of those in leadership in the ANC were Xhosa, Jacob Zuma is Zulu, which has made him fairly popular with much of the Zulu populace. He has been known for sexual license, for more rampant and open corruption, most notably, with the India-born Gupta brothers, and pushed for left-wing economic populism and racial grievance.
Since 2017, Cyril Ramaphosa has been in power. While some were hopeful that he would be better than Zuma, South Africa has not done especially well. Controversy has continued with Zuma, with him spending some time in jail, before being released early.
The ANC is currently polling at around 40% nationally, under 50% for the first time since 1994. This makes this election a little unstable, as some coalition will have to be formed.
Enough of history of South Africa and the ANC, now to the opposition parties.
Opposition Parties and the Election
The largest such party is the Democratic Alliance (DA). The DA has long held power in the Western Cape province, where there are fewer Black Africans, and has also managed to govern some cities in the province of Gauteng, where the largest city (Johannesburg) is, and one of South Africa's three capitals. Otherwise, though, it has been the largest opposition party.
The DA is generally considered to be much more competent. The Western Cape has been doing the least badly of all the provinces. The DA is fairly centrist, economically, and opposes affirmative action and the radical redistribution programs suggested by more extreme elements within South African politics. Unfortunately, it also has something of a reputation of being the "white people's party." Its base is certainly not entirely white, as it has been getting around 20% of the vote, of late, which is more than double the entire white population, but that is not entirely unfounded. The leadership is more white, at least, and white people are disproportionately likely to vote DA. It's also relatively popular among the Coloured community. But this isn't good for getting elected. Helen Zille, the leader of the DA from 2009 to 2019, also had the scandal of saying that colonization was a net good for South Africa, which, while maybe true, is probably something you should try to avoid saying when you're a minority party trying to hold together a coalition of like-minded people. The DA would like to have more power less centralized, and more at the provincial level, presumably so that they can get to manage more of the western cape and be less hamstrung by the national government.
The EFF (Economic freedom fighters) was formed in 2013, when Julius Malema and his friends broke off from the ANC. The EFF is very far left wing: they advocate for confiscating land and wealth from white people. If you saw online the discourse about the "Kill the boer!" chants, these were those people. Malema has said that he is not calling for white people, for now. (Yes, the "for now" was part of what he said.) They are communist in ideology, like the ANC. Malema has advocated for aid to Hamas. They wish to (quoting wikipedia here), "expropriate White-owned farmland, nationalise the mining and banking sectors, double welfare grants and the minimum wage, and end the proposed toll system for highways." (Remember, South Africa is at 30% unemployment, and economically relatively stagnant.)
It would be bad if the EFF ended up in power. Because in this upcoming election, the ANC is likely to fall belower 50%, the DA has been worrying about a "doomsday coalition" between the ANC and the EFF.
The EFF has drawn most of its voting from young black men. It received about 11% of the vote in 2019, and was feared to be polling at maybe 17% of the population for this upcoming election, up until a few months ago, but is now back down to around 10%.
A few months ago, Jacob Zuma announced the formation of the MK, (uMkhonto we Sizwe), named after the old paramilitary wing of the ANC. Zuma has wished to be eligible, which is constitutionally questionable because of a 2021 conviction. Nevertheless, he still has had courts rule in his favor, though the process is ongoing.
The EFF and MK are fairly aligned, and seem to be willing to cooperate after the election. The MK supports such things as "expropriating all land without compensation and transferring ownership to the people under state and traditional leadership custodianship," change to a more African-based legal system, replacing the constitution, making college (including through post-graduate) free and compulsory, and providing permanent jobs to everyone capable and willing.
MK is most popular among Zuma's base, so it is doing best in KwaZulu Natal, the Zulu homeland. It has been polling overall at about 10%, taking votes primarily from the ANC and EFF.
The Inkatha Freedom Party (IFP) is affiliated with the Zulu monarchy. Historically, they've done well with Zulus, though that was less the case when Zuma headed the ANC. They support power being transferred to provincial governments rather than the national government, and don't seem crazy. They are polling at only 5% or so.
ActionSA, my vague sense is, like the DA, but more black, and is polling at maybe 3% or so. They left the DA in 2020.
The VF+ (Freedom Front plus) are right leaning, and most popular with Afrikaners. They are in favor of the rights of minority groups, such as Afrikaners and Coloureds, and are against affirmative action, and in favor of free markets and small government. They are in favor of Cape Independence. I think they may have something of a reputation of right-wing racist extremists, because they're Afrikaners disproportionately, and Apartheid was a thing. This perception is funny, because they are policy-wise one of the parties least in favor of racial discrimination. I think they're currently my personal favorite, but I haven't looked excessively deep. They're only polling at 2% or so.
There are more parties.
Of course, all the parties are also gesturing at how Their One Plan Will Work to fix the electricity situation, reduce crime, lead to more jobs, etc.
The DA has organized a Multi-Party Charter to work against the ANC, EFF, and MK, including all the other parties listed above. I haven't yet worked out what exactly that's supposed to accomplish.
It is still unclear what coalition will be formed, and what policies that will result in. I could imagine the EFF or MK being in a ruling coalition could lead to many whites seeking to leave the country.
Provinces
A few provinces are also up in the air. The Western Cape, governed by the DA for the last 15 years, looks like there is a chance that it loses control of the province, or at least has to enter into coalition. This would be bad, as the Western Cape is the province doing least badly. The Referendum Party was recently formed, and is running in the Cape, in the hopes that the DA will need them to enter into coalition to run the province, in order to hold a referendum for cape independence, to get the Western Cape to secede from South Africa. The VF+ also supports cape independence. There were polls not long ago indicating that it is also relatively popular with the people of the cape, with at least a referendum agreed to be worthwhile by the majority. If any such thing happened, it would be strongly disliked by most of the country. The referendum party and VF+ support it, under the right of self-determination, and in order to stop South Africa from dragging down the Western Cape. The Western Cape is the only province that is not majority black, which means that many think cape independence is racist. Of course, even if a referendum occurs, and passes, which are both not especially likely, it's still probably unlikely South Africa just lets them go, and international politics isn't going to want to help the white-coded people by the imposition of pressure.
KwaZulu-Natal, the Zulu homeland, is also uncertain. The MK is doing well, but the ANC, DA, and IFP will all also be relevant.
Gauteng, the most populated and most urban province, containing Johannesburg, Pretoria, Soweto, etc. could also end up governed by a coalition other than the ANC. It was barely won by the ANC in 2019, so it will probably need to be some coalition after this election, but who knows the constituents.
All the others should be taken by the ANC, I imagine.
I guess I'll have to report back later (no idea how long coalitions will take to sort out) how that all turns out. It's looking like we will have a situation where the ANC, DA & co., and MK+EFF will each have enough of a block that any two of them would be able to coalition, but none on their own. I'm not sure what will be most likely to form from that.
If anything radical happens, like the Western Cape seceding, or South Africa Zimbabweing itself, that'll be sure to have an effect on the discourse around the country. (And of course, more importantly, on the people themselves.)
Thoughts on Trump v. United States:
There were five opinions. The Conservatives joined Roberts' opinion, except for Barrett regarding one section. He set out the following:
Presidents have absolute immunity for core constitutional powers.
For official acts more generally, he at least has presumptive immunity, but maybe absolute immunity.
They have no immunity for unofficial acts.
This judgment was based on large part on structural considerations of the constitution. For one, if the Constitution says that the President shall have some power, like the veto or the pardon, Congress cannot, by regulation, limit that or take it away. That would counter the separation of powers and intent of the Constitution. On the other hand, some things have authority from both, so maybe Congress could regulate those.
Additionally, this was based in large part on extensions of precedent from several prior cases, especially Nixon v. Fitzgerald. There, they ruled that presidents could not have civil suits leveled against them for official acts in Congress. While there is a greater interest, there is also a greater danger to the president, as jail is more serious than a financial burden.
The concern is that not having any immunity would allow frivolous criminal cases to proceed, which would seriously limit the bold action that the founders would have wanted a president to take. In such things, the dangers of intrusion on the executive branch must be considered: subpoenas were ruled to be fine in Burr. Executive privilege has long been held to exist. In all such cases, the risk of intrusion is weighed against the interest of the people, and so in this case, because criminal proceedings are a serious matter, they are allowing them, but they are permissible, but cannot pose any danger of intrusion upon the authority of the Executive branch.
Roberts applies this to the particular cases. The conversations with the DOJ officials, including threatening to remove the Attorney General are held to be absolutely immune, as they have past held that deciding who to prosecute, as well as removing officers, are within the exclusive authority of the President. Conversations with Pence are official, but the government may attempt to rebut that it will not impose dangers, as Pence arguably was carrying out a ceremonial role, and as a member not of the executive. Conversations with state officials to form alternate slates of legislatures, they do not rule on whether they are official or not. Public speeches and tweets, they do not rule whether they are official or not, as it is tricky to discern whether he is acting in the capacity of a candidate or of a president. All these they remand to lower courts to work out.
They also rule that official acts may not be used as evidence in courts, especially since it could be prejudicial. Barrett did not join this.
Roberts then rebuts the various arguments of the dissents, points out that they are giving Trump less than they asked, and are still leaving room for most of the charges, and argues that this is not the "chilling doom" that they are making it out to be. And that it is needed to prevent an executive cannibalized by itself, with each administration prosecuting the last, and so in fear of acting itself.
Barrett joins in large part, except the note on evidence. She would prefer to frame it differently: "immunity" is shorthand for saying that the President may challenge whether criminal statutes are constitutional as applied to him, and he can do that in interlocutory review, before the trial. All agree on the first point in some form, at least, even the dissent. And interlocutory review is "necessary to safeguard important constitutional interests." She would prefer to resolve some things the court left open: most importantly, that the president is not absolutely immune from all official conduct, as Congress has concurrent authority over many government functions, and so they should be able to regulate those, including criminally. Barrett would assess whether charges on official acts are valid in two steps: first, by looking at whether the statute reaches his conduct (e.g. maybe the murder statute prohibiting "unlawful" killings doesn't apply), and second by looking whether it poses danger of intrusion on the authority and functions of the executive branch. For example, the electors case would not intrude. This is the usual case in criminal law. The difference is interlocutory review, and this is necessary because even the mere existence of the trial itself threatens constitutional interests, and so they must be addressed at the outset. She disagrees on whether immune official acts can be evidence, though—it may be necessary in some scenarios, and they can follow the ordinary route of instructing juries only to consider them in specific capacities.
Thomas writes, in something of a sideshow, on the whole office of "Special Counsel." The appointments clause requires the President to appoint some listed offices, and other offices to be under Congress' jurisdiction, but by require it to be done by law. The President may not merely produce offices; some of the motivation for this was due to the history under England, where the King could create new offices and fill them. Congress often explicitly created offices. But there does not seem to be any statute authorizing the appointment of the Special Counsel. He doesn't think the ones cited work. Further, if he is an inferior officer, such a statute would require that the statute give the Attorney General the authority to fill it.
Sotomayor dissents, joined by the other liberals. She sees this as putting the president above the law. Sotomayor thinks that the majority expanded the core immunity beyond any reasonable bounds, baselessly created immunity for official acts, and nonsensically ruled that immune acts cannot be used as evidence.
Starting with text, the Constitution makes no provision for immunity, whereas it did in the Speech and Debate clause for Congress, and some states did for their governors. Additionally, the impeachment clause contemplates prosecution. Turning to history, Hamilton, in Federalist 69, thought the president could be prosecuted, (he says that he was no more secure than the governors of certain states). Pinckney said there was no privilege, and Madison proposed the convention consider privileges of the executive. It was generally agreed that Presidents could be prosecuted. "It seems history matters to this Court only when it is convenient" (citing Bruen and Dobbs). Third, Presidents past understood themselves to be liable, looking especially at Watergate: Ford pardoned Nixon.
Sotomayor thinks the majority's opinion is too broad, when it says no dangers of intrusion, as practically everything has some danger of intrusion. And so their not deciding whether it is absolute hardly matters. Further, they read official acts too broadly. And their basis for it is solely based on Nixon v. Fitzgerald. Fitzgerald considered weight of interest vs. dangers of intrusion. A criminal prosecution is an interest on behalf of the public, and is much greater than the private interest from a civil suit. And she thinks that criminal suits are going to be less serious with regard to the executive: in civil suits he's an easy target from anyone, where as there can only be one criminal suit per act, and further, there are all the ordinary protections in the process of bringing to trial and the trial itself. She does not think bare allegations of malice would suffice. Further, every executive to date has long thought they were vulnerable to such, and it hasn't stopped them from acting boldly, so the Court shouldn't worry as much about that. Sotomayor also rejects that it is a narrower immunity, as Trump's case thought that those impeached could be convicted on those acts, whereas here they are immune.
Sotomayor grants that core immunity would make sense, but that it should not have been at issue here, should not have been addressed, and was made too broad. She does not think he should be immune regarding conversations with the DOJ. She also thinks that the evidence is rule is unprecedented. It is strange to bar official conduct: e.g. barring using speeches to establish mens rea. Nor is the majority's justification any good. And she thinks this case is also bad in its application to the case: they did not conclusively say anything was private, or anything that anything was prosecutable. The follows the passage you may have seen online, where she says that this sets up a law-free zone, and that he would be immune for coups or assassinating rivals with Seal Team 6, or bribes for pardons. And finishes with, instead of "respectfully," "with fear for our democracy."
Jackson agrees with "every word of [Sotomayor's] powerful dissent" and writes to go through "the theoretical nuts and bolts" of how this changes how presidents are accountable. No one should be above the law, and immunity is an exemption from the law. She calls her preferred model and "individual accountability" model: the legislature makes crimes, when someone violates them, a grand jury is convinced there's cause to indict, they gather evidence, go through a trial, with a jury, where he may make various defensive arguments concerning that trial, even some before trial (including that the law would be unconstitutional as applied to him, or that his conduct, if proved, still would not violate the law). He may also present defenses that excuse otherwise punishable offenses, including that which Government officials sometimes invoke when carrying out duties.
She thinks the majority's opinion is worse. For every allegation, they must go through and parse whether it violates core constitutional powers, is an official act, and if so, whether the immunity is there rebutted. And this must be run through even in extreme cases, such as assassinations or coups. Under her preferred paradigm, there are no exemptions from criminal law, but they can still use legal arguments of its inapplicability, and defenses. The majority's opinion can give immunity "even for unquestionably and intentionally egregious criminal behavior." And she reminds that under her preferred model, the president could still present affirmative defenses that it was justified, whereas the majority's allows crimes even when no one thinks there is any excuse.
This opinion increases the power in the judiciary and executive, and lessens the power of Congress. The court, in this immunity decision, has taken from Congress the ability to bind the President to its mandates, and so increased the power of the Executive. The president may take care that the laws be faithfully executed, but is under no obligation to follow them himself. The court also gives itself power, as it does not give a clear enough definition of the extent of any of the things: what is core vs. not, what is official vs. unofficial. (She thinks, unlike Barrett, it seems, that it is challenging to apply the reasoning to the slates of electors.) And so the Court has arrogated to itself the ability to draw lines regulating the President, rather than Congress.
This decision also reduces deterrence, by the threat of criminal liability being largely gone. Presidents are far less accountable. She sees the majority as mainly motivated by what would be good and bad, not law. But she does not think that they consider adequately the need for restraint upon the executive.
This plants the seeds of absolute power. She cannot stand their discarding the rule of law. It is now rule of judges, instead. She thinks that they do not adequately appreciate the risks, and so dissents.
You can tell that she has a background in criminal law.
Thoughts on this, then:
This case is striking in how it differs from other constitutional cases the court has taken: it hardly considers founding-era context, turning rather to structural concerns and precedent. And much of the motivation for individual concerns is closer to "this seems like it would be needed to get the results the founders wanted" rather than "the Constitution says this." On the other hand, Sotomayor's argument is significantly more originalist than the majority, which is an unusual turn.
I found this piece, by Baude, to be pretty good. This ruling, like the Trump v. Anderson ruling, were not adequately justified. Trump v. Anderson was far worse, failing to consider that states have discretion to choose their own bodies of electors essentially however they wish, per the Constitution (Here's a length complaint about it, though nowhere near as lengthy as his arguments leading up to that point.). But this too was different from the principled way that they more often act, turning in large part to precedent. The part that was most egregious, in my judgment, was the evidentiary rule (pages 30-32)—they hardly bother to justify that, I think. Unless, is this previous immunity caselaw? I guess if there are any lawyers who know about that, that would be helpful if you could weigh in.
While I agree overall that having some level of immunity is sensible, I would have appreciated it if they had, for example, tried to show what exactly could be done to founding-era Governors of states, if there exists any history to that effect. But the Burr cases were practically the only founding-era history they cited, and they were not relied on very much.
Their arguments for core constitutional powers being absolutely immune, and for unofficial acts being not immune, seem rather compelling. What is not clear is the central holding, about presumptive immunity for official acts. It must be noted that they left a lot of ground here open: they left it open that it could be absolute immunity (I imagine there was at least one justice who thought it should be?), and left a lot of room as to what exactly is official, and made no attempt to assert what would involve infringing on executive powers. They make clear that this deals with things that are not under Congress' control, but I do not think they argue for why this is needed aside from that this is necessary to bring about a bold executive. Actually, I'm now wondering, after seeing the word "chilled" on page 13, how this compares to first amendment cases—the reasoning being that such things in effect strip of constitutional powers. I don't know that I'm all that happy with that, and it feels a little like judicial legislation ("balancing tests"), but alright, fair enough, I suppose.
I would also be interested in looking at whether, for example, at founding era times, it would make sense for Presidents to be able to be bribed for pardons or vetoes in the founding era, and that be pursued by avenues other than impeachment. Can presidents, after being impeached, be convicted of treason or bribery in their official acts, for example?
Now, finally, I'll turn to the differences between the Roberts' opinion and Sotomayor's dissent, and try to examine which I find more compelling. I'll organize this around claims from Sotomayor's dissent.
Text: Sotomayor: There is no immunity in the text. (Page 5)
Roberts: A specific textual basis is not needed (citing Fitzgerald). (Page 37)
Sotomayor: I didn't say that it was, but there are three reasons it's relevant: First, the framers knew how to provide immunity, looking at the speech or debate clause. Second, state constitutions applied some immunities, but Congress does not. Third, the impeachment clause allows for liability for former presidents. (Page 5-6)
Roberts: Regarding the first, it's implicit; there's no separation of powers clause. Roberts does not address the second argument. For the third, Roberts notes that it does not say whether the clause thinks that official conduct may be prosecuted. (page 38)
My thoughts: I think Roberts largely addresses the arguments successfully, but he could have looked a lot further regarding state constitutions. Both sides are reasonable.
History: Sotomayor: Hamilton thought that Presidents would be "liable to prosecution and punishment in the ordinary course of law," unlike the king of Great Britain. He would stand "upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware."
Roberts: These do not specify whether they are talking about official conduct, or private crimes.
Sotomayor: Madison proposed the Constitution consider privileges to be allowed to the Executive, but there is no record of it. Pinckney, a delegate, said that no privilege was intended for the executive.
Roberts: This is the best of your historical arguments, but they only represent the claim that no mentioned immunity exists, don't mention that whether it's official, and Pinckney isn't reliable on separation of powers, anyway. (page 39)
Sotomayor: James Wilson and Justice Story recognized that federal officials may be tried. (pages 7-8)
Roberts: This doesn't specify whether it's official, and further, they don't even say whether the President is also in mind here. (page 38)
Roberts:Further, Nixon v. Fitzgerald recognized that all this evidence is fragmentary.
Sotomayor: Nixon v. Fitzgerald was only talking about history for civil cases, and in any case, it still looked to them and showed that it was best, where as you merely try to show it permissible. It seems this court only cares about history when it suits them.
My thoughts: Roberts generally successfully rebuts on most of this, but the Hamilton quote needs to be examined, because of the reference to state constitutions. Let's take a look. He references New York, Maryland, and Delaware. But Virginia was afterwards substituted for Maryland.
New York: The representatives can impeach, and the party convicted shall nevertheless by liable and subject to indictment, etc.
Delaware: The president is impeachable when out of office, and within 18 months after. If guilty, then subject to such pains and penalties as the laws direct.
Virginia: The Governour. when out of office, and others offending, whether by maladministration, corruption, or other means, is impeachable. And subject to laws of the land, including under pain and penalty of the law.
So Hamilton seems to be talking mainly about when they may be impeached: New York doesn't specify, but Delaware and Virginia are later.
But I think it might need to be noted that Virginia seems to be including official conduct as under judgment. Sotomayor's case would have been stronger if she's looked into that.
Aside from my own Virginia question, and Sotomayor's point that the court seems selective in when it wants to use history, Roberts seems to come out on top.
Established Understanding:
Roberts: That's only an understanding, not any evidence of it showing up in actual practice, because no one's been prosecuted. (page 39)
Sotomayor: "Settled understandings of the Constitution are of little use to the majority in this case, and so it ignores them." (page 10)
My thoughts: A consensus, it seems.
Overall result of the judgment:
Sotomayor: No dangers of intrusion? Everything seems to have dangers of intrusion. That's practically absolute. (page 11)
Barrett: The setting up slates of electors, even if official (which, by the way, it's not) would not pose intrusion. (pages 3-4)
Roberts: The vice president things would maybe not pose any dangers of intrusion, we're sending it back down to lower courts to decide. (pages 21-24)
Sotomayor: But that shouldn't be the standard. What about needs to promote objectives within the constitutional authority of Congress, or of the Judicial branch to do justice in criminal prosecutions? (page 11)
Silence, so far as I can see.
Sotomayor: The majority reads official too broadly, including whatever is not palpably beyond his authority. And motive may not be considered, which would mean that even action for corrupt purposes would then remain immune. (page 12)
Barrett: The elector stuff is clearly unofficial. (page 3)
Roberts: The elector stuff might be unofficial, and maybe the speech stuff, we're sending it back down to decide. (pages 25-30). Anyway, motive shouldn't be considered, as then merely alleging improper purpose would open everything up to liability, which would be crippling, as Fitzgerald says. (page 18)
Sotomayor: This makes the president above the law. (page 12)
Roberts: No, this just preserves executive authority. He can still certainly be subject to prosecution in his unofficial capacity (pages 39-40.)
Sotomayor: Of course he can, that's not in dispute. (Page 11.)
My thoughts: Sotomayor's concerns are valid, but I don't think they'd be applied that way in practice. Barrett's made it quite clear that she reads this narrowly, and I imagine that that would apply to at least one of the others, which would put a five-member majority including the liberals, if it ever makes it back to the Supreme Court in the near future.
How Fitzgerald applies:
Sotomayor: Criminal cases can't just be brought by anyone, so there'll be fewer of them. (page 15)
Roberts: Yes, but it's still a bigger threat, because the punishment is a far stronger deterrent. (page 13)
Sotomayor: There are procedural safeguards, before a criminal case is brought. "Bare allegations of malice" would not suffice to bring about a trial. (page 15-16)
Roberts: These are important. Nevertheless, regarding the claim that grand juries, etc. will prevent the bringing of baseless prosecutions, "we do not ordinarily decline to decide significant constitutional questions based on the Government's promises of good faith." (page 37)
Sotomayor: The President can argue that it's unconstitutional as applied to him at trial, as a protection. (page 16)
Barrett: Glad to note that you agree that there are some unconstitutional prosecutions. (page 1)
Roberts: These fail to address that there are some things that can't apply in the first place, so all this has to be addressed at the outset. And a trial is itself a negative. (page 36)
Sotomayor: Presidents have long considered themselves open to such a threat, but that didn't hurt them. And some caution is necessary.
Roberts gave no response that I could see.
Sotomayor: The majority seems concerned not by truly criminal acts, nor are they concerned about the President thinking for a second, but rather it must be baseless accusations. But this would be doomed to fail. They should trust the President's to be bold despite that. (page 18)
Roberts: Section 371 covers conspiracy to impair the lawful function of any department of government. Practically every president is criticized for not enforcing enough in some zone or another (e.g. drugs, guns, immigration, environment). There you go, open to prosecution. It'd be easy to fall into a norm of always prosecuting your predecessor. (page 40)
Sotomayor: On the other hand, the public interest in prosecuting presidents is greater than the private interest in a civil suit. (Page 19)
Roberts: Yes. (Page 13)
Sotomayor: This is especially true in cases where there is civil liability, as that's the only avenue. Further, he represents the people, so all the people have an interest. Additionally, the Executive Branch has an interest in bringing about prosecutions of criminal law, so you're preventing that.
Roberts: says nothing.
Roberts: The immunity Trump requested is larger than that recognized: he wanted immunity from anything that he was not impeached over (32).
Sotomayor: No, Trump only asked for immunity for the unimpeached. You want immunity regardless. (page 22)
My thoughts: Overall, I think Roberts wins on the criminal liability being worse, but I'm not sure. The second point, that the interest is greater, he concedes, and that is one reason the immunity might not be absolute. The third, as to which is stronger, I mean, both have a case?
Conduct within his exclusive sphere:
Sotomayor: This has some sense, if it were relevant. But that doesn't involve the actions in question. But the majority reads it too broadly, including "take care that the laws be faithfully executed," which includes all sorts of conduct. (23-24)
Barrett: I don't read the majority opinion that way. (page 2)
Sotomayor: The majority holds him absolutely immune from prosecution involving conversations with the justice department. That expands the category beyond recognition. (page 24)
Barrett: It being part of the core executive power fits with our separation of powers precedent. (page 2)
Roberts: The Executive Branch has exclusive authority and absolute discretion involving these matters, per precedent (page 20).
Sotomayor: You can't pretend that the Government agrees with you on that; its vision of it was smaller.
My thoughts: I think Barrett reads what's going on here better than Sotomayor.
Evidence:
Sotomayor: This deprives prosecutions of any teeth. And it's strange to say that a speech couldn't be used as evidence of a mens rea. (page 26)
Barrett: Yeah, I agree this makes it too hard (page 6).
Sotomayor: This has no basis in law. The first amendment allows use of it as evidentiary, but not criminal. (page 26)
Roberts: This would eviscerate the immunity, inviting the jury to consider acts for which the president is immune. (page 31)
Sotomayor: But you could just instruct the jury? (page 26, Barrett agrees, page 6)
Roberts: But people have strong feelings, this would still bias things. (page 31)
Barrett: But it's already the case that evidence can be excluded when prejudicial or confusing? Why not just stick to the usual thing (pages 6-7) (Sotomayor says the same on page 26.)
My thoughts: The majority seems wrong here? The other approach just obviously seems better?
Concerns about the majority's approach:
Sotomayor: The majority, declared some things official, but refuses to declare things unofficial. Likewise, they declare some things immune, but refuse to recognize anything as prosecutable. (pages 27-29)
Jackson: Yeah, this leaves it in the court's hands, an arrogation of power to the judiciary. (Pages 13-16)
Barrett: I think the elector things were unofficial. (page 3). I also think the Court should have said that they had presumptive immunity, not left it undecided between that and absolute (pages 1-2).
Roberts, scathingly: We've had no briefing, and it's been expedited. One of you (Sotomayor) wants us to declare everything unofficial, and the other (Jackson) wants us to "exhaustively define every application of presidential immunity." Stop pretending that we're infallible. We decide what is needed, and remand, as per time-tested practices. (page 41)
Sotomayor: That's what you claim, but you still wrote more than lower courts even considered, or any parties briefed, regarding what is official. It's judicial activism in designating some conduct as official, but saying nothing about the rest.
My thoughts: The majority decision looks like a compromise between some justice who wanted absolute immunity, and others who wanted more moderate things. They said what they could agree on, and remanded the rest, reproducing the reasoning available to each side. So Roberts is probably not really being fully honest as to the motivations here (though some of the questions are genuinely tricky, like whether a speech is official), but neither is Sotomayor in representing this as plainly being that they're biased towards the one side.
Fears:
Sotomayor: The President will be immune for ordering assassinations, coups, bribes for pardons, etc. (pages 29-30)
Roberts: Your chilling doom is disproportionate to what was decided (page 37). You are just fearmongering with extreme hypotheticals and a future where the President feels free to violate criminal law. (page 40) You need to be more concerned about an executive branch that cannibalizes itself with prosecution.
My thoughts: Disrespect is a legitimate concern. I'd imagine, though, that assassinating rivals, or attempting a coup would be something that the court would rule as beyond the President's authority. This would probably defuse a lot of the online complaints about this opinion. The bribes for pardons thing is weird, because it deals with something agreed to be within the exclusive powers, even by the government.
And that's the end of Sotomayor's opinion.
Some closing thoughts:
I think overall the responses to Sotomayor were mostly sufficient (excepting the evidence part). That said, this particular opinion of hers was actually not bad (except the last page or so); far more compelling than the Grants Pass one.
Barrett's opinion definitely was the most compelling to me.
Thoughts? Did any of your assessments differ?
I'll probably get around to reading and writing on the two remaining cases from Monday at some point, and maybe I'll write something on any insights I've gleaned overall about how the justices operate, if I can think up enough to make a post about.
Actually, the belief that they're damned is a pretty normal belief, I'm pretty sure.
Among the Roman Catholics, there's the teaching of Extra eccleasiam nulla salus—outside the church there is no salvation, although I'm not sure what Vatican II did to things. The council of Florence has a statement saying that neither pagans nor Jews nor heretics nor schismatics will be saved. Eastern Orthodoxy I think has at times expressed similar thoughts, although I know that universalism is also kind of popular among them, at least in the present day.
Protestants are more varied, I think, but I think with the emphasis on sola fide, there should be the same belief.
Christianity really is an exclusive religion. As Christ says, "I am the way, the truth and the life, no one comes to the father, except through me." John 3:16 is perhaps the most famous verse in the bible: "For God loved the world thus: he gave his only begotten son, so that whoever believes in him shall not perish, but have eternal life." Paul writes, "For since, in the wisdom of God, the world did not know God through wisdom, it pleased God through the folly of what we preach to save those who believe."
If you're wondering, how is this just, well it's not as if Christians think they don't deserve hell. Their own salvation is an enormous gift, and it isn't as if it's owed to everyone else that they come to believe in Christ.
Edit: It looks like I understated the effect of Vatican II, Vatican II seems to have reinterpreted the things I was saying so as that they're probably not representative of current Catholic teaching.
Felagund
8mo ago
I assume the question here has an intended answer (there wasn't much fraud).
Anyway, asking anyone who does think the 2020 election was stolen, do you have any examples of things that seem like obvious problems or evidence of substantial fraud? I'm currently inclined to think that there wasn't anything of that sort, but a lot of people seem really firmly convinced, so I'd be interested in seeing the evidence.
Felagund
1yr ago
That's probably the main thing in view (well, the Mosaic law as a whole; not merely the ceremonial component), but that doesn't defeat the protestant point.
Here's my reading: Verse 3:19-20: Paul asserts that the law gives knowledge of sin, that it's to reveal guilt, that it acquits no one. We're all guilty, and the law makes us know it. [note: guilt not exclusive to Jews, as it refers to the "whole world," and it describes the law as essentially revelatory of guilt, not creator of guilt. So in view is also being guilty, apart from the mosaic law]
3:21-22: But righteousness through faith in Jesus Christ is a thing, not through the law. [Conclusion: righteousness must exist distinctly from the mosaic law]
3:23-25: Righteousness is as a gift from Jesus; we're all inadequate otherwise. Received by faith. [Unfortunately, no definition of faith given.]
3:25-26: I don't have a clear enough picture of what precisely Paul is doing here.
3:27-28: So we can't boast. [Due, presumably, to 3:24-25]. I don't have a clear enough view of the semantic scope of law at the time, such that he speaks of a law of faith.
3:29-31: So gentiles eligible too. Upholding of the law. (Makes it clear that by "law of works" he did have in view the Mosaic law)
4:1-3: Repetition that works tied to boasting. Then, "Abraham believed God and it was counted to him as righteousness." [note that while the επιστευσεν has some range of meaning, I'm pretty sure it's used of the one trusting/believing/whatever as the subject, and the one trusted in etc. as the object. This would be evidence against @coffee_enjoyer's theory, assuming this is connected to the earlier instances of faith/pistis. Abraham is a potent subject, as in him lies the origins of the Jewish people.]
4:4 Whatever's happening, it can't be something in such a way that a reward is earned.
4:5: And there we have it, it is in fact connected to righteousness in faith. In general, we trust (rather than be trustworthy->we are counted righteous.)
4:6-8: And our being righteous is comparable to David's being forgiven. [Reading the psalm that this is taken from, it does not look like this is talking about Mosaic ceremonies]
4:9-12: In general, saved by faith, the particular Jewish moral code (esp. circumcision) not such that it is necessary for salvation, nor is it sufficient.
4:13-15: Faith and the law treated as contrary principles of our being counted righteous.
4:16: Faith tied to it being grace-based
4:18-22: Definitely reads like it's talking of faith more as consisting in Abraham's trust than his fidelity.
4:23-24: And so this is analogous to us.
I think Romans 3 is largely inconclusive as to whether the protestant or non-protestant reading is favored, and may even lean catholic, but when Romans 4 is included, it seems definitely to favor the protestant position. Specifically, verses 1-8 and 18-24 read like Paul is not operating under a "saved by fidelity" system.
If I were not protestant, I would read "the law" in this as talking about discrete, external actions. Whereas, faith would be an internal thing, faithfulness.
But this seems inadequate to me, at least in light of other scripture. In the passage, I've pointed out that this is more difficult to reconcile with the 4:1-8 and 18-24. More broadly, Jesus summarizes the scriptures by describing the greatest commandment as something that per this analysis, would fall into faith; but it is clearly a requirement of the law, being both its summary and a specific commandment in it. With that conceded, any analysis of the law could not treat it as solely describing discrete external acts. The impossibility of following the law is probnbly also supportive of an internal component.
Felagund
1yr ago
How is this place worse on issues of meritocracy? (If I read you rightly?)
My sense was that people here are usually fairly pro-meritocracy.
Actually, could you do that (Do the comment in three sentences)? I'd be impressed. It doesn't need to get quite everything, but the gist.
I don't think it's really a gish-gallop, as those make too many points to reasonably address. You're saying it's not dense, so that's just making a few points repeatedly or slowly. That's not a gish-gallop.
Anyway, here's a (brief) case for Christianity, that might even seem rational from a secular, moral-free perspective, at least if you're motivated sufficiently highly by reason and argumentation:
- Pascal's wager seems to require that we give up everything to avoid infinite harms and seek infinite goods, if we are to do what is in our own interest. That is, it is instrumentally rational to do so.
- It's hard to get infinites accessible to you assuming that atheistic, supernatural-free, no-other-big-surprises model of the world is right.
- So you're best off if you bet everything on that being wrong, regardless of how unlikely you think it is.
- We need some way to know what's beneficial with regard to infinites, if we are to act.
- We don't have any more likely way to know things about infinite rewards accessible to humans than through purported supernatural revelation.
- Religions are the most likely sources of revelation of that variety.
- Large religions are more likely to be an authentic divine revelation, if God has an interest in giving humans knowledge (which, given that we're assuming divine revelation already, is probably fairly likely). So large religions are the most likely.
- Abrahamic religions are the only large religions offering infinite rewards, or escape from infinite torment.
- Judaism, in its prescriptions for gentiles, requires fairly little, so you get that one nearly for free, so the main consideration is Christianity vs. Islam. At least, if the rabbis got that right.
- And then, Christianity is more likely, as it seems more likely likely to be genuinely new revelation (e.g. attestation of a resurrection from the dead by 500 witnesses seems kind of new) whereas Islam seems to be cribbing off of and trusting Christianity, and grants that Jesus is a prophet, so then, if you were Muslim, you'd have to justify, why Christianity is actually false when the Quran seems to say it's not.
- You should be a Christian, if you want what's best for you.
Step 10 is what currently seem sketchiest to me; I'm not too familiar with Islam, unfortunately.
I don't expect you to care about arguments enough to do this (but not doing so is a really low expected value move on your part, if I'm right), but I do think this is fairly defensible, and I think you're irrational insofar as you don't act accordingly.
Felagund
1yr ago
I'm very hesitant to break out Paul verse by verse and ascribe an individual meaning to each line.
I know there's nothing special about verses, I was just using them to go through the text in detail. The text contains detail; you can't just ignore that (but of course, the overall scope and arguments are also vital).
The first covenant that God made with Abraham never promised eternal life, theosis, etc. to those who followed it. It did lead to Salvation - out of the Covenant came Jesus - but it does not grant salvation. When people failed to follow the first covenant, they weren't failing to achieve their own salvation. Instead they were merely demonstrating that humankind is weak and sinful.
I'm assuming you're treating the covenant referred to here as roughly the same as the Mosaic one? That one definitely does promise life: "the one who does these things shall live by them," which Paul quotes in Galatians.
As to faith, etc: I didn't really address your position, mostly just coffee_enjoyer's, before. Let's get to yours.
In your exegesis of Romans 4, it seems to me that you are generalizing things that Abraham did as part of his forming a covenant with God in Genesis 15, into general moral action.
As Paul does, in verses 23-25, and elsewhere. If you think there's a meaningful difference, point out where, and we can work from there.
I disagree that Romans 4:13 contrasts Faith and the law as opposing each other, but rather Faith preceded the covenant.
Perhaps you may not think that Romans 4:13 does so, but I don't see how you could read 4:14 as not presenting a contrast/opposition of sorts. Read in context.
In Romans 4:18-25, Paul does generalize to the gentiles - because a huge part of his letter to the Romans is to argue that the gentiles do not need to join the old covenant to also join the new. A Christian's faith in Jesus is like Abraham's faith in God's promise - they both start a covenant. He is saying that Gentiles don't need to follow the old covenant to be justified because the old covenant never justified anyone. Unlike the new covenant, the old covenant never promised justification.
I think I've shown sufficiently that it does promise life, at least, above. Yes, I agree that obligations upon gentiles are a part of what's going on here. But they are not the primary object in focus. Rather, it's how the (yes, primarily jewish) law relates to our righteousness before God in general, and in so doing he sets it up as dependent upon faith, where faith is understood in a sense of trusting, rather than on something lawlike.
No, Paul's point is not that in both a covenant is begun. Never does he refer to the formation of the covenant as such. Further, that doesn't comport with the meaning of the passage, as the point (of some parts) is precisely that the gentiles don't need to be circumcised, whereas what you are saying would make the argument fail: they'd begin not needing to be circumcised, but then they'd need to get circumcised after (plausibly).
I also think we might not have the same terminology when we talk about Righteousness, Salvation, Justification. Sometimes Catholics and Protestants disagree about how much we are disagreeing because we just don't use the same words to talk about the same things. To be clear about the terminology I am using here are some definitions:
I am well aware that there are terminological differences.
The Protestant interpretations are closer to the Pauline ones, though sometimes more technical.
But okay, let's assume that the Catholic use of those terms, as defined here, is the same as the Pauline ones, for now, and see where things break down.
First: righteousness. You say:
Righteousness - Correct behavior. Jesus imparts (not imputes) righteousness to us.
In this passage, righteousness is counted to Abraham (seen repeatedly, should be uncontroversial). The righteousness counted here cannot be merely understood to be an instance of correct behavior. Rather, he's being counted righteous more holistically—as a whole person, as this is understood to constitute his righteousness in general. This faith makes Abraham righteous, not merely righteous in respect of his faith. This can be seen in the way that this is treated in the passage as the source of righteousness in general, in how the promise is attached, and in the previous context of the legal penalties, where it was talking about the relation of the law as a whole to a person, not the effect of any singular provision. Further, while this doesn't explicitly talk about imputed righteousness in the particular sense of Christ's work (at least, no more clearly than "received by the faith in 3:25), it is clearly talking about imputation of some variety ("it was counted to him as righteousness") and in verses 6-8, it talks about righteousness by means of the non-imputation of sin, basically.
Salvation - Actually getting to Heaven. Not the same thing as Justification.
Sure, though I'd also be willing to use that to refer to the enter process holistically, or in other important steps.
Justification - A formative process in which Christians are made righteous over the course of their entire lives. It is a gift from God, unearned, provided by Jesus' death on the cross to all who accept that He is Lord. This is something that can be lost or stalled and then picked up again. It is comparable to being born. It is unearned gift, but there are certain things you can do that hasten your (spiritual or physical) death.
Yeah, sorry, that's just not what Paul's talking about here. Romans 4:2-3 connects justification to being counted righteous. This whole process is about how Abraham was justified, not his becoming righteous with this as one step of a broader whole (note: an aorist in 4:2, meaning a simple past action. This means Abraham believing probably acts as a discrete instance of justification, not one step in a broader process of justification). Further, the focus of this passage is on righteousness as reckoned by God, both as seen in the quotation, and in the opposition of righteousness to wrath, not as talking about our being made righteous. The law is presented as inadequate because it works condemnation, not for the reason of it failing to produce any good works.
Protestants rather understand the term in this passage to be following its legal usage (especially that used in the septuagint): to be talking about acquital or vindication, and this explains the passage far more potently.
Protestants often define justification as "To be declared righteousness," in a one time event. This dramatically changes how we read any Bible verse with the word "Justification" in it. Instead, Catholics would use the word "Salvation" in places where Protestants commonly use "Justification."
The word has varied usage, but being counted righteous works well in this passage.
In the Catholic view…
I am aware.
I've made an effort here, but if I remember correctly, Chemnitz' examination of the council of Trent, in the section on justification, does a pretty good job of showing why the protestant understanding of justification is correct, and the catholic one fails, and he does this in such a way that this is not merely a terminological dispute.
Felagund
1yr ago
Fair point about the first half, although I'm somewhat less confident on what the supreme court's takes would be—I think several, at least, like to consider themselves impartial, so won't do things merely out of a sense of personal loyalty.
As to the second, I don't see how that's the case? Isn't this clearly a case of the constitution disqualifying people? You can argue that it doesn't apply to the current case, or that it requires more than what the authors say, but you can't just say that the Constitution doesn't impose ineligibility for committing those acts after swearing an oath.
Felagund
2mo ago
Then it's in your interest to estimate the probability space and act accordingly. Not to assume everything magically cancels.
Throwing up your hands and doing nothing is lazy and irresponsible, considering the stakes.
Pascal was quite right to criticize this attitude of carelessness or dismissal in Pensées 195:
Before entering into the proofs of the Christian religion, I find it necessary to point out the sinfulness of those men who live in indifference to the search for truth in a matter which is so important to them, and which touches them so nearly.
Of all their errors, this doubtless is the one which most convicts them of foolishness and blindness, and in which it is easiest to confound them by the first glimmerings of common sense, and by natural feelings.
For it is not to be doubted that the duration of this life is but a moment; that the state of death is eternal, whatever may be its nature; and that thus all our actions and thoughts must take such different directions according to the state of that eternity, that it is impossible to take one step with sense and judgment, unless we regulate our course by the truth of that point which ought to be our ultimate end.
There is nothing clearer than this; and thus, according to the principles of reason, the conduct of men is wholly unreasonable, if they do not take another course.
On this point, therefore, we condemn those who live without thought of the ultimate end of life, who let themselves be guided by their own inclinations and their own pleasures without reflection and without concern, and, as if they could annihilate eternity by turning away their thought from it, think only of making themselves happy for the moment.
Yet this eternity exists, and death, which must open into it, and threatens them every hour, must in a little time infallibly put them under the dreadful necessity of being either annihilated or unhappy for ever, without knowing which of these eternities is for ever prepared for them.
This is a doubt of terrible consequence. They are in peril of eternal woe; and thereupon, as if the matter were not worth the trouble, they neglect to inquire whether this is one of those opinions which people receive with too credulous a facility, or one of those which, obscure in themselves, have a very firm, though hidden, foundation. Thus they know not whether there be truth or falsity in the matter, nor whether there be strength or weakness in the proofs. They have them before their eyes; they refuse to look at them; and in that ignorance they choose all that is necessary to fall into this misfortune if it exists, to await death to make trial of it, yet to be very content in this state, to make profession of it, and indeed to boast of it. Can we think seriously on the importance of this subject without being horrified at conduct so extravagant?
This resting in ignorance is a monstrous thing, and they who pass their life in it must be made to feel its extravagance and stupidity, by having it shown to them, so that they may be confounded by the sight of their folly. For this is how men reason, when they choose to live in such ignorance of what they are, and without seeking enlightenment. "I know not," they say ..."
What's Biden's survival path? Manifold's currently putting him at 41% chance, but I'm not seeing a likely way for that to happen.
Things look to me like:
Democrats express displeasure.
Biden refuses to drop out.
Democrats adjust convention rules to free up delegates.
Delegates reject Biden.
Are people thinking that Democrats won't allow the convention to nominate someone other than Biden? Or that delegates will vote for Biden?
Neither of those seem especially likely to me, especially when Kamala's an easy default option to unify around, even if her reputation is that she's unpopular. So I guess I'm not seeing where it's coming from. Are there convention rules that are problematic? I'm wondering whether them meeting early due to the Ohio deadline being earlier is a factor, but Ohio moved it back, so they can just cancel their early meeting, right?
But, this is not the best development for the Trump campaign.
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