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PaperclipPerfector  5mo ago (text post)   23799 thread views

Culture War Roundup for the week of June 17, 2024

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I was thinking lately why I -- despite largely agreeing with the progressives on policy -- can never see myself as a progressive (or as a "leftist" or whatever you want to call it). I thought the answer was "wokeness", but it isn't. Not really. There's actually something deeper. None of things below should be read as endorsement of conservatism, which I also disagree with.

There's one thing the progressives keep doing which I wish they would stop. I don't think they can ever stop. Every once in a while, progressives annoint one group as basically saviors of humanity. All other groups, by implication get relegated to essentially NPCs at best or scum of earth at worst. The annointed group never lives to those high expectations, of course so progressives eventually discard them and annoint some other group. The discarded group is sometimes just ignored or sometimes declared scum of earth depending on circumstances and on whether kicking down such group would be considered racist or not.

Interestingly, this is not that disimilar to how a narcissist acts. A Narcissist tends to first lure the victim with love-bombing, and later devaluates and discards it.

Some 120 years ago the first group to wear the starry crown was undoubtably the working class. Progressives were marxist then and working class was the class. They were the one who will overthrow capitalism and establish the New Civilization. Not only was the working class better than other classes, they also deserved to act contrary to any common morality. To kill not only the fat cats but the kullaks too.

We all know how this ended. Although some good things did came from communism and the labour movement, like 40 hour work week, it was a disaster overall. The worker's paradise never materialized, but corpses did. Today, progressives are not overtly interested in the working class any more, and the white part of it is held in near total contempt as Trump base.

60 years ago, the mandate of heaven was on boomers. Or at least on part of boomer generation that weren't conservative. It is hard to remember now, but at the time many intellectuals had very high hope for boomers as a new, spiritual, highly aware generation that will clense the world of sins of the fathers. The flower children. And it is not hard to see that those outside of the "counterculture" were considered NPCs. See this 1963 song:

Little boxes on the hillside

Little boxes made of ticky-tacky

Little boxes on the hillside

Little boxes all the same

There's a green one and a pink one

And a blue one and a yellow one

And they're all made out of ticky-tacky

And they all look just the same

And the people in the houses

All went to the university

Where they were put in boxes

And they came out all the same

And there's doctors and lawyers

And business executives

And they're all made out of ticky-tacky

And they all look just the same

It starts with saying the houses were made out of ticky tacky and by the end it is the people that are made out of ticky tacky. Progressives were calling other people "NPCs" long before Alt-Right did. It is good that there are songs like this or I would no doubt be accused of enacting strawmen.

We all know how this all ended, too. Boomers are now seen as the narcissism generation. At least there were no mass killings this time.

The next group to be deified -- tho maybe not to quite the same extent -- was alienated male. This was actually happening in parallel with Boomers althought I think it only reached true prominence after the "flower children" promise faded a bit. The first work in praise of alienated male actually predates Boomers, it's On The Road by Jack Kerouac. But generally in the 70s and 80s you got lots of movies -- taxi driver being the most prominent -- starring alienated male. The reason for alienation varied but there was usually an implication that the society was at least somewhat to blame. There was also usually an implication that making society more friendly to alienated men was morally good, if not a moral imperative.

Now, this last example is a bit more complex because there are multiple types of male alienation, obviously, but one type that lasted longer than others was a nerd. For a while there was lots of material in praise of alienated nerd, the victim of NPC jocks. The nerd was the one with broader perspective than other crude people around him. He was the one who trully deserved the girl due to being such a nice guy. It is darkly funny in retrospect that back when the columbine school shooting happened, the progressives blamed everyone except the shooters. The bullies, the jocks, the popular crowd.

And then Mother Mercy looked away, as she always does. A nice guy became Nice Guy. School shooting were done not out of bullying but because of entitlement. Nerds are discusting sexists, who have exactly what they deserve, which is nothing.

In 2020 everyone got (rightfully) shocked by what Derek Chauvin did. But the answer was not to remove bad apples, it was to remove all the police. Because the newly deified minorities don't need any police, because they are better than you. So CHAZ was formed. Very shortly, it became more lethal per capita to young black men than the rest of the city ever was. Unlike with previous examples, minorities weren't villified, instead the whole episode just got forgotten. But I am not going to allow anyone to forget.

Another group that seems to be getting deified would be trans children. Now, I got nothing against trans people and think there are legit rights that should be protected here. But the surrounding rethorics still makes me unconfortable. There is very obvious implication that being trans is somehow a more profound experience than being cis. Trans peoples are the ones on a beautiful journey, unlike NPC me. And you got things like Trans Day of Revenge, whatever that is.

And so, not that long ago, first trans school shooting has happened. People who say that school shootings happen because of white male entitlement are silent so far.

Okay, so what all of this means, you might ask?

I want to say right away that it is entirely possible to fight to people's rights without putting those people on a pedestial. Both civil rights in the sixties and gay marriage happened without pedestializing black people or gay people respectively. But all too often, progressives prefer pedestializing.

Progressives -- to the extent that they are aware of this dynamics -- often conclude that the problem is that they have picked the wrong groups. Those damn white male nerds were always too privileged, after all.

In my opinion, the problem isn't that progressives single out wrong groups for annoitment. It is that any group you annoint is all but guaranteed to become worse. Everyone sees that if you tell to an individual person that he is the center of the universe, that he is going to reedem the world, that all his problems are the world's fault, you are then likely to induce narcissism. Not always, because some people's egos aren't inflatable, others are (smartly) wary of praise, but in most cases you are going to end up with a worse person. Why is it so hard to see that it is exactly the same with groups?

Telling to alienated nerds that they are better than the morons around them, that they deserve more than this rotten world is giving to them, is going to turn a few of them into school shooters. If the other people are ants, why not step on them? But the same dynamics can be induced in e.g. trans people too, as we now see.

My current ideology is that the future either belongs to everyone, or it is a shit future. I am with everyone who thinks so and against everyone who doesn't.

Telling to alienated nerds that they are better than the morons around them, that they deserve more than this rotten world is giving to them, is going to turn a few of them into school shooters.

The problem with this is that while the Columbine shooters were perceived as alienated nerds at the time, it doesn't look like they actually fit the stereotype. It wasn't progressive or pop-culture celebration of bullied nerds which set them off; they weren't even actually members of the group (the Trenchcoat Mafia) they're usually associated with.

Well, I disagree with some of your specific examples. I don't think that Boomers, alienated men, or nerds were ever the "darlings" of the progressive movement like you say. Call them "young people," "lone heroes," and "dorks with bad social skills," and maybe they were promoted somewhat, but nothing like the way the movement supports other favored groups.

More broadly, I do agree with you, but I don't think it's an arbitrary change. It's all a part of "the revolution," going back to marxist rhetoric. You break down society into two classes, one the oppressor and one the oppressed. For Marx it was the capitalists oppressing the workers, and you can see the logic there- capitalists are rich but few, workers are poor but many, so they just need to organize, rise up, and seize the capital for themselves.

For women it's a little more complicated, since they don't have the numbers advantage and "abolish men," but it's still largely the same rhetoric. Organize, rise up, demand more stuff for your group and less for the others. It's justice! And then once that basic play was established, it was easy to start using it on every single other niche group with a chip on its shoulder, which you can somehow identify as oppressed and convince them to organize and vote/fight together. This is explicitly part of third-wave feminism, which is roughly "feminism, but not for women, it's for all the other oppressed groups." Cynically it's so you can be the organizer speaking on their behalf, or you can be less cynical and say it's just nice to fight for justice. It doesn't really matter, the result is the same either way.

The progressive today is not the progressive of yesteryear, just as the cause to be championed changes from year to year. Yet the patterns repeat because the lessons are never learned, for This Time It Is Different.

The pattern OP rightly observes is that a disenfranchised group is championed by a vanguardist element (the vanguardist is typically a member of an elite class unable to function within elite society due to scarcity or more likely incompetence) as a morally righteous party whose interests must be advanced no matter the cost to current society, with the vanguardists administering said advancement and adjudication of costs/benefits. The whole point, now as in the past, is to allow the vanguardists a permanent hand on the lever of power, and the championed must be incapable of replacing the vanguardists hands with their own.

This is where the break point normally lies. It is easy to champion a group when said group is incapable of exercising their own agency and simply act as a formless mass to be grafted onto the vanguardist agenda, a silent blob that is asspuppeted for the vanguardist utopian dream. It is much less useful for the vanguardist when the blob finds its voice and says they actually like old system except with them on top, or that they like a new system but with the vanguardist removed.

@anti_dan below (above?) is right. The hated group is the animating force vanguardist progressives are trying to act against, not acting on behalf of a new downtrodden to be raised up. If progressives truly gave a shit about downtrodden marginalized oppressed you'd see much more support for copts, middle eastern jews, dayaks in East Malaysia, hindus in Bali, dalits in India... the list goes on. The progressives only seem to champion disenfranchised criminal minorities in their local sphere who need the guiding hand of the progressive, and this serves only to expand the list of groups who are the Hated Group. JK Rowling was the crazy woman who kept inserting weird racial minorities in Harry Potter long after she got her bag, now she's UltraTERF because she refuses to let men exploit womens only groups.

Progressives now, as in the past, fail to consider that the groups championed have their own agency, and can bite the hand on the leash as easily as choosing a new leash to be attached to based on their own preferences. The ANC suppressed necklacings primacy as a weapon only briefly under Nelson Mandela, with the EFF now looking longingly to restarting the practice. The SDS allied with the Black Panthers and were already suffering from internal splits thanks to Black Panthers eschewing socialist theory in favor of afrocentricism. The Iranian and Egyptian socialists joined hands with the Islamists only to be brutally suppressed by the Imams. The progressives of Europe opened the floodgates to refugees only to (continue failing to) discover that muslims love welfare, love raping nonmuslims, hate working and hate nonmuslims.

Whether progressives are aware that their ideas are not actually that popular or that their pets can and will rise up to advance their own interests is irrelevant. So long as an unsatisfied elite feels that they can exploit a wedge to upend the current hierarchy to put themselves on top, they will use that tool to the hilt. Right now the meta of Disparate Impact is still effective as a tool to be exploited to the hilt for DEI managers to continue creaming off the fat. Lets see if this state of affairs can continue.

There are some interesting things here. But one thing I would avoid is bait when writing a broader point. There is no agreement and definitely not “rightfully so” he did a bad thing or was a bad man. My opinion is he was an unfortunate societal victim of the left who is just an average blue collar guy who showed up to work one day and ran into a struggling for life perpetrator having a fentanyl overdose. He may have used inappropriate technique (which he may have received training on) that caused a vulnerable victim to die. It should also be noted Floyd was saying he “can’t breathe” long before he was restrained.

It’s bait for me when something is presented as an “agreed upon fact” which is not at all agreed upon. Bait tends to distract from a broader point you are making and it’s bait because I just have a thing that I don’t want something to be said so then other think it’s settled science.

I wasn’t aware of alienated men being a progressive thing in the past. And the pedestialization does seem problematic. Personally, I see the connection with communists and the working class. I am not sure if this was as present 1930-2010 America. It feels to me like why woke is Marxists that it has reintroduced these ideas in new ways.

I think you have this all completely backwards. There are rarely progressive "anointed groups" where the group is as narrowly defined as you say. There is only the hated group. The most central example of your examples is the "jocks". Jocks have always been progressives central enemy, because they represent successful (now white centrally in the prog mind) men, particularly those forming families. Successful men dont care for their policies.

Now, initially, Progressives tried to target this demo with their "working man" schtick. But it turned out quite quickly that men actually working and married to a girl from their hometown don't care much for the crazy stabby stabby guy on the corner. So they were quickly abandoned by the movement as "idiots" and "class traitors". In the end its always a movement of the outliers against the core. Because, why would the core ever vote to give their money to bums, criminals, and people sitting in ivory towers "thinking" for a living?

That is why much of progressive fiction is just complete fiction. Revenge of the Nerds, while a fine movie, does not represent high school nerds in any way. HS nerds can't assemble a computer from scratch, nor can they play an awesome concert. Heck, even the crowning achievement of that movie is rape by deception, which is out of the actual HS nerd's playbook. In real life, the jocks get with the prom queen, and get good on the SAT, then go to a way better college than "Adams" then marry a hot girl from there; whereas the nerd does like D&D, but he also ends up as a bedpan changer.

And, of course, this also reflects the anti-police sentiment that runs through now. These are successful men who are, in particular, doing it outside the progressive-approved system of success (college in a specific indoctrination area) which cannot be tolerated (see also engineers, for now). Its all the same.

Now, I think your post is a useful jumping off point for discussion, but I also think its wrong. Its all about who the enemy is, and what they think is the best weapon of the current day to wield against it. It being success and family formation.

I wasn't there to have a personal historical anecfote, but I think how we remember the canonical "jocks v. nerds" conflict is heavily skewed because, to a large extent, the nerds won in the huge financial jackpot of the tech industry starting in probably the late 80s.

Although I think the categories are also poorly defined (sometimes to sway arguments being made): at least in my experience most of the sharpest, most technical people I've worked with manage to find enough time to stay at least moderately physically fit, so I don't think it's as well-defined a boundary as is frequently presented.

I think in the 1980s nerds and geeks were rather undifferentiated in the public mind. Geeks would have had intellectual interests, but there were a couple of things that separated them from nerds. First, those interests were generally useful skills — building things, fixing things, useful intellectual skills like math and science and later computers. Second, that they actually became quite skilled and those things — they could actually build a rocket model, do a chemical synthesis, write a program or speak a language. Third, they were, while somewhat introverted and awkward, not completely inept at social relationships. Nerds were the ones hyper interested in useless trivia. They’d memorize the call numbers on starships, they’d learn all the lore of their favorite TV shows and movies, they’d be interested in medieval history or something. If those things required skill, they probably wouldn’t be all that good at it. There is a bit of a difference between a Nerd who can quote S2E5 of Babylon 5 from memory and a Geek who can speak Korean because he’s just into learning a language.

The "nerds" that won those financial jackpots have little to do with fictional portrayals of nerds, because Steve Jobs, Bill Gates, etc were not unable to secure prom dates. Larry Ellison was a tennis player and popular at South Shore.

I don't know if it was true, but Gates has an anecdote about how it took him two weeks to work up the courage to ask a girl to prom, and she turned him down.

Jobs was more hippie than nerd; Wozniak was the nerd. I have no idea if either had a prom date.

Revenge of the Nerds, while a fine movie, does not represent high school nerds in any way.

It's not about high school nerds; it's about college nerds. Doesn't represent them either, of course.

Heck, even the crowning achievement of that movie is rape by deception, which is out of the actual HS nerd's playbook.

I uncharitably suspect that one is pure Hollywood.

In real life, the jocks get with the prom queen, and get good on the SAT, then go to a way better college than "Adams" then marry a hot girl from there; whereas the nerd does like D&D, but he also ends up as a bedpan changer.

LOL, no. The successful jock gets with the prom queen, marries a hot girl, and ends up a managing director at Morgan-Stanley (actual current job of one of the QBs in my high school), the successful nerd hires that guy (or at least one of his subordinates) to manage his money. The bedpan changers are drawn from the stoners and just regular dumb people.

Nerd != Smart

Successful nerd is just a smart jock that doesn't prioritize his sports too much most of the time.

No, there's plenty of other differences. The jock is likely to be extraverted while the nerd is likely to be introverted. Even if the nerd isn't either of the 1980s non-athletic nerd stereotypes (fat slob or very pale skinny dude), any sports he does are less likely to be team sports than the jock; a high-school jock, after all, is not a jock just because he engages in physical activity, but because he does it in the school teams. The successful jock is probably good at schoolwork; the nerd is probably actually interested in one or more academic subjects.

When you start going down from the top jocks, they meet the "dumb jock" stereotype more.

This is like if you went to Beverly Hills High School or a school on the north side of Chicago.

The average QB becomes an electrician or pool repair guy. Which those jobs can pay well if independent. The average nerd has some middle office white collar job.

This is like if you went to Beverly Hills High School or a school on the north side of Chicago.

I went to school in semi-rural Frederick County, Maryland. (though it's not semi-rural any more)

Of course there are and were less successful jocks and nerds; before the tech booms, if you weren't in Silicon Valley, a middle class white collar job was indeed what a nerd could expect. That's way better than "bedpan changer" though. And the stereotypical ordinary jock job was sales, which has a rather large range.

To relegate the rise of the working class victories to just the 40 hour work week is criminal. You used to have 6 year olds cutting their fingers off shucking oysters. We've come a long way.

Top level seems sparse this week, I posted this just before Trump's verdict was dropping and I thought it might be at least a little entertaining, so I would like to proffer it again as an unsung culture war issue, BOATS!

Boating/Fishing and Right Wing Associations.

Inspired by a post in Wellness Wednesday, it took on a bit of a culture war tone as I wrote my response.

To the best of my recollection this is kind of a thing that started really turning ugly during covid. The notion guys with fish in their profile picks were all right wing anti-vaxxers because an odd amount of the posts on the hermaincainaward subreddit had a dude with a fish held high in their profile...

I've seen that "trend" other places where people have kind of sussed out a correlation of fish pictures and right wing proclivities, I just did a quick search on the tinder subreddit and others, I've found the question going back at least 6 years.. There are dozens more posts like this every year asking "Why all the fish pics" or "Stop with the fish pics".

There were also those boat parades for Trump etc...recreational power boating and ocean fishing are generally very white, sometimes wealthy. Fly fishing is even whiter and wealthier, think float plane trips to remote Alaskan camps and guided week long floats down untouched rivers. Bass fishing is white redneck hick Trump central and that is what a lot of people think of because of the televised tournaments and occasional news articles, add in a little cruelty to animals and you've got a stew going.

Some on the more extreme left, and probably a lot of young women of dating age must figure if you're fishing from shore or bass fishing you're a white trash trumper. They figure if you're fishing from a boat or racing to a sandbar to party that you're middle class to small business owner, killing animals for fun and burning gas while polluting the world, and if you're fly fishing in Kamchatka or deep sea fishing from a GT70 then you're a fat cat that needs to be eaten when the revolution comes (but maybe that won't be for a while so let's see where this goes).

https://old.reddit.com/r/HermanCainAward/comments/quo8p7/grandpa_catches_a_big_fish_and_a_big_virus/ https://old.reddit.com/r/HermanCainAward/comments/rb2tzq/update_guy_thought_he_was_a_legend_for_not_taking/ https://old.reddit.com/r/WhitePeopleTwitter/comments/nyoc9z/why_do_they_all_have_boats/ https://old.reddit.com/r/unpopularopinion/comments/168ivpu/when_men_hold_up_fish_in_their_dating_profile/ https://old.reddit.com/r/Tinder/comments/u5eaiy/whats_wrong_with_fish_pictures_i_see_so_many/

I'm going to quote my own comment on anti-Conservative dating discrimination

I feel like on dating apps there's a certain Strawmanization of political spectrum where 'Right = Super fascist' and 'Moderate/Apolitical/whatever = Hiding Super Fascist'.

Two analogies:

  1. My father always talked about interviewing guys for jobs, and he'd ask questions like "We start early on work days, do you think you can make it on time?" And some guys would respond "Eh, you know, normally, but sometimes I sleep in." My father's take on it was, not only was this a guy who might show up late (almost everyone shows up at 6:10 instead of 6:00 some days), he didn't even know the right answer to the question! He thought it was acceptable to say he was going to sleep in; at least a guy who lied and said he'd be there every day at 6:00 knew that he was supposed to show up on time.
  1. Dan Savage has talked in his advice column about how in high school it can seem like all the gay kids are flaming camp queens, because those are the only kids that are out in high school, because they have to be out. Their closet is made of glass, their mannerisms would give them away in a heartbeat if they tried to stay closeted. The "normal" masculine straight passing gay men can safely stay closeted at that point in their lives, but after graduation when things are safer come out.

So if listing your politics as "Right Wing" or even "Moderate" is the objectively wrong answer in online dating, then doing so means you probably fall under either 1) or 2). Either you don't even know the socially correct answer, so you're a maladroit chump, that's not an attractive look; or you're so right wing that you can't possibly stay in the closet about it, it would be too obvious, which regardless of your politics isn't a good look, and quite likely maps onto something like "superfascist" anyway.

Note that this does not require that the women making the judgment "actually" care about a man having right-wing politics, only that they know that right-wing politics are a socially unacceptable answer in an online dating context. Everything follows from that.

Let's apply this simple system to Fish Pictures. Let's start by positing that Tweets have been tweeted around left wing feminine twitter and articles written on left wing feminine-coded websites about how fish pictures are unattractive. This is definitely true, Fish Picture discourse exists, as you provide examples of. As soon as that is the case, the phenomenon is self sustaining. If you're using a Fish Picture, you are perceived as either out of touch with the social discourse, or so incredibly obsessed with right wing politics, I mean fish, that you it's the only picture you have. Neither is attractive in a mate. Even if an individual woman doesn't mind fishing in and of itself, she may still discriminate against Fish Pictures because she things it signals a guy who is either socially inept or fish obsessed, because she knows other girls discriminate against Fish Pictures.

It's a good way to select for guys who read the same twitter feeds and thinkpieces you do, where they would have learned that Fish Pictures are bad and maybe racist or something.

Let's apply this simple system to Fish Pictures. Let's start by positing that Tweets have been tweeted around left wing feminine twitter and articles written on left wing feminine-coded websites about how fish pictures are unattractive. This is definitely true, Fish Picture discourse exists, as you provide examples of. As soon as that is the case, the phenomenon is self sustaining. If you're using a Fish Picture, you are perceived as either out of touch with the social discourse, or so incredibly obsessed with right wing politics, I mean fish, that you it's the only picture you have. Neither is attractive in a mate. Even if an individual woman doesn't mind fishing in and of itself, she may still discriminate against Fish Pictures because she things it signals a guy who is either socially inept or fish obsessed, because she knows other girls discriminate against Fish Pictures.

You might be right that that's how it works now. But I want to imagine that the Fish Picture debate started for simpler, more innocent reasons- just a fundamental disconnect between how Men and Women present themselves and see the world.

The men aren't choosing the fish pictures because it's the only picture they have. OK, maybe some are- men usually don't take nearly as many pictures as women, and they don't pose for pics with a friend holding the camera taking multiple shots to take the perfect selfie like women do. But still, they do have other pics. They choose the fish pic because they think it's a good picture!

They think "I should show a picture that shows off my hobbies. I'm outdoors, doing something healthy and vaguely athletic. Here's me in my crowning moment of triumph, having just caught a fish! I have a genuine, happy smile. And it's in a boat, so I can subtly show off that I have at least a little bit of money to afford some recreational equipment."

And women see that and it just BOMBS. They don't see any of the stuff that the men are trying to communicate. They think "What is this gross cold slimey thing? Does he enjoy torturing animals for fun? This picture is at a terrible angle, it's focused on his nostrils. And he's sunburned- obviously not a guy who takes care of his skin. That boat looks gross, too. Why doesn't he have any normal hobbies, like shopping or baking fancy cakes?"

I'm really confused by your summary. What's the disconnect in how men and women see the world that you're outlining here?

I'm probably a little effeminate, I'm certainly no angler, but I'm reading that and your summary of the male position strikes me as almost unbelievably stupid. Fishing as an athletic activity? Are these men really that dumb? I wouldn't fuck him either, frankly.

The female perspective is persnickety and bratty and bitchy, but probably accurate to a reasonable approximation.

I agree with you on balance that some women genuinely disliking fish pictures started the ball rolling, but the far greater effect that makes fish pictures a meme and accentuates their unattractiveness is the knowledge that they are unattractive socially. Once that becomes common knowledge, it is fatal.

out of curiousity, have you ever gone fishing in your life?

edit: to be less snarky. I wasn't trying to do a steelman that makes either side look good. I was just trying to summarize the thinking that I've seen on both sides. Some of which is admittedly quite stupid.

Probably a dozen or so times. Though fairly casually beyond one big sailing trip from Islamorada to Key West and back, when we fished intermittently but constantly for two weeks.

I will say I've never been fly fishing, which I understand is a very different animal.

Like I said I'm no angler. But I see very little visible correlation between fishing performance and athleticism in my friends.

OK fair enough. I wasn't trying to imply that it's some sort of hardcore athletic championship. Just that it's... something! It involves using your body in the real world, using muscles and physical skill. It's "touching grass" as the kids these days say. It's something non-digital. Plus all the other stuff I said about it being happy, natural, expensive, etc.

If women only want guys who have won a major athletics tournament than we are truly doomed as a species.

To be fair, as I think of it more, I think you have the right of it. If you graphed generalized Five Domain fitness against fishing trips-per-year, age adjusted I would bet that fishing would have a positive correlation with fitness up to median, but a weak correlation above median. I was committing the sin of failing to consider the vast number of people too sedentary to fish.

The point I'm getting at is always less about the real implication than the social implication. These are social games.

This is the first I've heard of Fishing Picture discourse, but I will say that a (not very strenuous) hiking picture seems like it would be much better. Hiking suggests trees, mountains, nature, touching grass, and is way more girlfriend friendly. You can go on a little hiking picnic together! She will definitely not be expected to help gutting fish. She will not be asked to have an opinion on the size of their fish. There's no thought of "I wish I had rubber boots and overalls for this activity, but not enough to actually buy them, so I guess my shoes will just smell like fish now." Just overall better. If the guy isn't going to invite her fishing, then it's just as bad -- he can be expected to spend a lot of weekends with his fishing buddies instead of with her.

FWIW, I have been fishing. The one time I caught some fish was a salmon run. Then someone had to teach me how to clean the fish, I froze it, and had to keep coming up with meals that could use poorly filleted salmon for several months until I had eaten said fish. It was... fine. It was almost free salmon. But there was really no opportunity at all for it to be romantic.

Don't give up so easily, we just have to come up with approximately 4 billion athletic competitions, and split the prizes.

Once I set a challenge at my gym for everyone to build a "personal pentathlon." That is, pick 5 exercises/events that you think the lowest percentage of people could beat you at all 5. No matter how unusual the exercises or strange the combination, what can you do that no one else could do better all at once?

I'm no hero when it comes down to it, but I don't think 1% of the population could beat me at all five of: Moonboard climbing max V3-4 climbs in 30 minutes, 5min kettlebell snatch test @28kg, max muscle ups in 10 minutes, 1rm power clean and push jerk, 2k row for time. I'm not even good by hobbyist standards at some of those choices, but I'm good enough to pip most people. The guys who can out climb better than me rarely jerk more, the guys who jerk more rarely climb.

So that's one method.

They don't see any of the stuff that the men are trying to communicate.

So there's a button you can press that makes every woman who doesn't get it not respond? Good; from the looks of most relationships I see, it's hard to filter them out and they seem absolutely awful to live with (on both sides of the equation; I observe that "people who get it" and "people who don't" might as well be different sexual orientations). I guess that's why "good thing you're pretty" is how straight men work; the species would probably have died out otherwise.

I guess the meta then is simply to have a profile picture that's making fun of fish pictures so you can select for women who are secure enough not to [have to] take themselves too seriously (for various reasons), but I think that's also untenable for most men either because they're not with it enough to come up with something silly, or because women of that type have some pretty unique quirks (and they're all flat for some reason, which doesn't tend to trigger the 'attractive' flag in most men, which rather humorously creates the same problem from the opposite end).

Like @Sloot said, it's very easy to get women to not respond. The hard part is getting anyone to respond at all. Try your "meta" and see how it works!

So there's a button you can press that makes every woman who doesn't get it not respond?

Maybe not every woman, but in general for most men there’s a button to have most women not respond: The “send message” button, even after a match when/where applicable.

I like this comment because it illustrates how even in the ostensibly "what you see is what you get" limited space of online dating, there is still a lot of room for subtlety and covert signalling. Is a fish a fish, or an aquatic MAGA symbol? Is the guy who writes "moderate" actually quickly flashing up his gang sign while being able to say, "I was just scratching my head."

It seems that was' old is new; women want a straightforward but respectful guy who is going to be upfront with them. Men will contort the truth and introduce a lot of personal moral flexibility for a shot on goal (Stanley Cup Game 7 tonight).

The most important point is that social intelligence has been, is, and always will be a highly prized skill. So prized that it will always find a way to be showcased.

Fishing is a red tribe hobby and it’s not a particularly high-status red tribe hobby; much of the US has water temperatures too warm for classic European gentlemen’s game fish. Everyone in the red tribe fishes, but actually eating bass is kind of a bumpkin peasant thing. Fishing for panfish(a category of fish that are so named for their culinary qualities) is inherently peasant-like, as much as I might like to do it(although tbh Cajuns are sometimes exempt from the usual status games).

Boats, lake houses, etc are pretty heavily high end red tribe hobbies and like hunting can be a form of red tribe status display as much as a recreation; I don’t think hotrodding or horses are that different, boats are just more common. For older red tribe men this is often easier to get past the wife than other high-cost hobbies because of the perception that boats are great for family oriented recreation.

"Why do so many guys have fishing/hunting stuff in their Tinder profile pics" is a perennial complaint/debate in Finnish social medias, but I haven't seen it explicitly connected to politics, just "no woman is going to be impressed by this stuff, why don't guys put a bit of an effort in their profile pics instead of just using whatever is at hand?" and like. (After all, many guys don't take pics of themselves on the reg - pics taken to demonstrate a nice catch or something may indeed be the most recent ones of them available!) The common retort is that it's good if the profile pic shifts out the woman who can't appreciate a man's hobby.

And then, of course, there are the cowgirl tomboys who shoot better than the boys. I’ve unironically met rural women who 100% are looking for a guy to do outdoors recreation with them. Red tribe women like their red tribe men.

Maybe things are more gender-stratified in Finland, I don’t know.

Nah, there are women who hunt and fish, but one might guess that since it's still a male-coded hobby, women who participate will have an easier time finding a guy without needing Tinder than the ones who don't.

You could use it as a sorting mechanism, but I doubt that is what most men are going for. The other pics I see commonly complained about on both sides in the driving selfie and the mirror selfie, or the top down selfie if the subject is fat.

In other SCOTUS news, we have four more opinions published today.

Two of the cases involve very similar issues--Section 1983 claims for retaliatory arrest and malicious prosecution--but for some reason the breakdown of Justices is different.

Gonzales v. Trevino: A per curiam opinion, with separate concurrences by Alito, Jackson, and Kavanaugh, and a dissent by Thomas. Gonzales was arrested and charged with stealing government documents, based on her allegedly attempting to make off with a city council petition (possibly to cover up that she obtained some of the signatures on the petition under false pretenses). Alito's concurrence helpfully summarizes the facts of the case, and, in an unusual move, even includes links to Youtube videos of the incident! (Here and here, for your viewing pleasure). Gonzales admits that there was probable cause to arrest her, but she claimed her arrest was in retaliation for her protected speech criticizing other city officials. The relevant precedent, Nieves v. Bartlett, says that probable cause defeats a retaliatory arrest claim unless the arrestee can show that other people, who allegedly committed the same crime, were not arrested (which would imply that the arrest was motivated by the arrestee's speech, rather then genuine law enforcement concerns). Gonzales presented evidence that other people ... had been arrested, for slightly different crimes, but nobody had been arrested for doing exactly what she allegedly did (with no evidence that anyone else had ever tried to do exactly what she allegedly did). To me, this evidence seems irrelevant to the Nieves exception, which requires a showing that similarly-situated people were treated differently, which is not what Gonzales' evidence showed. But the majority decided it was good enough to, at least, merit further consideration by the lower court.

Chiaverini v. City of Napoleon: Kagan writes for the majority, Thomas dissents joined by Alito, Gorsuch writes his own dissent. A jewelry store owner allegedly bought a stolen ring. He was charged with receiving stolen property, dealing in precious metals without a license, and money laundering. Prosecutors later dropped the charges. Chiaverini brought a 1983 claim for malicious prosecution--which, again, requires proof that the government lacked probable cause to arrest him. The lower court threw out his claim because the first two charges were "clearly" supported by probable cause, even if the money laundering charge was not. The Supreme Court reversed, holding that if even one of the charges was not supported by probable cause, Chiaverini could have a valid claim. Both Thomas and Gorsuch, in dissent, seem to agree that malicious prosecution is not properly considered a constitutional claim for section 1983 purposes--the main difference is that Gorsuch relies on an opinion he wrote while a judge on the 10th circuit Court of Appeals.

Diaz v. United States: A case about expert witnesses in criminal trials. The most interesting thing about this case is that Thomas wrote the majority opinion, Jackson concurred, and Gorsuch wrote the dissent, joined by Sotomayor and Kagan.

Moore v. United States: A mind-numbing income tax case. Kavanaugh wrote the majority opinion, Jackson concurred, Barrett concurred joined by Alito, and Thomas dissented alone as is his wont. Most interesting to me, however, is the publication of a "statement" by Justice Alito, concerning Senator Richard Durbin's sending a letter to Chief Justice Roberts "urging" him to "ensure" that Alito recuse himself in the case. Durbin's letter was ostensibly based on the view that Alito could not be trusted to decide the case without bias, because David B. Rivkin, an attorney for the Petitioners in the case, once interviewed Alito for the Wall Street Journal. Alito points out that the mere fact he was interviewed does not give rise to a presumption of bias. In addition, he points out that Durbin's letter seems like a suspiciously isolated demand for recusal: Alito provides a half-dozen footnotes detailing the numerous times his colleagues on the Court have been interviewed by media companies and then gone on to decide cases wherein those media companies were parties. I had fun reading this, but I'm sure politicians will continue making baseless demands for recusal on similarly flimsy pretexts.

Man, Thomas is really feeling the dissonance, I guess. Is that more than anyone else, including Alito? Or is it just more prominent because he often writes dissents whenever he can, even if he doesn't have to?

Thomas frequently writes dissents or concurrences calling for more radical changes (to him, reversions) in the law than the other justices are willing to accept or take into consideration in whatever the case may be.

Looking here it seems like seems to dissent the most out of the conservative justices, and in many years the most total, though less now since the court became more solidly conservative.

Very cool link!

I still have one case left to give thoughts on from Thursday, and all five from Friday. Here's one of each.

Moore v. United States

7-2. Opinion by Kavanaugh, signed onto by Roberts and the liberals. A concurrence by Jackson. Concurrence in the judgment by Barrett, signed onto by Alito. And a dissent by Thomas, joined by Gorsuch.

The question here is about the constitutionality of taxation. The specific context is from the tax cuts and jobs act of 2017, in the mandatory repatriation tax (MRT), wherein individuals were taxed for (undistributed) income of the foreign corporations that they owned shares in.

A handy summary I ran across of the various opinions:

Checkmarks left to right mean (1) sided w/ government (2) no "realization" req, and (3) considers "attribution" valid

✅✅✅ - KBJ

✅❓✅ - Kav, Roberts, Kagan, Sotomayor

✅❌❓ - ACB, Alito

❌❌❌ - Thomas, Gorsuch

Some relevant tax background: in the United States, there are two types of taxes: direct and indirect. Roughly speaking, direct taxes are taxes on things, indirect on transactions. The Constitution says that direct taxes cannot be passed by Congress unless apportioned among the states by the states' population. This turns out to be inconvenient, as most types of direct tax, like property taxes, do not scale purely with population, so such a tax would need to have different taxes at different locations. Hence, why there's no federal property tax, and taxes of this kind in general are avoided. Indirect taxes, on the other hand, only need to be uniform between states. This is much easier and more natural to do. Additionally, the 16th amendment authorizes taxation of income from whatever source.

The Moores argued two claims at the lower levels: first, that the MRT is a direct tax, because it taxes unrealized income. Second, that the retroactivity of the tax violates due process. But at the supreme court, they only argue the first issue.

Kavanaugh argues that the income is definitely realized, as it has been realized by the corporation, so there's no need to address whether realization is necessary for an income tax. Rather, he argues mainly about attribution. There's a long history to some things being taxed "on a pass-through basis," where income is attributed to individuals, regardless of whether it has been distributed to them. One example is in partnerships: the individual partners are taxed on them, rather than the partnership itself. Kavanaugh argues that this is just that, and that the Moores don't make any convincing case that this law is different from other taxes that they acknowledge are constitutional. Kavanaugh emphasizes also the limitedness of this decision more than once, saying that they rule only on "(i) taxation of the shareholders of an entity, (ii) on the undistributed income realized by the entity, (iii) which has been attributed to the shareholders, (iv) when the entity itself has not been taxed on that income. In other words, our holding applies when Congress treats the entity as a pass-through," and makes very clear that he is not here addressing about several other sorts of taxes, that the government had made arguments that they would be fine, such as a wealth tax.

Jackson, concurring, writes to argue that there are several further steps to striking down a tax, were that ever to happen: first, they would need to show that realization is necessary, (which she thinks is wrong, as that isn't in the text of the 16th amendment, and argues that the wording there was broad enough), and secondly that the tax was a direct tax, which she also interprets narrowly. She also argues that the Court should limit itself, pointing to the backlash over Pollock (which had classified some sorts of income taxes as direct) and the passing of the 16th amendment as an instructive lesson.

Barrett, joined by Alito, concur in the judgment. They argue that the Sixteenth amendment requires realization, when it says "derived from any source," means the same time by derived as what realized means—both are used when talking about "profits from capital." Barrett then argues that they have not realized income from their shares—"they have not 'derived' income from their shares because nothing has come in." She argues that the government is wrong in its argument that a tax on unrealized gains would be fine, like looking at a property's appreciation, because the person hasn't actually received the value yet, and the market could still change things before they actually receive any benefit from it. But the corporation they owned shares in did realize that income. Barrett argues from there differently than Kavanaugh did, though, saying that what is actually happening in the precedent cited, is that the past cases "allow Congress to disregard the corporate form to determine whether the shareholder received income in substance, if not in form."—that is, Barrett thinks that whether it's allowed to be taxed does not depend as much upon what structure it's legally in, but what structure it's functioning as, so in the case of foreign corporations set up as tax shelters, for example, it's fine to attribute and tax the shareholders of them. Barrett argues that attribution is limited constitutionally, due to the Due Process clause, and also in the 16th amendment, and that were that not the case, it could be abused. (There's an example involving Ford trucks that I don't follow.) But she declines to actually try to work out what the exact boundaries should be, since no one brought it up adequately. She agrees with Kavanaugh that the MRT (what's being ruled on) is pretty much the same as subpart F (what the Moores argued was fine and different). And so, the Moores haven't persuaded, and that's that.

Thomas dissents, with Gorsuch (EDIT: not alone, contra what was said above), because the taxes have not been realized. He also rejects attribution. He goes on a lengthy exposition on the history of taxation in relation to the Constitution, from the time of the articles of confederation, through to the passage of the 16th amendment. It's good, and of the cases I've read over the past few weeks, it's the single thing most worth reading more broadly speaking. He argues for a fairly narrow reading of what the 16th amendment does. He argues that Pollock revised the meaning of direct and indirect taxes, disagreeing with the civil-war era consensus (where only head taxes and land taxes were direct) and connected incomes to the source of those incomes—they would be direct or indirect if taxation upon the source would be direct or indirect. The 16th amendment then removes the source component, and makes it always indirect. Thomas agrees that realization is required, for the same reasons as Barrett. Thomas rejects the arguments the majority made on behalf of attribution, though in several cases for different reasons than Barrett does. He comes to roughly the same conclusion as she does (though she had chosen not to lay down any clear rule): "At most, the cases cited by the majority demonstrate that Congress may attribute income to the entity or individual who actually controlled it when necessary to defeat attempts to evade tax liability." Thomas argues that Subpart F is different MRT, because Subpart F deals only with income in that year, whereas the MRT does not care whether the shareholder had the corporation at the time of the earning, and does not really have a good reason for it to be considered income. He declines to say whether it is unconstitutional, but does think that it is meaningfully different. Thomas rejects the consequentialism of the majority in their mentioning the large amount of tax revenue that would be lost.

The 7-2 does not reveal what the true division of the court is on these questions. Barrett and Alito are quite close in their views to Thomas and Gorsuch. Kavanaugh and company are a bit further, because they endorse an attribution standard. Jackson clearly has a much broader view of what taxation should be allowed, compared to Kavanaugh who made very clear how limited this ruling was in what it allowed.

It was also interesting to consider that the government was attempting to push the ability for them to bring about future taxes. I found Barrett and Thomas more convincing myself, but I am glad that the majority made clear that this is not inviting taxes on unrealized gains.

From Friday:

Smith v. Arizona

9-0, opinion by Kagan, joined by Sotomayor, Kavanaugh, Barrett, and Jackson, and in part by Thomas and Gorsuch. Thomas and Gorsuch each wrote an opinion concurring in part. Alito wrote an opinion concurring in the judgment, which Roberts joined.

This case is about the 6th amendment, specifically the confrontation clause. The accused in a trial has the right to be confronted with the witnesses against him. This case is about experts, specifically, an absent lab analyst. Some chemicals were analyzed to be drugs, the analyst was unavailable for the trial, so someone else answered questions, following the notes. Kagan argues that it's testimonial, and that it's hearsay (is relevant for the truth), and therefore the confrontation clause applies. Gorsuch and Thomas both aren't sure that it's testimonial.

Thomas would not have the court look at the "primary purpose" of each statement, as Kagan had suggested, but rather would refer it to being about it being a solemn declaration, referring all the way back to Queen Mary of England. Yes, before the colonies. Making the appropriate rule whether it's similar in solemnity to that.

Gorsuch wants a better opportunity to consider what it means to have it be testimonial, and isn't a fan of the "primary purpose" test recommended by Kagan.

Alito, joined by Roberts argues against the opinion. He talks at length about how, up until several decades ago, experts used to have to couch everything in hypotheticals, and how that was horrible for a bunch of reasons. The Federal rules of evidence made things much better, with instructions to the jury instead to ignore portions of things, or only apply testimony to a given purpose. He sees this as at risk of leading back to hypothetical-land, and would prefer to lean on instructions to the jury. He also would affirm that not all testimony is hearsay, or for the purpose of the truth of the facts involved.

I'll be back sometime later, with the other four from Friday.

Thomas rejects the consequentialism of the majority in their mentioning the large amount of tax revenue that would be lost.

My main man comes through again! “Collectivists hate this one weird trick.”

I’d love a thorough unpacking of his opinion in this case. Where might I find it without having to sign up for something?

Well, you can just read it, as it's only thirty pages or so, and those are pages with large margins. I linked it at the start of the comment, but here it is again. It's the last one.

I imagine scotusblog has also summarized the case, but that would be something like the length I had, not an in depth analysis.

I just noticed your flair is relevant. How does the fairtax proposal work?

Thanks for the PDF! Here's a summary of the FairTax proposal.

America's current income tax system is a vast and arcane compromise between taxing economic activity to pay for necessary services which enable that activity and finding unescapable means of confiscating the wealth of those who can most afford to see it gone in order to help those without the opportunities the rich have had. Thus, it ends up

By being produced in a jurisdiction in which income is taxed, every product and service has some dollar amount built into its price which ends up in the hands of the government, that is, in the hands of the well-pensioned union of taxmen of the IRS. The hamburger I purchased today cost me $11 of my own post-tax income, and some 20-30% of that $11 is "embedded taxes":

  • some of that went to the cook, whose income is taxed
  • some of that went to the cashier, whose income is taxed
  • some of that went to the owner, whose income is taxed
  • some of that went to the foodservice wholesaler's truckers, warehousemen, and owners, whose incomes are taxed
  • some of that went to the farmers who grew the wheat, lettuce, tomato, onion, cucumber for pickle, soybeans for mayo, and the rancher whose cow I ate, all of whose incomes are taxed
  • et cetera throughout the supply chain

Each of these individuals is at risk of underpaying the government, at which point men with guns will come to their homes and take them to a holding cell.

Imagine if, instead of having three hundred million potential tax cheats to monitor and prosecute, the government revenue service only had some two to ten million, all of them business owners and accountants and none of them laborers.

Imagine all IRS agents going into retirement and the Sixteenth Amendment riding off into the sunset, never to be seen again, all replaced by an automatic and easy-to-comprehend tax system which is the fairest ever devised by men.

Imagine if you paid the same amount for goods and services, paid the "embedded taxes" you were already paying for, but no money came out of your payroll for taxes.

Imagine never being at risk of tax fraud, not even for investments or selling your own property.

Imagine getting a monthly tax refund of 100% of the taxes you've paid the government.

The FairTax proposal has six moving parts:

  1. FICA payroll tax would be replaced by a point of sale tax: 23% of what you pay for services and new goods at retail would go directly to the government. (Some people say it's 30% on top of the price, but that's just the exclusive/inclusive viewpoint shift.) Price-gouging would be investigated and prosecuted, because the goal here is for prices to remain the same across the board as the government swaps one entire tax system for another.
  2. Your payroll wage amount would suffer a one-time drop to what it is after tax withholding. For example, if you make $15/hr. but take home $12.50/hr after taxes, your new wage is $12.50, of which you keep every dime. If you make $79k/yr but only take home $54k, you now make $54k/yr.
  3. Investment taxes would be a thing of the past. Anyone, no matter how poor, could gamble in the stock market without having to track the money for the government.
  4. Wholesale supply chain purchases would not be subject to the 23% FairTax, thus avoiding creating an advantage for vertically integrated companies. This however does not include business-to-business purchases between suppliers and vendors!
  5. Used goods would not be subject to the 23% FairTax, thus encouraging refurbishment and reuse instead of disposal, and avoiding taxing estate sales, yard sales, used goods auctions, and thrift stores. This includes used buildings, even skyscrapers and stadiums. Once it's been purchased taxed, it'll never be taxed again.
  6. Any adult who registers for the pre-calculated rebate ("prebate") gets around $250-$300/mo. by direct deposit, and a lower amount per dependent child. This covers 100% of the FairTax embedded into the goods and services of someone living at the Federal poverty level, paying all they earn for their daily needs which are assumed to be all services or new goods, and thus FairTaxed.

The last part, the prebate, is what keeps this consumption tax from being regressive. The middle class buy more due to a more expansive lifestyle, and the investment class buy a huge amount more; they'll pay a lot more to the government than $300 each month, but both get the same flat $250-$300/mo. prebate. The 1% of the 1% might not even bother registering for such a relatively miniscule rebate, and the government gets to keep it. Meanwhile, it would be a source of direct income to the homeless and indigent, who could sign up for a bank account with their FairTax registration and direct deposit.

There are lots of arguments against the FairTax, but most of them are based on misunderstandings of one of the six moving parts above. I've collected exactly three cogent arguments against, which is a lot less than any other system, even Georgism.

(On a slight tangent, excluding groceries from sales taxes is surprisingly regressive.)

One thing that comes to mind is that is would distort the allocation of labor towards less productive activities that were exempt from tax (such as repair of an existing house) as compared to one that was subject to tax (such as building a new house).

The services of the contractor repairing the old house would be FairTaxed, as would services on old cars, tailoring of old clothes, and tenant remodeling for business suites in old business buildings. It’s only tax-free if you buy the thing and repair it yourself.

Also, why would repaired items be considered less productive? They use less resources to be restored to the same utility as a new thing. Unless you’re talking GDP-style metrics?

How could that work? You said resold items are exempt.

I can sell my house to the plumber tax free, he can work on it (of course, paying FairTax on everything he buys from HomeDepot) and then sell it back to me for more, again, no tax. The difference in price minus the difference in supplies he purchased is the value-add from his skilled labor, which is untaxed.

[Repaired items] use less resources to be restored to the same utility as a new thing

They do use less resources, but they use much more labor per unit output because they don't have nearly the economies of scale. Or if you prefer more formally, labor is a kind of resource which is in a substitute relationship with physical resources.

This is not to say that repairing is bad! In many cases it makes sense, it's only that the tax system shouldn't have such a strong preference because it's distorting.

First off restoring old things can be less productive than new things. They have components that don’t fit with new standards and working around them would be low productivity. Also factories are just more productive than one off jobs. So it’s not just GDP-style metrics.

Second, you would have a whole issue dealing with what’s new and what’s old. In an extreme example say your building a 70-story condo building and replacing an old bodega. Is it new or old if you build the new connecting and on top of the old? So you say that’s obvious new and that is maybe easy to define but you would have a huge scale of nuances to figure out the line. Which in other areas we deal with but there is going to be a gamification line.

My thoughts and concerns on the points:

  1. I'm definitely opposed to the ban on "price gouging". It's important that we have free markets, and prices fluctuate accordingly. If you don't you'll end up with surpluses or shortages.
  2. I hope this voluntary on the part of the companies, and by the hand of the market, not mandated by law. I'm not a fan of instituting price controls, as said above.
  3. Great.
  4. Alright. (Is this like a VAT?)
  5. Fair enough—I do wonder about ship-of-Theseus-ing, and whether that would ever end up being viable to make "used" goods. But I don't imagine that that's likely to be too much of a problem.
  6. Sure. I certainly don't expect the rich to skip it—they're often rich in part because they're conscientious about money, or they have someone to help manage their finances, but sure, a UBI.

Alright, some overall thoughts. The main thing here seems to be a shift of everything to a sales tax on the selling of new goods. This is distortionary, but I don't know that I mind lowering consumption? I would want to know how you'd handle imports of foreign goods. Also, to be clear, would this be packaged with a lowering of the welfare state more generally? How much would the markets move to accommodate the new tax structure, and how would that affect the revenue raised? I'd probably want to look up what economists think before having any definite opinion on this.

A national sales tax, fair tax, VAT whatever you want to call it seems economically more efficient.

I am not sure if it would lower consumption or not.

The big issue with it is it’s impossible to swap systems. I guess you could do it gradually but that probably just ends up being the government gets more revenue and spends it. Older people who paid income tax on savings get hurt with a new tax on consumption.

A lot of it feels like our roads system. Since we built everything for cars it’s difficult to swap back to trains and walkable. We can debate which is better but we have everything designed for cars now. If America got nuked, we did post-apocalypse for a few decades and then we’re back in growth mode we might choose different design routes.

But since system switch is hard it leaves these tax ideas mostly to the academics.

I'm confused about (2). Different people in different situations are subject to different degrees of withholding, many of which concern protected class information. How then would the business offer the right wage, while maintaining privacy?

I'm also confused about stock stuff. Currently we have a hard to understand regime, but one built on some core and logical principles, like how realized and unrealized gains work, and related to how stock and passive incomes aren't the same as wage incomes. I'm not really sure how this system addresses these tensions, if at all. Is rent/housing considered a sale or service? The retail paradigm does not capture all significant financial transactions.

How does this differ from VAT tax approaches favored in the EU? Isn't this basically the same idea, implemented in a more confusing way?

And finally, couldn't this be classified as just a super-duper sales tax? If we swap our tax reliance from recurring revenue sources to one based almost exclusively on economic activity, wouldn't economic downturns be devastating, and create huge problems in how government services are provided?

Don't feel the need to respond to each or any of these, but I am curious.

I think federal taxation is already almost exclusively on economic activity? It only really uses indirect taxes (See what I'd written on Moore v. United States). That's different from the states, though.

Looks like SCOTUS has added more days to it's current session, and might release more opinions next Friday. I've been itching for Grants Pass to come down, so that's giving me some hope.

Haven't heard about the potential Chevron reversal yet, right? Are they saving the most controversial for last? Yikes, I hope not. I really hope it doesn't reverse.

If you’re suggesting that a Chevron reversal will backfire on the right, I couldn’t agree more.

And the courts.

My probably oversimplified understanding is that we'd go from

currently government agencies can decide what to do when laws are ambiguous, and if it's extra tough, the courts step in

to

courts decide what do do when laws are ambiguous, and since all the cases are tough and technical, the courts just ask the agencies to explain things all the time

and create a massive additional workload for judges and government agencies both... and private business too, as a matter of fact, because changing and unpredictable regulations are often worse for business than consistent but annoying regulations. Do I have that right?

Except that’s now how it works at all in practice. No in practice agencies scratch and claw to find a hint of ambiguity and then claim they are entitled to chevron deference. While some courts actually do a hard look, many courts just quickly pass.

Also, I work in an environment that is heavily controlled by regulations. I promise you such regulations change and change rapidly. Frequently removing the ability for agencies to take creative readings likely will lead to more stable law. At least this should be testable.

Third, even if you remove chevron you still have things like Skidmore deference. The government when it issued regulations per the APA has to explain the regulation. If the government provides a compelling argument for its position than the court will accept it. That’s different from chevron where even if the government doesn’t provide a compelling reason often the courts will have to accept it.

Finally, current admin law has it almost backwards. The courts take a much harder look at facts and a much more deferential look at law. The whole idea being the administrative state is they are experts in facts. Overturning Chevron helps (but is not the end of the story) restore the court to its proper role as the expert on law.

PS killing chevron probably will make congress write more laws if there is a desire to regulate more. That seems like a good thing to me.

Great comment. Worth noting, however, that in terms of time and caseload, currently the courts do have it easy. Reversing Chevron will almost without a doubt increase the workload on judges and leave agency workload near unchanged. I'd be highly surprised if this wasn't the case. In that sense, reversing Chevron might, as a practical matter, backfire on courts, including the SC. Isn't the "better" option that courts step up and take a "hard look" at these creative interpretations more pro-actively?

If the court is doing a hard look, then there really shouldn’t be much incremental work (ie the court already needs to use the traditional tools of statutory construction to try to determine what the text means). But the problem is if you let courts be lazy by providing Chevron deference they will be, even if you say “but we really want you to validate there isn’t a better read.”

Note the legal system writ large (as opposed to more narrow parts of law) have been taking the APA more seriously. This has caused regulations to be deemed invalid. One of the criticism ls of these approaches is that it will cause a lot of work! But the response is the law is the law. I see it similarly.

I promise you such regulations change and change rapidly. Frequently removing the ability for agencies to take creative readings likely will lead to more stable law. At least this should be testable.

This was also a comment from a Circuit Court (I think the 9CA) on a set of labor law decisions where the presidential appointees on the NLRB would flip flop between two sets of precedents every so often. And hence both the opinion and the opposite opinion are inside Chevron, the courts can not prevent the actual policy from bouncing back and forth every 4-8 years.

Let me see if I can find it.

Yeah. The changes are subject to State Farm review but A&C is relatively easy to get around (eg we don’t believe that is a fair reading of the law).

I think the average American doesn’t understand just how much of law making is regulatory and how relatively limited recourse there is (because ultimately there is a single executive). Gutting chevron won’t fully change that but it is, as they say, a start.

I think you are correct on your opinions. Reading me makes me feel that this is true : “Constitutional Democracy doesn’t scale”

Nothing in the regulatory state feels Democratic to me. I guess you could say it all flows thru the executive to gain Democratic legitimacy but it’s definitely not Constitutional Democracy.

If humans were smarter perhaps we could all understand the details of every regulation and run that thru our congressmen but we are not.

I feel confident saying the regulatory state would not pass muster on what the founding fathers believed they were passing. But I don’t know what the other option would be.

One improvement potentially improvement might be direct election of all the regulatory heads. You would add more partisan politics but atleast the people would be picking the heads.

On a skim of Moore (see here for my earlier post based on the briefs):

  • The IRS wins 7-2 (Kav writing, but it read like a Roberts opinion), on the narrow grounds that a tax on realised income of a corporation imputed to the shareholders is an "income tax" and therefore legal under the 16th amendment. It avoids the question that people were excited about, and which the Court said it would answer when it granted cert, which is whether a tax on unrealised income can be an "income tax".
  • Thomas (who I expected to dissent) and Goresuch (who I did not) dissent. The tone of the dissent is that their real beef is that the majority punted on the big question - their writing on why the majority are wrong on the imputed realisation question they did answer is a bit half-hearted.
  • Barrett and Alito do not join the majority, but concur in the judgement, saying that there is a realisation requirement, but that imputed realisation meets it.
  • Jackson joins the majority, and writes separately that there are lots of ways the tax at issue might be indirect (and thus legal), including the possibility that a tax on Americans holding shares in foreign companies might be an indirect tax by analogy with tariffs and suchlike.

So on the question that made the case a hot-button case, you have 4 justices saying that there is a realisation requirement, 4 1/2 punting, and Jackson sort-of-saying that there isn't. This means that a wealth tax almost certainly loses if it reaches the Court.

Other comments:

  • Everyone involved (parties and all 9 justices) was very keen to say that they didn't want to blow up the Internal Revenue Code by saying that all forms of taxation based on imputed realisation are unconstitutional. There is a lot of casuistry about whether or not the tax at issue is distinguishable from the long-standing forms of imputed realisation (S-corps, LLPs and similar corp/partnership hybrids, personal service company taxation etc.)
  • Both the majority and the dissent write about the history from the perspective that the 16th amendment redefined income taxes as indirect, not that it made a specific type of direct tax legal. This seems silly to me.

One other point. The dissent actually calls out the majority for reading the law wrong because the majority was worried about reading where the law (in the dissent’s view) required it to go. So I’m not sure we can say all 9 were very keen not to blow up the IRC. It isn’t clear Thomas felt that was needed but seemed willing to do so if his understanding of the law so required.

Both the majority and the dissent write about the history from the perspective that the 16th amendment redefined income taxes as indirect, not that it made a specific type of direct tax legal. This seems silly to me.

It's apparently a popular opinion in legal circles these days that Pollock v Farmer's, the decision that necessitated the 16th amendment to legalize income taxes, was a terrible decision and that income taxes were always indirect taxes. This bit is, I think, a snipe in that direction, included because the 16th amendment means the Court will never get the chance to overrule Pollock itself.

I have never understood the hate, but it's a moot point now.

I think the majority opinion dropped a ton of tea leaves suggesting a wealth tax goes the opposite way without saying so explicitly.

As I write below, the dissent reads more like they think 965 could be unconstitutional as applied even if not facially (I know that isn’t what is said). I think the other thing that bothers them even if it is out of the scope of this petition is the issue of retroactivity. Taxing income earned 30 years prior seems wrong.

My prediction was:

With that model, I will guess that Roberts will guide a 5-4 or 6-3 majority that carves out a narrow decision that prevents expansion of taxation powers in the most egregious fashion while not rolling much back. Gorsuch may well pen a concurrence that's much more strident and Thomas may join him with a "yeah, and also we should burn all this shit down" opinion. Sotomayor or Jackson will pen a leftist screed that amounts to, "but if the conservatives are right, this would stop a lot of taxes that we like!" opinion. Kagan will dutifully concur, but decline to write an opinion because the reasoning is too sketchy.

I didn't go narrow enough and didn't give the liberal justices enough credit for being willing to join that narrow opinion. Likewise, I overstated just how far Gorsuch and Thomas would be willing to go. As with many decisions, the correct update is in the direction of the Justices just not actually being very radical.

Diaz v. United States

After reading the FRE at issue and the opinions in the case I think the court got this one wrong. Either the purpose of the expert witness's testimony was to be about the defendant's state of mind, which I would read 704(b) to bar, or the testimony was irrelevant and prejudicial. I guess as long as the expert doesn't say the magic words "In my opinion the defendant had intent X" they are free to imply whatever they like about the defendant's intent.

Imagine we have as a defendant a man named Charles. He is charged with intentionally killing his wife. The prosecution offers expert witness testimony to the effect of "When men named Charles kill their spouse it tends to be intentionally, rather than accidentally or negligently." That testimony would be fine under this rule, right? The testimony isn't about this Charles who is accused of killing his wife, it's about the abstract category of men named Charles who kill their spouse! Totally different!

Imagine we have as a defendant a man named Charles. He is charged with intentionally killing his wife. The prosecution offers expert witness testimony to the effect of "When men named Charles kill their spouse it tends to be intentionally, rather than accidentally or negligently." That testimony would be fine under this rule, right? The testimony isn't about this Charles who is accused of killing his wife, it's about the abstract category of men named Charles who kill their spouse! Totally different!

It would be fine under the rule, but not fine under Daubert more generally because nobody is a qualified expert in "what people named Charles are thinking." The expert's opinion still has to be backed up by experience, facts, or data and you can move to strike it if it's not.

Rahami dropped today.

It's about what I and @The_Nybbler expected, and worse a Roberts opinion at that. Roberts did "not meant to suggest a law trapped in amber", and lower courts will quite happily take his already-extensive 'analogies' to permit nearly anything. Barrett continues to parade "Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms” and promise that this isn't a blanket permission slip for lower courts to turn into an interest-balancing approach that never recognizes gun owner interests, and no one with two brain cells to rub together should believe it. The progressives continue to argue in favor of overturning Bruen (and, implicitly, Heller), and beyond that just making that blanket permission no-gunnie-interest interest-balancing test the rule instead.

There's a separate Gorsuch concurrence, but, unsurprisingly, it is not going into the fine details of esoteric interpretations in some way that might help Second Amendment causes, and instead just to announce how much the court is punting.

In theory, the concurrences draw out a large array of other challenges to the same statute that would be more suspect, but we're several years -- and several far more sympathetic cases -- into SCOTUS punting on them, there's no way to bring a challenge without risking your freedom, and no guarantee that you'd not find yourself Abramski'd even if you did. The most optimistic gloss I can read is a bit of text for Range, but Range doesn't even have cert yet, and I would not be surprised to see him GVR'd for another three-year-delay.

Tactically, domestic violence was not the battlefield that gun folks should be contesting.

They were on a good streak since Heller, but this was a bad case and you’re right it made bad law.

The Supreme Court denied cert to multiple cases with more sympathetic defendants in favor of Rahami, whose case was brought by public defenders and not any organized gun rights organization. They chose a bad case because they wanted to have as much an excuse as possible for walking back Heller and Bruin, which the lower courts have rejected.

I suspect they didn’t want to take this either but the opinion below forced their hand.

If the CA had been sensible then the court wouldn’t have had the chance.

Is this maybe a good thing? I see no personal challenge to my gun rights living in a red state - I think large Federal gun restrictions died with the % of the electorate who owned a gun increasing during COVID/the summer of Floyd.

If blue states want to pass more restrictive laws: A. That's a plus for federalism, the only way I see to reduce the national partisan temperature B. That provides lots of fun little opportunities for research on differences in shooting and such that a unified national regulatory structure does not.

Nybbler has already gotten into the pragmatics of leaving half or more of the country a no-rights zone, but I'm going to murder this question closer to its root: I do see personal challenges to gun rights as a Red Stater.

The federal government passed -- post-summer-of-Floyd! -- a bill that banned hunter education and sports teams in public schools, and that was the unintentional bit they eventually reverted. The same law's restrictions on gunsmithing, in contrast, remain unquestioned. You have to sell a ton of guns to have the federal government break down your front door and shoot you in the head in a Red State, but the federal government also argues that it's illegal to sell one. Blue States will happily sue the companies selling firearms into the ground, fuck federal law or common sense saying otherwise.

I'd be a lot more persuaded by the 'laboratories of democracy' argument were it allowed to apply in any way that wasn't a ratchet down.

Until they pass laws or have policies that have the benefit of snuffing out the entire interstate firearms business.

It's not a plus for Federalism when their rights apply everywhere but yours only apply in your home state.

I think there have been inroads in some areas, ie school choice that are more red-state coded, while still taking your overall point

Their right to abortion now only applies in blue states.

And Blues are actively undermining the court because they find that situation intolerable.

How do you mean?

The current Supreme Court situation looks more functional than it did in Mitch Mcconnell’s day.

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But unlike other “rights” most will never use or use only once the abortion “right.” Given that it is trivially easy to travel to any blue (and even many red) state, there isn’t a big restriction on this so called “right.”

Reds don't treat "small restrictions" on their "so called rights" as lightly, I observe.

Consider: most will never use their right to defend their house with lethal force.

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Yes, that's their singular loss.

Laws around soft drugs are another example, even if widely disregarded.

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It appears that by validating laws against "going armed in a way to spreads fear", they have sub silentio overruled Bruen in its entirety. But only sub silentio, so the Second Amendment is still valid for debate purposes, just not for bearing arms.

I don't share the blackpilled reading of this case that I'm seeing here. The vast, vast majority of gun owners have nothing to worry about from the narrow holding of this case. Even defendants who are similarly situated to Rahimi can plausibly argue for a different result in future cases.

First, Rahimi raised a facial challenge to the law. The only question before the Court, therefore, was whether the statute was unconstitutional in every single conceivable application. This means any future defendant may still raise an "as-applied" challenge to the law and argue that it shouldn't apply to their case. Since Rahimi's case was basically as bad as it could possibly be, it should be relatively easy to distinguish.

Second, it seems Rahimi did not contest the evidence of his numerous violent crimes. Even if a future defendant is accused of similarly egregious conduct, if he asserts his innocence, that alone would meaningfully differentiate his case from Rahimi's. To the extent gun owners are worried about "red flag laws" eroding due process, that issue was not addressed in this case, so it is fair game for a future challenge to the statute. The Court explicitly makes this point in footnote 2.

Third, the Court is careful to explain that historical gun regulations like the "surety and going armed" laws presumed that people had a right to carry guns in public. Their prohibitions on gun possession were limited to temporary disarmament of specific individuals based on a particularized judicial determination of their dangerousness. Meaning legislatures cannot use those cases, or Rahimi, as an excuse to prohibit broad swathes of the public at large from possessing or carrying guns.

Fourth, the Court explicitly rejects the government's argument that the 2A only applies to "responsible" citizens, whatever that means.

In no way does this case overrule Bruen, sub silentio or otherwise. The historical "going armed" laws, as already addressed in Bruen, did not prohibit public carrying of weapons for self-defense, so merely "validating" such laws (their validity was never challenged, just the degree to which they supported modern regulations by analogy) won't change anything.

I know progressive judges in the lower courts will grasp at any straw to ban guns, but that was already true before this case, and the Court expressly leaves open enough roads to challenge anti-gun laws that I don't see this opinion as realistically improving the lower courts' ability to hollow out the 2A.

In no way does this case overrule Bruen, sub silentio or otherwise.

I totally agree. But I think there's a subtle additional thing going on, similar to what happened with the left wing courts in the 1960s. There you had an opinion like Griswold whose central holding held on for a while (at least 60 years) but whose reasoning and implied test did not survive. I don't think we have a good word for this -- a case whose holding stands but whose reasoning and methodology were replaced later. It wouldn't be right to say it was overruled or distinguished.

So by analogy, I think there is a strong majority on the Court for the central holding of Bruen (or the Bruen/McDonald/Heller line, if you will) but there may be a subtle shift in the specific test that it endorsed. I don't think there's 6 votes for a balancing test or anything like that, but I think there a few pro-Bruen-the-holding votes that would rather endorse a different test than the historical test that it laid out.

If I'm playing legal realism, I think the right wing of the court made a mistake assigning Bruen to CT rather than Roberts or Alito just like Griswold should not have been to Douglas. Not because I think CT is the lesser jurist, just because his opinion doesn't command 6 votes for its method, only its conclusion.

EDIT: Allegedly Roberts and Kav wouldn't even sign on to the original Bruen until it was changed. We'll never know what was in the draft or what the changes were, but it seems to me that having either Roberts or Kav author the majority opinion (to which CT could concur in judgement-plus-I-would-go-much-further, as he does) would have been better.

[ And if I may, ping /u/gattsuru for his usually insightful thoughts. ]

Griswold made contraceptives legal. Contraceptives are still legal in all 50 states. Bruen/McDonald/Heller did nothing. In New York City, you went from not being able to carry a gun because you couldn't get a carry permit, to perhaps being able to get a carry permit (though it's not clear that they're actually issuing them) but it no longer allows you to carry a gun. Griswold may have suffered some damage; Bruen was dead on arrival and Rahimi is its quiet burial.

I don't share the blackpilled reading of this case that I'm seeing here. The vast, vast majority of gun owners have nothing to worry about from the narrow holding of this case. Even defendants who are similarly situated to Rahimi can plausibly argue for a different result in future cases.

No? You don't think every appeals court save the Fifth Circuit is going to read into the court's endorsement of the historical significance of laws against "going armed the the terror of the public" justification for a general prohibition on bearing arms publicly? Because I think it's pretty clear from recent history that it's exactly what they'll do.

This means any future defendant may still raise an "as-applied" challenge to the law and argue that it shouldn't apply to their case.

The court said that the prohibition was justified if the court made a finding that the person subject to the injunction had committed domestic violence or if the court enjoined him from committing domestic violence (even if he had not committed it). That's sufficient to cover essentially all applications of the law. A court orders a man (and yes, 90+% of the time it will be a man, except in jurisdictions where such injunctions are automatically reciprocal -- and the courts will indeed carve out an exception for that case, if it comes up) to not do something already illegal, and he loses his Second Amendment rights.

Third, the Court is careful to explain that historical gun regulations like the "surety and going armed" laws presumed that people had a right to carry guns in public. Their prohibitions on gun possession were limited to temporary disarmament of specific individuals based on a particularized judicial determination of their dangerousness. Meaning legislatures cannot use those cases, or Rahimi, as an excuse to prohibit broad swathes of the public at large from possessing or carrying guns.

The appeals courts will simply split hairs and say that those laws support not a complete prohibition, but whatever prohibition is on the table in the given case. Can't carry openly in one case (terrifies the public). Can't carry concealed in another (carrying concealed indicates you're up to no good). Can't carry this or that gun (too terrifying). Can't carry more than so much ammo (terrifying again). And the Supreme Court will respond to this with cert denied, as they have been doing.

Edit: When I, a citizen of the United States and the state of New Jersey, can walk into a gun store, buy a modern handgun and rifle, and carry both of them, loaded, across the state of New Jersey and to my office in New York, using either my own private transportation or public transportation, without running afoul of any laws, THEN I will believe the Supreme Court takes the Second Amendment seriously. Not until then.

Well, it turned out that putting all the “conservative” Catholics on the Supreme Court actually meant they only cared about that one Catholic issue (abortion) and issues related to that issue (religious freedom) and not, in fact, any other conservative policies.

The right confused the zealotry with which devout Catholics hated abortion and were willing to do anything, study anything, join any political movement and climb any hierarchy to restrict it for actual commitment to any other aspect of American conservatism. Now it turns out they’re just libs who hate abortion and have a mild (though likely not enough to rock the boat) distaste for gay marriage, but are otherwise pro-DEI, pro-immigration, pro-gun control and so on. Shocked Pikachu indeed.

Ah, Gorsuch is the most consistent conservative on the court.

It turns out that, save Justice Thomas, and perhaps Eugene Volokh, there are no elite conservatives in the field of law.

Gonzales v. Trevino

8-1

This is a first amendment case (debatably).

The key question upon which the per curiam opinion rejects it is whether Gonzales has to point to specific instances of people not being prosecuted by similar conduct, and the court rules that no, that isn't required. That there are no past cases over a long enough duration is evidence enough. It does not address the second question of whether Nieves applies only to split-second arrests.

Alito's concurrence is lengthy compared to the per curiam: five versus sixteen pages. He provides a more thorough analysis of what exactly is going on in Nieves and argues that therefore it should include split-second arrests.

Kavanaugh's agrees with the opinion as a matter of law, but thinks it not really relevant to the specific case.

Jackson's which Sotomayor signs onto, says that there are other bases by which they can decide that it is retaliatory arrest, such as unusual procedures, and that they don't want to exclude those.

Thomas argues that she needs to show a lack of probable cause, and that the whole understanding that everyone's operating under is wrong, because they're using the wrong common law analogues.

Chiaverini v. City of Napoleon

6-3

This is a fourth amendment case (debatably).

In addition to what was said above, it should be noted that they all agree against the 6th circuit's claim that there is a categorical rule that if any outstanding charges remain, it's automatically okay for them to have been seized. The court (with Kagan writing) decides to leave it at that, and return it to the 6th circuit to reevaluate between three different possible courses: first, that such a warrant is tainted by the presence of a single bad charge, and so the seizure is illegitimate (this is about seizures because it's a fourth amendment claim). Second, that it should be using a but-for: would the judge have detained the person if the bad charge were not included. And third, could the judge have done so. The court leaves it at that, and lets the Sixth circuit decide.

Thomas (joined by Alito) argues that malicious prosecution claims can't be based on the fourth amendment. He rejects Thompson, a recent case on the matter. He argues that it's fairly different from an unreasonable-seizure claim, which is what the fourth amendment is about. Malice and reasonableness are different questions, as are seizures and prosecutions.

Gorsuch, like Thomas, argues that this shouldn't really be a fourth amendment thing. Contra what @theCircuitWeakman says above, Gorsuch does affirm that there is a constitutional basis for this, but he would put it in the due process clause of the fourteenth amendment solely, instead of incorporation of the fourth amendment in that clause.

Diaz v. United States

6-3

In this case, there was testimony given in a trial that most drug-runners know that there are drugs in their vehicle. The question is whether that's okay, or whether that's too close to asserting things about the state of mind of Diaz, as that's not allowed. Thomas, with most of the court, argues that it's fine, as it isn't making a claim about all couriers (and so wouldn't be a claim about Diaz's state of mind).

Jackson agrees, and writes a concurrence to argue that "Rule 704(b) is party agnostic," saying that neither side can witness directly to mental state, but both can present evidence, over its likelihood, as the defendant is a member of some group.

Gorsuch, joined by Sotomayor and Kagan, argues that this goes to far, and, in effect is about the mental state. At one point he mentions the question of what if it were 99%, instead of merely saying most, or if it were talking about something that were generally the case, instead of true of most. That is, there are stronger statements than most, that are less strong than all, that might seems problematic.

Moore v. U.S.

I still need to get around to reading it; it's over 80 pages between everything. It's on taxes.

The tax case dealt with whether Section 965 (a deemed repatriation of certain foreign corporations) was constitutional. The big question here was on the realization requirement and this case was really a staking horse for a wealth tax. While the court upheld 965 on the grounds that income was in fact realized and then attributed to the shareholders, it took great pains to suggest no a wealth tax is a direct tax and therefore would require capitation.

The dissent argues that this tax is unlike most other taxes in that it taxes income of the foreign corporation earned in prior years; indeed in years where the owner that owned the stock on a particular date may not have owned the stock. The dissent would say there can only be a constructive recipient (allegedly different but probably in practice similar to the majority’s attribution) when there are close fsctors of control. The dissent — if they knew about tax — could analogize — between CFC taxation and PFIC taxation.

The problem with the dissent is that problem seems more like an as applied v facial challenge. In truth, I think the dissent didn’t like that congress effectively wrote a rule that imposed taxes on CFC’s income going back potentially 30 years. There is more than a hint of retroactivity though the challengers dropped this argument in their cert petition.

Great write-up as usual.

I've thought a bit about Diaz, and one issue that doesn't seem to have been addressed by anyone (probably because it wasn't raised by the parties, if I had to guess) is why the government even needed expert testimony on this point in the first place. It sounds like the expert's opinion was "Drug cartels typically don't hide half a million dollars worth of drugs in the car of some unwitting rando and then just hope that it makes it across the border and that they can find a way to retrieve it." This seems like ordinary, common-sense reasoning, moreso than specialized technical knowledge that the jury needed an expert to weigh in on. I get suspicious when the government brings in an "expert" to testify about something that should be obvious to everyone; it feels like they're trying to take advantage of the "expert witness" designation to put extra weight behind the government's theory of the case, rather than to explain some complicated topic or express some scientific opinion that jurors ordinarily wouldn't understand.

By the same token, however, the prejudice from eliciting such everyday-common-sense views from an expert witness is fairly small; they're just expressing an argument that the prosecutor would have made anyway and that the jury likely would have accepted. So while it may be overreaching by the prosecutor, it's probably harmless in most cases.

Diaz's claim during trial was that she'd gone south of the border to meet a new boyfriend, and he'd let her borrow his car. If you believed this defense, the theory is less 'just hope' and more 'meet at predesignated point'. These sort of scams do exist, sometimes even at higher values, and indeed it's actually a bit of a struggle for courts to handle the border cases where the mule may have been willfully blind or where the arguments are more borderline.

((That said, for this specific case, Diaz seemed to have made up almost all of this, most of it not terribly credibly, including the boyfriend that supposedly loaded the car up to start with.))

So the need for an expert witness makes more sense than at first glance -- there's a lot about general drug trafficking approaches that aren't common knowledge or would be counterintuitive to common knowledge. And the question of what tactics drug traffickers use is the sort of thing that would be better considered under expert witness testimony, and could have been more appropriately discussed without a lot of nudge-and-winking about the defendant.

I'm still not a huge fan, but that's more because the scope of domain expertise is ugly. The fed here was testifying as an expert on gang trafficking of drugs, and reading through a search affidavit from an unrelated case gives a pretty lengthy and impressive personal record as part of investigatory task forces. It's... less compelling as a matter of his expertise on the full breadth of drug trafficking tactics, especially for the sort of broad statistical analysis he's giving here.

((Though the rule applies both ways, at least in this specific case, as Jackson points out; Diaz's defense brought in a car mechanic who was allow to testify about how most people wouldn't notice the modifications to the car here. But I'm skeptical that the average decision is fully evenhanded, and Jackson's asides about other defenses leave me a little unsated given how weak the protections against dueling experts are.))

((But in turn, that wasn't the question raised before the court, here.))

These sort of scams do exist, sometimes even at higher values, and indeed it's actually a bit of a struggle for courts to handle the border cases where the mule may have been willfully blind or where the arguments are more borderline.

I remember hearing about this case (this was like 20 years ago; I may be wrong on a couple of details) where an Australian couple "won" a "free getaway" to Indonesia with suitcases provided. They noticed that the suitcases were significantly heavier when provided for the return trip than they'd been on the outgoing trip, and alerted the local police who pulled them apart and indeed found they were full of drugs. Thankfully, the couple didn't end up getting shot anyway, though IIRC the police thought about it.

Yeah, it's been a long-standing issue, sometimes resulting in serious convictions where courts believed that the 'mule' should have been more suspicious.

I'm not a criminal lawyer, but I suspect they had to put on the expert because they bore the burden of proof on intent. If they didn't present any evidence of intent, they would presumably lose the criminal equivalent of a post-trial JMOL motion based on lack of evidence.

They may have been worried about that, but if so I don't think their fears were realistic. Unless there is a confession, prosecutors almost never have direct evidence of intent. So they typically rely on circumstantial evidence. In this case, Diaz had actual possession of the car; she told an implausible story about the car belonging to her boyfriend, but she claimed not to know his address or phone number; and she refused to answer questions about the multiple phones found in her car. I think those circumstances would have been sufficient to prove intent, without needing a mind-reading expert. But the government may well have chosen to err on the side of caution--although, in so doing, they created an appellate issue they easily could have lost.

Since tomorrow is the last (so far) scheduled day for releasing opinions by the Supreme Court of the United States I wanted to take some time to contrast the court's treatment of a pair of cases this term. These cases are Trump v. Anderson and Trump v. United States. The former case is the case out of Colorado about Trump's ballot eligibility. The latter case is the case out of the DC Circuit concerning Trump's claim to presidential immunity for his actions on Jan 6th 2021. I can't compare the reasoning in the opinions of the two cases (we still don't have a decision in the immunity one) but one thing I, and other court watchers, think is suggestive is the timeline of each of these cases. I link to SCOTUSBlog above because they provide a convenient timeline that I'll reproduce here.

In the case of Anderson the petition for cert was filed on January 3rd and granted on January 5th. Oral argument was scheduled for February 8th and the decision was issued March 4th. That's 61 days from petition for cert to decision, which is incredibly quick by SCOTUS standards. The nature of the case makes this understandable. After all, it's a question about whether a major party's chosen candidate can be on the ballot in one (and perhaps many) states. The decision was also unanimous which likely goes some way to explaining the short turn around from oral argument to a decision.

In the case of United States the petition for cert was filed on February 12th and granted on February 28th. Oral argument was scheduled for April 25th and we still do not have a decision yet. Note that just the time from granting cert to oral argument is almost as long (57 days) as the entirety of Anderson, from cert to decision. This also ignores the fact that the special counsel filed a motion for cert before judgment all the way back on December 11th 2023, which SCOTUS declined. This decision is also strange. Is there any decision the District of Columbia Court of Appeals could have issued that SCOTUS would not have granted cert on? This effectively added three months to the case (the appeals court issued its decision on February 6th) for what seems like little reason. There is some expectation that this case should take longer because there is likely much more dissent among the justices as to the correct outcome compared to Anderson, but this fact does not explain actions like the long wait until oral argument or declining the petition for cert before judgement. One would think the criminal trial of an ex-president who is also a candidate would be a pressing matter but the justices don't seem to think so.

I am not the first court watcher to note that that SCOTUS seems to move quickly or slowly depending on which one seems to operate more to Trump's benefit. Nearing the end of the term and with no decision yet in the immunity case makes me take a bit more conspiratorial perspective on the whole thing though. As I mentioned above tomorrow is the last scheduled day for releasing opinions and they still have opinions outstanding in 18 cases argued this term. They have been issuing opinions at a rate of 3-4 per scheduled opinion day this term so dropping 18 of them tomorrow seems unlikely. The most likely outcome is they schedule more opinion days next week and possibly the week after but it's possible they don't issue a decision in the Trump immunity case this term. There is a rather famous case where SCOTUS did not issue an opinion in the term it was argued. Instead releasing the opinion the next term, almost a full year after it was first argued.

The conspiracy angle on this is that SCOTUS doesn't issue a decision in United States v. Trump this term, instead waiting until after the November election. This ensures no action in Trump's criminal trial before the election. It also means some control over the most direct beneficiary of their decision. Perhaps if Trump wins in November we get a sweeping ruling immunizing large swatches of conduct. Perhaps if Biden wins we get a much narrower ruling immunizing a very small sphere of conduct.

You frame this as pro trump. The other way to frame it as stopping the judicial system from being used to impact political outcomes.

Anderson was rushed because removing Trump from the ballot during primary season was an irremediable injury. Other states would have have tried to do the same thing and clearing up the issue needed to be done.

United States v. Trump is different because the prosecution's demands for a speedy trial aren't well grounded in any legitimate need. Courts often move slow, 2-4 years wouldn't be unusual given the number of documents and unique legal issues.

Skipping the appeals courts would have been strange. SCOTUS will typically let the appeals courts have their say so they can take those arguments into consideration. Jack Smith tried to time things so he could get a DC conviction before the election and appeals courts wouldn't be able to weigh in until after the election. SCOTUS didn't see any reason to help him do that.

This conspiracy angle doesn't make any sense. That US v. Trump even got to SCOTUS this fast is extreme evidence of its expedited treatment and nature. In a normal trial the prosecution wouldn't be pushing to force defense counsel to examine the immense amounts of discovery relevant to that case in anything less than the time they say they need until it became unreasonable in like month 24. Many murder cases get longer on defense's request with several orders of magnitude less evidence for the defense to review. Ditto your odd theory of the Florida judge. That case is not only humongous WRT the amount of evidence the defense has to review, but also they are limited in who can review the documents by the security clearance issue. Oh and by the way they were on trial and prepping for trial in NYC as well.

Mot cases don't go to trial until defendant demands trial in an attempt to run speedy trial or defense has asked for an unreasonable amount of extensions of time.

Is there any decision the District of Columbia Court of Appeals could have issued that SCOTUS would not have granted cert on?

Yes, probably. The Roberts faction on the court absolutely doesn't want to have to wade into Presidential immunity questions unless they're forced to, but the lower opinion here is incredibly broad, completely dismissing virtually any Presidential immunity from (federal) criminal prosecution, and that was condoned by the appeals court. I'd find it funny, in a number of ways, were it to actually become the standing law, but it's as close to forcing SCOTUS to handle matters as possible.

That still doesn't explain the slow walk, though. The DC opinion was so broad that all SCOTUS has to do is what they're probably going to do anyway — issue an opinion that recognizes immunity in certain circumstances but not others and then kick the case back down to the trial court without saying anything about the facts of that particular case. Then the trial court's ruling gets appealed and the high court doesn't have to rule on it until next year.

It's more likely that they're just running behind. I don't think anyone has any theories on why the other 17 cases are taking so long.

If you expect a glorified GVR or per curium (or even a per curium-with-dissentals), perhaps, but I'll put money that SCOTUS will be doing a good deal more than that. Punting the case back to a lower court without seriously delineating the bounds of any immunity risks the matter popping right back up in a way that they still can't ignore, possibly before the election even if the trial itself wouldn't have gotten out before then anyway. Trump (or Smith) will appeal regardless, but the part where we're here because multiple different federal judges couldn't forsee any problems with papering over limits on prosecution of a former President with "prosecutors themselves are constitutionally bound to not abuse their office" (and somehow managed to avoid laughing).

For contentious issues and conventionally-argued questions, there may not even be an clear boundary of the decision for months after oral arguments. And I fully expect Roberts will be trying til the last second to try to fumble together a 'bipartisan' consensus.

I do agree other causes are part of the generally slower pace -- court-watchers regularly point to increased security procedures post-Dobbs-leak as part of a trend of slower, later opinions. I just can't come up with an explanation for why people expect a complex issue that was argued near the end of the last session to be more heavily prioritized other than the political ramifications, and they're not even good political ramifications.

I wasn't trying to imply that. I think they will delineate limits but I'd be surprised if they get into specifics. Trump's argument is that he's entitled to absolute immunity, and I doubt the justices would go for that. I also doubt they'll let the circuit court decision stand, which means that they're going to have to delineate the bounds of presidential immunity. The problem is that,.since no alternate standard was proposed, neither side has made substantive arguments under that standard, and the current court has been reluctant to make substantive rulings based on arguments the parties didn't make. I'm not saying that they'll punt, just that any decision they give isn't likely to change much in the short term.

I think the defense basically conceded that acts while President while not acting qua president are not entitled to immunity. Other acts are unless there is impeachment and conviction. I suspect that is what the court will decide.

I am not convinced. As best I can tell the court of appeals is correct that there is no precedent for criminal immunity for the president. Even if they had decided to make up some line I'm skeptical the line they made up would be one that satisfied 6/9 of the justices on the Supreme Court.

As best I can tell the court of appeals is correct that there is no precedent for criminal immunity for the president

And where once the closest thing to a serious criminal prosecution of a president was a speeding ticket, now there's precedent saying there is zero criminal immunity for anything.

Even if they had decided to make up some line I'm skeptical the line they made up would be one that satisfied 6/9 of the justices on the Supreme Court.

I'm skeptical that Roberts, Barrett, and Gorsuch would have jumped at an interlocutory appeal had the lower court precedent not writ destiny that they'd be seeing two or three Presidents facing criminal charges within their remaining terms.

I'm curious what you think the content of the circuit's decision would be so that SCOTUS doesn't grant cert.

If the circuit says "there exists some presidential immunity for constitutionally granted powers but Trump's conduct is outside that" do you think they grant cert?

I think a district court opinion that actually tries to separate individual official acts from those of a private actor or political candidate, and recognizes the extent various immunities are intended to protect the papers and deliberations of official acts, would made it much harder from Trump to get cert. A lot of courtwatchers who like Trump even less than I do take that tack.

There's no guarantees, but without that blanket permission slip for charging every other living President, there's just nowhere near the urgency. Whether criminal or not, the majority of acts in the indictment here fall outside of the outer bounds of the President's roles, some even by Trump's own defense's own admissions. There's none of the time pressures that were present for the ballot rules, so on. I don't think it would have been good to punt, but this court absolutely is willing to punt whenever possible.

I think the Justices are smart enough to understand that their authority is a product of social consensus, not anything innately derivative of their position. They understand that since Conservatives approached a solid majority on the Court Blue Tribe has pivoted to attacking the court's foundational social consensus directly with calls for court packing, smearing of justices and calls for their impeachment, and so on. They appear to be attempting to balance exercise of their power with maintenance of that power. I'm skeptical that such a balance is possible, but they've certainly pushed harder toward exercise than I expected, so I imagine we'll see.

I still do not expect the Court's foundations to survive long-term; there is no reason for Reds to continue investing faith in them if they cannot deliver, and there is no way for them to deliver without Blues killing the court. This realization undermines the social consensus foundation from the Red side, and we converge on both sides admitting more or less openly that the Court is only legitimate when it delivers their specific preferred outcomes, which is isomorphic to the court having no legitimacy at all.

The entire point of a Supreme Court is to settle tribal conflict. The court can't reliably perform that purpose now, and its ability will only further diminish over time.

I still do not expect the Court's foundations to survive long-term; there is no reason for Reds to continue investing faith in them if they cannot deliver, and there is no way for them to deliver without Blues killing the court. This realization undermines the social consensus foundation from the Red side, and we converge on both sides admitting more or less openly that the Court is only legitimate when it delivers their specific preferred outcomes, which is isomorphic to the court having no legitimacy at all.

I mean, I think your conclusion is, overall, long term correct, but the bolded part is fully within Blue control. They just have to stop using the courts as a cudgel on every issue and simply expecting rubberstamped approvals of every outlandish claim they bring. They dont need to pretend that Colorado has a single baker who happens to be a Christian. They dont need to bring Sarbanes-Oxley prosecutions against protestors who wandered into a federal building after police abandoned their posts. They just dont. But they can't help themselves.

But they can't help themselves.

Indeed not. But the broader point is that from the perspective of Red Tribe itself, there is no reason to accept compromise or any sort of strategy based on the long term. Our interests are best served by deriving maximum value from our temporary advantage, and then capitalizing on Blue resistance and defiance both in the past and present as a model for resistance and defiance of our own. Any path back to detente is a mirage.

And from the Blue perspective, as best I can model it, they are both correct and winning, and doing anything other than doubling down would be pointless compromise with evil. Red Tribe bigotry, superstition, and increasingly, criminality and treason generate no value that they recognize, while generating unbelievable amounts of harm. Just look at all that giant spike of murders in the last couple years, almost all of which gun control could have prevented. The arc of history is long, but bends toward justice, and they are on the right side of history. Progress is the whole point. Why sacrifice that progress to those who were never going to cooperate with it anyway? Especially when the Progress, once achieved, will greatly benefit those people anyway, once their defiance and their bitter, clinging grasp to their reactionary totems has been broken?

I know you've argued this before, and I have responded similarly, but worth pointing out again: as I read early American history, it is surprising how very similar the political and culture war conflicts of the late 18th and early 19th century were, complete with widespread mistrust of institutions, those who clung to the Constitution vs. those who considered it a dead letter if not a weapon against them, and the careful balancing act the Supreme Court performed. The Court has always been aware that its legitimacy rested on the public's perception and politicians' acceptance of it, and on not attempting to issue rulings it knew would be ignored.

There have been many crises threatening the legitimacy of the Supreme Court before, from Andrew Jackson's "John Marshall has made his decision, now let him enforce it" (which is probably an apocryphal quote, but was pretty close to Jackson's actual response to the Cherokee Indian case) to FDR's attempt to pack the court.

It's survived and persisted this long, but that's not to say your prediction is wrong - after all, we did trudge down the slow and inexorable road to civil war once before. However, I am not convinced that the conflict is as baked in as it was in the 19th century.

However, I am not convinced that the conflict is as baked in as it was in the 19th century.

Notably, slavery was a bit more existential to 19th century americans than abortion is to 20th century ones.

Notably, slavery was a bit more existential to 19th century americans than abortion is to 20th century ones.

Abortion seems to have been pretty existential to the nearly 1 million Americans who were aborted last year, as they no longer exist. Who do you think had a higher mortality rate, 20th-Century aborted babies or 19th-Century slaves?

Fetuses aren't Americans, any more than chickens are Americans.

I meant existential to people who get a say. Abortion is a terrible tragedy but unborn babies don’t get a say in society, even in places like Texas, Malta, Poland, etc.

Now you've got me wondering about all the crazy ways an "abortion is illegal after X time, but pregnant women get two votes after X time" scheme could go wrong.

A few pro-life states have decided to give pregnant women the right to use the HOV lane.

There's a little bit of smearing, but I happen to think (and it seems to some extent you agree) that a fair amount of it is self-inflicted. I trace unhappiness with the court back to perhaps the original sin, Citizen's United, which to me seemed like a needless own-goal pretty much everyone disliked. Which is remarkable, because normally you'd consider Bush v Gore to be the big source of unhappiness, but the Democrats seem to have took that one in stride. How different it looks now.

In terms of scandal, the Kavanaugh hearings weren't that much worse than Thomas'. The nomination drama behind Garland and Gorsuch was a bit dirty, but nothing that got me quite as enraged as some people on the left. However, financial scandals were just a matter of time to come to light, like the -- I went back and counted, there are at least eight billionaires -- who have some degree of suspicious links to Supreme Court members. And don't get me started on the "we don't really need an ethics code". Uh, yes, you kinda do. This is a very severe challenge to legitimacy. And back to jurisprudence, there wasn't necessarily a strong reason to overturn Roe, Hodges was broadly popular but certainly a major event, and as a Supreme Court you do have a certain amount of political capital and around that point they really should have gotten the memo that they were stretching it to breaking. Rather than wait it out a little longer, they are charging ahead with things like the looming, presumed causer of chaos: Chevron doctrine revisited. On top of the Trump things, of course. Not intervening in the Florida case the judge there is clearly sandbagging was a big deal to me personally but I don't think that will echo much farther.

Yes, a few are aware of the legacy aspect. Roberts certainly is. However, I get the sense that Alito and Thomas are a bit "damn the torpedoes" right now. Barrett might be having second thoughts about things. It's harder for me to get a bead on Gorsuch and Kavanaugh. I think it's also Kagan who has been a little abnormally vocal out of court as well?

My impression of the financial things were that it was Thomas just coming along on trips with his friend, and that this was mostly just lefty journalists looking for any means possible to discredit the court now that it's making rulings they don't like. That said, I get trying to avoid the appearance of impropriety.

I'd pin Dobbs as the thing that most hurt their reputation in the recent past, though I'm not certain of that.

That said, you certainly are right that some of the justices are not making their decisions in order to placate public opinion, but to accomplish their agenda. But has Thomas, for example, ever done otherwise? I think they're mostly just honest, if motivated.

Yeah, it's tough because reading all the ProPublica reports, it seems Thomas and Crow are like, legitimate friends. I do feel strongly about appearance of impropriety being the standard to shoot for, though, so... yeah. I sympathize with the difficulty of having to be really fucking careful about who your friends are, but at the same time I feel like yeah, they DO need to be really fucking careful who their friends are. Otherwise maybe turn down the nomination. I'd love to see some of that happen once in a while.

I mean my fundamental bias but one I'll defend is that these guys are just people. People are usually relatively honest and normally motivated. I will say that if for decades you are taking ultra-luxury trips, but in the back of your head you know if you piss them off too much they might stop, that kind of thing does tend to distort thinking just a hair. And there's no way you're taking weeks and weeks of vacations with people and you never talk politics? Ain't no way.

What I saw one article advocate for, I'd love for it to be the case, is to ask actual questions, high-quality ones that are answerable, in the confirmation hearings to try and get a better sense for some fundamental values and styles of different potential justices. Things like these (not a perfect list) that include stuff like when was the last time you changed your mind? What's a bias you struggle with? What kind of effect would you like to have on the court? Could you explain more details on why you lean originalist/textualist/etc?

I suspect the court will be fine. I would go nuclear is court-packing or something similar happened, no matter who. I strongly, strongly advocate for what the conversation should really center on: Maybe let's talk about some Constitutional Amendments to the Supreme Court process? I'm open to that. Would necessarily need to be bipartisan. In practice, I'm not super sure what it would take (if even possible) for the GOP to get on board something like that however. Maybe make some sort of general, government ethics amendment?

Yeah, I don't imagine any concessions from Republicans unless forced to it. They've finally managed to get a hold of the court, after nearly a century of leftist control, and now, all of a sudden, it's everyone's talking about how the justices (but only the conservative ones) are corrupt, and how the court's extreme and biased (never mind all the different splits), and that the court needs to be reformed. There's something of a double standard. (And I do genuinely think that the conservative justices are less likely to make decisions from their political views, because they have more of a judicial philosophy of the senses of the text already being set in stone, not just what they want it to be.)

Regarding propriety and trips and so forth: I'm kind of torn over how seriously this should be taken. It's obviously politically motivated and going looking to do harm to the justices that they hate, and I'd be very surprised if there were anything nefarious going on. I'd certainly not expect him to be influenced by money; he seems to always be ruling for his own, radical in its lack of regard for precedent, vision of what the constitution said, often alone. I certainly imagine he talks politics with Crowe, but I'd be surprised if that affected his jurisprudence, as he doesn't just rule according to whatever suits current Republican preferences. And I don't know that I think it's all that good of an idea to reward bad action from the left like that, when I'm pretty sure that it wouldn't have affected anything. I'm curious how general the recent lesson is about other figures on the right, that you can ignore cancellation now, so long as you have a conservative base, and you don't treat the problems as serious just because your opponents treat them as serious. That is, I don't know if treating them as real would simply serve to undermine tte court's credibility by there being a consensus that something is wrong. At the same time, it would genuinely be better if there wasn't this that could be used to attack them.

I also like the questions, but I don't know how well they would be applied in practice. I anticipate that those in Congress would use them in order to probe for weaknesses to jump on, and so the judicial nominees would try to answer in ways that said the least that they could be attacked for, instead of seeking to be the most revealing.

For the reasons above I'd be hesitant to go along with a push to constitutionally reform the court—capitulating would give credence to the complaints and make people more likely to think that the court is currently bad, when, in my view, it's the best court we've had in a long while. If it would genuinely make it hard to complain about the court, I'd be for it, but I don't expect that, and would anticipate the opposite. I'd also worry that something like term limits would serve to further politicize the court, by enshrining in law something intended to balance the court in a partisan manner, instead of just assuming that everyone has an obligation to be fair interpreters.

Something of a double standard, maybe, but not all the way. Right-wing people for years have complained about the Court doing too much that is legislation-adjacent, doing outright activism, or imposing liberal social values, and those arguments were accompanied by arguments about maybe not corruption as explicitly, but certainly ideological capture and bias (claims that all the liberal colleges are brainwashing law students, and I think there were complaints about lifelong appointments too). We have conveniently forgotten these argument simply because they haven't happened as loudly recently, but I do remember them! They probably aren't exactly equal to current complaints.

I like your comment and the thoughtfulness there. It's possible my dream of avoiding even the appearance of impropriety is unrealistic, but I don't think so. Ideally, court reform conversations would be actual conversations, where we can talk about exactly this sort of thing like "are term limits even going to be helpful, or would they backfire?" This can cause us to rationally examine what parts of the SC do and don't work. We might find some parts actually DO work better than the public thinks, in the process. In other words, I think opening reform as a valid discussion would result in more light than heat. There's already plenty of heat and I think legitimizing the discussion might be a good release valve. Related: somewhat unusually, I don't love the idea of term limits for Congresspeople, I think it would only worsen the revolving door, and ignores how lawmakers also gain positive experience and specializations over time. Monetary reform for campaigns and politics generally might be a better Amendment candidate. Or simply pushing for better stock divestment, etc.

The idea behind the questions is that the current questioning process is relatively effective about determining left-right axis location, but not very effective in determining the other axes. As shown in some of the discussions here, many justices form their own brands, and there's stuff like the 3-3-3 split. Maybe better questions can allow the Senate to be more predictive in locating a nominee's position on other axes besides the simple and often ill-suited ideological one.

Allow me to take back the concessions I made on Thomas.

Fix the Court gives me the vibe of a one or two person outfit with strong personal views. I think they were and are an okay starting point for tracking recusals more broadly, which was my reference. I don't think I ever used them as a source, and probably would not use them as a source, for more of the in detail financial reporting about gifts. ProPublica is a stronger team and I think they are doing good work that's fairly evenhanded. They usually state what they know and approximately how certain they are (e.g. they will say if they looked at direct proof, it's hearsay, they found corroboration of trip, etc.) I've read almost all of their stuff all the way through, and a few counterclaims all the way through as well. Now don't get me wrong, it's not like they are saints without an agenda. But I feel they typically adhere to decently good journalistic standards, near as I can tell.

IMO, the link provided does a guilt by association trick, combined with a strawman. It talks about FTC almost the entire article, when they aren't really the experts nor the original source for most of the scandal claims. In fact I expect FTC to have errors. ProPublica less so. What it says specifically about ProPublica, a drive-by broadside right at the end:

In an August 2023 story, ProPublica claimed Justice Thomas took “a voyage on a yacht around the Bahamas.” That trip never happened. When a lawyer for the yacht’s owner submitted a letter to that effect to the Senate Judiciary Committee, ProPublica quietly appended an “update” to its article without acknowledging the error. ProPublica this month published an article titled “Harlan Crow Provided Clarence Thomas at Least 3 Previously Undisclosed Private Jet Trips, Senate Probe Finds.” As it has done before, the organization failed to cite the Judicial Conference’s 2012 ruling that these trips weren’t subject to disclosure. Like Fix the Court, ProPublica aims to smear disfavored justices, not to report honestly on the court.

I happen to know exactly what they are talking about in the second article. The article cited refers readers to some of the earlier reporting and assumes readers read those. The original reporting that first broke the trips went into extreme detail about exactly what the rules and laws were about trips (which often differed) and the ethical debate behind them. I think they thought, and I partially agree, that re-treading the same ground in an article framed explicitly as an update to a previous story was less necessary. The update article cited is only like two pages. The original investigation was something more like 20 pages. Obviously the original can go into more detail. And in the original articles, you can clearly see that they advance the (substantive!) argument that rules allowing transportation to not be disclosed are not only something that seems unethical to the average person, but furthermore, cruises and yacht trips are not only transportation, they are also lodging. Again, I refer you to my argument that we want to hold SC justices to a "appearance of impropriety" higher standard, which is not just my projection or wish, it's the explicit policy goal of the Supreme Court ITSELF. Why would it be bad to hold them to their own moral standard?

The inclusion of a single error also deliberately ignores quite a few cases where, as PP mentions, they actually did find legitimate issues that various Justices later fixed. A single error on a single trip does not discredit the reporting. Most of their reporting focused on a few other examples where more info was available. For example, the numerous luxury retreats. Or the New Zealand yacht trip that did happen, and wasn't disclosed, and we know for a fact this happened because, among other evidence, we have a photo of Thomas' handwritten thank you in a book he gave to a yacht worker mentioning the trip. And finally, a smear is not a smear if... it's true. Their main point is that there is no enforcement mechanism for ethics rules, that at least some justices are skirting common-sense disclosures due to rule technicalities, and the fact that we can only find out about these concerning things via extensive and laborious investigation is, yes, concerning for everyone!

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You're right that there were complaints both ways about judicial activism. I happen to think the left does more of it, and is more openly motivated by whatever they want to be true, but fair enough.

I think more policy conversations in general would be good. But how would you propose they happen? I think, perhaps unusually in our history, though I'm not sure about that, a lot of politics is governed by the lowest common denominator: whatever appeals to the most people online, oriented towards their respective bases. (That's not exactly right, but close enough). How do you manage a constructive conversation like that? You could have one, but you'd have to avoid making it about scoring points. I'm sure some politicians are sincere enough and sufficiently non-cynical to do this. But even then, you'd still have to make it be something that reaches the collective consciousness to get traction, unless you can manage to get enough behind the scenes. But it's popular legitimacy that matters mostly when we're looking at it from the view of the polarization of the discourse, not what Congress, for example, thinks, so behind-the-scenes isn't quite what we're asking for here.

I like the Free Press's debates, even if there used to be better debates.

Good point regarding questions. Having them asked by a sympathetic person would help.

Ideally, we would hold some sort of convention in total secrecy, then the convention would release a list of possible proposals for reform and ask the public which option they would prefer. We could then have a period of public parlor talk and debate. If the big parties avoided immediately staking out a stance, I think there would be a decent chance of people selecting a favorite. The convention system is sadly almost never used anymore, but can be very effective.

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Why it rings hollow to me is there wasn’t the same concern over Sotomayor taking millions in advances from a publisher while not recusing on a case that they directly were involved in. That is, the complaint about Thomas seems politically motivated. The ones about Alito are just silly (and we did learn that you should find someone who loves you the way Mrs Alito loves flags).

According to Fix The Court which has a nice list of missed recusals and seems to be pretty evenhanded, this happens a fair amount, more than I'd like. An earlier case, according to details I see from them (but opinions and speculation my own), possibly was missed due to the publisher being Knopf by name at the time, which in reality was a subsidiary of Penguin who was named. Beyond that, it appears many justices simply make long sheets of specific companies, and don't always update them correctly nor properly do their due diligence in looking deeper. For example, in the more recent publisher example, Gorsuch also failed to recuse for the same reason, and Breyer accidentally recused because his list was out of date!

I feel strongly about reform but am pretty clear eyed about the recent stuff being dramatized. I thought it was in this thread, but I guess not -- the Alito stuff as I've said is garbage and that was clear pretty early on. While you could say "maybe they are picking on Thomas specifically" they have found enough unrelated and significant ethical lapses I'm convinced, and think it's pretty clear to those who have investigated, that there's an actual pattern there.

What I’m saying is if I thought most of the criticisms were actually concerned about the integrity of the court, then I wouldn’t have as much an issue. But as it is, I think the vast majority of the criticism is simply people who don’t like the court’s rulings looking for ways to undermine the court.

I see the left do this all of the time. When they controlled the court, it was sacrosanct. The moment it switches hands, we start hearing about its legitimacy. Republican attacks on the court historically were about theory of law; democrats aren’t talking about theory of law. Democrats did the same thing with Twitter and Elon. Once he unlocked a major communication platform from their grip, Elon became a far right racist. Funny how that works.

That's fine. I've observed that I'm more likely than most to be willing to examine arguments made in bad faith in spite of them being made in bad faith. Partly because I don't think bad faith is as common as popularly perceived, but also because I'm skeptical that most people can safely and accurately enough tell the difference. It's through this lens that I'm sympathetic to current court criticisms. Related: persecution complexes. Doesn't mean the persecution isn't real, but it does tend to distort perception. I genuinely believe that the right has a persecution complex far beyond anyone on the left, except for maybe Marxists.

It's so obviously grasping at Straws. Thomas has been over of the most ideologically consistent justices in modern history, there is just no good evidence of him throwing cases in any way. It's this weird mistake theory belief that no one can believe anything different than what you believe, so if anyone acts like they believe it there must be corruption involved.

Can someone help me understand the continuing opposition to Citizens United? I didn't pay a lot of attention to Supreme Court news back in 2010, so I wasn't following the details of the controversy. But I remember the kerfluffle around Alito (allegedly) mouthing "not true" when Obama said, during a state of the union speech, that the ruling would "open the floodgates for special interests, including foreign corporations, to spend without limits in our elections." But the Supreme Court's ultimate decision seemed so obviously correct that I'm amazed it was ever disputed at all--and the fact that, years later, some people continue to consider it an egregiously bad opinion is totally baffling to me.

Here's my quick and dirty understanding of the constitutional issue in that case (please correct me if it's wrong): Citizens United was a nonprofit corporation that made a documentary video criticizing Hillary Clinton. They wanted to 1. show the video on cable TV and 2. advertise the video on cable and broadcast TV. The Federal Election Commission wouldn't let them, because federal campaign finance laws prohibited corporations and unions from spending money to advocate for or against a candidate in an election. The Supreme Court ruled in favor of CU, finding that the provisions of the federal statute in question constituted a ban on political speech and were, therefore, unconstitutional.

Isn't this ... obviously right? Like, if "freedom of speech" means anything, it has to mean that advocacy groups can publish a criticism of a politician. The FEC's counterarguments all seem really lame, like saying the First Amendment doesn't apply to corporations because they have too much money (what if they don't? And what about rich individuals--are they unprotected by the 1A too?), or because their views don't necessarily reflect the views of the public at large (since when does that permit restricting someone's speech?), or because some shareholders might not agree with the corporation's position (which is equally true of media corporations; does the 1A not apply to "the press"?). I really struggle to see how anyone could agree that these arguments justify the FEC's position. On the other hand, the idea that Congress can ban political speech--the most important kind, for First Amendment purposes--about a presidential candidate, no less--just because the speaker is a body of multiple people joined together, rather than the same people acting alone--seems both arbitrary and clearly unconstitutional. (Especially in the guise of campaign finance laws, which in my opinion should have some connection to, you know, financing someone's campaign, rather than restricting independent criticism of a politician.)

I like to think that the Obama-esque critique of CU is more sophisticated than just "corporations BAD!" But that seems to be the thrust of both Obama's SOTU soundbite and, from what I've read of it, Justice Stevens' dissent. (Stevens also complains that the Court went beyond the narrow issues raised by the parties, but I guarantee you that's not why people are still up in arms about this case years later.)

Well, nonprofits are NOT fundamentally different than companies. In terms of the deep fundamentals. I know they are in practice, but in theory, I feel strongly this is not the case! We choose as a society, and as a government, to let them be a little more free with how they raise and spend money because we think that they can bring some social good by doing so, and feel bad about making that super hard for them. Thus we allow them to avoid taxes and certain regulations, often in exchange for following other, different regulations to make sure they actually are categorized correctly. These categories are defined by law, not by any fundamentals.

It's worth taking a second look at good old Amendment 1:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Note that things we consider nonprofits do not in fact line up clearly with the Constitutional categories stated here. Churches are kind of the same thing as Religion, but not entirely! We choose to treat many as nonprofits. How much is convenience, how much is moral arguments as above, and how much is force of ultimate law? Of course note that the Religion bit comes with a different vibe, where it's bad to prohibit free exercise, and they can't establish religion, but presumably there is some sort of sense that mild restrictions on churches might not necessarily prevent free religious (individual) exercise, though by and large we have chosen not to go there. The Press is kind of a bunch of news corporations, but some are nonprofit and some are for profit. Free Speech is something that can't be abridged, and this is connected with the Press stuff via punctuation, but also a bit of a different point, often taken individually. Note that lawyers and scholars have built up some other common law stuff around these, so the text isn't exactly self-sufficient (many free speech exceptions exist despite the language being, on its face, pretty clear: NO ABRIDGING) and caution is warranted to not get too carried away.

Overall however, it's clear The Press is clearly something special and different. I'm not familiar enough with the legal distinction, though maybe I should be. When we talk about corporations, however, we are back to the whole idea that you correctly called out about associations of people. This is tricky. The sound bite that this declared "corporations are people" is not too far off. You seem to agree that functionally speaking, corporations are similar enough to people that we might as well treat them as people (for free speech purposes at least).

It's treating presumably individual rights to apply to big groups of people with no critical thinking involved at all, in the opinion of detractors, that is one holdup. What about makeup of the corporation, does that matter? What if there are a bunch of noncitizens in the company? Running the company? If people within the company disagree, isn't this kinda like "taking away" speech opportunities of the minority view, and giving it to the majority view, which creates a disproportionate effect similar to silencing speech, in effect? Another counter-argument was more of a common law objection about corruption. If a person has and spends a lot of money, maybe that's fine, but if they spend it in a way that is less close to "I have a political opinion" and more close to quid pro quo stuff, maybe that's less fine? Accordingly, you might notice a few precedent cases called into question by the decision included some explicitly about this very issue, collisions with anti-corruption legislation (which in a common sense and common law direction is going to be given some weight). In other words, spending money isn't quite equivalent to speech, it really, really depends on what the money is for. In fact, the SC still distinguishes between direct and indirect (i.e. PAC) contributions AFAIK for only this reason, the corruption potential, though the practical implementation of this leaves... something to be desired.

tl;dr;be less talky: All this long comment to say that your assessment that the case came down to "common sense" conflicting with the actual, practical meaning of the law (and Constitution) is probably correct. But common sense does show up in many First Amendment cases, so this expectation wasn't wholly emotional. And "common sense", though ill defined, is broadly popular.

Thanks for the response. I agree that nonprofit vs. for-profit corporations is not really a relevant distinction ... but Citizens United did not rely on that distinction, so it doesn't have anything to do with the outcome of the case.

Overall however, it's clear The Press is clearly something special and different.

Not that clear, actually. There is a live debate about whether the "Freedom of the Press" clause protects "the press" as an industry (professional journalists, newspapers, and media corporations) or "the press" as a type of speech-related activity, which anyone can do. The linked article argues for the latter interpretation, which I think is clearly the better view.

What about makeup of the corporation, does that matter? What if there are a bunch of noncitizens in the company? Running the company?

SCOTUS expressly held "We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation’s political process ... Section 441b is not limited to corporations or associations that were created in foreign countries or funded predominately by foreign shareholders. Section 441b therefore would be overbroad even if we assumed, arguendo, that the Government has a compelling interest in limiting foreign influence over our political process." In other words, SCOTUS did not address whether Congress could restrict corporate speech based, specifically, on foreign ownership, but since the statute in question applied to all corporations, the statue was not "narrowly tailored" to that concern.

If people within the company disagree, isn't this kinda like "taking away" speech opportunities of the minority view, and giving it to the majority view, which creates a disproportionate effect similar to silencing speech, in effect?

The Court addressed, and rejected, that argument on the following grounds: (1) it applies equally to media corporations, and nobody believes the government should have the power to restrict political speech by e.g. newspapers; (2) there's little evidence such abuses could not be corrected through the procedures of corporate democracy; (3) the statute in question is clearly inadequate to address such concerns, because those concerns implicate all speech in all media at all times, but the statue only applies to certain kinds of political speech, in certain media, at certain times close to an election; and (most importantly, IMO) (4) the statute is at the same time overinclusive--again, not "narrowly tailored"--because it covers all corporations, including those with only a single shareholder. I think these points add up to a pretty compelling argument that the statute in question was "narrowly tailored to address a compelling government interest," but, again, it left open the possibility that Congress could pass a narrower law that would satisfy the constitution.

quid pro quo stuff

This issue was also addressed by the court, and found wanting. The big reason is that CU's spending was an "independent expenditure"--it did not give any money to any political candidate, nor to any political party, nor did it coordinate with any candidates or parties. It didn't even endorse a particular party or candidate; it just criticized Hillary Clinton. If CU's spending could be construed as a quid-pro-quo, so could just about any form of political advocacy. Obviously, politicians probably appreciate it when private parties (corporate or otherwise) are critical of their opponents, and unscrupulous politicians might even be tempted to show favoritism as a result--but that clearly doesn't justify Congress banning independent criticism of political candidates!

All this long comment to say that your assessment that the case came down to "common sense" conflicting with the actual, practical meaning of the law (and Constitution) is probably correct. But common sense does show up in many First Amendment cases, so this expectation wasn't wholly emotional. And "common sense", though ill defined, is broadly popular.

If by "common sense conflicting with the actual meaning of the law", you mean that ignoramuses misinterpreted, and continue to misinterpret, the Court's "probably correct" decision, I suspect you are likely correct. And in the sense that ignoramuses, in this matter and many others, vastly outnumber those who actually know what they're talking about, I agree that the decision was likely not "broadly popular." But I don't agree that SCOTUS perpetrated a "needless own-goal," in your words, by arriving at a well-reasoned and probably correct decision, just because it was misrepresented and misunderstood by left-leaning pundits and their gulls.

Note that things we consider nonprofits do not in fact line up clearly with the Constitutional categories stated here. Churches are kind of the same thing as Religion, but not entirely! We choose to treat many as nonprofits.

You are conflating nonprofits, which are simply ordinary corporations structured in such a way that profits are not returned to the shareholders, and charitable organizations, which are a special subset of nonprofit corporations to whom donations are deductible from income for the purpose of income tax calculations. I agree that this is primarily a legislative distinction and not a constitutional one, though the unique status of religions as organizational entities complicates things.

Overall however, it's clear The Press is clearly something special and different.

This I strongly disagree with. "The press" (note not capitalized, as in the original) at the time of the Constitution did not refer to institutional media corporations and accordingly they should be given no special constitutional protection. This vernacular meaning did not really come into existence until the 20th century. "The press" referred to a type of technology, to emphasize that freedom of speech didn't apply only to oratory. It definitely did not mean a class of people or corporations.

Yes, it's likely my capitalization and description was a bit misleading on the press point. I wasn't rigorous enough because I felt it wasn't strictly relevant to my overall point, which was more about how "associations of people" and their money use being distinguished as different types is purely a legislative and societal artifact (unless it's corruption-adjacent or the like), and not a Constitutional or rights issue, with the caveat that yes, churches are a special case we often tip-toe around. Well, traditionally. Turns out most people haven't thought about why churches are traditionally tax-exempt at all, or if they have, it wasn't very thought-through (reddit, cough).

Also yes, typically when you say nonprofit people think 501(c)4, and that's what I was rolling with, but you're absolutely correct 501(c)3 and other variants exist. Thanks for bringing up the clarifications.

The issue wasn't that they made a movie, or that they wanted to show it on TV, but that they paid Comcast a ton of money to make it available for free on-demand. Considering that, most of the time, networks pay the creators to air their media and not vice-versa, this made it look more like a political ad than a normal documentary. I agree that the decision was correct, but the upshot was that PACs that run ads that are virtually indistinguishable from official ads are able to accept unlimited donations, which seems contrary to the spirit of restricted campaign donations. They can't endorse actual candidates, or coordinate with campaigns, but they can run the kinds of relentless attack ads that actual campaigns have been running as long as I've been alive.

the upshot was that PACs that run ads that are virtually indistinguishable from official ads are able to accept unlimited donations, which seems contrary to the spirit of restricted campaign donations.

This seems to be a common view of the outcome of the decision, but Justice Stevens' dissent makes the point that Citizens United could have poured unlimited funds into publishing and promoting the movie through a PAC without violating the statute. He argues that CU only violated the law by funding the movie through from their corporate treasury, rather than through a PAC. That's a big component of his argument that the 1A wasn't violated; he says the statute didn't ban CU's speech, it just diverted that speech through a different mechanism.

Which, if correct, makes the outrage over the CU decision even more puzzling. None of the critics of CU seem to be saying, "Unlimited campaign finance spending by corporations is just fine, actually, as long as it's done through a PAC rather than the corporate treasury!" That's why I still feel like I'm missing something.

but that they paid Comcast a ton of money to make it available for free on-demand. Considering that, most of the time, networks pay the creators to air their media and not vice-versa, this made it look more like a political ad than a normal documentary.

This seems like a remarkably poor argument. One of the most obvious characteristics of advertisement, relative to other forms of media, is that the people they are supposed to be consumed by aren't demanding them. If I make a movie and offer to pay the theatres to screen it for free, that is very, very different from me making an ad, and paying the theatres to play it before the movie other people actually want to see. As a general rule, ads are not made exclusively and intentionally for optional viewing.

which seems contrary to the spirit of restricted campaign donations.

Well this itself is pretty contradictory to the whole idea of freedom of speech anyways. So its kinda a feature of the 1st Amendment. The problem with CU is it split the baby instead of negating all federal campaign finance law.

Seconded.

One of the few times i can recall actually having my mind changed in an internet argument was somone making the argument that CNN, the Washington Post, FOX News, Et Al were all corporations and if "freedom of the press" didnt protect them, who did it protect?

Can someone help me understand the continuing opposition to Citizens United?

The press misreported it for political reasons and people believed them.

I don't think the press even misreported it. The talking points were true. It did in fact allow unlimited money from corporations to be poured into political advertising. They just expected people to laugh at the absurdity of considering money (in the form of advertising and advocacy) to be a form of speech.

Citizen's United? You mean the one where the court decided that making a movie about Hillary Clinton was covered under freedom of speech?

The same one where the government's lawyers argued that bureaucracies had the power to ban books if said books had even a single sentence of political advocacy. But only during election season. It's a limited power you see.

In what way would you say that Citizens United was an "own goal"?

Described a bit more in another reply, but it was not only unpopular but felt like a violation of common sense for most Americans. Thus, theoretically avoidable and a candidate for a classic SC "punt" to the future, which have their place.

you'd consider Bush v Gore to be the big source of unhappiness, but the Democrats seem to have took that one in stride.

It only seems like that now. The wailing and gnashing of teeth felt much like the 2016 election, and for an equally long time.

there wasn't necessarily a strong reason to overturn Roe

Virtually any (consistent) legal scholar will tell you that the original Roe decision was a major stretch. Yes, everyone was surprised it was overturned because public support for abortions is so high, but to say there's no "strong reason" isn't true. We're talking about the court's power being derived from social consensus - part of that, in turn, is derived from consistency and adherence to reasonable legal doctrine. They spent political capital to pay down what was essentially legal technical debt.

I agree with your stance on ethics codes and these free trips etc. For the most part. I don't see a strong enough connection between these conflicts of interest and results, and I've wined and dined enough executives who don't end up paying me for years to know that it takes two to tango when it comes to corruption. I'm not super well-informed here actually, but I also think that the standards for judicial asceticism seem to be a bit different depending on what side of the ideological divide someone falls on.

Notable that much gnashing was indeed had, but Kerry himself did not talk about it very often on the campaign trail, and "true winner" rhetoric was mostly confined to the fringes and/or typical media hyperbolizing. While "true winner" rhetoric is still mostly confined to GOP fringes today, (and hyperbolized in a different direction by the media) Trump himself is one of the most extreme proponents, despite the clear (and VERY inconsistent) logical gaps. That's worth mentioning.

I'm a compromise-first kind of guy, and when it comes to all the massive unknowns and ethical issues when it comes to fetuses and personhood, splitting the difference and saying "well too early is obviously more fine, and too late is obviously less fine, and in the middle these clash and it's super subjective, so let's just cover the basics and let the states do the fine details" is a fairly intuitive approach. It leaves people only mildly mad, and plenty distracted by the middle-fights, which means it only becomes partially an existential battle of core values/principles. Very practical, since personhood is hella NOT defined for us. Yes, in principle, it really should be a states thing because states get the non-specified situations most of the time in those cases. I merely point out that states already had a big say in the process, so to upend that and go "all right, we murdered the referee, go to town" seemed to me just a little... irresponsible.

ninja edit: minor wording changes in first paragraph

I'm a compromise-first kind of guy, and when it comes to all the massive unknowns and ethical issues when it comes to fetuses and personhood, splitting the difference and saying "well too early is obviously more fine, and too late is obviously less fine, and in the middle these clash and it's super subjective, so let's just cover the basics and let the states do the fine details" is a fairly intuitive approach.

This should be the role of Congress however. To elevate this to the role of a Constitutional right, it needs some grounding in the text itself. It is not the job of the Constitution or the Supreme Court to mandate common-sense compromises across controversial policy decisions. That path only ends with the Court as a superlegislature and Congress relegated to the role of implementing their edicts.

To elevate this to the role of a Constitutional right, it needs some grounding in the text itself.

Incorrect. It's not a specifically listed Constitutional right, but the Constitution also specifically says that other rights exist that they didn't mention. Please look into the ninth amendment, which was put in place to counter exactly the argument you are advancing. "Elevation" of a right, as you phrase it, the text says is explicitly not required in order for the right to be legitimate or exist as a right. Life is one of those things, where it's clearly a natural right (not to have people murder you), but abortion provides a tricky question in that you have a collision of two seemingly intuitive rights, when you have considerations about the mother as well in play.

And in fact a lot of these rights are specifically left to the states to sort out. Congress, eh, maybe? Personally I think no. The 10th has slightly different language, but seems to hint at this being the state's job specifically. A counterbalance, of course being equal protection stuff (14th), which traditionally is used instead because it's easier for a judge to talk about and more specific, and sometimes allows for federal action. There's further discussion on that issue, it's been a little while for me, but the general thrust of everything I've just said is well-grounded. So even though the ideal scenario, from a textual and legal perspective, is for the states to sort it out, it's also totally within the general realm of the Supreme Court's role to handle, and courts in general, though the last 100 years of history has been a bit uneven in that regard. Unenumerated rights are definitely a thing, so even if it's not totally clear who should be taking up the burden of reasoning through them, and I sympathize with your desire to leave it entirely to legislative efforts, it's also relatively okay for courts to do this, even if they are reluctant to.

Anyways, Dobbs does grapple with some of these issues. However, it did not necessarily need to. While Dobbs is a more correct, more firm foundation, I think on balance the practical and intuitive stability offered by Roe outweighed this. "Don't let perfect be the enemy of the good" type of reasoning.

Please look into the ninth amendment, which was put in place to counter exactly the argument you are advancing.

Are there any examples of a court reading a right to exist from the ninth amendment? Not that I disagree in principle, but every time I've mentioned it in the past, people more knowledgeable than I have observed that it's never actually cited in practice. IMO this means that the Anti-Federalists were right: All the rights we didn't enumerate basically don't exist.

If I recall correctly, there’s a decent history of “baby ninths” that certain state constitutions will enumerate, and this occasionally bubbles up beyond state courts, but in practice it either stays on a state level, or when it reaches a federal level these types of questions are slightly better suited to the 14th amendment. It’s not that the 9th is irrelevant, it’s just often the more difficult path to legally argue and decide, so even when it’s relevant it’s rarely used directly. I’d say that we certainly have specified other rights over the years, but the worry about only enumerating some rights, putting them on a pedestal, definitely seems to have been born out.

This realization undermines the social consensus foundation from the Red side, and we converge on both sides admitting more or less openly that the Court is only legitimate when it delivers their specific preferred outcomes, which is isomorphic to the court having no legitimacy at all.

Except that the blue tribe controls what legitimacy means. Once they have the court making 100% Blue decisions again, it'll be "legitimate" except for a few malcontents in the dying remains of the more radical part of Red. The bulk of Red will accept the court no matter what, because they accept the legitimacy of institutions axiomatically.

the dying remains of the more radical part of Red

The core red tribe is not shrinking.

The core Red Tribe trusts the institutions even when those institutions are blatantly abusing them. Some of them will mistrust a particular institution when it's doing something particularly bad extremely publicly (e.g. the Loudon County School Board). But as soon as the heat's off they'll go right back to trusting them.

@hydroacetylene is correct.

It's hard to overstate how much true "deplorables" are blackpilled on politics. This explains the enduring MAGA base, but also its Trump (as a person) centric nature. Not even the acolytes like Marjorie Taylor Green are seen as anywhere near equivalent because everyone in Washington is seen as already corrupted.

The number one mood affiliation / vibe problem with Appalachia, greater Ozarkia, SE Ohio, and the other endemic Redneck and Hillbilly regions is deeply seeded nihilistic views on the future. These people aren't "mad as hell!" they think the game is already over. They vote so solidly for Trump because he's the only one who meets them at that level and seems to be willing to, maybe, burn it all down. The idea that once the Blue Tribe approves something they will "go right back to trusting them" is farcical because most of that trust was already erased by the time Obama was in office (it started during the Clinton years). This is the demographic that is already a full generation into dropping out of the workforce and is now dropping out of life (the often cited "deaths of despair" statistic, while a little misleading in general, is still anchored in the areas I'm talking about).

The change since 2016 and into 2024 is that that nihilism has started to bleed out of these endemically impoverished areas. It starts in the wreckage of coal country and unnavigable hollers that never really had a chance to share in IT-focused growth, moves to flat land rural areas (farms, the Inter Mountain west, eventually the plains), and then gets to the exurbs of the Old Confederacy (interesting to note that Loudoun county, VIRGINIA, is one of the top 5 (!) wealthiest in the country, yet was a flashpoint for very culture war-y topics).

The single critical demographic for this year's election is suburban women. What do they think of the candidates? If you think things are kind of screwed up but your own extended family is more or less safe, healthy, and out of jail, you're probably holding your nose and going for Biden because Trump is just such an ass!. But If a large portion of your extended family male kin are dead, in jail, addicted, even if you "made it out" you might gesture towards "both options suck" but then slam down that Trump lever in the booth when it counts. That's what all them fancy French ladies did

No, it does not. You would be well served by actually speaking to rednecks at some point.

Eh, I dunno about that. There's a long history of back and forth about which party is the "defender of the Constitution" and such. They both have held that mantle at different times pretty strongly in the last even 20 years only. Sure, Democrats are playing their hand pretty strong, probably too strong, recently (junk like "democracy dies in darkness" and all that, great on paper, even true on paper, horribly mangled job in practice). Democrats cry wolf about a lot of things. But not Trump. This dude actually jokes around about suspending the Constitution which is not cool and not-so-jokingly asks about deploying troops domestically which we've only seen in living memory a few times in the 60s and once in '92 for the LA race riots. The dude doesn't even pay lip service to checks and balances and admires dictators.

  • -10

deploying troops domestically which we've only seen in living memory a few times in the 60s and once in '92 for the LA race riots.

This is not true. On active duty I worked a number of years doing DSCA. I was one of the "troops" (Title 10, as opposed to Title 32) that Trump would hypothetically deploy, and we went all over the country, all the time, careful to not do "law enforcement" but still working very actively in providing security, supplies, support, coordination, and all sorts of other stuff. There is a clear and legal way for the US Military to "deploy troops domestically" for emergencies, and a reasonable interpretation of Trump's remarks would be that he considers the current situation an emergency that would allow that type of legal mobilization.

When you hear States or cities declaring a "state of emergency", that's (generally) the magic phrase to unlock Federal support. Talk to the long term employees at USNORTHCOM and they're still pissed that Louisiana took so long to declare a state of emergency after Katrina, which prevented USNORTHCOM from providing support for the first few critical days.

Ah, I should have been more clear. Great comment and I agree for border stuff. I meant to refer more to e.g. local police departments aren't doing enough against crime so let's send the military. The military just fundamentally doesn't make a great police force. Not permanently. And Trump has a bit of an ego-attitude when it comes to using them for small stuff. Like, clear the protesters near my photo op. Worth noting as well that martial law was discussed in connection to the election. I worry there was a gut instinct to do coup-type things instead of wait for the political and potentially judicial process to play out. That's a little less small stuff. What if the SecDef was even more of a yes-man? Trump has specifically said that he will be selecting more for loyalty this time around than before. Sorta understandable, but also potentially very bad. We often rely on the good judgements of these subordinates to make the democratic and institutional stuff work.

Except Trump is a Blue tribe defector and still sees the world through that lens, so when he jokes about suspending the Constitution hes doing so to do things totally contemplated by its original form, such as firing all the bad government workers or mass deportation or declaring the southern border crisis an invasion (he's not even really threatening ICE to have a loose ammo policy, which George Washington surely would have.

Haha, can't begrudge a great historical comparison post too much. GW was quite a guy, overall I think we're pretty lucky he was the first president because despite strong anti-monarchy feelings, people sure as hell wanted to keep him for more terms and he left on a good note with a great speech. Could have ended the US experiment right then and there. Well, unless you were one of the rebellious farmers. Then, maybe you weren't so much a fan.

Side bar please for fuck's sake liberals, can we not say this is the most divided the country has ever been? We literally fought a whole-ass civil war.

the Constitution

...is a piece of paper written by dead men. Adjectives to taste.

...is the legal framework for the world's oldest democracy, possibly most stable democracy by virtue of the first point, strongest global power, strongest global economy, and one that is modifiable by living people at any time? You can make some decent coincidence arguments, but the simple fact remains: the Constitution is actually a big deal.

Fun fact, the only parts of the Constitution that cannot be modified by amendment are Senate representation (can still happen if they give up the representation themselves), maybe core changes like "dissolve the whole Executive branch" or "no more democracy, we are a dictatorship" (this is debated since it is merely implicit), and that's it! That's actually it. Well, okay, way back when there were limits about what you could do for certain slave and tax things, but those expired in 1808. OK, fine, the Supreme Court maybe probably can say no to an Amendment, but they'd have to have a darn good reason, and even then it might not stick (constitution crisis again anyone?). But most people gauge this to be mostly hot air or more of a hypothetical. I feel pretty safe in saying that practically, we can modify anything. You just need a lot of people to agree. As is proper!

Another fun fact is if the federal government is being stubborn, if enough of the state legislatures want to, they can call a convention, suggest some amendments, and then send them directly back to the states to bypass Congress entirely! I always thought that little method was neat, and a nice super-emergency check against Congress.

That was an observation, not a statement of opinion. Politically irrelevant weirdos are not a constituency.

We had four years of Trump. Not one little suspension of the Constitution. I remember when Bill Clinton called for the suspension of the Fourth Amendment in public housing. As for deploying troops domestically during periods of public unrest such as the Floyd riots... that's what the Insurrection Act is FOR.

Let me put it this way. Trump has, let's say, a 90% chance of not harming the Constitution or the rule of law at all. Maybe higher, because I place a high confidence in general US systemic resilience? I think I'm still allowed to be worried about that 5-10%, because to me, that's well beyond my comfortable threshold for electing a president.

Does this sound crazy? Consider this: how many presidents have suspended parts of the constitution, acted unconstitutionally in a big or blatant way, or triggered a significant constitutional crisis? Madison (war of 1812 militia and war stuff, debated), Jackson(nullification crisis AND outright defiance of SC on Indian removal), Lincoln (habeus corpus in civil war), Wilson (WW1 free speech stuff), FDR (court packing AND Japanese-American citizen internment), Nixon (Watergate and related obstruction); as well as recent examples Bush (wiretapping AND detainment stuff, debated) and Trump (possible bribery AND Jan6, heavily debated) that are worth mentioning. A few other possible violators, depending. I think a few arguments were made for Jefferson for various things, and Truman for some Korean War stuff, and some even say Reagan for Iran-Contra (defying congress outright). I left off Johnson, although he WAS impeached, because the core issue felt like it hinged on technicalities of Cabinet appointments and personality clashes. Of course, the list goes way up if you're talking about ANY unconstitutional action, judged after the fact.

So that's 6-8 presidents out of 46. 10 if you are expansive. Those that threaten the core fundamentals of the nation, that's probably just Jackson for his SC defiance and FDR for court packing (and maybe the four terms if we are being honest, though totally legal it was worrying), because although some wartime stuff is in theory worrying we can probably give a bit of a pass to that, even if it involves some core free speech stuff, due to theoretically all wars having an end date. Trump is definitely not (currently) on that core fundamental list.

So historically only a 4% rate of bigtime, core fundamental danger, though that's a really, really crude calculation where I don't yet know how I feel about it. I'm mildly afraid that Biden will consider a court-packing plan, but this probability I place at more like 3-5%. Trump gets weighted higher at 6-10%. This is subjective, thus I don't expect people to agree. However, I don't consider "not suspending the constitution" as a fair predictor of future behavior just because it's literally the default expectation. We have to look elsewhere. Could we have predicted FDR and Jackson's transgressions? FDR had a lot of sweeping changes, and a lot of them undone by the SC, with big economic pressure. I don't know how useful this is. Major planks of major plans have been knocked out for a lot of presidents, including several recent ones from both parties, no connection with major crises yet. Jackson was highly pugilistic and the classic original populist. However, this is tricky and subjective. I kind of feel like this is a good Trump comparison? It's gotta be, right? But I also think you could come up with other parallels for other presidents with Jackson, so I'm not sure. Maybe the standard is actually talking bad about the SC ahead of time instead? A lot of presidents also grouse about this. I don't think Biden himself does this as much as other Democrats. But he does sometimes.

Got distracted, we return to the original question. Why am I rating Trump higher than Biden in existential risk?

How much of that is due to rhetoric? I've actually rewritten the second half of this comment eight times (I counted), with many, many deleted sentences talking about evidence. Let no one say I can't at least try to be fair, or at least consistent. I think I've decided after this long reflection that it's actually all due to rhetoric and language. If someone makes noises about doing highly dangerous constitutional/existential stuff, am I really supposed to ignore it if most evidence points to it being bluster, though rooted in strong and (I think) genuine feeling? Biden makes noise about court packing. I actually rate this as concerning, I do try to be fair. Trump makes noise about election stuff. Both of these concern core interests. However, court packing would likely fail, whereas election denialism stuff... might succeed? IS that fair? I could possibly be nudged in either direction on Biden court packing. Is my feeling on Trump a sign of TDS? Or is it simply a case of listening to what he literally talks about all the time and treating it at face value on the off-chance it's not superficial but real?

I'm going to make that an actual question. Broadly: does the recent adage "if someone tells you who they are, believe them" hold water when it comes to presidents and what they say?

Let me put it this way. Trump has, let's say, a 90% chance of not harming the Constitution or the rule of law at all.

You're obviously allowed to think that, but it's a ludicrously low number. Trump had 4 years in which he did not harm the Constitution or the rule of law at all. He had policies which were adjudicated unconstitutional, and he modified them to satisfy the courts, but that's about it.

Trump (possible bribery AND Jan6, heavily debated)

No. Even if someone were to have shown "bribery" (which they simply have not), that would not constitute "[acting] unconstitutionally in a big or blatant way", it would merely be unlawful. Nor is one's supporters rioting at the Capitol that either.

Biden, on the other hand, has his administration actually prosecuting his opposition, and there is evidence of co-ordination between his administration and New York's prosecution of his opposition. That's a threat to our system right there.

To be clear, unlike apparently many Democrats, I'm actually relatively unafraid of so-called "lawfare". Even if it turns "against" Biden. I trust the courts, at least broadly speaking, to deal in facts and weigh evidence. Still, I'm a realist. I know not all the decisions will be perfect, and not all judges are either. See for example Judge Cannon in the Florida case, which seems to me to be a very, very open-and-shut, slam dunk case, tricky procedural classified stuff notwithstanding. I don't like how she has been treating the case. I won't lose sleep over it, just be a little disappointed. This legal aspect is not something I consider to be an existential threat from Trump, even in the Democrat's worst case on this issue.

Parts of the system you can see working even now. The House investigated Biden a million times, as is their right, even if the left complained about it loudly. Guess what? They really didn't find anything at all. The best they could do was an attempted ouster of Garland, which was pretty flimsy, and the vote margins demonstrated that. Even Trump not being removed from office after impeachment I begrudgingly think is the system working. The two party system is pretty flawed but still delivers roughly expected results. I still agree with Mitt Romney's vote and speech on the issue, but if Trump had tried an even more blatant or flagrant bribery scheme than he did, he would have been removed, GOP reluctance or not. I don't love the threshold we've established, but one exists.

Still, a single term is still relative weak evidence. I already agreed about how Trump's first term is evidence for his constitution-abidingness, even though it's weak. We're talking about an inherently rare event, which is tricky from a statistics perspective. My whole thing is, the best we can do is watch the rhetoric. I don't see Biden making inflammatory claims, other than a brief flirtation with court packing, which he ended up sidestepping and burying. I do see Trump making inflammatory claims and ones that seem to violate several constitutional principles. Grains of salt are needed of course. We're not in wartime, so that helps. And I think most attempts to totally defy the Constitution would fail. I'm just explaining one aspect of my vote that I think other people share, even if they haven't thought about it in the same detail. They don't like gambling with existential risk! Saying "oh the risk is low" is not an effective counter-argument and misses the whole point of the objection.

I'm also unafraid of lawfare, because the vast, vast, vast majority of Democrat's have not committed anything close to Trump, and even the most wacky Trump +80 rural county in the middle of Texas or Oklahoma actually will have issues finding 12 jurors (that any Biden/Hillary/Obama/etc. defense team will basically six of) to convict random Democratic officials of whatever crimes people want to charge them with.

Like, there are actual laws about classifield documents or falsifying business records, regardless of your belief of Trump's guilt or innocence. There's not the laws on the books for the random stuff the Right is upset over - and hey, as with good ole' Gold Bars Menendez, if there are actually corrupt Democrat's so be it - as a left-wing social democrat, the more corrupt ones are usually more moderate. Menendez is being replaced with a much more progressive nice Asian-American 41 year old who will be in that seat for the next 30 years.

I think I'm still allowed to be worried about that 5-10%, because to me, that's well beyond my comfortable threshold for electing a president.

...

I'm mildly afraid that Biden will consider a court-packing plan, but this probability I place at more like 3-5%. Trump gets weighted higher at 6-10%. This is subjective, thus I don't expect people to agree.

Thatt's not just subjective, it's so subjective that your conclusion entirely depends on the subjective part. I mean, I could say "Biden has a 5-10% chance of cutting off aid to Sarael" or "Biden has a 5-10% chance of nationalizing Twitter" based on nothing whatsoever, and the percentage is small enough that it would be hard to argue exact numbers.

It's harder and we have to be very honest and transparent about our assumptions, but not impossible. There are a still some obvious guardrails to rare claims. For example, I flat out do not think anyone could make even a half-compelling case for Biden nationalizing Twitter. Few things happen to our complete surprise, when it comes to policy. Biden has talked about court reform before, so it entered the realm of plausibility. Zero people with any power have made nationalizing Twitter arguments, so it's not. Kind of Overton window type stuff, here. Trump has talked about deploying the military in controversial circumstances at least five times, so it enters the realm of discussion and analysis.

I flat out do not think anyone could make even a half-compelling case for Biden nationalizing Twitter.

Then pick a different example. There has to be some unlikely scenario. Let's go with your original court packing one.

You care about unlikely scenarios that happen at the 5-10% level, yet you don't care about unlikely scenarios that happen at the 3-5% level. Even assuming I fix the numbers so it isn't exactly at 5 (which is covered by both ranges), that's making a really, really, fine distinction. I simply would not be able to estimate such things with enough precision to say "well, maybe it's as high as 3-5%. but it couldn't possibly be as high as 5-10%". And I highly doubt you could really make such estimates either. It's not only subjective, but it can't be anything else; you're pulling numbers out of your hat.

Democrats cry wolf about a lot of things. But not Trump.

The lesson of "The Boy Who Cried Wolf" is that it doesn't matter if the wolf has arrived, the boy has repeatedly abused his responsibility and fostered the conditions for a disaster.

At a certain threshold (we've crossed it!) any villager who comes when the lad calls is a sucker and if the town is ruined by this convergence of circumstances the boy is at fault.

Any self-respecting game theorist would be a fool to heed Blue Media's wailing and gnashing again.

This dude actually jokes around about suspending the Constitution

Why do you care about this, and why should anyone else care about this? The Constitution is dead, and there will be no resurrection. I do not believe that it protects me or my tribe in any meaningful way, and I do not see why I should respect claims of its protection put forward by other tribes. Constitutional claims are useful when they convince other people to drop opposition to one's values or goals. There is no reason to allow them to obstruct one's own values or goals. The constitution means whatever five justices say it means, without limit; benefits are entirely derived from controlling the mechanisms of interpretation, not the document being interpreted. If you have political and social control, you don't need the Constitution, and if you lack it, the Constitution will not help you. This is how the document observably works, and knowledge that this is how it observably works is now reasonably common across the population, and will only grow increasingly common over time as the contradictions inherent to the system continue to express themselves.

not-so-jokingly asks about deploying troops domestically which we've only seen in living memory a few times in the 60s and once in '92 for the LA race riots.

Deploying troops domestically was the correct response to the Floyd riots, and the failure to do so seriously damaged what remains of our country. The riots were the culmination of Blue Tribe's long-established strategy of employing organized, lawless political violence to secure political and social power, and they succeeded to an unbelievable degree specifically because no one was willing or able to deploy the appropriate response of overwhelming lawful force on the part of the authorities. That failure made the culture war much, much worse in a way that probably cannot be fixed.

Trump is not a unique threat. He exists because a critical mass of Red Tribe has lost faith in the existing system and wishes to coordinate meanness outside it. If he is finally destroyed that critical mass will find some other avatar or method to coordinate meanness through. They will continue to do so until either they find an effective method to obtain real address of grievances, or until society suffers a fatal rupture. The later seems, admittedly, a more likely outcome, but the former should not be underestimated. The current systems which prevent redress seem to me much more fragile than they generally appear.

Some thoughtful replies to this post. I think your take is pretty interesting.

I'm hesitant to ascribe too much power to the BLM riots, though. While many perceived this as the Left flexing its practical power and control over the masses, I sort of thing it was just an over-indulged feel-good moment for people feeling a bit disempowered (a disempowered feeling being the true, root, and universal problem of our age I feel) on the left and a lot of cognitive dissonance too. So it drew in more people than expected due to those forces, but also on the flip side, I don't think it meaningfully demonstrated any actual control over the masses. Perhaps part of this lies rooted in media distortion yes, on both sides of the riots. For most participants, the talking point about peacefulness was actually true, and protest is objectively a significant and specially protected right as well as a force for change, generally and historically. Like, for a lot of people, it was like my sister's experience, where she was an impressionable and impassioned 16 year old who stood out with a sign in my very low-Black state of Oregon, in the suburbs, and... yeah that was the whole experience. Fox News did not portray this, not to a degree proportional to its reality OR its importance. Conversely, MSNBC was patently dishonest with its viewers. Ignoring the, uh, literal fucking flames, the beatings, the violence, all of this was difficult to watch. Police were defanged and demonized. Random Defund types were given megaphones. A lot of Red people were rightly feeling like they were watching some news describe an alternate reality.

Turns out all the public really wants is slightly more police, but with some accountability mechanisms that actually work, and which currently only barely exist. And guess what? BLM protests were actually, uh, fucking successful in the sense that body cam adoption rates among police officers have skyrocketed. Okay, fine. The accountability portion did not happen, not really. I still am waiting for that. It sucks. At the same time, it's clear that a lot of the numerical bigness of the BLM protests was not in fact "true believers" but fadsters. The accountability portion didn't happen because it turns out that while people vaguely want accountability, they currently don't actually want it bad enough. Possibly because most voters don't imagine themselves ever being on the wrong side of the law? Maybe we just need a few more scandals? Some police union reform? It will happen eventually.

The constitution has actual and practical meaning insofar as the well-founded and established legal protections derived therefrom provide functional and meaningful relief to abuse when seeking legal recourse. This actually accounts for many citizens, including you. Even top-end brokenness doesn't cancel out the taken-for-granted norms that are backed up by this option of last resort. Dysfunction in the Supreme Court does not in nearly any practical way diminish you and your actions, because they are not rewriting the entire body of common law that works jointly with relevant daily laws. The legal inertia of the legal system is not just massive, it is gargantuan. Of course, state-level laws are far and away the most impactful to individuals. There is likely some merit to a dedicated color-tribe to moving into an aligned state, but beyond that, no difference.

I think people confuse the lethargy of the system with inherent dysfunction. However, to throw out an ad-hoc rule of thumb, it only takes 10 years at a maximum for true and deep-seated, popular change to show up in actual law and legislatures. This is often longer than comfort. I get it. But redress is most certainly there.

If you have political and social control, you don't need the Constitution, and if you lack it, the Constitution will not help you.

You missed something. The document still has a strong guiding influence on the forms and functions alike of the use of said control. It's a well-worn groove that least-resistance rules say will often offer an underlying structure and direction to this exercise of power. In addition, there is strong legal inertia as previously discussed. In fact, the whole point of the Constitution, at its core, is that it provides a robust mechanism that can balance majority-tyranny with minority-rights while also accounting for future shifts in opinion, because some shifts are fleeting fads while others are more durable. Almost every single mechanism in the document is concerned with allowing some small amount of temporary change just in case the feeling ends up being real, while allowing for great shifts when these changes end up being persistent, and the latter is often deemed more important when the two conflict.

However! The only non-intuitive thing in the constitution is that it has a very strong allowance and permissions for State structures specifically. This is, in a way, a historical artifact of the at times greatly autonomous 13 colonies with separate charters and governance. Thus, the Senate being the way it is. Population disparities between states is the greatest foundational threat to the country and constitution, in this framing. The current national political situation almost perfectly reflects this. Personally, I'd split up the bigger states and admit them to the Union as new states, with combining states on the table as the stretch goal and totally redrawing lines as the super stretch goal, but I'm sadly not in charge :(

Personally, I'd split up the bigger states and admit them to the Union as new states

The problem with doing this is that this is unequivocally and permanently bad for Blue power.

Which, obviously, Blues won't like; since this will create a permanent Red Senate that can just block Blue policy goals (which will tilt the balance of power even more in the relatively-unaccountable executive direction) and has long-term ramifications about how their Tribe can exert influence going forward (since a sudden loss of territory in close proximity to the cities opens the door to massive State income and sales tax arbitrage, resource extraction is still rather lucrative in the states that have them, lawfare/process-as-punishment against Blue policies is more practical due to newly-independent police, etc.).

And sure, it's possible to create new states such that it advantages both Blue and Red, but doing that would require nonsense solutions that create city-states in flyover country (because cities are the only places that vote Blue, almost like the Blues are a purpose-built city interest faction or something). Sure, it could give the political situation a chance to stabilize if there were any other fault-lines other than "urban core" vs. "everyone else", but the economy has been hollowed out so much that I'm not convinced it's even possible (as the nation to the immediate north demonstrates: the "third way" Western left party was extraordinarily strong ~15 years ago, but is on track to disappear entirely in the next election).

Really? I’m pretty sure this is considered a Blue policy, though it might depend on the construction. Overall the Democrats usually win the popular vote but the Senate skews Red, this proposal is intended to level out the disparity between the two. Merging in particular disfavors Red, since rural states are lower population.

No, the trickiest issue is that even if we could balance the Red/Blue short term impact, it’s hard to actually draft a workable compromise because literally every state needs to individually give specific consent to border modification. Any one single state could torpedo the whole deal. There’s currently only a few places that would probably assent right away: for example Eastern Oregon has long wanted to join Idaho, and honestly they are a great fit.

I am visualizing an approach that would keep as many current state borders as-is as possible. So in practice we wouldn’t be gerrymandering cities, just slicing up bigger states into logical regions. For example California seems to be able to split in either 2 or 3, vertically stacked, without too much issue.

A North/South/West Texas split would create three upper-end-of average states, all of which would be pretty red. You could do a state of Rio Grande, which would probably be swingy, but look like obvious gerrymandering, or a set of even more obviously gerrymandered exclaves that are solid blue states. Ditto Louisiana; the obvious split would be north/south, both of which would be small red states.

But nobody's proposing those sets of splits. The main demand for a new state is to split off eastern Oregon- again, pretty red. Likewise, Northern California has a fairly fringe but real movement to split off from California; this is a red-leaning state of Jefferson. Upstate New York has wanted to split in the past, I doubt they're going to be a blue state.

For some reason, the people who actually want to have their state split up such that they're under a different government are all republicans with democrat-controlled state governments.

A North/South/West Texas split would create three upper-end-of average states, all of which would be pretty red.

Whereas the split they'd actually need to come up with would be "State of Austin" and "State of Texas", since Austin's policy goals are quite a bit more suppressed by the rest of the state than the converse [whether the policies Austin wants are right or wrong is out of scope].

Which is why I think that, if we wanted it to be perceived as fair by both sides, it'd have to be city-states made up of Blue cities in perma-Red states- as this is the reverse of the "some reason" you're hinting at (which, again, comes down to "consent of the governed is not equally geographically distributed", and both Blues and Reds have motivated reasoning for not understanding that).

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Deploying troops domestically was the correct response to the Floyd riots, and the failure to do so seriously damaged what remains of our country.

Deploying troops is a serious matter and a last resort to only be used in the most serious riots that are absolutely beyond the control of the police and state National Guard. Once a riot becomes an insurrection the insurance policies aren't required to pay due to the exclusion for acts of war. If Trump had invoked the Insurrection Act he would have drawn the ire of the people he was supposedly trying to help, which is why he didn't do it.

Deploying troops is a serious matter and a last resort to only be used in the most serious riots that are absolutely beyond the control of the police and state National Guard.

Local authorities across the nation ordered their police to stand down. State authorities refused to deploy the national guard. Innocent people were victimized en masse and without recourse by organized political violence with clear, bidirectional ties to both the Democratic party and to Blue Tribe institutions generally. Those few who tried to defend themselves were subjected to nakedly political prosecutions on the flimsiest of pretexts and in defiance of the facts.

Blue Tribe, both its elite leadership and its general population, accepted, endorsed and supported these crimes. They collectively encouraged and enabled rampant, lawless political violence with the explicit goal to secure political and social power for themselves and their own interests, and they coordinated overwhelming retaliation against anyone who resisted or objected. Many of the Blue commenters here did the same. One of them argued at length and quite explicitly that it was better for people like myself and my family to accept beatings at the hands of a mob rather than defend ourselves with lethal force, because criminal mob beatings were statistically less likely to kill people than lawfully justified gunfire. That's the sort of conversation that leaves an impression.

Given those circumstances, the military would have been the correct response. It would have been an entirely reasonable response in the face of far less severe violations of the peace. The government's failure to deliver the appropriate response lingers, and the debt to justice will need to be repaid at some point in the future. It manifests, here and now, in markedly reduced trust in our social institutions, and a reduced willingness to expend efforts and make sacrifices for the preservation of those institutions. Every dispute is now conducted in the knowledge that Blues, speaking generally, are the sort of people who will happily endorse our victimization without apparent limit, and think themselves virtuous in the process.

You couldn’t be more wrong. Almost everyone who was ‘victimized’ by BLM / Summer of Floyd riots voted Democrat. Red tribe suburban and exurban neighbourhoods were almost never targeted and their residents suffered minimal deterioration in QoL compared to inhabitants of big cities.

Showing these people what the logical outcome of what was previously considered harmless hippie justice reform activism actually is was a necessary and important move, even if it led to the unfortunate deterioration of some American cities. The idea that the army was necessary to control the riots is laughable. A few dozen police officers could have controlled even the absolute worst of them. It was state and municipal elected officials who were responsible for what happened.

If Trump had sent in the military to crush the riots, the violence would have been solved, the blue urban governments would have grandstanded against the racist, oppressive, anti-black hijacking of the federal government by colonialist forces in collaboration with the brutal right wing military that oppresses PoC at home and abroad, and their constituents would have loved it, even as intervention saved their cities.

Rising crime, homelessness, and lawlessness had to be blamed by blue tribe citizens on their own elected officials with no convenient scapegoats or excuses. Sending in the military would have guaranteed no negative repercussions for the justice/police/bail/etc reform movement whatsoever.

A few dozen police officers could have controlled even the absolute worst of them.

As the saying goes "could've, would've, should've". The point is they didn't.

It was state and municipal elected officials who were responsible for what happened.

The Insurrection Act specifically takes that into account (or Eisenhower couldn't have used it). From 10 USC 253: "the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection"

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Do you remember the most recent presidential inauguration when DC was literally locked down by troops despite there being literally zero threat of any kind?

The constitution means whatever five justices say it means, without limit

I don't think this is true. If the supreme court did things obviously false, and the executive disagreed, on something that mattered, and had popular opinion on his side, I don't think there'd really be too much trouble with him doing what he wanted.

benefits are entirely derived from controlling the mechanisms of interpretation, not the document being interpreted. If you have political and social control, you don't need the Constitution, and if you lack it, the Constitution will not help you. This is how the document observably works, and knowledge that this is how it observably works is now reasonably common across the population, and will only grow increasingly common over time as the contradictions inherent to the system continue to express themselves.

This is just false. Supreme court justices are not infrequently honest, and trying to do interpretation, not fabrication. At the very least, they always are pretending to be interpreting the text, which does provide constraints on their behavior.

Treating the constitution with respect is a valuable norm because it does, in fact, constrain behavior. Less than it used to, as people kept stretching things, but it does constrain behavior, and usually in ways that make things better.

I'm not claiming the Court can't be defied. Obviously it can be, and in fact several of its recent pro-2A findings are being defied at this very moment in various states, most notably New York and California, and have been for years now. I'm claiming that to the extent that any outcome can be attributed to "The Constitution", it is actually happening because the Justices want it to happen, not because of the ink on the paper. There is no ground reality, there is no platonic form, and anyone who believes otherwise is fooling themselves. Abortion has both been protected and not protected by the Constitution, and the answer to the question of which state was "correct" is mu.

I'm claiming that to the extent that any outcome can be attributed to "The Constitution", it is actually happening because the Justices want it to happen, not because of the ink on the paper.

It is of course the case that things happen because they (in some sense) want them to happen; actions happen by agents. But pretty often, the reason why they want it to happen is because that's what they think the Constitution says, and they're trying to be faithful interpreters.

There is no ground reality, there is no platonic form, and anyone who believes otherwise is fooling themselves.

Why not? I think language has meaning.

This particular piece of language has managed to hold enough people in its sway that something vaguely approximating its meaning has been the basis by which we govern the United States of America.

If you try to strip out the Constitution from your understanding of the United States, you will understand it worse, not better.

Abortion has both been protected and not protected by the Constitution, and the answer to the question of which state was "correct" is [moot].

No, it's not moot. The norm of following the Constitution is important and a valuable check against limitless power-seeking. That norm means that it's useful that we should try to care what the Constitution says. Further, interpretation socially recognized as correct helps to confer legitimacy. Social recognition of correctness of interpretation tends to correlate with correct interpretation loosely, at least, because many people can read.

Why not? I think language has meaning.

Language has meaning to the extent that people are willing to cooperate in building and maintaining that meaning together. If they are not, then it cannot. For any deeper "meaning" than that, I think you need something approximately like an appeal to God. I'm willing to accept such appeals, but others are very clearly not, and neither you nor I have any means by which to compel such acceptance.

But pretty often, the reason why they want it to happen is because that's what they think the Constitution says, and they're trying to be faithful interpreters.

And it just so happens that "faithful interpretation" consistently results in judgements that match their own perceptions of what is just and good, and sometimes no more than what is expedient. Any contradictions between these judgements and the text itself are easily resolved by words words words. I'm given to understand that "emanations" and "penumbras" are sometimes involved.

This particular piece of language has managed to hold enough people in its sway that something vaguely approximating its meaning has been the basis by which we govern the United States of America. If you try to strip out the Constitution from your understanding of the United States, you will understand it worse, not better.

In the past, certainly. In the present, not really, no. In the future, not at all, I should think. Common knowledge and path dependency trump all other factors. It is certainly true that understanding the Constitution is necessary to understand how we got to where we are now, and the short version is that when it was written people really believed in it. But to understand where we are going, one needs to understand that this belief has largely died, and within a generation at most will be entirely extinct.

Supreme Court decisions favoring Blue Tribe observably have vastly greater impact than decisions favoring Red Tribe. Decisions favoring Red Tribe have been quite explicitly defied by lower courts, and the Supreme Court has then quite explicitly allowed such defiance to stand. I have no problem explaining such behavior: the Court realizes that its power derives from social consensus, not formal law, and recognizes that the consensus is against it and that further attempts to enforce the law will cost it more than it can afford. But if you believe the Constitution is really where their power springs forth, I'd be interested in your alternate explanation of such behavior. The Supreme Court sided with Dick Heller, yet he still can't have his gun. Why is that?

And given that I observe that decisions favoring my tribe are routinely nullified by Blues wherever they are stronger, why should I support upholding decisions favoring blues where we Reds are stronger? What value is secured by doing so?

No, it's not moot. The norm of following the Constitution is important and a valuable check against limitless power-seeking.

I don't think I can offer a response better than that of Lysander Spooner:

"But whether the Constitution really be one thing, or another, this much is certain - that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist."

The value of the Constitution came when it acted as a hard limit on the scope and scale of political conflict. People understood it to put many tools of power off the table for most practical purposes, removing them from the normal push and pull of the political contest. When we vote, the Constitution means that we're voting on policy, not on our basic political rights. If we lose, we suffer the other side's policies for a few years, but our rights are inviolate.

Only, they aren't, and anyone who believes otherwise at this point is quite foolish indeed. Progressives and their Living Constitution ideology mean that all bets are off, and indeed we have seen abuses and usurpations committed and upheld that would have been unimaginable as little as ten years ago.

"They wouldn't do that...." Yes, they would, for any value of "that" that one cares to specify. Americans, Blue or Red, are human, and "that" is what humans reliably do. Presidential candidates have campaigned on the idea of taxing religions they don't like, and openly laughed at the idea of constitutional limits on their ambitions. The theoretical grounding is solid, and the underlying logic is simply correct. Where your "norms" are supposed to fit into this picture I really cannot say.

Turn back to your favorite histories, and contemplate the fact that for all our technological sophistication, nothing about our core nature as humans has ever really changed. Humans will inevitably human. We create systems to control and channel our nature, but what our hands make, they can unmake as well. The Constitution arose from a specific culture, and it worked due to a specific set of cultural norms and assumptions. That culture changed, the norms and assumptions no longer apply, and so the Constitution is dead. To the extent that common knowledge of its death has not proliferated, it serves mainly to fool people into making sacrifices that will not be reciprocated by those who caught on a little quicker.

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Why even have a country if you don't believe in anything except exatly what you want? You are kind of that guy though, you're a boogaloo boy.

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Why even have a country if you don't believe in anything except exatly what you want?

The point of a country is cooperation to secure the common good. This doesn't work if, as in our present circumstance, we collectively can't agree on the common good. It's not about getting exactly what "I" or "we" want. It's about whether or not there's a rational basis for believing cooperation is possible. With regard to the Constitution, such a belief is no longer rational, and it doesn't seem to me that it can be recovered, because the evolution of our Constitutional understanding is necessarily path-dependent. The arguments that worked before, worked because at the time we hadn't seen their long-term results. We have seen those results, so they won't work again.

You are kind of that guy though, you're a boogaloo boy.

If you say so. What follows?

You want violent confrontation to bend others to your will, hoping for collapse for some excitiment, and are dissatisfied when things are going ok.

You want violent confrontation to bend others to your will

No, I want me and mine to be left alone to live in peace. I'm happy for offer the same to others. That's just not the direction we appear to be heading in.

hoping for collapse for some excitement

How'd you feel about watching the police station burn?

and are dissatisfied when things are going ok.

Things are generally not "going okay". It's possible that they'll get somewhat better, and it's also possible that they'll get a whole lot worse. Even the worse outcomes are preferable to living at the mercy of people who hate myself, my tribe and my family, though.

On the topic at hand, I think my argument is pretty solid. The court exists to limit the scale of conflict, but it is failing to do that. If you think the Court is important, this should concern you.

I just told you not to do this.

You said what you said, he responded, and now you're just repeating yourself. If you want to engage with someone on why they think they way they do, actually engage them, don't just sneer at them.

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You cannot simply say this isn't working.

What's the alternative?

Radical federalism or large-scale violence, one imagines, but we will be free of each other, one way or the other. Society requires coherent values. That can be accomplished by all the blues sorting themselves into blue areas ruled by blue laws, and all the reds sorting themselves into red areas ruled by red laws, and the two areas generally leaving each other alone. Alternatively, it can be accomplished by not having a society any more. Those seem the most likely outcomes, and I obviously prefer the sorting one. I think you should as well.

It's possible I'm wrong, of course, and time will tell. Given that this is a massively-multiplayer game, though, I'm skeptical as to how long the waiting can really last before things break one way or the other.

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This is too antagonistic - don't just throw personal attacks like this.

The bulk of Red will accept the court no matter what, because they accept the legitimacy of institutions axiomatically.

This statement has never been true for any previous population of humans, and it will never be true for any future population either. The hunger for justice and the desire to rebel against the intolerable is innate to human nature. I say the same to you as I do to others: if you believe that there is a clean victory available for Blues here, you do so because you misunderstand both human nature and some extremely important features of physical reality. To paraphrase a better writer than myself, you've seen two girls and one cup, so you extrapolate out to, say, five girls and two cups. But this is invalid; what's actually going to happen is OnlyFans, something you never saw coming and would never have imagined.

The bulk of Red will accept the court no matter what, because they accept the legitimacy of institutions axiomatically.

This statement has never been true for any previous population of humans, and it will never be true for any future population either.

It is true for most people in most times. It is especially true in recent times for those calling themselves "conservatives".

The hunger for justice and the desire to rebel against the intolerable is innate to human nature.

No, most oppressed populations have merely gone along to get along at most times.

I say the same to you as I do to others: if you believe that there is a clean victory available for Blues here, you do so because you misunderstand both human nature and some extremely important features of physical reality.

Physical reality may ultimately defeat them (at very great cost to the human race). Human nature will not. Most people will do and think what they are told. And since rebellion is a leftist characteristic, Blue Tribe has captured those who do not. Blue holds the institutions, and only Blue has the temperament to rebel. Thus any institution which somehow falls into Red hands can be #Resisted, but as soon as it returns to Blue its word will be law to all.

And the hunger for justice will be sated by Supreme Justices making a decision. Only some kind of a commie doesn't believe in the institutions passed down from the founding fathers.

You’re doing that thing, again, with the caricatures.

Stop it. Resist the urge for one-liners. They’re not as funny as you think.

I have never intended for even one of my comments to be funny! There is zero funniness desired, as opposed to desperation.

Fine.

I’m still going to ask you to resist the urge. Whatever your reasons, you’ve settled on a style which is against the rules.

The reason Anderson was time sensitive should be obvious.

Yeah ... the Court's expedited response to Anderson was an extreme outlier, such that I wouldn't draw any inferences from the Court's failure to follow the same expedited decision-making process in any other case. The issue in Trump v. U.S., while still extremely newsworthy and constitutionally significant, is only tangentially related to the upcoming election, whereas Anderson could have jeopardized the election itself (and Trump's campaign) if not addressed in time.


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