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Culture War Roundup for the week of August 5, 2024

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Certainly the corporate news media has been spinning wildly in hopes of a Trump defeat.

I have a number of criticisms of Harris, but historically, the most consequential impact of most Presidents has been through Supreme Court nominations. And Harris has always been a "no friends to the right of me, no enemies to the left of me" sort of politician. The independents/undecideds are rarely sufficiently dialed in to understand or care about the intricacies of law and its long-term impact on culture. Justice Jackson has already shown herself to be an unsophisticated jurist who simply votes for whatever seems Wokest, and Harris would appoint more of the same.

The fact that we've reached a point in our political history where every cultural disagreement turns into a Constitutional Question does not really bode well, I think. We are supposed to have a federal system; not every question of importance is supposed to be answered the same way for the entire nation. To the contrary--questions of importance are precisely the questions that states should be free to disagree about. Trump's nominees have moved the needle in the right direction, albeit only slightly. Harris would move us more toward totalitarianism and ruin than Trump could ever hope to manage, assuming she gets an even slightly sympathetic Congress (and I do expect her to win in November, as a direct result of the corporate news media being the propaganda arm of the Democratic Party--the fix is clearly in).

I don't like Trump, I've never liked Trump, and he has been a disaster for the Republican Party. But he was genuinely a kind of bland president who made okay SCOTUS picks. I would expect Harris to be essentially his equal-but-opposite--actually a much more boring President than one might expect from her public buffoonery, but something of a jurisprudential catastrophe in the long run.

I think the biggest concern is that Harris/Walz really don’t seem like a pair who understand that their ideological enemies are allowed to survive and flourish and even win occasionally, and think they need to change the rules if that’s going on.

Like I had problems with Obama’s and Biden’s us-vs-them arc of history triumphalism. But I didn’t get that vibe from them. I don’t think Biden is fully aware that he just endorsed court packing(I mean, I don’t think he’s aware of many other things as well, but like, Obama isn’t notably cheerleading for it, and earlier in Biden’s tenure when he was a hair more lucid he backed away from the idea). Harris, I think just genuinely has a very different idea about what democracy means(namely, the progressive establishment always wins, and the rules ensure that).

I don't have a lot of direct exposure to day-to-day US politics, so would you mind providing some links to things demonstrating this? I saw the thing about her saying the executive should act if Congress won't, but I assume there are more things giving you this vibe.

I think just genuinely has a very different idea about what democracy means

Rule by the demos versus rule by the democrats versus rule by demographics.

Would not all be affixed the same grammar?

Harris, I think just genuinely has a very different idea about what democracy means

She has a very different idea about what constitutional democracy means. Back during the pre-2020 Democratic primary debates, when Biden was trying to explain that an executive order could be unconstitutional, she was laughing at him for it and explaining that Congress not passing a law they want is sufficient reason for a Presidency to write it themselves.

He got worse after that, but I haven't seen evidence that she got any better.

When the rubber hit the road, Obama and Biden were willing to do out of bounds things to accomplish specific policy goals. But neither of them- either Obama nor pre-total senility Biden nor the Clintons- wanted to permanently change the rules to prevent the other side from winning. That’s a big difference.

Biden was willing to put pressure on social media companies to censor Covid posts deemed Misinformation. Walz straight up says he doesn’t think free speech applies in cases of hate speech or misinformation.

I think the biggest concern is that Harris/Walz really don’t seem like a pair who understand that their ideological enemies are allowed to survive and flourish and even win occasionally, and think they need to change the rules if that’s going on.

This seems right to me. Something that has long niggled me about Trump is that he often talks in the same way--but he doesn't seem to actually mean it. Like, "lock her up" was his big 2016 thing, and immediately upon victory he was like, "nah, we don't say that anymore." Clinton was not prosecuted, that was the end. Like for Trump, it was all just trash talk over a game. Whereas, Harris seems to be genuinely interested in putting a permanent end to the possibility of flourishing deplorables. I'm skeptical of her ability to do that even if she wins, but living through even her failed attempts promises to be annoying at best.

What kind of attempts do you have in mind?

She has no signature policy, no specific crisis to solve. She doesn’t have a particularly unified Congress. The limiting factor on the Democrats is not the Supreme Court.

I see a Harris presidency leading to one or two Bruen and Dobbs level decisions.

The southern border would be an obvious "specific crisis", and Venezuela is likely to just keep getting worse well and long before it gets better. And it doesn't hurt that the 'obvious' solution, at its most charitable, involves funneling billions of dollars to immigrant and refuge assistance groups that overwhelmingly support Dems, and more credibly involves large-scale amnesty and eventual citizenship to large groups of people that Dems believe will vote reliably Democratic.

(cfe 2020's estimate of 2.1 million.)

On culture war stuff, "does the ADA cover gender identity" is very likely to come to a head at SCOTUS in the next four years no matter how hard Roberts tries to punt on it, and regardless of what SCOTUS decides is going to be a massive political deal. If it ends up a Gorsuch opinion, it's hard to overstate how much of both law and everyday life that it touches. Either answer is likely to have a Harris admin run as far as SCOTUS will let them in the rulemaking postgame.

College debt is a ticking time bomb.

I would be very surprised if we go two and a half years without some high-profile shooting of some kind that makes gun control the matter of the day.

And that's suggesting Nothing Ever Happens re: Taiwan, Russia, Iran, so on.

This seems like more of the "vote Biden for moderate normalcy" propaganda from 2020. It was a lie, the people saying it knew it was a lie, but it was an effective way to con people so they said it anyway.

I don’t think it was a lie.

In the primary, he was certainly more moderate than Sanders. In the general, he played the straight man to Trump’s firebrand; I’d say both of them turned out pretty moderate indeed.

Like most administrations, Biden’s has had boring responses to boring problems. What was the moderate/normal version of dealing with inflation?

I think the "Fair Game" order on Elon Musk was pretty abnormal. Multi-agency conspiracies to retaliate against domestic dissent are pretty serious business. Yes, it's not entirely unprecedented, what with literal Watergate and the Trump-Ukraine affair (and, if you really want to dredge things up, the Sedition Act), but Biden's Musk harassment is possibly larger in scale than the former two and in any case even "on par with Nixon and Trump in abuse of the office" is hardly a "return to normal".

Like most administrations, Biden’s has had boring responses to boring problems. What was the moderate/normal version of dealing with inflation?

Not causing it with a massive vote buying giveaway after the causes of a non-central "recession" were already solved.

The border was stable. He destablized it intentionally by repealing a bunch of policies.

There was no war in Israel. He released billions of dollars to Hamas's patron Iran.

He tried to fire millions of workers over a vaccine that ended up being meh.

He stopped the Keystone pipeline more or less permanently.

He tried getting a PR win by evacuating Afghanistan in a totally illogical way just so it could happen before 9/11.

These are not moderate left wing ideas like raising the payroll tax cap by 50% or expanding school lunch programs to include a new disadvantaged class (indeed he also radically threatened to pull funding for school lunches if schools didn't enable transing the kids). They are wild attempts at reforming things significantly in a very left wing way.

I don't know, but I think I could come up with something more moderate than ensuring the executive has to participate in white privilege struggle sessions, or pressuring an already radical organization to promote the removal of age limits on transgender care.

I remember the LockMart shitshow. I also observe that it was in the long hot summer of 2020, months before Biden was elected. Trump nominally banished any training which mentioned those terms with this order; looks like Biden overrode that with another. I don’t like his framing, but I also don’t think you can describe that as requiring struggle sessions.

Point conceded on trans issues. No return to quietly ignoring them from Biden.

You've convinced me. I won't try to pretend that's anodyne.

Every. Fucking. Time. It's worse than Darwin ghosting and pretending it never happened. It's like pulling chatGPT's teeth to get it to acknowledge something against its RLHF, then refreshing the window and having to do it all over again, every time.

Nah, he's alright.

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What kind of attempts do you have in mind?

Red flag laws and assault weapons bans, specifically as they are likely to be unevenly applied against more conservative groups, would be annoying at best. A continuation of Biden's "what border?" policies would be annoying at best. Following her running mate's record on transing the kids or preventing religious universities from promulgating their own views would be annoying at best. Under a Harris administration, we could expect the Department of Education to do everything in its power to undermine SFA v. Harvard, which would be annoying at best.

These are all things that aim toward shutting down the ability of the "deplorables" to defend themselves from government overreach, to maintain democratic influence in their own nation, to protect their children from politically popular social contagions, to participate in society on the basis of merit, and so forth.

The limiting factor on the Democrats is not the Supreme Court.

I'm not so sure about this. I agree that she probably will not enjoy the assistance of a particularly unified Congress, but that remains to actually be seen. Court Packing remains unlikely, but it is certainly more likely under Harris than under any alternative administration.

America has tried these failed economic policies before, but we are not going back. (Applause.) We are not going back. We’re not going back.
AUDIENCE: We’re not going back! We’re not going back!
THE VICE PRESIDENT: We’re not going back.
AUDIENCE: We’re not going back! We’re not going back!
THE VICE PRESIDENT: We are not going back.
AUDIENCE: We’re not going back! We’re not going back!
THE VICE PRESIDENT: We’re not going back.
AUDIENCE: We’re not going back! We’re not going back! We’re not going back!
THE VICE PRESIDENT: We’re not going back.
And I’ll tell you why we’re not going back: because ours is a fight for the future.

Scott, prescient as always.

As for the substance. My point is that endorsing red flag laws or abortion rights or gender whatever is not sufficient to make those things happen at a federal level. Most of the time, the President gets to pick an appropriately-aligned justice or two, sign the budget, and then go back to meeting with foreign leaders or ordering bin Laden’s death.

Also, I observe that most of your example tyrannies were enacted by and for individual states. Given that Biden and Congress have failed to override Dobbs trigger laws, despite the vivid backlash, I have little expectation of a sweeping rule on lesser CW battlefronts.

Would Harris sign a federal assault weapons bill? Sure. Would any Democrat not? I have seen precious little evidence of conscientious objectors saying, “no, this time the party has gone too far.” By the time something crosses the Resolute desk, it’s got the explicit approval of hundreds of congressmen and, by proxy, roughly half the country.

That’s not true for executive action, and I’ll agree that a Democrat is more likely to use the administration against the interests of “deplorables.” Does that really get you to “an end to the possibility of flourishing”? I don’t think so.

I would expect Kamala to go after religious colleges through to department of education- and I think BYU specifically is important to Mormon flourishing- at the very least.

I immediately imagined having to pretend I’m an anarchist (full grey tribe mode) in order to continue being a libertarian conservative (grey-red).

Mentioned downthread, but the timing is interesting that the same week that Kamala assumed the presidency, Tulsi Gabbard just happens to land on the terror watch list.

Kamala Harris is not the President of the United States. Joe Biden has decided not to run for re-election, but he is still the President.

Justice Jackson has already shown herself to be an unsophisticated jurist who simply votes for whatever seems Wokest, and Harris would appoint more of the same.

I don't think this is true. The only time I genuinely couldn't comprehend where she was trying to go in terms of jurisprudence was her questioning in Murthy v Missouri. Aside from that case, she seems fine to me in oral arguments and writes opinions that I just disagree with. She's not stupid or unsophisticated, she's just wrong. Do you have an example of what you're referring to?

She clears the low low bar of not being Sotamayor, but other than that I'd say she is the worst writer on SCOTUS (non-Sotamayor) of the last 4 decades. And she is one of the most partisan. Probably the least gifted non-Sotamayor SCOTUS appointee since Abe Fortas.

The only time I genuinely couldn't comprehend where she was trying to go in terms of jurisprudence was her questioning in Murthy v Missouri.

This was certainly my top example, but I don't think it was hard to comprehend. I think it was stupid.

So my biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods. I mean, what would — what would you have the government do?

Like, seriously? "The Constitution limits government power, but sometimes we don't like that. What are we supposed to do when the Constitution limits government power in ways we don't like?" This is almost as straightforwardly embarrassing as her inability to answer the question "what is a woman?"

She is similarly stupid in her engagement with issues on race (though Sotomayor has similar problems).

This is not a person who is sophisticated but merely wrong. She's probably smarter than, say, Kamala Harris. But she's definitely bottom-of-the-barrel for SCOTUS, maybe even for the Circuits.

Like, seriously? "The Constitution limits government power, but sometimes we don't like that. What are we supposed to do when the Constitution limits government power in ways we don't like?"

If you read the rest of her comments she says "“I’m interested in your view that the context doesn’t change the First Amendment principles,” Jackson said. “I understood our First Amendment jurisprudence to require heightened scrutiny of government restrictions of speech, but not necessarily a total prohibition when you’re talking about a compelling interest of the government to ensure, for example, that the public has accurate information in the context of a once-in-a-lifetime pandemic.”"

So she is obviously aware that the Constitution limits government power, but she is talking about there not being a total prohibition when there is a compelling interest.

Now you may of course disagree with the fact whether Covid or whatever is such a compelling interest, but I think positing that one question, means she is an idiot, about not understanding what the Constitution does is just cherry picking. The rest of her questioning clearly shows she does know that.

Her question shouldn't paraphrased as

"The Constitution limits government power, but sometimes we don't like that. What are we supposed to do when the Constitution limits government power in ways we don't like?"

but rather as

"The Constitution limits government power, but that limit is not all encompassing. In your view what should the government do when and if it does have such a compelling interest?"

Remembering her question here is in the context of a hypothetical about a viral social media stunt that is causing suicides among teenagers. So she is asking even if people are dying is your position that the government cannot encourage the media companies to suppress these posts. Is that not a compelling interest? And the advocate understands where she is going because he answers, no, the government can use positive speech to condemn the posts but it cannot ask the companies to take them down. So they both understand that government power is limited by the Constitution, what they are going back and forth about is what counts as a compelling interest and where those limits end.

Again, you may think she is wrong about where those limits are, but it is clear she isn't a moron who doesn't understand that the Constitution is there to put limits on government action. She clearly understands that.

it is clear she isn't a moron who doesn't understand that the Constitution is there to put limits on government action

I think it's clear that she is kind of a moron (see: "I'm not a biologist"). That aside, there is understanding, and then there is understanding. I'm sure she knows what enumerated powers means. I'm also sure she doesn't give a shit about enumerated powers if the principle happens to get in the way of the result she wants, which constitutes a failure to genuinely grasp the principle and her responsibility to it. That's the problem with results oriented jurisprudence. It's a naked exercise of power; it's illegible and thus illegitimate as a jurisprudence.

see: "I'm not a biologist"

That isn't being a moron, that's her toeing the line on the current culture war. And similarly if she does understand it, but is choosing to ignore it, that doesn't make her stupid. I am sure she grasps the principle, she just disagrees over what her responsibility is to it. Which is a good reason to be against her as a justice to be clear! But it isn't the same as not understanding.

But it isn't the same as not understanding.

People who make themselves deliberately stupid, are still stupid. People who consistently act as if they are stupid, just are stupid. The kind of person who answers "what is a woman" with "I'm not a biologist" is being a stupid person, even if they could in theory generate a wall of text explaining to me why in context it was better to pretend to be an idiot than to give an intelligent answer--that is, even if they have the ability to not be a stupid person.

This is what it means, to be a mistake theorist: I genuinely believe that the people who disagree with me, are making a mistake, and that if they were smarter, it is not a mistake they would make.

For if she is not stupid, well, what remains is for her to be actually evil.

As a mistake theorist, I'm open to the possibility that it's a mistake to be a mistake theorist! But that's where I am right now.

This line of thought is so illogical to me. It's patently obvious that there are incentives to anyone even adjacent to politics to be mealy-mouthed and delicately sidestep questions that don't have a "good" answer. I know people get annoyed at politicans for giving non-answers but the fact of the matter is that giving non-answers actually works well, because politicians often rather slightly annoying many people over enraging a few people. Rather than acknowledge that these incentives exist, and they are quite strong, you're deliberately attempting to take the evasive answer at face value rather than acknowledge that smart people sometimes choose to say dumb things because it's beneficial for them to do so.

For example, lawyers do this all the time. Just because a lawyer states a fact in a tortuous way doesn't make the lawyer stupid, it just means they want to win their case and realize that sometimes even an absurd linguistic distortion that would make their middle school English teacher cry might help them win their case. I don't see a lawyer twist words into pretzels and then conclude "oh this lawyer must not understand English very well"...

A supreme court justice position is inherently a political position in the broad but most accurate meaning of the word (the philosophy of how we govern ourselves), and pretending otherwise does no one any favors. There is not an expectation of complete truth in all of their responses to a nomination board, merely a hope of general integrity.

Rather than acknowledge that these incentives exist, and they are quite strong, you're deliberately attempting to take the evasive answer at face value rather than acknowledge that smart people sometimes choose to say dumb things because it's beneficial for them to do so.

No, I'm asserting that choosing to say stupid things because the incentives are strong is stupid. There are strong incentives to commit a variety of crimes. Depending on where you live and a host of other factors, there may be stronger incentives to not commit crimes, but on the whole society is better off if people choose to not commit crimes even when they would not be punished for it.

This is like, foundational Western political theory. It's the primary concern of Plato's Republic--should you value what is good and true, or only what is to your advantage? I tend to find Plato's conclusion compelling: that being bad is bad for you, and being bad is actually worse for you if you get away with it, because that makes you a worse person. Whether Justice Jackson is genuinely confused about what "woman" means, or is instead just so corruptible that she thought it would be better to pretend she was confused--either way, she showed herself to be a poor nominee and a stupid person. Sly, maybe? But not intelligent. Not honest. Not the sort of person who values justice above her own social standing.

"But lawyers do this all the time!" You bet they do, and people rightly hate us for it. I left the practice of law because I simply couldn't handle it. It was entirely too much work to live by my principles and make a profit at the same time. I won't say it was impossible, but it often felt that way. I make less than a tenth of what most of my old classmates are pulling down now, the opportunity costs of going into academia were so severe--and I've never once regretted the sacrifice.

Now, you can call that "illogical" if you want, but if you're going to accept that

There is not an expectation of complete truth in all of their responses to a nomination board, merely a hope of general integrity.

I'm just going to disagree. It's not impossible to be truthful and also be appointed to the Supreme Court--just very, very hard. So yes: if Jackson is not stupid, then what remains is for her to be actually evil. And yes, maybe it is the kind of piteous evil that infects the vast majority of human beings everywhere in every age, the simple and banal evil of pretending to be good only when doing so will yield direct benefits, or avoid obvious costs. But I'm not going to hold appointees to the Supreme Court to a lower standard of truth and justice than I hold myself. You are free to make a different choice.

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This is what it means, to be a mistake theorist: I genuinely believe that the people who disagree with me, are making a mistake, and that if they were smarter, it is not a mistake they would make.

She could still be smart, and be making a mistake though. Right now, I think you are both very intelligent and wrong. If she is deliberately playing her part, because she knows that doing the opposite would be a huge mistake for her career then she isn't being a stupid person. Nor is she being evil. There are other options in between!

She could just be being a standard relatively self-interested person who both believes in her causes, has internalized what she needs to say to fit in in her social group and would quite like to have an important job.

You know who I think that describes? The vast majority of people. Mistake theory doesn't mean that people can only be stupid or evil. They can be smart but wrong, dumb but wrong, or perfectly average but wrong. They can be subject to social forces and so on.

I also consider myself a mistake theorist for context here. Most people are decent people. There are very few evil people in the world. The difference is i think, that I believe that because we are not rational beings, being smart doesn't get you much closer to being correct. So having reached the wrong belief does not mean you are stupid, or being a stupid person. It is simply very very difficult to ignore the whole social edifice of your society. So that being persuaded by it, tells you almost nothing about the individual in question except that they are a person.

She could still be smart, and be making a mistake though. Right now, I think you are both very intelligent and wrong. If she is deliberately playing her part, because she knows that doing the opposite would be a huge mistake for her career then she isn't being a stupid person. Nor is she being evil. There are other options in between!

She doesn't have a career to care about. She could be super based on trans issues and there's no way she'd be impeached. She could become a freaking Grand Wizard and probably stay in her position.

The other explanations you are talking about basically boil down to "dumb or evil" as far as I can tell.

Edit: For context, I think a lot of people are super dumb. KB and SS are SCOTUS appointees I think are dumb. They are poor writers even with extremely smart Harvard clerks helping them. I wrote a better draft opinion as a 2L for the judge I clerked for.

You're just describing conflict theory from the inside view. The essence of conflict theory is saying things you don't believe as means to an end rather than to reach understanding. You can think conflict theory is good and normal, it is, but there is no way to describe knowingly saying wrong things on purpose as mistake theory.

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But she's definitely bottom-of-the-barrel for SCOTUS, maybe even for the Circuits.

Eh she seems to at least be marginally smarter than Sotomayor. Sotomayor consistently has the most braindead opinions of the entire court.

Eh she seems to at least be marginally smarter than Sotomayor. Sotomayor consistently has the most braindead opinions of the entire court.

You may be right about this, I don't have a strong view here. Either way, people who find themselves in high political office based more on their skin color or sex than on their demonstrated merit often end up in over their heads. And yes, when I say that, I get a lot of pushback from people who want to tell me all about Jackson's merits, but like... Biden himself said it. He wasn't even looking for the best candidate, just the most plausible black woman for the job.

Justice Jackson has already shown herself to be an unsophisticated jurist who simply votes for whatever seems Wokest,

I think, our ongoing series of Supreme Court analysis has indicated otherwise no? She has sided with the conservatives against the other liberal justices on multiple occasions particularly in criminal cases like the January 6th case.

Indeed she has been slightly less liberal than Sotomayor or Kagan:

" Jackson has voted slightly less liberal than the other two non-conservatives on the bench—59 percent of the time to Sotomayor's 63 percent and Kagan's 65 percent"

In fact to the extent there are op ed pieces about her not living up to expectations as a liberal appointment.

"Jackson, the most recent addition to the bench, joining in 2022, has surprised some since taking her seat on the Supreme Court. This term, President Joe Biden's appointee, and the first Black female justice, unexpectedly sided with her conservative colleagues on a number of cases, including Fischer vs. United States, a major case pertaining to January 6."

Indeed she has been slightly less liberal than Sotomayor or Kagan

I'm pretty skeptical of the use of the word "liberal" in such contexts, and cases where justices don't line up with what the news media "expects" of them often come out that way precisely because the case does not neatly align with orthodoxies like "Woke." I suspect SCOTUS analysis carried out along "blue tribe/red tribe" metrics could be more helpful than "Republican/Democrat" or "conservative/liberal" metrics--but I haven't actually done the work, so that is only a suspicion.

(With specific respect to the 2020 protest, I did see some discussion of Jackson and Barrett "swapping places" but in the end I think far less attention was paid to that peculiarity than was maybe warranted.)

(With specific respect to the 2020 protest, I did see some discussion of Jackson and Barrett "swapping places" but in the end I think far less attention was paid to that peculiarity than was maybe warranted.)

I am not sure about Barrett, but Jackson has sided with conservatives on reading criminal statues narrowly in a few cases. I am not saying she is conservative by any means, but she does have a very specific jurisprudence that can lean what has been described as libertarian on criminal matters. Now she was a public defender, so it maybe her experiences there with perhaps the over-reach of the prosecutorial state have aligned her somewhat that way. She is also very concerned with the practicalities of rulings. As in, how easy is it for an average person to know what they should or should not be doing with any given statute or law. She thinks the courts should be doing more to clarify and help citizens there.

Obviously you are not likely to agree with a lot of her opinions, but I think she is a far better justice than she has been painted, even with that expectation.

I am not saying she is conservative by any means, but she does have a very specific jurisprudence that can lean what has been described as libertarian on criminal matters.

To the extent that "Woke" is downstream of stuff like BLM, this would appear to be a case-in-point of my read on her decisions. A consistent libertarianism (e.g. on Murthy, where the Democrat appointees sided with Roberts, Barrett, and Kavanaugh to empower the federal government against the First Amendment) would have shown some sophistication. Someone who is libertarian when it protects petty criminals from local LEOs but statist when the federal government wants to bully corporations into doing things the federal government is forbidden from doing, does not have a sophisticated jurisprudence. They have a results-oriented political agenda.

And I do think that Murthy shook out in approximately that way, split between plausibly principled jurists and mere creatures of the state. Barrett is the one I have the hardest time pinning down, it seems I am as often disappointed by her as I am impressed. They all get it right sometimes, and they all get it wrong sometimes, and that's to be expected. But the "freedom contingent" is small, and gains allies only inconsistently.

Someone who is libertarian when it protects petty criminals from local LEOs but statist when the federal government wants to bully corporations into doing things the federal government is forbidden from doing, does not have a sophisticated jurisprudence. They have a results-oriented political agenda.

Then she should have sided against J6 surely? That was a Federal case.

In any case, i think you are quite right in one respect, she is results orientated. Which is something I think is needed on the court. The courts are made for men, not men for the courts in other words. Very technical rulings in order to make the smallest possible change to a statute without providing any guidance to how that impacts the statute over all, are very common currently as are punting things back to lower courts on narrow grounds. Whether that is Roberts just not wanting to rock the boat too hard or just being slightly too beholden to previous decisions. I see Jackson and Thomas as being antidotes to that, though in clearly different directions.

I'd rather have a decision go against my political side as long as it results in clear ideas of what can or can't be done, than some wishy-washy dismissal on providence grounds. That is one of the reasons I like Jackson, she consistently pushes for them to make actual real decisions, even when it is likely (as in the Idaho case) that her preferred outcome would not be the one a conservative leaning court would actually make, if it was willing to make a decision. Notably Thomas also does this as well. Which is why even though I disagree with a lot his decisions, I think he adds a good balance to the court.

Then she should have sided against J6 surely? That was a Federal case.

It was still "local LEOs" on the ground, though. DC's unique character makes it a special case.

That is one of the reasons I like Jackson, she consistently pushes for them to make actual real decisions

The extent to which we agree or disagree on this probably depends on what you ultimately mean by "real decisions" and "results oriented." In legal theory, "results oriented" is a term of art specifically connoting "uses the law to achieve particular outcomes (whether in the particular case or in more general sociocultural ways), rather than pursuing a consistent jurisprudence grounded in clear principles." So for example, Roe v. Wade was a badly-decided case (even RBG thought so), but the clear outcome was so desired by certain people that they enshrined it in their jurisprudence anyway. Was that better than a wishy-washy dismissal? Maybe, but I'm skeptical, and "wishy-washy dismissal" is of course not the only alternative.

The problem with a results oriented jurisprudence is that a clear answer to this question may actually muddy the waters on many other questions. That's the point of principle: if I know how the Court has ruled in relevant principle, I can get a sense of how the Court is likely to rule on similar and related questions that are not answered by the case under immediate consideration. And one of the most important principles of American governance is the doctrine of enumerated powers, which has not been carefully adhered to since, well, maybe ever... but the accrual of power to the federal government certainly accelerated through the 20th century in a trend that seems to be continuing into the 21st.

And one of the most important principles of American governance is the doctrine of enumerated powers, which has not been carefully adhered to since, well, maybe ever...

Exactly, if it wasn't carefully adhered to, from very early on, there is no reason it should be now. All of that is just a framework for decisions that benefit the people. If your rules don't work and have to be ignored, then the rules are no good and should be ignored.

Now that does allow for decisions to be made in partisan ways, and that is another problem I completely agree. But the rules didn't stop that happening anyway. So you are no worse off. But having actual enumerated decisions at least let people know what the ground under their feet is doing now. Sure maybe that changes on the next case, but that is ok. Knowing what the next step looks like is enough for 90% of people.

Personally I'd prevent the Supreme court from punting or making very minor narrow decisions. If a law is unconstitutional then they force the government to rewrite it until it is. Give them some powers to enforce that on the executive and legislative branches. Give them some actual teeth to really be a check and balance. Their job is to determine that and punting it back and forth helps no-one except prolonging things. Even if that means my side would lose a lot of cases given the ideological make up of the court, I would far prefer that.

Exactly, if it wasn't carefully adhered to, from very early on, there is no reason it should be now.

This is straightforwardly fallacious. There are many reasons why it should be adhered to now, but even if there were not, "no one has ever does this so there is no reason to do this" is clearly bad reasoning.

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(and I do expect her to win in November, as a direct result of the corporate news media being the propaganda arm of the Democratic Party--the fix is clearly in).

The fix was in in 2016 too. What makes this time different?

The fix was in in 2016 too. What makes this time different?

Eight years.

Specifically, eight years of learning how to deal with Trump. In 2016, Trump played the media like a fiddle. Their exasperation and outrage only increased support for him. He was slinging mud while they were trying to coronate their queen in the most manifest destiny play since the days of Polk. Well, now they're slinging mud. Now they're pointing and laughing. It's probably not the sort of thing that would be sustainable through a contested primary... so the Democrats did away with the primary.

Furthermore: Trump already won! He defeated Joe Biden. He shot his shot, he achieved the victory he set out to achieve... but it was too early to make the difference that mattered. The only question now is whether three months is long enough for the fresh polish to wear off the Harris campaign. I won't say it's impossible! I have been wrong about Trump's chances before. Maybe I'll be wrong again. But I'm skeptical that Americans have the energy to prevail against the will of the media elites twice in a single year.

I won't say it's impossible! I have been wrong about Trump's chances before. Maybe I'll be wrong again.

Interestingly, I think the opposite, I think Trump is still favored here. Maybe not by a lot at this stage, the switch did help, but maybe I'd give it 55-45 to Trump. By no means a sure thing, but I would rather be in Trump's position not Harris's.