Patterico's Pontifications

5/12/2022

What the Marshal of the Supreme Court Should Do

Filed under: General — Patterico @ 8:29 am



CNN:

The Supreme Court is set to meet behind closed doors on Thursday for the first time since the astonishing leak of a draft opinion that would overturn Roe v. Wade.

The justices plan to discuss pending petitions and outstanding cases — but they’re also likely to grapple with the aftermath of that remarkable breach of the court’s confidential operations. While the draft opinion calling for the reversal of a near-50-year-old landmark precedent stunned the country, the leak itself stunned the court.

Chief Justice John Roberts quickly ordered the marshal of the court — Col. Gail A. Curley — to begin an internal investigation, but sources familiar with how the court operates say the inquiry could lead to uncomfortable privacy issues, trigger further tension and erode trust as the justices work furiously to resolve cases concerning some of the most important social issues of the day regarding abortion, gun rights, religious liberty and the environment. Curley serves as the court’s chief security officer and manages the Supreme Court Police Force.

“Everything depends,” one source familiar with the court’s inner workings said, “on how much authority the chief justice gives the marshal.”

Here’s what ought to happen.

1. Keep in mind that Josh Gerstein’s name appears on the byline of the initial leak. Do any of the clerks have a pre-existing relationship with him? (The answer is yes, but I will leave it at that, as I don’t think discussing named suspects is a good idea at this point.)

2. Present all the clerks (and other employees with access to the draft, but I think it’s a clerk) with a statement to sign under penalty of perjury affirming they were not involved in the leak. Let’s see how confident they are that they have covered their tracks. Anyone who refuses to sign is gone yesterday. Former Supreme Court clerk Sarah Isgur says the clerks are employees of the Court, not the justices, although they are traditionally treated as employees of the justices for whom they work. Chief Justice Roberts has the power to insist on a sworn statement, I think.

I have said all along I think it’s a leak from the left. More and more people seem to be coming around to my position. I think we’ll find out. If it’s someone from the right, I think their future in law is done. If it’s someone from the left, s/he will be a folk hero(ine) and who knows how soft their landing will be?

But I think we’ll find out.

5/11/2022

Elon Musk Says He Will Reverse Twitter Ban on Former President Trump

Filed under: General — Dana @ 10:33 am



[guest post by Dana]

New owner, new policy:

On Tuesday, Twitter’s incoming owner, Elon Musk, announced he would “reverse the permanent ban” on Trump. At a conference hosted by the Financial Times in London, he called the decision “a mistake because it alienated a large part of the country and did not ultimately result in Donald Trump not having a voice.” In general, Musk, a self-described “free-speech absolutist,” stated he was against the concept of permanent bans in general because they “just fundamentally undermine trust in Twitter.” He laid out the concept for a censorship protocol that would be extremely difficult to enforce on problem users who, for example, threaten a nuclear exchange online: “If there are tweets that are wrong and bad, those should be either deleted or made invisible, and a suspension — a temporary suspension — is appropriate, but not a permanent ban.”

The lifting of the ban on Trump could happen just in time for the runup to the 2024 presidential election. And while Trump has already said that he wouldn’t return to Twitter if allowed, we all know that a massive platform with a gigantic built-in audience in which to promote himself would be nearly impossible for Trump to resist. Bigly.

–Dana

5/10/2022

Senate To Vote On Abortion Legislation Tomorrow

Filed under: General — Dana @ 12:24 pm



[guest post by Dana]

Chuck Schumer believes that forcing a vote on extreme abortion legislation-a right to abortion in all 50 states through the ninth month of pregnancy-will be a good thing for Democrats:

The U.S. Senate will vote on legislation to codify abortion rights into law on Wednesday in reaction to the leaked draft decision indicating the Supreme Court is poised to overturn its landmark 1973 Roe v. Wade ruling, Senate Majority Leader Chuck Schumer said on Sunday.

“Every American will see how every senator stands,” Schumer said during a news conference with state leaders in New York. Republicans “can’t duck it anymore. Republicans have tried to duck it.”

Schumer called the draft decision an “abomination,” noting that a majority of Americans want to preserve the right to have an abortion and women’s health care.

Interestingly, Americans, including Democrats and Republicans, are not settled on the “through the ninth month,” nor on a number of issues surrounding abortion. Recently, a Pew Research poll (done before the leak of the Supreme Court draft) revealed the conflict Americans have about abortion and limits therein. Despite the effort of politicians, abortion is more complicated for Americans than the sort of through-the-ninth-month-or-nothing demand of Schumer and Democrats. While they play politics with the issue, I’m guessing that most people arrive at their decision regarding abortion by actually wrestling with the question of when life begins rather than willfully ignoring it. And there are other issues that demand a full examination and struggle of conscience by the individual: Do we want rape and incest victims to be forced to carry a resulting pregnancy to term? Given that it has been recognized that babies can feel pain inside the womb certainly during the middle and end stages of pregnancy, should that science be ignored? Also, shouldn’t it make a compelling difference on whether to abort when we know that babies can survive outside of the womb at 24 weeks?

Nearly one-in-five U.S. adults (19%) say that abortion should be legal in all cases, with no exceptions. Fewer (8%) say abortion should be illegal in every case, without exception. By contrast, 71% either say it should be mostly legal or mostly illegal, or say there are exceptions to their blanket support for, or opposition to, legal abortion.

As in the past, more Americans say abortion should be legal in all or most circumstances (61%) than illegal in all or most circumstances (37%). But in many ways, the public’s attitudes are contingent upon such circumstances as when an abortion takes place during a woman’s pregnancy, whether the pregnancy endangers a woman’s life and whether a baby would have severe health problems.

There is evidence that many people are cross-pressured on this issue. For example, more than half of Americans who generally support abortion rights – by saying it should be legal in “most” or “all” cases – also say the timing of an abortion (i.e., how far along the pregnancy is) should be a factor in determining its legality (56%).

At the same time, the survey shows that large numbers of Americans favor certain restrictions on access to abortions. For example, seven-in-ten say doctors should be required to notify a parent or legal guardian of minors seeking abortions. And most of those who say abortion should be legal in some cases and illegal in others say that how long a woman has been pregnant should be a factor in determining whether abortion is legal or illegal (56% among all U.S. adults).

The survey data shows that as pregnancy progresses, opposition to legal abortion grows and support for legal abortion declines…

At 14 weeks, the share saying abortion should be legal declines to 34%, while 27% say illegal and 22% say “it depends.”

When asked about the legality of abortion at 24 weeks of pregnancy (described as a point when a healthy fetus could survive outside the woman’s body, with medical attention), Americans are about twice as likely to say abortion should be illegal as to say it should be legal at this time point (43% vs. 22%), with 18% saying “it depends.”

However, in a follow-up question, 44% of those who initially say abortion should be illegal at this late stage go on to say that, in cases where the woman’s life is threatened or the baby will be born with severe disabilities, abortion should be legal at 24 weeks. An additional 48% answer the follow-up question by saying “it depends,” and 7% reiterate that abortion should be illegal at this stage of pregnancy even if the woman’s life is in danger or the baby faces severe disabilities.

A couple of things. First, given that Schumer wants to establish a right to abortion through the ninth month of pregnancy, how is that an accurate representation of Americans’ view of abortion? Clearly, the stage of pregnancy matters when discussing legal abortion. The farther along with the pregnancy, the less support for an abortion. But then again, we’ve always known that “safe, legal, and rare” was little more than a manipulative attempt to appease those genuinely conflicted about abortion.

Anyway, for what it’s worth, it’s good to have on record the current President of the United States (and de facto leader of the Democratic Party) say the quiet part out loud:

“I mean, so the idea that we’re going to make a judgment that is going to say no one can make a judgment to choose to abort a child based upon a decision by the Supreme Courts, I think goes way overboard.”

–Dana

5/9/2022

Twitter: Calling for the Assassination of Supreme Court Justices Does Not Violate Our Terms of Service

Filed under: General — Patterico @ 8:29 am



I reported the following tweet to Twitter, because it explicitly called for Supreme Court justices to be assassinated:

The cartoon in question also called for the assassination of justices, albeit with a tiny fig leaf of deniability:

The response I got from Twitter regarding the explicit call for assassination: sorry, doesn’t violate our terms of service!

The email included a helpful list of material that would violate the terms of service. It includes a prohibition on, not just threats, celebrations of violence, and promoting terrorism or violent extremism, but also wishing harm on someone:

This is a total joke. I see a lot of people saying “Elon Musk will fix this!” but his proposed standard is to allow anything that passes First Amendment muster, and this probably would. That said, apparently the people doing the moderation are useless and the Elon Musk standard already prevails, unless you misgender someone. So Elon really wouldn’t hurt much.

Meanwhile, people are protesting outside the homes of Justices Kavanaugh and Roberts in an effort to influence their votes, which is illegal under a statute that is likely constitutional.

This is a dangerous environment and it is why the Court needs to get the abortion issue out of the courts and into the legislatures. Public influence campaigns are appropriate for legislators. Not for judges. They are supposed to interpret the law. Period.

I plan to have much more to say about this.

5/6/2022

Commenting Question; UPDATE: How About Now?

Filed under: General — Patterico @ 5:15 pm



Is anyone having the problem where they have to log in repeatedly to comment?

UPDATE MAY 7 9:41 CENTRAL: Please update your feedback. Is it better now?

Weekend Open Thread – Oh No! Not Him Again! Edition

Filed under: General — JVW @ 1:20 pm



[guest post by JVW]

Dana is once again on a super-secret Patterico’s Pontifications mission (can’t divulge too much, but don’t be surprised if a certain very tense situation in Bora Bora ends up quietly disappearing from the news in the next few days). So once again you are treated to the B Squad. So, without further ado, let’s get into the Junior Varsity Writing edition of our weekend open thread.

Res I – Dialing Back the Woke Grandstanding at the AAAS

The Wall Street Journal reports on a letter that Harvard Psychology Professor Steven Pinker sent in response to a solicitation from the American Association for the Advancement of Science for a donation earmarked for efforts to “support and uplift science to inform and spur action on climate change.” Prof. Pinker objects that the American Association for the Advancement of Science, the publishers of Science magazine, have done more to discredit the progressive consensus on global climate change among politicians than they have to promote it. Specifically, he chides the organization for hewing to the academic left’s narrow worldview on controversial matters and refusing to acknowledge where that worldview is shortsighted or even wrong. He calls out three specific areas in which he believes that “Science magazine appears to have adopted wokeism as its official editorial policy and the only kind of opinion that may be expressed in the magazine”: the magazine’s stated belief that a lack of black physics professors and students is a manifestation of “white supremacy”; the magazine’s condemnation of prominent academics and journalists who won’t knuckle-under to transgenderism ideology; and the magazine’s kowtowing to anti-nuke sentiment among leftist faculty by refusing to consider nuclear power as a legitimate answer to our dependence upon fossil fuels. Read his explantation of each of the three points: it’s worth the few minutes of your time.

So The WSJ finds it to be very curious timing that just two days after Pinker’s letter was posted online, an article by Paul Voosen appeared in the magazine which suggested that maybe — just maybe — the models that the climate change crew uses to predict future rises in worldwide temperatures might not always be entire accurate. Last year, the British journal Nature also published a piece warning readers not to put complete faith in the temperature models. Between the two, there emerges a flickering of hope that The Scientific CommunityTM is beginning to realize that fealty to science needs to come before fealty to today’s trendy progressive obsessions.

Res II – What Will Smith Hath Wrought

Note: Please keep in mind that this post is being written by guest blogger JVW, not the eponymous host of this site.

On Tuesday night at the Hollywood Bowl, a member of the audience jumped on stage and tackled comedian Dave Chappelle in the middle of his performance. Chappelle as we have discussed before, has courted the ire of various crybully communities by refusing to exempt them from his ridicule. As of right now, we do not know the motivation of the assailant, who was arrested at the scene but not before he had the ever-lovin’ snot beaten out of him by Chappelle’s security detail, but following the Chris Rock-Will Smith fracas at the Academy Awards it’s understandable that comedians are a bit skittish about being physically confronted by the audience. (Rock was on-hand backstage at the Hollywood Bowl and emerged from the wings to ask, “Was that Will Smith?”)

Yesterday the Los Angeles Times reported that the office of District Attorney George Gascón will not bring felony charges against the assailant, 23-year old Isaiah Lee of Los Angeles, even though Mr. Lee was in possession of (but apparently not brandishing) a replica gun which concealed a knife blade. Police and the Bowl are instead trying to figure out how he managed to smuggle that curious weapon into the venue and how he managed to emerge from the audience onto the stage. The Los Angeles City Attorney’s office could still file misdemeanor charges in the case. Left unasked is if Mr. Gascón’s office would have taken this violation a bit more seriously had the comedian himself been a member of the LGBTQ community or had been someone who spouted all of the proper views of the times.

Res III – Joe Biden Wrecks His Relationships with the Senators Whom He Needs the Most

Last fall as the Build Back Better fiasco limped its way to a sad but completely unsurprising legislative death, we chronicled the many ways in which President Biden, aided and abetted by Senate Majority Leader Chuck Schumer, botched the diplomatic outreach to Senators Joe Manchin of West Virginia and Krysten Sinema of Arizona, the two Democrats who were the most reluctant to sign on to further cash-dumps in the name of recovery. We know that Senator Schumer spent the past summer lying about Senator Manchin’s alleged refusal to name a top-line maximum dollar value that he would support for a stimulus bill, but now it appears that President Biden threw Senator Sinema under the bus among her party’s caucus by divulging to them what she had told him in confidence was the most that she was willing to support. This tidbit from a forthcoming book was reported by The Dispatch (subscription required), and here is how Business Insider summarized it:

Sen. Kyrsten Sinema of Arizona almost walked out on President Joe Biden in the Oval Office during a tense exchange over the scope of his economic agenda, according to a forthcoming book from a pair of New York Times reporters.

[. . .]

According to authors Jonathan Martin and Alexander Burns, Biden strenuously sought to reconcile tensions between his party’s centrist and progressive wings last summer around the size and scope of his domestic agenda. Progressives were pushing to go big on new social and climate programs while moderates tried restraining their ambitions and had fiscal concerns.

During a meeting with Democratic moderates, Biden revealed that Sinema had set her Build Back Better spending limit at $1.1 trillion — roughly one-third less than Sen. Joe Manchin’s $1.5 trillion price tag.

Sinema appeared “visibly angry” at Biden for revealing details from their personal talks, Burns and Martin write. Biden aides had “feared that if Sinema drew a public red line at $1.1 trillion—a miserly sum by liberal standards—then the party would erupt in open war.”

The authors wrote: “‘Mr. President,” she said, ‘that was a private conversation.’ Sinema began to stand up. She asked Biden: ‘Do you want me to leave?'”

Way to go, Brandon.

Res IV – Déjà Vu on the J&J Vaccine

The FDA has one again placed limits on the Johnson & Johnson COVID vaccine, citing the increased risk of life-threatening blood clots as compared to the Pfizer and Moderna vaccines. This is a redux of the agency’s April 2021 temporary halt on distribution of the J&J vaccine for the same reason, a decision which was rescinded ten-days later. Almost exactly one year ago as I was floundering through compiling a Weekend Open Thread, I included an item which wondered if the government’s abrupt pause and reversal had inadvertently strengthened the case for vaccine skepticism. Here we go again?

Res V – Why the Hell Are We Crowing about the Strategic Help We’re Providing Ukraine?

Rich Lowry has pointed out a couple of instances in which U.S. government officials bewilderingly are taking credit for helping the Ukrainian military fight Russian troops. On Wednesday the New York Times reported that “senior American officials” were claiming that U.S. intelligence had provided information on Russian troop movements which had helped Ukrainians to reportedly kill a dozen Russian generals ever since Vladimir Putin launched the invasion. Then just last night, Mr. Lowry flagged this second item from the NYT in which “U.S. officials” — likely the same damn ones — brag how we provided Ukraine with the intelligence which led to the sinking of the Moskva last month.

Look, if we’re going to enter the war as a belligerent then let’s go ahead and enter the war as a belligerent. If we’re going to commit all kinds of awesome skullduggery against Boris & Natasha then let’s keep it entirely under wraps, just like the cool spies in the movies do. But this policy of claiming that we are not participating in the fight while leaking details to news outlets friendly to the Biden Administration isn’t going to fool Vladimir Putin, it’s probably not going to placate those who want us to avoid direct engagement, and it’s certainly not going to satisfy those who believe we ought to be doing more on behalf of Ukraine. As usual, we seem to pick the most bumbling way imaginable to throw around our considerable weight.

Res VI – In Case You Have Forgotten

We still have American citizens stuck in refugee camps and even in Afghanistan, and no matter what the unctuous liar Jen Psaki or any of the other grossly-overmatched time-servers in the Biden Administration try to tell you, the United States government is not doing a bang-up job of facilitating their exit from those hell-holes:

Two American citizens who were trapped overseas after rescuing their families from Taliban-controlled Afghanistan have returned home to the U.S. after nearly seven months in a United Arab Emirates refugee compound they both described as prison-like.

Both Bilal Ahmad, 28, and another man who asked to be identified by his nickname, Ace, were frustrated by how long it took U.S. officials to process their families’ cases and to give them permission to enter the country. National Review profiled both of their cases in January.

Ahmad, who started working with the U.S. military as a teenager in 2009 and moved to the U.S. in 2014, arrived home with his wife and 5-year-old son late last week. Ahmad already knew in January that he had lost his IT job, and he suspected he’d also lost his New York City apartment.

He and his family are now living in an apartment in the Columbus, Ohio, area, he said.

[. . .]

Both Ahmad and Ace expected they would fly home in a matter of weeks, and technically, both men could have. But their wives, and Ahmad’s son, could not because their travel documents hadn’t been approved. Neither man was willing to leave them in the compound alone.

Ace said his wife was attacked by a man in the compound. He said he called the compound’s police, but “they didn’t care.” He said there were a lot of “wild people” there.

No, it’s not as if President Biden or anyone in his administration wants them to suffer in these camps or remain hidden fearing for their lives somewhere in Afghanistan, but he certainly won’t prod the sclerotic State Department or Homeland Security Department to kick it into high gear and cut the bureaucratic entanglements and entropy in order to get them safely home.

Res VII – School Which Failed in Obvious Diversity Hire Being Dinged for Not Enough Diversity

Catching up with our old friend Nikole Hannah-Jones, author of the putrid 1619 Project. Here’s a report from some journal which appears to exist solely to agitate for more diversity hires in academia:

The Accrediting Council on Education in Journalism and Mass Communications (ACEJMC) recently voted to downgrade the University of North Carolina (UNC) at Chapel Hill’s Hussman School of Journalism and Media to “provisional accreditation” status, according to an email written by Interim Dean Heidi Hennink-Kaminski to school faculty.

The change is due to the ACEJMC’s concerns regarding diversity, equity, and inclusion (DEI) at the school, especially in the wake of journalist Nikole Hannah-Jones turning down a tenured position because of administrative controversy surrounding her hiring. In 2021, Hannah-Jones was hired as the Knight Chair in Race and Investigative Journalism but was originally only offered a five-year contract instead of tenure by the UNC Board of Trustees. Despite later receiving a tenure offer, Hannah-Jones decided to take the same position at Howard University instead. The ACEJMC determined that this high-profile incident was evidence of significant DEI issues within the school that warranted reevaluation of its accreditation.

“[T]he UNC Hussman School is dealing with an existential crisis both internally and externally,” the ACEJMC wrote. “The [Hannah-Jones] controversy… exposed long-standing problems. Many stem from inconsistencies in executing the goals in the 2016 Diversity and Inclusion Action Plan.”

You know what would solve this problem? Close up the whole damn journalism school. It’s virtually impossible to argue in this day and age that graduate studies in journalism are of any benefit to anybody other than the academics whose jobs are funded by it.

Res Aliam

Dana oftentimes includes lovely art work, if not one of her breathtaking photographs then a piece of classical art which meets with the approval of her discerning eye. I lack the grace and refinement that she has in abundance, but here is the sort of art that I like:

Cassius Marcellus Coolidge (1844-1934) was born and raised in rural New York State. Mostly self-trained in art, he founded a local newspaper and did illustrations for it before embarking upon creating the sort of whimsical photo backdrops that people poke their heads into at carnivals and state fairs. At the turn of the century, he began work on a series of sixteen oil paintings for use in calendars distributed by the Brown & Bigelow advertising firm showing dogs participating in various human activities, mostly playing poker. The painting above, titled “His Station and Four Aces” and my favorite work of his, is the only one in which the dogs are depicted dressed entirely in human clothing.

Have a great weekend, everyone.

– JVW

5/5/2022

Biden Administration Considering Sanctioning Chinese Firm Which Was Going to Hire Barbara Boxer as a Lobbyist

Filed under: General — JVW @ 9:44 am



[guest post by JVW]

Reported yesterday:

The Biden administration is weighing a move to place sanctions on the Chinese video surveillance firm Hikvision, the Financial Times reported. The move would result in the first designation of a major Chinese tech firm under the Global Magnitsky Act.

The Commerce Department had previously added Hikvision to its export-control blacklist in 2020, over its role in constructing the mass surveillance apparatus used to surveil ethnic minorities in Xinjiang. The video-surveillance trade group IPVM recently published an interview with a Kyrgyz survivor of the Xinjiang camp system alleging that he saw Hikvision-branded cameras in his cell.

Then, last year, the White House designated Hikvision under its Chinese military companies list, which barred U.S. nationals from investing in the company.

The expected move to designate Hikvision under the Global Magnitsky Act will result in its addition to the Treasury Department’s Specially Designated Nationals List, blocking the company’s assets and prohibiting Americans from doing business with it.

I bring up this story because it pertains to a post I wrote almost sixteen months ago, regarding the Trump Administration’s eleventh-hour designation of Beijing’s treatment of the Uighur community as genocide:

So now how does the incoming administration respond? There is little doubt that China will complain about this last-second move and will furiously lobby behind the scenes for it to be rescinded (they tried to hire retired United States Senator Barbara Boxer to work on behalf of the firm who supplies the surveillance equipment used in the internment campus and throughout Xinjiang, but backlash against her registering as a foreign agent for the Chinese Communist Party led her to rather testily pull out of the arrangement). [. . .]

This is just a reminder of what an execrable Senator and truly awful person Barbara Boxer was and is. Unfortunately, not only was her successor no better in office, but she has also been more successful in rising to the top of the Democrat Party sewer. But I suppose the retired Senator can find other work representing the interests of the brutal butchers who run the People’s Republic of China, perhaps as an emissary to Apple, Disney, or the NBA.

– JVW

5/4/2022

Constitutional Vanguard: Is a DA’s Arbitrary Decision to Spare a Convicted Killer a Valid Reason to Oppose the Death Penalty?

Filed under: General — Patterico @ 8:29 am



Let’s talk about something other than abortion, shall we?

Today’s newsletter is a long disquisition (mostly free, but with a fascinating part behind the paywall) about the recurring issue of the allegedly arbitrary nature of the death penalty. The springboard for the discussion is a decision by a South Texas DA, who styles himself as a “Mexican biker lawyer covered in tattoos,” to refuse to seek an execution date for a convicted killer who stabbed someone 29 times to rob them of $1.25. The guilt of the defendant is not in question, but the arbitrary decision by the DA prompted David French and Sarah Isgur to declare the episode the latest of many reasons to oppose the death penalty in practice — because such arbitariness reveals a fundamental arbitariness that undermines the whole process. This is my response. Excerpt from the unpaid portion:

<To me, citing DA Gonzalez’s decision as support for one’s opposition to the death penalty itself, as French and Isgur do, is as silly as announcing one’s opposition to the very concept of holding jury trials for the crime of murder, by citing the fact that the OJ Simpson jury arbitrarily let a clearly guilty man off the hook. The argument in both cases is the same: a decisionmaker — who has contempt for, and is an opponent of, a process — has acted in a highly arbitrary and indefensible manner with respect to that process. Therefore, the argument goes, the decisionmaker undermines confidence in the very process in which the decisionmaker acts. Therefore, the process itself is arbitrary . . . and we should stop engaging in it!

What?!

And an excerpt from the paid portion:

Like jurors’ power of acquittal, jurors’ power to vote for life is, as a practical matter, unlimited and entirely unreviewable, while decisions to vote for death are closely scrutinized and reviewed for decades. Thus, in this context, the discretion is very wide and unconstrained at one end of the spectrum (jurors’ power to vote for life) and very narrow and constrained at the other end of the spectrum (jurors’ power to vote for death). But the very wide range of the freedom conferred at the “life” end of the spectrum means that mechanistic determinations are out of the question. And as the decisions become less mechanical and automatic, this policy completely undermines the opposite goal of achieving equal outcomes for every person who might get the death penalty.

. . . .

Yes, it is true: in such a system, arbitrary and arguably unreasonable acts of mercy might be “unfair” in the sense that some people like Ramirez unfairly benefit from them and others do not. But the fact that such discretion exists, and even the fact that it can be abused in favor of mercy, is an indication that the system in general is, if anything, skewed towards mercy. That might make individual acts of mercy seem “arbitrary,” in the way that it seems arbitrary to French and Isgur that Ramirez has thus far evaded an execution date for a horrific crime, when a similarly situated defendant, in a jurisdiction with a DA bearing fewer tattoos and other indicia of the counterculture, might already have been executed.

In short, the fact that our system of capital punishment provides wide discretion to be merciful if inconsistent, rather than harshly consistent, is an indication that the system works in the way most Americans think it should.

Access the newsletter here. Subscribe here.

5/3/2022

Leaked Draft of Dobbs Suggests Roe & Casey to be Overturned; UPDATED with Analysis by Patterico

Filed under: General — JVW @ 6:30 am



[guest post by JVW]

The Internet is abuzz with the leak of a draft opinion of what appears to be the majority decision in the Dobbs v. Jackson Women’s Health Association case currently in front of the Supreme Court. The draft, authored by Justice Samuel Alito with at least four other Justices signing on, suggests that the court is poised to strike down both Roe v. Wade and Casey v. Planned Parenthood, the two decisions which codified abortion as a sacrosanct right and made it to supporters what my own senior (very, very senior at that) Senator Dianne Feinstein likes to call a super-precedent which absolutely could not be abridged by man nor God.

According to the draft, first obtained by Politico, Justice Alito writes: “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.” At the end of the decision, he concludes: “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.” As NRO points out, this is a draft opinion and could very well be changed before it is officially released, but at this point the tea leaves seem to indicate that Roe will at long last be overturned.

So who exactly leaked the draft to the media? Over at Powerline, Steven Hayward sees the handiwork of progressive Democrats who are trying to ignite a firestorm which they hope will force Chief Justice Roberts and either Justice Gorsuch or Kavanaugh or perhaps even Barrett to get cold feet. In fact, Prof. Hayward makes an outright accusation which is not at all out of the realm of possibility:

A complete draft opinion has never leaked from the Supreme Court before, and it has long been understood that anyone (especially a law clerk) who leaked an opinion would be kissing their legal career goodbye. This is why I think the leak probably came from one of the Justices. And my money is on Sonia Sotomayor, who is by far the most politicized Justice on the Court, though she will soon have company when Ketanji Brown-Jackson joins the Court.

Alexandra Desanctis also believes that this leak surely came from one of the Court lefties and that it is designed to whip up protests to intimidate wavering members of the conservative bloc. She is joined in this assessment by Kathryn Jean Lopez. Considering that Democrats were so fond of lecturing all of us about “dangerous departures from the norms” and that they have essentially said that citizens seeking to be heard by the the people they elect to represent them (which is substantially different than appointed judges, by the way) are perhaps engaging in domestic terrorism, it’s a little bit rich but unsurprising that they have resorted to underhanded tactics like this when their backs are up against the wall. Naturally, the usual media fatheads are downplaying the nature of how the draft was obtained by Politico, deeming the actual draft contents — which I remind you would have mostly been eventually published anyway — to be far more important.

Dan McLaughlin predicted the likely emergence of a leak way back in December:

There is another question, though, that I wonder about: If the Court is doing something as dramatic — and as upsetting to the sorts of people who clerk for the liberal justices — as overturning Roe, will it be able to keep that a secret for seven months? The Court in modern times has had a remarkable record of keeping the justices, the law clerks, and the rest of the Court’s personnel sworn to secrecy about even the most momentous pending cases. Rumors have cracked that more often in recent years, especially in Obamacare cases, but we have never really seen the dam break. It will be quite impressive if it can keep a secret this time — and if it can’t, we may see a pressure campaign on the Court (or worse, violence) unprecedented in modern times.

NRO makes reference to a CNN report which claims that the Chief Justice will not join the Alito opinion to completely dismantle Roe and Casey, but he will concur in allowing the Mississippi restrictions on abortion to stand. Assuming no other votes switch, this kind of makes the replacement of Ruth Bader Ginsburg by Amy Coney Barrett a really big f______ deal, as our President was fond of saying to his old boss. And it’s a delicious irony that the Notorious RBG’s selfish insistence upon dying on the Court is what might ultimately undermine the nearly half-century abortion regime in the country that she so staunchly supported. Yes, it will make elements of the left go absolutely nuts, all the more reason that I hope to witness it with my own eyes.

– JVW

UPDATE BY PATTERICO: Thanks to JVW for writing this up. I have some thoughts.

First, I hope they find the person (likely a clerk for a leftist judge) who leaked this thing, and fire and disgrace them. This is unacceptable behavior and it should be a career-ender for any position of trust. If that person thinks their promise of confidentiality means nothing, they can be a journalist, but not a lawyer.

Guaranteed it was someone on the left, and I believe it was a clerk and not a justice. They should be ashamed. They are contributing to the politicization of one of the few institutions left that commands the trust of the people. Even to the extent that you might think the Court politicized, it makes a point of giving reasons for its decisions (the controversial “shadow docket” aside), which must withstand scrutiny and argument from the other side. It’s nothing like the politicization of Congress and the presidency, and if you can’t see that, then you have trouble making distinctions and I feel sorry for you.

Second, the expected result is not a surprise. Ed Whelan has an excellent summary of the opinion here. To me, this summary by Whelan of the introduction says a lot:

There is no explicit or implicit right to abortion in the Constitution. Abortion is not within the category of rights that have been held to be guaranteed in their substance by the Due Process Clause. Far from being deeply rooted in the nation’s history and implicit in the concept of ordered liberty, it was a crime at all stages of pregnancy in three-quarters of the states when the 14th Amendment was adopted.

This is the critical point, and I highlighted it in December after the argument:

One more question to highlight, from Justice Alito:

JUSTICE ALITO: The brief for the American Historical Association says that abortion was not legal before quickening in 26 out of 37 states at the time when the Fourteenth Amendment was adopted. Is that correct?

MS. RIKELMAN: That is correct because some of the states had started to discard the common law at that point because of a discriminatory view that a woman’s proper role was as a wife and mother, a view that the Constitution now rejects, and that’s why it’s appropriate to do the historical analysis at a higher level of generality.

JUSTICE ALITO: In the face of that, can it said that the right to — to abortion is deeply rooted in the history and traditions of the American people?

This will be central to Justice Alito’s opinion, and I bring it up because the question well highlights the flaw in that silly article I critiqued at my Substack (which you can subscribe to here) claiming that there is an “originalist case for abortion.” The point here is: an originalist case for abortion cannot be shown by showing that several states allowed abortion when the Fourteenth Amendment was adopted. Any such case is torpedoed by a showing that several (and actually a majority) of states banned abortion. Given that, how can anyone show that abortion meets the Supreme Court’s definition of a fundamental right — which is a right that is “deeply rooted in the Nation’s history and traditions” and “implicit in the concept of ordered liberty.” Those are quotes from Washington v. Glucksberg (1997) 521 U.S. 702 and you are going to see them in Alito’s opinion. (If he writes one, and I think he will — at least a concurrence.)

Always trust content from Patterico.

Third, the reaction from the left is predictable. Here’s a smarter person from that crowd:

The only ways around this are to pretend an amendment means something different than it was originally understood to mean, or pass a new amendment. Only the latter is a legitimate exercise of power.

Also, pretending this is a new concept is not really being straightforward with the non-lawyers. People need to understand that this was also the standard before 2022.

I assume the justices will hold fast and not let this pernicious leak affect them.

It’s about time this atrocity was overruled. Soon.

UPDATE x2 BY PATTERICO:

5/2/2022

Esper: Trump Asked About Shooting Protesters

Filed under: General — Patterico @ 8:30 am



He could order someone to stand in the middle of Pennsylvania Avenue and shoot somebody and he wouldn’t lose voters:

Former Defense Secretary Mark Esper charges in a memoir out May 10 that former President Trump said when demonstrators were filling the streets around the White House following the death of George Floyd: “Can’t you just shoot them? Just shoot them in the legs or something?”

That seems like the kind of thing you’d save for a memoir rather than informing voters about it ahead of an election, huh, Mr. Esper?

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