June 30, 2012

"Companies are realizing that women comprise a very heavy percentage of the cocktail-drinking community..."

"... and I believe they are starting to speak more directly to women without the fear that they're going to alienate the male base."

"Deadly storms, intense heat bring misery to millions."

Are you okay?

"The occasional banality of the conversations is a deliberate challenge, not least to the notion of banality itself."

Key sentence from an article written by a woman about how men can't understand some book written by a woman.

"Damien wants to make a statement and this statue certainly does that."

"I think it’s a wonderful idea and I’d be surprised if anyone opposed it."

"[A] plain wedding band made of titanium, engraved with big block letters on the inside..."

"It appears to be that will imprint 'I'M MARRIED' around your finger."

Because what you want your wedding ring to express is mistrust.

At the Aldhouse Café...


... it's delightful.

"The Navy will not use a target depicting a Muslim woman holding a gun..."

"... at a new training range for SEALs in Virginia Beach."
The announcement came hours after the Council on American-Islamic Relations asked the Pentagon to remove the target. A picture of the cardboard target, which shows a woman in a headscarf holding a pistol, was published in The Virginian-Pilot on Tuesday. The image shows verses of the Quran hanging on the wall behind the woman, which also generated criticism from the group.

About that recall recount in Racine.

The majority in the Wisconsin senate hangs on the result. Can we trust it?
The recount process has uncovered a series of stunning revelations regarding ballot security.
That's MacIver, which might tend to exaggerate.

"I believe in an America where millions of Americans believe in an America that's the America millions of Americans believe in."

"That's the America I love."

Said Mitt Romney according to Doonesbury, which made fun of it, and Language Log's Geoffrey K. Pullum was initially inclined to mock, and then thought about it, and realized he agreed with it.

One thing that gave him second thoughts is that his co-blogger Mark Liberman had already processed the quote, using the sublime technique of sentence diagramming. Which is nice.

But the more important basis for second thinking is that when you get to Liberman's old post, you find out that Romney didn't even speak those words. Mark Steyn did, and he was purporting to paraphrase Romney, for humorous effect. Pullum found out he was laughing at Steyn and Steyn was trying to make us laugh, and suddenly the quote wasn't funny anymore. Pullum, the liberal, was initially enjoying laughing at Romney — and his vapid dorkiness — and then he found out he was laughing at something a big right-winger — Steyn — had intended as a joke. Hey, that's not funny!

Pullum regains his sense of self-liberalism and goes into 4th of July mode:
It's nearly the 4th of July.... I love being back in America. It's like slipping into an old pair of shoes that really fit.... I don't think I can find anything mistaken in the passage. I think I believe in that America too. God bless it, anyway.
His post ends with a note that it's completely rewritten, because he apparently had originally assumed Romney did say those words, hadn't seen Liberman's old post, and went the mockery.

Laughing rats.

Via James Taranto, who tweaks the scientists as having "lonely lives" (since they are resorting to tickling rats). But I think it means something, if animals laugh — if they play and have fun — and it's not all survival instinct.

Note that the rats don't just laugh, they latch on to The Hand as a playmate and chase it around, eager to engage it in more fun times.

"White House Already Denying That Mandate Is A Tax. If you deny that it’s a tax, you admit that it’s unconstitutional...."

Says Instapundit, linking here.

I've got to disagree. Under Chief Justice Roberts' opinion, what matters under the constitutional law is how the thing operates in reality, not what you call it. You can switch the labels around, play whatever political euphemism games you like, and the judges will let you get away with that. It's propaganda. Knock yourself out. Bamboozle the people. Democracy rolls on.

But in court — the message is — we look through the surface and see what is really happening. And if it is structured and functions like a tax, it's a tax.

You know, there's a saying that lawyers and lawprofs like. I think it's corny, so I haven't been saying it. I don't think that in 25+ years of teaching law I've ever said it, but I've heard it said so many times, and it's said because it's a way of saying something that lawyers and lawprofs really think about law: If it walks like a duck and quacks like a duck, it's a duck.

A physician's epiphany: "I was not, as I had imagined, a professional, but an employee."

In the wee hours today, our commenter Pogo wrote:
Can't sleep.

A little over ten years ago, I had an epiphany at work. I was struggling until I suddenly realized that I was not, as I had imagined, a professional, but an employee.

And my eyes opened, and I understood.
The employee game is an easy one to play, unless you don't know you're playing it.

What we learn about Scientology from the Katie Holmes/Tom Cruise divorce.

Holmes seeks sole custody of the couple's 6-year-old child Suri, who has supposedly been raised under principles of Scientology:
Suri is apparently treated as an adult, free to make decisions on her clothes, make-up and diet.

Scientology expert Rick Ross explained to the Daily Mail's Alison Boshoff last year: 'Scientologists treat kids as if they are individuals capable of making their own decisions.'

Indeed, Tom echoed this approach in an interview in 2010.

'I say to Suri, "I really want you to eat this protein if you’re going to have that sugar,"' he said.

'She looks at me and she goes: "Dad, I don’t think you should try to force me to do something I don’t want to do."'...

Just last week, an evening of pizza and ice-cream with her mother ended in tears when Katie took her daughter's cone away.
If we assume, for the purposes of discussion, that Cruise follows a religion-based approach to child rearing, involving maximum autonomy, and Holmes now objects to that and wants to raise the child according to more conventional decision-making and discipline by the parent, how much of a factor should that play in determining custody? Should Cruise's ideas about child-rearing have more weight or less weight because they are premised on religion?

June 29, 2012

At the Painted House Café...


... we're still here. Come on in. Surely, there are new things to talk about.

"[F]or ordinary conservatives, as opposed to long-beleaguered conservative law professors, this case wasn’t about proving law professors wrong..."

"... it was about limiting the power of the government by overturning the coercive mandate. That objective was not achieved."

I'm just another lawprof, but I think the Commerce Clause decision matters a lot. Yes, Congress can work around its limit by tapping the taxing power, but it's not politically easy to tax.

Wouldn't it be wonderful if Chief Justice Roberts did switch his vote?

"There has been tons of speculation in the last day that Chief Justice Roberts changed his vote at some late stage in the Affordable Care Act case," writes Orin Kerr, linking to his Volokh co-blogger David Bernstein's 2 posts on the tantalizing meme. Kerr looks at the evidence and speculates about how the complexity of the writing project could have unfolded without Roberts ever switching sides. He was the 5th vote in 2 majorities, one with the liberal 4 and one with the conservative 4:
Roberts is the swing vote in this case and this is the biggest case of his time on the Court, so he quite naturally assigns the opinion to himself....

"The latest survey on the Supreme Court was conducted Wednesday and Thursday nights, the night before and after the health care ruling."

"Overall, there were few differences in the topline results between the two nights. However, there were sizable partisan shifts. On Wednesday night, Republicans tended to give the court good ratings, while Democrats were evenly divided between good/excellent and poor. On Thursday night, the partisan positions were reversed."

Rasmussen reports. Very amusing.

"The 'Today' co-host saga took an almost surreal turn Friday morning..."

"... with Savannah Guthrie slipping into Ann Curry’s old chair and everyone around her, including the network, acting as if nothing had changed."

Well, nothing changed for me. I've never watched any of those chirpy morning shows. But I do see something surreal at the link: a video of a "body language expert" purporting to "decode" the movements of the arms and legs of a tearful Ann Curry on her last "Today."

"I can't imagine [a state that] would say we aren't going to do this new Medicaid program."

The Supreme Court's decision removes the coercion of the Medicaid expansion. The states no longer face losing all their Medicaid funding. But will they opt out? They are still tempted by federal money, just not as much money. Here are the states that joined the argument against the law:

They failed to get the entire new program stricken down, so there's still a decision whether to opt in. Since the most coercive aspect of the program is gone, it's now a harder decision to make.
The federal government will pick up the entire cost of the expansion for the first three years. After that, it will pick up 90% of the cost and leave the remaining 10% to states. While that leaves only a small share for states, many have argued even that's too much given their tight budgets.

Several states said Thursday that, despite the ruling, they have no plans to opt out of the expansion. Washington state, which was a plaintiff in the Supreme Court lawsuit, said it will likely take the new federal money and expand its Medicaid program to about 500,000 residents in 2014. "That is the best bargain one can buy," said Democrat Gov. Christine Gregoire, who objected to the state Republican attorney general's decision to join the lawsuit. "I can't imagine who would say we aren't going to do this new Medicaid program."
So the truly heavy-handed coercion is gone, but the enticement that is left is still highly persuasive.

"Will it be permanently victimizing ourselves, and whining, whining, whining?"

"Or will it be something else: the something else is the syntax of life, the vocabulary and the lexicon of the Holocaust survivors saying, 'Remember us positively.'"

Why are store tomatoes so bad?

Maybe it's the redness.
The unexpected culprit is a gene mutation that occurred by chance and that was discovered by tomato breeders. It was deliberately bred into almost all tomatoes because it conferred an advantage: It made them a uniform luscious scarlet when ripe.

Now, in a paper published in the journal Science, researchers report that the very gene that was inactivated by that mutation plays an important role in producing the sugar and aromas that are the essence of a fragrant, flavorful tomato.

June 28, 2012

"It is not our job to protect the people from the consequences of their political choices."

That's the quote from Roberts' opinion that he extracted up front as he began the announcement of the opinion today.

There's material throughout his opinion — which I've highlighted in my various posts today — that calls attention to the flawed mechanisms of the universal-health-coverage scheme. Most notably, the individual mandate is only constitutional because it's optional, and people can simply pay the "penalty" (now known as the tax) to the federal government as long as they don't want to buy health insurance. If people behave rationally and weigh the costs against the benefits, they won't buy insurance until their expenses (health care costs + the penalty) exceed the premiums, and the insurance companies will not amass premiums from the vast numbers of healthy people who pay in more than they receive. It seems like a design for collapse, but, as Roberts says: That's not his concern.

AND: To say it's a "design for collapse" is to set up the question whether it was a screw-up or whether it was the first move in a scheme to take us to a single-payer, government health care program.

MORE: This calls to mind the old Pelosi quote:

"But we have to pass the bill so that you can find out what is in it."

We found out today, I think. Have you noticed yet?

How Chief Justice Roberts reenvisioned the individual mandate as a tax... and how he avoided the question of congressional accountability.

After going through the Commerce Clause, the Necessary and Proper Clause, and the Spending Clause, I'm finally going to read the taxing power part of the new case — which, by the way, is called National Federation of Independent Business v. Sebelius.

This is the part where a 5-person majority upholds the individual mandate. Chief Justice Roberts writes, joined by Justice Ginsburg, Breyer, Sotomayor, and Kagan. The 4 liberal Justices did not agree with him in the Commerce Clause part of his opinion, III-A, so they also don't join III-B, which is the transition from the Commerce Clause to the taxing power discussion. In III-B, Roberts tells us that we need to shift from thinking about the individual mandate "as ordering individuals to buy insurance, but rather as imposing a tax on those who do not buy that product." The government argued for reading the statute one way — as a requirement — but that led to viewing it as unsupported by the only enumerated power that might have supported it, the commerce power. So we shift to the other alternative — the mandate as a device for identifying who owes a tax. He's choosing to read the mandate in the way that allows it to be supported by another enumerated power, the taxing power.

"The House of Representatives on Thursday voted to hold Attorney General Eric H. Holder Jr. in contempt..."

"... for failing to disclose internal Justice Department documents in response to a subpoena."
It was the first time in American history that Congress has imposed that sanction on a sitting member of a president’s cabinet."

The vote – 255 to 67, with one member voting present – followed an acrimonious and politically charged debate. Many Democrats walked out of the chamber in protest without voting, accusing Republicans of railroading the motion so they could inflict political damage on the Obama administration during an election year.

President Obama should have been reading SCOTUSblog, not watching TV.

"Standing with White House chief of staff Jack Lew and looking at a television in the “Outer Oval” featuring a split screen of four different networks, the president saw graphics on the screens of the first two cable news networks to break the news — CNN and Fox News Channel — announcing, wrongly, that he had lost."

I was reading the SCOTUSblog live blog with CNN on in the background:
CNN is getting it wrong, if SCOTUSblog is right. They're headlining "Individual Mandate Struck Down."...

From SCOTUSblog. "The bottom line: the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read." From CNN: Blitzer says "let's take a deep breath... if you're watching this on Twitter... momentous... more information...."
CNN was fumbling and blathering. I guess they have to fill every second of real time. A live blog seems as though it's real-time, but the participants have the ability to read something and study it without writing anything. But that's not enough of an excuse for the TV news failure. They need one person to talk, but several others could be quickly reading parts of the opinion and ready to go on camera when they have something to say.

I'm still annoyed at CNN for wasting my time — and playing with my emotions — back on June 5th when the polls closed in the Wisconsin recall election and they were insisting that the race was too close to call. It's razor close. After an hour of such hand-wringing, they call it for Walker, and in the end, he wins by 7 percentage points.

Fox News got it wrong too, it should be noted. Both today and on June 5th.

What the Supreme Court said about the spending power and Medicaid Expansion under the ACA.

Let's look at what Chief Justice Roberts writes about the spending power. (This is Part IV of his opinion, which is joined only by Breyer and Kagan. The rest of the votes for limiting the spending power come from Scalia, Kennedy, Thomas, and Alito.)

The issue here is raised by states that said that the Medicaid expansion wasn't merely a condition on spending, but "coercion." It's well established that Congress can't "compel the States to enact or administer a federal regulatory program," Roberts said, but Congress can offer money on the condition that they do what Congress could not compel. The states have a choice. But when is a choice not a choice? When it's compulsion.

Roberts highlights the federalism theory:

Chief Justice Roberts writes an opinion limiting the commerce power and the spending power.

This is an important opinion about federalism and the scope of Congress's enumerated powers. Even as the individual mandate was upheld under taxing power — and Roberts wrote about the expansiveness of that power — we have an opinion that is limiting those other 2 powers. I want to begin to talk about the Chief Justice's contribution to constitutional law as he writes about these 2 powers.

Let's not be distracted by the breadth of the taxing power. The American people exert tremendous political power against taxing. Look at the Tea Party. A political price will be paid — both for the tax and the deceit about imposing a tax.

What I want to do first, now that I have my hands on the opinion, is analyze the Commerce Clause doctrine.

Obama imposes huge tax on the American middle class.

That's the story, right? That's the spin for Romney. What's the spin for Obama?

UPDATE: Drudge points to Obama's assertion, back in September 2009 that the mandate is not a tax.
STEPHANOPOULOS: [I]t's still a tax increase.

OBAMA: No. That's not true, George. The — for us to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase. What it's saying is, is that we're not going to have other people carrying your burdens for you anymore than the fact that right now everybody in America, just about, has to get auto insurance. Nobody considers that a tax increase. People say to themselves, that is a fair way to make sure that if you hit my car, that I'm not covering all the costs.
I have said repeatedly that Obama would be worse off if Obamacare were upheld, but what I'm really seeing is how bad it is for him with the mandate declared a tax.

Remember the Democrats got the statute passed by insisting it was not a tax. Now, we learn it is only constitutional because it is a tax. That's got to hurt politically.

ADDED: Romney has at least 3 big arguments:

1. Obama imposed a huge new tax on working people.

2. Obama deceived the American people by saying it was not a tax, when it was.

3. The law made it look like money would go to insurance companies — in the form of new premiums — that would keep premiums low as the companies were required to take on people with pre-existing conditions, but now we find out that the money is really going to go to the federal government. [ADDED: So get ready for your premiums to spiral up and/or for insurance companies to be ruined.]

The individual mandate survives as a tax.

Says SCOTUSblog.

CNN is getting it wrong, if SCOTUSblog is right. They're headlining "Individual Mandate Struck Down."

CNN is running on the Commerce Clause ground, apparently, and not seeing the tax power part.

At SCOTUSblog: "So the mandate is constitutional. Chief Justice Roberts joins the left of the Court."

UPDATE: John King on CNN is starting to walk back. Wolf Blitzer notes "conflicting reports from in there."

UPDATE 2: From SCOTUSblog. "The bottom line: the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read." From CNN: Blitzer says "let's take a deep breath... if you're watching this on Twitter... momentous... more information...."

UPDATE 3: CNN reporter showing what a big, long opinion it is — holding it up, flipping through the pages. Finally, at 9:15, she says the entire law has been upheld.

UPDATE 4: Note the important political effect of saying it's a tax (and not an exercise of the power to regulate under the Commerce Clause): People don't like taxes. Obama and the Democrats imposed a huge new tax, affecting middle class people. Wolf Blitzer calls this "a huge huge victory for President Obama," but it will be used against him, and the tax ground means a lot.
The money quote from the section on the mandate: Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.
UPDATE 5: Based on CNN, which I don't trust, it's a 5 to 4 decision, and Chief Justice Roberts, not Justice Kennedy, was the deciding vote.

UPDATE 6: From SCOTUSblog: "The court reinforces that individuals can simply refuse to pay the tax and not comply with the mandate." Hmmm. I think that might be misstated. I'm guessing SCOTUSblog meant to say that individuals can simply refuse to comply with the mandate — i.e., buy insurance — and pay the penalty — which is accepted as a "tax" within the meaning of the taxing power. [ADDED: My guess there is correct, as SCOTUSblog has now noted.]

UPDATE 7: I still don't have the opinion, but the Commerce Clause discussion comes out on the conservative side, and that will be important doctrine. Now, possibly they simply talk about the difficulty of the Commerce Clause question and then refuse to resolve it, switching to the taxing power issue.

UPDATE 8: The spending power material about the states and Medicare is also important. Per SCOTUSblog: "The Constitution requires that states have a choice about whether to participate in the expansion of eligibility; if they decide not to, they can continue to receive funds for the rest of the program." This probably is an important new contribution to the doctrine about conditional spending, that Congress can't attach a new condition to old spending as it entices the states to agree to something they can't otherwise be required to do. That makes it much harder to lure the states into accepting conditions.

UPDATE 8: In Update 7, I said I couldn't assume that there was a resolution of the Commerce Clause issue, but I see now that there are 5 votes saying the Commerce Clause does not support the individual mandate, and: "The power to regulate commerce presupposes the existence of commercial activity to be regulated."

"Liberals plan single payer push if mandate falls."

"The Congressional Progressive Caucus will hold an 11 a.m. news conference outside the Supreme Court, along with liberal groups, to advocate for a universal, single-payer system — essentially, Medicare for everyone."

The "Stolen Valor" case — United States v. Alvarez.

From the SCOTUSblog live blog this morning in the Supreme Court:
In Alvarez, the Ninth Circuit is affirmed. Per Kennedy. His opinion is for a plurality.

The statute violates the First Amendment. Breyer and Kagan concur and conclude that the Act as presently drafted fails First Amendment scrutiny. So Congress probably could rewrite it.

"Lying was his habit" is how the opinion begins.

Alito, Scalia, and Thomas dissent.
Here's the opinion PDF.

Are Democrats skipping the Democratic Convention "trying to get away from Obama"?

Juan Williams asks Rep. Chris Van Hollen, who is appearing as a surrogate for the Obama campaign and who trots out the predictable denial:
"This has nothing to do with not going to the convention to send a message to the president, nothing of the sort. This has to do with maximizing the time you spend connecting with your constituents..."
Even if that were true, the appearance of trying to distance themselves from Obama is bad enough to provide an incentive to sacrifice a bit of time connecting with constituents in order to demonstrate support. So, obviously, Van Hollen is bullshitting.


I'm using the word "bullshit" more now. I hope it doesn't distress you, but ever since Jonathan Turley went all "civility bullshit" on me for saying "spare me the bullshit" to him and I started reading the excellent 72-page book "On Bullshit," I've been feeling like saying it more.

From page 16 of Harry G. Frankfurt's slim tome:
In the old days, craftsmen did not cut corners. They worked carefully, and they took care with every aspect of their work. Every part of the product was considered, and each was designed and made to be exactly as it should be. These craftsmen did not relax their thoughtful self-discipline even with respect to features of their work that would ordinarily not be visible. Although no one would notice if those features were not quite right, the craftsmen would be bothered by their consciences. So nothing was swept under the rug. Or, one might perhaps also say, there was no bullshit.
I'm re-distracted back to the Supreme Court case. I wonder how good the judicial craftsmanship will be. Will there be bullshit?
Wittgenstein once said that the following bit of verse by Longfellow could serve him as a motto:
In the elder days of art
Builders wrought with greatest care
Each minute and unseen part,
For the Gods are everywhere.

The myth that "a calorie is a calorie."

It's compelling because it sounds coolly scientific — truthy — but it's also what "Big Food" would like you to believe and it's not what actual scientific studies — not to mention personal experience — are showing. 

The Top 10 Things That Just Had to Wait Until the Last 24-Hours Before the Obamacare Decision.

No, no, no. It's not just filler. It's the last amazing thing that was finally realized, on the Eve of Destruction — or Non-Destruction or Semi-Destruction — and needed to be published right now — quick! link! read! — for the edification of the American people.

1. Scalia is a rascal. I insist that he resign! Pronto! He's been annoying Elmer J. Dionne Jr. for years. Oooh, I'm just so mad. How dare he!

2. The NYT still has Linda Greenhouse available to wheel out for special occasions. Today will probably be a "rare day" of "theater." There might be "tears of relief" or "of regret." But "whose"?

3. President Obama will need to respond to the ruling. Will it be with tears? Of relief? Or of regret? He's got 3 speeches ready. Tears of relief... tears of regret... and laughing through tears.

4. "In the end, you have to make a prediction and take responsibility for it. I believe the mandate will not be invalidated tomorrow." As The Beatles sang: And in the end, the predictions you make are equal to the responsibility you take. Aaaah aaaah....

5. "We don't know what will happen this morning. But no matter what, today is an important day to have Barack Obama's back." Email just now from the Obama campaign. Because everything is an occasion for giving money to Obama. Especially this. Transmogrify your tears of regret — or relief! — into cash for Obama.

6. A roundup — like mine right here — of all the predictable bullshit: "Obamacarians' Pregame Rationalizations: Doesn't Matter; Good for O; All Scalia's Fault, and More!"

7. Instapundit provides a roundup of last-minute links including the roundup of links that I just linked to at #6 (which I took, not from Instapundit, but from that one guy in the comments here).

8. Randy Barnett thanks everyone — whatever happens — he's happy to have at least been taken seriously. Especially by Orin Kerr, who really annoyed him.

9. What do I actually think? Should I after all this time reveal whether I think the individual mandate is constitutional? We're about to hear what the Supreme Court thinks, so what does it matter what I think? It's emphatically the province and duty of the Judicial Department to say what the law is. That's what I think. Now, if they go 5-4, liberal-conservative or conservative liberal, The Law will not have the awesome solidity We, The Children want it to have, but I'm not going to cry about it. I'm old. And I've been watching the Supreme Court for a long, long time. It's 9 human beings — could be 19, but it's 9 — trying to do something serious and complicated.

10. Oh! It's so exciting! Let's watch it unroll at the SCOTUSblog live blog, where the venerable  Lyle Denniston is saying "Good morning from a slightly zoo-like, but still surprisingly civil, press room at the Court."

June 27, 2012

At the Painted House Café...


... there's quite a feeling of progress.

"The left-leaning press should be all over this, no? Evil Big Drug Companies (PhRMA) funnel money to David Axelrod’s old ad firm..."

"... (which is still paying him for his share) even as they are negotiating with the Obama administration? Hello? Josh Marshall? Arianna? You there? Someone explain to me why this isn’t a scandal."

Facebook resets users' political views.

A mere accident, purportedly. And it only affected Facebookians who failed to identify with a party or ideology that had its own Facebook page. So if you individualized your political orientation — calling yourself, say, "a recovering bleeding heart" or a "sniveling democrublican" or some such outré invention — that might have been obliterated.

I'm guessing Facebook is working on getting individual pages to link up in various "social network" ways within the Facebook website. I'm assuming it's all for the business interests of Facebook. But perhaps the company is trying to help political parties (and causes) organize and communicate. All this idiosyncratic nomenclature cuts off the pathways of power.

This makes me wonder what I have on my Facebook page. Oh, I see. I wrote: "read my blog." But now what it says is "Other" on a separate line before what I wrote. And "Other" is hot-linked to a Facebook page for "Other," where the content is lifted from the Wikipedia article "Other":
The Other or Constitutive Other (also the verb othering) is a key concept in continental philosophy; it opposes the Same
"Same" and "continental philosophy" are hot-linked to other Facebook pages. So lots of linkage, plus the insane idea that I have identified myself with some damned continental philosophy concept!
The Other refers, or attempts to refer, to that which is other than the initial concept being considered. The Constitutive Other often denotes a person Other than one’s self; hence, the Other is identified as “different”; thus the spelling often is capitalized.
That's rich. And actually, accidentally sort of true, since I'm keeping out of all the established political identifications. But I don't need Facebook insinuating that I'm somebody else's not-self.
A person's definition of the 'Other' is part of what defines or even constitutes the self (in both a psychological and philosophical sense) and other phenomena and cultural units. It has been used in social science to understand the processes by which societies and groups exclude 'Others' whom they want to subordinate or who do not fit into their society. 
I am Facebook's Other! I am what Facebook wants to subordinate because I do not fit into its society/social network.

(By the way, I'm not looking for Facebook friends, so please don't ask.)

German court says a boy's right to physical integrity trumps his parents' religious interest in having him circumcised.

Jewish and Muslim groups are reportedly outraged.

"Being hungry is wonderful. The opposite of hungry, which is not hungry, is the opposite of wonderful, which is terrible."

Dr. Andrew Chung's hunger cult.

"I got the idea spontaneously.... I'm a man of science, I have a very high IQ."

"I thought, I'll get rid of it.... I have the ability to solve problems in a second."

Said the professor, explaining his thinking after he cut off his wife's lip, when he realized doctors might be able to sew it back on. She'd told him she wanted a divorce. He ate the lip.

Did the Democrats give up on class warfare?

Jonathan Martin (at Politico) says they did. He notes that Occupy Wall Street has evanesced and that Obama conspicuously avoided participating in the Wisconsin recall election.
Labor unions hoped to turn the Wisconsin recall election into a rallying cause for their ailing movement. But a Democratic president couldn’t be dragged off the sidelines for the fight.
And let me add that even the Democratic candidate in that election avoided talking about labor union matters. Tom Barrett talked — with stunning blandness — about a restoration of civility and working together.

When you get a few paragraphs into the long article, you'll see it's mostly complaints about the dynamics of campaign finance with lots of quotes from people Martin counts among the few "unapologetic populists" left in the party. But there's this nice summary:

"Do you think that the man in line behind you and the lady behind him want to buy you your cigarettes?"

The 65-year-old cashier who scolded the 20-year-old with the EBT card and refused to let him buy cigarettes.
The next day, the 20-year-old’s “foster mother” showed up at the Big Apple to complain about how her “son” had been mistreated. Jackie Whiton talked back again.

“I told her, ‘Use the money you get from the state to buy his cigarettes.’ She said, ‘Absolutely not.’ ”...

“He was very capable of working,” Jackie said, “so I told him to get a J-O-B.”
Whitton was fired.

Should Whiton have been fired?
pollcode.com free polls 

By the way, were you familiar with the term "EBT card"? Do you know what the letters stand for? (I didn't.)

"Monster wildfire rages in Colorado..."

Story... photos... video....

"Sexuality shouldn't be categorized as a high-stakes decision..."

"... like, say, a will or a major financial decision where you really need the capacity to consent to things... We're saying that sexuality is different and the way to establish consent should be different."

"Doctors’ waiting rooms are absolutely brimming these days with women suffering from low libidos."

"I have talked to a lot of young women about this, and they just don’t seem to do it any more.... Honestly, I suppose it’s because we all have so many other demands on our time now."
Many young women also feel guilty or distressed over their low libido....
So... you're so stressed about work that you don't have sex, and then you're stressed about not having sex. Stress! Stress! Stress! What do you think about all this stress as the cause and the effect of not having sex? It strikes me as a shallow and lame explanation for things.

I tend to think that the reason people are doing whatever they are doing is because it's what they want to do. There's something irrational about saying I don't want to do what I don't want to do. Or, to turn it around, I want to want something. If you want it, you want it. If you don't, you don't. Start there. Too busy? Hopeless!

Post-gastric-bypass surgery, prisoner needed much more time to eat and now he's suing for $80 million.

At Rikers Island, they only give you 4 minutes to eat, but in his condition, Michael Isola needed to chew and swallow slowly. Speed-eating led to vomiting and — he says — the separation of his stomach from his intestine. And extreme weight loss.

"If Madi­son was such a Cre­ative Class hotbed over­flow­ing with inde­pen­dent, post-industrial work­ers like myself, we should have fit in."

"Yet our pres­ence didn’t seem to mat­ter to any­one, cre­atively or oth­er­wise. And any­way, Madison’s economy was hum­ming along with unem­ploy­ment around four per­cent, while back in fun, cre­ative Port­land, it was more than twice that, at eight and a half per­cent. This was not how the world accord­ing to Florida was sup­posed to work. I started to won­der if I’d mis­read him. Around town I encoun­tered a few other trans­plants who also found them­selves scratch­ing their heads over what the fuss had been about. Within a cou­ple years, most of them would be gone."

From "The Fall of the Creative Class," by Frank Bures. "Florida" is Richard Florida, author of "The Rise of the Cre­ative Class," who theorized that artists (and gay people and immigrants) cause economic growth, so a city that wants economic expansion ought to adopt a strategy of attracting artists.

Via Ernst Stavro Blofeld.

June 26, 2012

At the House Paint Café...


... you don't have to be superficial.

Goodbye to Nora Ephron.

She was 71.
In the late 1960s Ms. Ephron turned to magazine journalism, at Esquire and New York mostly. She quickly made a name for herself by writing frank, funny personal essays — about the smallness of her breasts, for example — and tart, sharply observed profiles of people like Ayn Rand, Helen Gurley Brown and the composer and best-selling poet Rod McKuen. Some of these articles were controversial. In one, she criticized Betty Friedan for conducting a “thoroughly irrational” feud with Gloria Steinem; in another, she discharged a withering assessment of Women’s Wear Daily....

Her first screenplay, written with her friend Alice Arlen, was for “Silkwood,” a 1983 film based on the life of Karen Silkwood, who died under suspicious circumstances while investigating abuses at a plutonium plant where she had worked...

Ms. Ephron followed “Silkwood” three years later with a screenplay adaptation of her own novel “Heartburn,” which was also directed by Mr. Nichols. But it was her script for “When Harry Met Sally,” which became a hit Rob Reiner movie in 1989 starring Billy Crystal and Meg Ryan, that established Ms. Ephron’s gift for romantic comedy...

[She wrote] “Sleepless in Seattle” (she shared the screenwriting credits), which brought Tom Hanks and Meg Ryan together so winningly that they were cast again in “You’ve Got Mail.”
A woman of our time. It's sad to lose her. I wish the obit (in the NYT) had a bunch of links to old magazine articles and to movie clips. The article about Ayn Rand is in "Wallflower at the Orgy." There's also: "Scribble Scrabble," "Crazy Salad," "I Feel Bad About My Neck," and "Heartburn," which is the one about the breakup of her marriage to Carl Bernstein, which was made into a movie with Meryl Streep and Jack Nicholson. Here's a little clip of the 2 greatest actors of our time enacting the scenes of Ms. Ephron's marriage:

Let's sing all of the songs we know about babies....

ADDED: I just downloaded "Wallflower at the Orgy" to get the Ayn Rand essay, which begins:
Twenty-five years ago, Howard Roark laughed. Standing naked at the edge of a cliff, his face gaunt, his hair the color of bright orange rind, his body a composition of straight, clean lines and angles, each curve breaking into smooth, clean planes, Howard Roark laughed. It was probably a soundless laugh; most of Ayn Rand’s heroes laugh soundlessly, particularly while making love. It was probably a laugh with head thrown back; most of Ayn Rand’s heroes do things with their heads thrown back, particularly while dealing with the rest of mankind. It was probably a laugh that had a strange kind of simplicity; most of Ayn Rand’s heroes act with a strange kind of simplicity, particularly when what they are doing is of a complex nature.
Beautiful! Twenty-five years ago... that was was written in 1968.... 69 years ago...

"The lefty-pundit claim that [invaidating the individual mandate] would delegitimize the Court [is] risible."

Says Instapundit, pointing to this poll that says most people would be happy to see the Court strike down the law and saying it's Congress and President Obama who should be seen as "delegitimized" because of the way they "rammed it through using shady procedures in the teeth of popular opposition." And tweaking lawprof Akhil Amar for his life-is-a-fraud hyperventilating.

Also, earlier today, Instapundit linked to my response to to Jonathan Turley's personal attack on me. Turley couldn't take my criticism of his Court-packing plan, and Instapundit had his own (amusing) Court-packing plan: Let's have term limits (18-years) and a requirement that no more than 5 of the 9 to be law school graduates.

"I will be the first president in modern history to be outspent in his re-election campaign, if things continue as they have so far."

Emails Barack Obama:
I'm not just talking about the super PACs and anonymous outside groups -- I'm talking about the Romney campaign itself. Those outside groups just add even more to the underlying problem.
ADDED: Here's the rest of the email:

Let's take a closer look at Jonathan Turley's reaction to the internet's response to his Court packing plan.

In the first post of the day — "Jonathan Turley's civility bullshit about my calling 'bullshit' on his Court-packing plan" — I said some things about why I don't give powerful speakers the insulation of so-called "civility" and about the interplay between big journalism and the law professoriat. Not wanting to go unbloggily overlong, I said I'd do a second post parsing the details of Turley's blog post criticizing me for criticizing his proposal to enlarge the Supreme Court to 19 Justices. I call it...

This might need to go a bit long, so let's go to an inside page.

Turley's post is titled "The Limits of Civility: How A Proposal On Reforming The Supreme Court Unleashed A Torrent Of Personal Attacks." Unleashed! Torrent! Personal! Attacks! You see how he goes big and emotional, not sober and restrained at all? He's a victim. But, I wonder, will there be any personal attacks made on me? I called his idea "bad" and his reason for it "bullshit." I rejected his implicit admiration for the utilitarian philosopher Jeremy Bentham, and I said he'd made an analogy that was "one of the worst... I'd ever seen." But I didn't make any personal attacks. Ironically, it's a personal attack on me to accuse me of making a personal attack. I attacked his ideas, not his person, but I did it with sharp language that was meant to hurt and did. He chose to respond in a personal way. Why? Because he can't or won't defend his ideas? Or is he simply taken aback that a law professor would attack with concision and ferocity?

On to the body of the Turleypost:
As many on this blog know, I rarely respond to criticism of columns that I run in USA Today or other newspapers. As a columnist, I feel that I am given a rare opportunity to express my views and criticism comes with the territory. However, I was taken aback by many of the comments in response to my Sunday column in The Washington Post discussing my proposal for the expansion of the United States Supreme Court. 
Why don't you normally respond to criticism? You take your high platform in mainstream media. You profess from that position, and the little people who carp about it may not seem worth your time. But now you will bother. Why? It seems that blogging has raised a few people to a significant enough level that it matches the perch you got from the Washington Post.
Though the proposal was given serious and supportive reviews by some sites like Forbes, some conservatives immediately assumed that I was a liberal simply upset with the anticipated ruling striking down the individual mandate provision of the health care law. When another law professor and blogger (Ann Althouse) joined this ill-informed and uncivil chorus, I thought I would respond. 
I didn't assume he was "a liberal simply upset with the anticipated ruling." What if he hadn't read my words carefully and he was attributing to me the things he believed he was hearing from a "chorus"? That would make him ill-informed. That would be ironic. And, as we shall see, that is what he is doing.
This blog has always strived to maintain a strict civility rule — distinguishing it from many other blogs by discouraging and sometimes eliminating ad hominem and personal attacks. 
But you just hurled a series of insults at me. I only attacked your ideas. But I myself don't preen about civility. I do what I do. It is what it is. And I leave it to the reader to figure out what it is. I have my standards, but I don't brag about how lofty they are. Turley trumpets his "strict civility rule," and he's already violated it.
Yet, I am still surprised by the lack of civility and responsibility by many — particularly fellow lawyers and academics — in responding to such proposals. 
I'm not surprised that he's acting surprised, that he imagines he's a model of civility, or that he's making mistakes about me without noticing, or that he expects lawprofs to defer to other lawprofs. I find that all crushingly predictable. Can we get to the substance? I mean, my kindergarten teacher used to say "Ann, I'm surprised at you!" It hurt my feelings. But I'm old now, and I don't have much time.
[Update: Professor Ann Althouse has responded to my call for greater civility with a new blog entitled "Jonathan Turley's civility bullshit about my calling "bullshit" on his Court-packing plan." (Apparently both civility and factual accuracy fall into the same "BS" category for Professor Althouse). Notably, Professor Althouse does not address the fact that she was completely wrong in claiming that I was motivated by dislike for the anticipated ruling striking down the individual mandate in the health care case.]
And Professor Turley does not hurry to add that my new post includes a statement that I'm going to write another post — you're reading it now — in which "I'll respond to more of Turley's long, professorly post which denies that his Court-packing plan arises out of a distaste for the Supreme Court's opinions." Notably, Professor Turley does not address any of what I did say in that post.

And speaking of "completely wrong," I never said he was motivated by his dislike for the anticipated ruling in the health care case. He has this long, long post about me, perseverating about how I have not read and understood him, but he has yet to read my writing with much care at all.

My original post accused the Washington Post of pushing the Court-packing proposal "in anticipation of the Obamacare decision." I'm saying that Turley was given an op-ed spot to promote his theory, last Sunday, because of the impending Obamacare decision, which WaPo is advance-spinning. It would be damned hard to deny that inference, and I stand by it. I then quote Turley saying "The health-care decision comes 75 years after the famous 'court packing' effort of President Franklin D. Roosevelt.... Roosevelt may have had the right idea for the wrong reason," and I assert that my belief that Turley has the essentially the same reason: "You don't like the opinions." The opinions. That's a large, nonspecific category. I do infer Turley wants to diminish the power and prestige of the Court, but I'm not focusing on a particular case in the future.

Back to Turley:
The column generated a torrent of comments (roughly 1100 on the Post site alone). Many of these comments came from conservatives who immediately assumed that I was a liberal law professor who was just proposing this reform because I expected to the Court to rule against the health care law. Others asked why I did not propose this in the past and just suddenly called for an expansion on the eve of the health care decision.
That's not about me. I guess that's the "chorus."
Just to set the record straight.

First, before the health care law was passed, I spoke on Capitol Hill and expressed my personal opposition to the individual mandate law on federalism grounds though I felt that the Administration would have the advantage in the lower courts due to the current precedent from the Supreme Court. I then wrote and spoke against the individual mandate provision in columns, blog entries, and speeches....
Turley only links to one column, and it doesn't say the individual mandate is unconstitutional. It merely states that there's a constitutional question that the courts will have to resolve. He's being very bland! (Actually, it's the same kind of restraint I've shown on the issue.)

Back to Turley:
Second, I did not just come up with this proposal on the eve of the decision. See, e.g., “Unpacking the Court: The Case for the Expansion of the United States Supreme Court in the Twenty-First Century.” 33 Perspectives on Political Science, no. 3, p. 155 (June 22, 2004). I proposed the expansion of the Supreme Court over ten years ago. I have discussed the reform with members of Congress and it has been debated in prior years.
2004... 2002... this is post-Bush v. Gore and post- a lot of cases that have led the law professoriate to work on ways to limit the power of the Court. I don't know (or assert that I know) the details about which cases bother Turley, but to resort to Wikipedia, he is "frequently regarded as a champion of liberal and progressive causes," he's appeared frequently "on Countdown with Keith Olbermann and The Rachel Maddow Show," and he "has called for criminal prosecution of Bush administration officials for war crimes." I don't think my inference of his hostility to the Court's opinions is wrong, and I stand by my suspicion that his desire to dilute the power of Supreme Court Justices arises out of — remember my exact phrase — "a distaste for the Supreme Court's opinions."

Turley goes on:
Third, I have often agreed with the conservatives on the Court in its most controversial decisions. For example, like many in the free speech community, I agreed with the holding in Citizen’s United even though I disagreed with parts of the decision’s analysis and language. I have also said that I felt Arizona has a strong case on the immigration matter in claiming the right to enforce federal laws on illegal status.
Fine. I can see he's not the most predictably left lawprof in the academy. I never said he was.
Finally, the criticism of these readers and Professor Althouse below appear based on an assumption that the expansion of the Supreme Court would predictably add liberals. 
Now, you're making inferences about me, so I guess inferences are okay. I made mine and you made yours. I'll set a good example by treating your assumption as a request to say whether that's what I really think. I don't!
There is no reason to make such an assumption since the expansion is spread over a decade. 
I know that's the proposal, and I quoted your language to that effect in my original post. Without that slow phase-in, the proposal would be truly ridiculous (an obvious, partisan power-grab).
Moreover, the Senate is expected to either continue to be split roughly evenly between the parties or actually go Republican in the next election. There is certainly no reason to assume that the additions to the Supreme Court would include candidates to my liking. 
Oops! He just admitted he wants liberals.  Also, let me point out that it's Republican Presidents who've been disappointed by appointees who turn liberal. In recent years, we've seen Blackmun, Stevens, and Souter skew far from the politics of the Republican Presidents who appointed them. When's the last Democratic President whose appointee skewed conservative?
Indeed, I criticized Obama’s selections. I do believe that additional justices will add a diversity of experience and viewpoints regardless of philosophical leanings.
I agree the Court lacks diversity. (For example: no Protestants.) But I think more Justices will mainly dilute the significance of the position. As Turley ended his op-ed: "the power of individual judges is diluted." You get more of a faceless panel of legal experts, much less of a sense of particular human beings making decisions.
After a couple of decades writing as a columnist and doing legal commentary, I have no illusions about people writing anonymously about articles or positions. The Internet often seems to unleash the most vicious side of people who seem to believe that they are relieved of basic decency or civility by anonymity. However, I was surprised by lawyers who made these baseless claims, including claims that are directly contradicted in the article (like the notion that one president would appoint all ten justices or that the number was simply selected arbitrarily). A simple search on the Internet would have shown that I am in fact a critic of the health care law.
You have already made statements about me that are directly contradicted by the blog post you are talking about. So this hand-wringing about what other people do is annoying. But hang on, because next is the part about me:
That brings us to University of Wisconsin Professor Ann Althouse who ran a blog blasting my column. Althouse makes the point in her headline: “Don’t like the Supreme Court’s decision? Propose a Court-packing plan!” She then states the column pushes for the packing of the court “in anticipation of the Obamacare decision.” She responds to the proposal with “Oh, spare me the bullshit. It’s the same reason. You don’t like the opinions. It was a bad idea then, and it’s a bad idea now.” I must confess that, when one of our regulars sent me this link, I was taken aback. 
There's that word "aback" again. How many times does he need to tell us how emotional he got over the criticism? I mean, talk about bullshit. I don't really believe the Turley vapors come on that easily. Why is he begging readers to feel sorry for him? I suppose the answer is that he wants readers to get mad at me. Aren't I terrible? He had an op-ed in the WaPo and I... I... criticized it!
I do not expect such ill-informed and uncivil attacks from a fellow academic. While Althouse writes a conservative blog....
Wait! Wait! Wait! Now, now, you wouldn't! You wouldn't commit the very offense you accuse me of? Ah ha ha. Too rich! Too funny!
... and has been something of a lightning rod in the past, I would have thought that she would do a little research before going after another professor. 
And I wouldn't have thought that you, a law professor, would talk about me not doing a little research before talking about me, a law professor, not doing a little research before talking about me (a law professor!). I write a conservative blog? You mean the one where I wrote about why I voted for Obama? The one with 300+ posts favoring same-sex marriage? The one that consistently supports abortion rights?
In reality, I am calling for the expansion of the Court despite the fact that I would agree with the anticipated decision from the Court striking down the individual mandate. It is precisely the opposite of what is being suggested. Even though I expect to be on the winning side, I still do not believe it should be left to a single swing justice. 
And, as explained above, I did not say one word about what I thought you thought about the health-care case. Think you might want to back off? You really deeply committed to this. It seems to me that you just don't want to hear any suspicion that your Court-packing proposal has a motivation based on the substance of the Supreme Court's opinions.
I understand that some bloggers are given to hyperbole like Althouse asking “If the greatest good is in the greatest number, why not 100? Why not 1000?” — even though the column (and longer original article) addresses this question with reference to how en banc appellate courts work and more importantly the high courts of other countries. 
It was mockery based on your statement "sometimes the greatest good can be found in the greater number." Since you admit a desire to dilute the power of judges, it was fair criticism to link this idea of yours — the superiority of the greater number — to the hypothetical problem of majoritarian decisionmaking about what the Constitution means (which would be antithetical to the idea that it is the role of the judges to say what the law is).
(I must confess that I find it odd to see the arbitrarily selected number of 9 defended by objecting that adopting the average size of other top courts is arbitrary). 
I didn't say it was arbitrary. I didn't delve into the comparison to circuit courts, but if you want to know, I think it's a bad comparison, because what the Supreme Court does in its ordinary cases isn't like an entire circuit of Courts of Appeals judges, who only occasionally come together for an en banc decision. Ordinarily, Courts of Appeals judges decide cases in 3-person sets. Those case-deciding units are one-third the size of the Supreme Court, so we learn, if anything, that a smaller decisionmaking group is better. In other words, the Supreme Court is already expanded.
It is the allegation that I am just making this proposal due to my opposition to the expected decision that is beyond the pale in my view. 
Your view is bad. You're hearing a "chorus" and seeing beyond "the pale." Wake up. Sharpen up.
I understand that we cannot always control comments on our blogs (and free speech allows for considerable room of expression), but such attacks do not present a particularly good model for our students.
Yeah, so you need to stop. You, with the "strict civility" rule.
In her response to my call for greater civility and responsibility, Althouse responds by calling civility “bullshit” and says that she is “merely passionate and serious.” 
Professor Turley, you have put something in quotes that is not a quote. I said "I am passionate and serious about what I am doing...." I didn't say I was "merely passionate and serious." I am many other things too, including fun-loving. And law-professor-ass-kicking. You're being such a stickler that you are making yourself into such a big target that this isn't even fun. What I am passionate and serious about is, as I say right there, "speaking clearly" and showing my readers things they might find it hard to see, such as how law professors, facilitated by elite media, try to trick them with words. That's what bullshit is. I am passionate and serious about calling bullshit on law professors. And I'm doing it again.
Rather than simply admit that she was wrong...
Because I wasn't!
... in suggesting that I was motivated by opposition to the expected ruling invalidating the individual mandate provision and a failure to simply confirm my position (which has been widely cited supporting the challengers), she again portrays the column as another example of how the Washington Post publishes columns “from law professors to launder its partisan politics into something with that looks scholarly and thoughtful.” 
Hey, how about proving your good faith by simply admitting you were wrong? And show me you understand that I'm saying the Washington Post was using you, with your theory, at a particular time for a particular reason. You're essentially discounting this point as if it's only a distraction that I'm putting up to keep from admitting I was wrong (which — have I ever told you? — I wasn't).
It appears that “passionate and serious” includes falsely stating another professor’s positions on cases as the basis for a personal attack.
No, but I will passionately and seriously say right now that you are misstating what I have said.
Indeed, Professor Althouse has yet to inform her readers that she was wrong in suggesting that I disagreed with the conservatives in the health care litigation (and that my proposal was motivated by that opposition). 
You disagreed with the conservatives? Ahem.
She merely states that “In a later post, I’ll respond to more of Turley’s long, professorly post which denies that his Court-packing plan arises out of a distaste for the Supreme Court’s opinions.”
What is the function of the word "merely" for Turley? Could it be... bullshit?
Of course, the obvious suggestion was that the column was timed to anticipate the health care decision — a common theme in comments on her blog. I am not sure what “distaste for the Supreme Court’s opinions” means (though Professor Althouse’s reference to my dislike for a “decision” is now distaste for “opinions.”). 
Oh! See, after all that bullshit, he's finally noticing my actual words. With his strict civility rule and staunch demands for accuracy, you might think that after he wrote that he'd realize that he needs to rewrite everything he's just said about me. Why didn't he?! Where is the civility? He's "not sure" but he can't make the mental effort to read the actual words of my original paragraph (even as amplified in this morning's post). Hello? Fellow law professor?! I said that the Washington Post decided to run this op-ed in anticipation of the Obamacare decision and that I presume that you have a distaste for (unspecified) opinions.
We all disagree with some of the Court’s decisions — even though I have agreed with the majority of the decisions from this Court. I often side with conservatives on federalism and other areas while disagreeing on other areas like free speech and criminal cases. I disagree with the liberal justices on other cases, but I am not motivated by a desire to pack the Court with libertarians (which is widely cited as closer to my own views on many issues) rather than liberals. 
Fine. I still suspect that your desire to dilute the influence of individual Justices arises from a distaste for the substance of their work and not merely — merely! — from some wholly neutral, disembodied structural conception of decisionmaking supposedly modeled on en banc Court of Appeals decisions. 
It would make no difference to me if this was the Warren Court. It is in my view demonstrably too small. While it may seem highly improbable in today’s rabidly political environment, it is possible to make such a proposal out of principle. 
With or without rabies, the human mind does not operate in a substance-free vacuum. 
Moreover, in a term with a series of 5-4 decisions on major cases and polls showing an increasingly unpopular Supreme Court, the proposal is obviously relevant to the current debate.
I have spent over ten years advocating for the expansion of the Court even though I often agree with the rulings of swing Associate Justice Anthony Kennedy. Putting aside the possibility that my proposal is based on principle rather than partisanship, I have never encountered a law professor advocating for incivility as a type of personal signature (a reaction shared by other leading legal bloggers like Scott Greenfield). I was hoping that raising the issue would result is a bit of self-reflection and possible dialogue on the loss of civility in our national discourse. While I did not expect an apology from Professor Althouse, I did not expect an academic to affirm the value of name calling and incivility — even when the blog is shown to be wrong on critical allegations.
And I don't expect an apology from you either. I've read what you have to say and given my response. I'd like to see you truly engage with the substance of what I've written about you. And feel free to keep talking about the form of what I've written. You've got a thing about form instead of substance. I care about form too. I care about sharp and interesting writing, and I intend to keep it sharp. And when that sharpness hurts elite law professors, I'm fine with it.
My only point is that the overall commentary following the column shows once again how we have lost the tradition of civil discourse in this country. The tendency today is to personally attack people with whom you disagree...
Remember your idea about "a bit of self-reflection"!
... and suggest hidden agendas or conspiracies. 
That sounds sinister, but what does it say about me? Of course, I don't take things at face value! Of course, I don't assume people only mean the things they are willing to put in writing! Law professors (and lawyers and judges and politicians) use words to manipulate people all the time. What I do on this blog is to try to pull apart those manipulations. With me, that's not just a "tendency." It's a mission.
I am always delighted to see spirited debate following a column, including those with whom I disagree. As in a classroom, I value the debate for its own sake — forcing people to consider alternative views and possibilities. The current tendency to shout down other voices with shrill or sophomoric attacks is degrading our politics and our society.
Oh, bullshit!

Van Gogh's "Starry Night" in 7,000 dominoes.

This took 11 hours of work... which makes me wonder how long it took Van Gogh to paint "Starry Night." Less than 11 hours?


... in ruins.

"What makes an American eat ten or twelve times more meat than the average person in Mozambique or Bangladesh?"

Ask NPR. Really.

What if you support a political candidate and his campaign — without your permission — sticks its yard sign in your yard?

Oh, how painful it was for Adam Schabow when — twice! — Tom Barrett's people stuck their sign in his yard! He hates Scott Walker, but the presumption and the intrusion was just very horrible for him.

"I wanted a 'Recall Walker' sign. 'Cause mine got stolen a couple of weeks earlier. The whole thing was very convenient for me. But they didn't know that. So they shouldn't've been messin' around on my lawn."

Even liberals say get off my lawn.

IN THE COMMENTS: Pogo wrote:
His lawn?
"His" lawn??

There is nobody in this country who got a lawn on his own — nobody.
You grew some grass out there? Good for you.

But I want to be clear. You moved your grass seed on the roads the rest of us paid for. You hired lawn care workers the rest of us paid to educate. You were safe in your house because of police-forces and fire-forces that the rest of us paid for. You didn’t have to worry that marauding bands would come and seize everything on your lawn — and hire someone to protect against this — because of the work the rest of us did.

Your lawn?

"The U-Va. president drama: Is it the Queen Bee scenario?"

Asks WaPo columnist Petula Dvorak:
The woman doing the firing is a sharp-profiled, sharp-suited corporate leader who has busted chops in the male-dominated world of construction — “The Devil Wears Prada” and a hard hat. Her name, Helen E. Dragas, even sounds Hollywood...

The woman who was fired — and whose reinstatement students and faculty are rallying behind — is U-Va.’s first female president, Teresa Sullivan. She is a beloved, bespectacled professor and respected scholar in a softer discipline — sociology — and was admired for her quiet advocacy of women and open-door policy toward students. She zips around campus in her Smart car and teaches a sociology class....

It is difficult to understand exactly why Dragas called for Sullivan’s resignation....

That’s why the Queen Bee scenario seems to make so much sense here....

NASCAR vibe sacrificed by Democrats.

Would they have located the convention in North Carolina if they knew they wouldn't be able to do the Charlotte Motor Speedway event?

"I don’t want anyone to try to grow a unibrow because of me and then try to make money off of it."

"Me and my family decided to trademark it because it’s very unique.

Jonathan Turley's civility bullshit about my calling "bullshit" on his Court-packing plan.

ABT's Elie Mystal writes:
Jonathan Turley seems hurt that Ann Althouse and other conservative academics acted in a way that shows “we have lost the tradition of civil discourse in this country.” Yeah, umm, Professor Turley, perhaps you didn’t read the footnotes, but here on the internet we don’t have a tradition of civil discourse. We do have a tradition of ad hominem attacks, hyperbole, and pictures of cats.
My posts are "Don't like the Supreme Court's decision? Propose a Court-packing plan!" and "How did Jonathan Turley come up with 19 as the best number of Supreme Court Justices?"

Obviously, Professor Turley doesn't enjoy my fun-loving, bloggy approach to his professorly musings and proposals. It's not what he's used to, and it's not what the Washington Post is hoping for when it publishes all those op-eds from law professors to launder its partisan politics into something with that looks scholarly and thoughtful. These lawprofs who experience the inflation of elite media publication — and I've been there — do not want other lawprofs tweaking and puncturing them. It might seem that I'm just crossing a line and being unprofessional or insufficiently submissive when I call bullshit — and in this case I literally called bullshit. ("Oh, spare me the bullshit.")

What I'm doing might seem careless and lightweight. But I am passionate and serious about what I am doing, which is about speaking clearly and showing you things you might not be able to see. Most law professors write for other law professors (as well as elite media and powerful politicians). In this enterprise of career building, they cultivate and trade on respect. Most law professors accept this discipline, because they imagine it's in their self-interest, and it actually is. In this game, I'm a big outlier. I call out the lawprofs, and I've been doing it a lot lately, because —in advance of the health-care decision — the big newspapers have been publishing a lot lawprof op-eds. (By the way, did you know that "19 of 21 constitutional law professors who ventured an opinion" — and who were elite enough to be polled by Bloomberg  — said the law is constitutional?)

In a later post, I'll respond to more of Turley's long, professorly post which denies that his Court-packing plan arises out of a distaste for the Supreme Court's opinions. In the bloggerly tradition, I'm keeping this post short and clear. My point is: I'm about clear speech, telling the truth, starting conversations, and having some fun. I'm not about being nice to powerful speakers.

And I'm really not about getting pushed back with calls for "civility." As you know if you're a regular reader of this blog, my tag for this subject has long been "civility bullshit." So this is another post with the "civility bullshit" tag — and it's one where someone used civility bullshit against me for saying "bullshit."


Here's a cool book on bullshit called "On Bullshit." It's by a professor! ("One of the most salient features of our culture is that there is so much bullshit. Everyone knows this. Each of us contributes his share. But we tend to take the situation for granted.")

UPDATE: The promised additional post is here

June 25, 2012

James Fallows regrets "5 Signs the United States is Undergoing a Coup" as the title of his attack on the Supreme Court.

It's now "5 Signs of a Radical Change in U.S. Politics."
Using "coup" in the headline implies things I don't mean. Through the past decade, there has been a radical shift in the "by any means necessary" rules of political combat, as I describe. Previous conservative administrations have nominated previous conservative Justices — but not radical partisans, happy to overthrow precedent to get to the party-politics result they want. 
Fallows' piece is embarrassingly hysterical, with or without the new title.

At the Bumble Bee Café...


... share the buzz.

"Kill this portmanteau now..."

"... Breastaurant."

ADDED: At the link at the link, there's talk of Tilted Kilt, whose CEO Rod Lynch who complains that the word breastaurant "implies that the company's success is based purely on sex appeal."
Rose Dimov, a 22-year-old waitress at Tilted Kilt, says her job is no different from any other waitressing gig; make guests feel special and ensure they have a good time. As an aspiring ballroom dancer, she also says she's not fazed by the revealing outfit that comes with the job. "Going to a restaurant should be an experience," Dimov says. "We're entertainers."
Tilted Kilt — yes, we were talking about kilts yesterday, but remember when Tilted Kilt popped up in the Wisconsin protest story?  Here's a Business Insider article from February 18, 2011.

"[O]ur Eighth Amend­ment cases are no longer tied to any objective indicia of society’s standards."

"Our Eighth Amendment case law is now entirely inward looking," writes Justice Alito, dissenting today in Miller v. AlabamaPDF — which declared it mandatory life imprisonment to be "cruel and unusual" punishment when imposed on a juvenile.
Unless our cases change course, we will continue to march toward some vision of evolutionary culmination that the Court has not yet disclosed.
Do you think the Court has a "vision of evolutionary culmination"?

So, we must wait until Thursday for the Obamacare decision.

According to SCOTUSblog's expert opinion, based on who's written the decisions already announced, "health care is almost certainly being written by CJ Roberts, perhaps in part with Justice Kennedy."

Justice Scalia "is commenting on the president's announcement about suspending deportation of illegal immigrants who came to the U.S. as children...."

Writes Amy Howe, covering the Supreme Court live at SCOTUSblog. Scalia is speaking in connection with his dissenting opinion in Arizona v. United StatesPDF — but this new development isn't part of the case.

ADDED: Here's the relevant material from Scalia's dissenting opinion:
It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate “scarce enforcement resources”—is [sic] not the problem here. 
After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants under the age of 30.

"Were the matter up to me, I would vote to grant the petition for certiorari in order to reconsider Citizens United..."

"... or, at least, its application in this case. But given the Court’s per curiam disposition, I do not see a significant possibility of reconsideration."

Writes Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, dissenting from the Supreme Court's summary reversal of the Montana Supreme Court's decision, which — as the majority put it presented the question "whether the holding of Citizens United applies to the Montana state law":
There can be no serious doubt that it does. Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case.

Why does the NYT have a 4000-word article about Apple Store workers only making $11.25 an hour?

"By the standards of retailing, Apple offers above average pay — well above the minimum wage of $7.25 and better than the Gap, though slightly less than Lululemon, the yoga and athletic apparel chain, where sales staff earn about $12 an hour."

So what's the problem? What's the issue? Why is this a story? The presumption seems to be that because Apple makes so much money, it ought to redistribute more of it to the people who happen to work in the stores. But why?
Much of the debate about American unemployment has focused on why companies have moved factories overseas, but only 8 percent of the American work force is in manufacturing, according to the Bureau of Labor Statistics. Job growth has for decades been led by service-related work, and any recovery with real legs, labor experts say, will be powered and sustained by this segment of the economy.

And as the service sector has grown, the definition of a career has been reframed for millions of American workers.

“In the service sector, companies provide a little bit of training and hope their employees leave after a few years,” says Arne L. Kalleberg, a professor of sociology at the University of North Carolina. “Especially now, given the number of college kids willing to work for low wages.”
Are you seeing the issue? There's some idea that these college-kid jobs need to be turned into careers... because... people need careers?
“It’s interesting to ask why we find it offensive that Wal-Mart pays a single mother $9 an hour, but we don’t find it offensive that Apple pays a young man $12 an hour,” [said Paul Osterman, a professor at M.I.T.’s Sloan School of Management]. “For each company, the logic is the same — there is a line of people eager to take the job. In effect, we’re saying that our value judgments depend on the circumstances of the employee, not just supply and demand of the labor market.”
It's interesting that we're not offended by even more things. That's assuming that you were already offended that sales workers at Wal-Mart only get $9 an hour. But why is that offensive? I don't get Osterman at all. He's trying to shift us from thinking about which people we have empathy for to which companies we feel hostility toward.

Watching for the new Supreme Court opinions.

SCOTUSblog covers the Court live here. Announcements begin at 10 ET.

ADDED: Here's a SCOTUSblog post clearly stating the issues in the remaining cases. That post is from last Wednesday, so it includes a few cases that were decided last Thursday. There are 6 more cases to be announced, but it's unlikely that all will be announced today, even though today is the last scheduled day for announcing opinions. There will probably be another day later this week.

UPDATE: "Montana campaign is summarily reversed, five to four." So... the occasion for reconsidering Citizens United is over. [Here's some background on the Montana case, where the state supreme court had a decision which did not give adequate respect to Citizens United.]

UPDATE 2: "The Court holds that the Eighth Amendment forbids a scheme of life in prison without possibility of parole for juveniles." A 5-4 decision, written by Justice Kagan. Justice Alito writes the dissenting opinion. "[I]t is relatively rare for a Justice to read a dissent from the bench but not unheard of."

UPDATE 3: The 9th Circuit is reversed in part and affirmed in part in Arizona v. United States. "Most of the key provisions of SB1070 (3 of 4) are invalidated. One provision is held not to be proved preempted; it must be construed.... The provision that the Court says is not yet preempted is the 'check your papers' provision that commands officers to check immigration status."

How did Jonathan Turley come up with 19 as the best number of Supreme Court Justices?

We're all wound up waiting for the Supreme Court to announce its new decisions this morning, so let me while away some of the remaining minutes brooding about that WaPo article we were talking about last night. Let's talk, specifically, about Turley's homing in on the number 19.

Wikipedia has an article on the number 19, which includes mathematical info like "19 is the aliquot sum of two odd discrete semiprimes, 65 and 77 and is the base of the 19-aliquot tree." And "19 is a centered triangular number, centered hexagonal number and a Heegner number" — which looks like this:

That red dot could be John Roberts.

There's also significance to the number 19 in the religions Islam and Baha'i:
The number of angels guarding Hell ("Hellfire") according to the Qur'an: "Over it is nineteen" (74:30).

The Number of Verse and Sura together in the Qur'an which announces Jesus son of Maryam's (Mary's) birth (Qur'an 19:19).

Some people have claimed that patterns of the number 19 are present an unusual number of times in the Qur'an.

In the Bábí and Bahá'í faiths, a group of 19 is called a Váhid, a Unity (Arabic: واحد wāhid, "one"). The numerical value of this word in the Abjad numeral system is 19.

The Bahá'í calendar is structured such that a year contains 19 months of 19 days each (along with the intercalary period of Ayyám-i-Há), as well as a 19-year cycle and a 361-year (19x19) supercycle.

The Báb and his disciples formed a group of 19.

There were 19 Apostles of Bahá'u'lláh.
Not at the Wikipedia, but dredged up out of my memory: At the Million Man March, back in 1995, when Louis Farrakhan gave his long speech that bizarrely drifted into numerology, the number that he found so important was 19. He observed that the Jefferson and Lincoln Memorial are both 19 feet high, then adds 3 and 16 together — because Thomas Jefferson was the 3d President and Lincoln was the 16th — gets 19 and asked "What is so deep about this number 19?" You can go to the link and read if you want to know why 19 represents a pregnant woman + a "secret that has to be unfolded."

I don't know what put the idea of 19 into Jonathan Turley's head. It could be something mystical and nutty. Maybe he loves Adele's first album.

But I assume there's nothing mystical or artistic about Turley. I think he likes the number 19 because it's the smallest odd number that's big enough to make individual Justices inconsequential — to dilute their power to the point where they don't loom large as personalities and seem like mere humans.

Turley's last sentence says it: With 19 Justices, "the power of individual judges is diluted."

June 24, 2012

Don't like the Supreme Court's decision? Propose a Court-packing plan!

It was good enough for FDR, and it's what the Washington Post is pushing in anticipation of the Obamacare decision. Jonathan Turley writes:
The health-care decision comes 75 years after the famous “court packing” effort of President Franklin D. Roosevelt.... Roosevelt may have had the right idea for the wrong reason.
Oh, spare me the bullshit. It's the same reason. You don't like the opinions. It was a bad idea then, and it's a bad idea now.

Turley announces that the best number is 19:
How would we get to a court of 19? Gradually. If Congress ordered such an expansion, no president would be allowed to appoint more than two additional justices in a term. Once fully staffed, the court would have a more regular natural turnover....

Just as the philosopher and jurist Jeremy Bentham called for “the greatest good for the greatest number,” sometimes the greatest good can be found in the greater number. When it comes to the Supreme Court, that number may be 19.
If the greatest good is in the greatest number, why not 100? Why not 1000? Why not submit constitutional questions to the entire electorate to get the "greatest" answer?

(Man, that is one of the worst analogies I've ever seen. And even if it were a good as an analogy — that greatest good for the greatest number is like more is better — it would nevertheless depend on one's affection for the utilitarian theory of Jeremy Bentham. Do you want to take constitutional law advice from a Jeremy Bentham fan? Why not save yourself the trouble and throw out the Constitution altogether?)

UPDATE: I have a new post, delving into the reasons for choosing — of all numbers — 19.

UPDATE 2: "Jonathan Turley's civility bullshit about my calling 'bullshit' on his Court-packing plan."