April 18, 2018

"As I said (toot, motherf***king toot) when previewing Sessions v. Dimaya, the key question would be whether Gorsuch acted as a servant of Antonin Scalia, or a servant of Donald Trump."

"Here, Gorsuch decided to go with the intellectual hobby-horse that brought him to prominence, instead of the President who appointed him. We’ll see if that center can hold."

Writes Elie Mystal at Above the Law, in "Gorsuch Did Not Side With ‘The Liberals,’ He Sided With Antonin Scalia/The only thing Gorsuch and the liberals agreed on was that Clarence Thomas is an idiot."

This is the case we talked about here yesterday, where I said something similar (minus the disrespect).

A "hobby-horse" is, figuratively, a favorite topic (Mystal is referring to originalism). Literally, it's this sort of horse costume...



... or the children's toy horse head on stick (also called a cock horse or a stick horse)...

61 comments:

Mark said...

"The only thing . . . the liberals agreed on was that Clarence Thomas is an idiot."

Because he had the foolish audacity to leave the plantation.

Tommy Duncan said...

(minus the disrespect)

There's nothing like a cheap shot or two to add gravitas to your writing.

Beloved Commenter AReasonableMan said...

Actual quote:

"The only thing Gorsuch and the liberals agreed on was that Clarence Thomas is an idiot."

rehajm said...

Anyone driving slower than you is an idiot...

John Lynch said...

I'm glad that his hobby is due process.

rehajm said...

The casual language is so distracting it makes the serious analysis meaningless.

Ann Althouse said...

There are *so* many people in law who sneer at a legalistic adherence to the letter of the law. It's really the norm.

Ann Althouse said...

If you are punctilious about following rules, don't become a lawyer or law professor. It will be incredibly annoying.

Wilbur said...

Ann Althouse said...
There are *so* many people in law who sneer at a legalistic adherence to the letter of the law. It's really the norm

If you are punctilious about following rules, don't become a lawyer or law professor. It will be incredibly annoying.
________________________________________________________________________________

Like my father used to say: You said a mouthful there, sister.

Mike Sylwester said...

Maybe Gorsuch sided with the US Constitution.

Ignorance is Bliss said...

Ann Althouse said...

There are *so* many people in law who sneer at a legalistic adherence to the letter of the law. It's really the norm.

This is what is wrong with the country.

If you are punctilious about following rules, don't become a lawyer or law professor. It will be incredibly annoying.

This, coming from a law professor*, is how we got where we are.

*Obligatory and you, a law professor!

Mike Sylwester said...

I think Elie Mystal was very drunk when she wrote the article.

rhhardin said...

The only thing Gorsuch and the liberals agreed on was that Clarence Thomas is an idiot.

Ask them if they think that Thomas is an unusually stupid black or that the average black is stupid.

David Begley said...

I saw Mystal on MSNBC last week. Unhinged with TDS. A rabid partisan and proud of it.

Fernandistien said...

That article was about a half-step away from gibberish, so I thought I'd see what Elie Mystal's motherf***king ni**ples looked like, expecting a pudgy blond woman but got a pudgy black guy. Funny stuff!

Jack Wayne said...

I don’t see his ruling as so different from a typical Court ruling. The Court loves to legislate and Gorsuch found a way to legislate that no other Justice did. He chose to show that Congress’ intent in this case was indecipherable by the Court. That Congress’ definition of violent is wrong. Of course, he didn’t tell congress what violence IS, he just wanted to show them that he would know violence when he sees it.

Misinforminimalism said...

Ugh, I hate that you even linked to a Mystal article. His toxic brew of condescension, hate, and pretended intellectualism yields tiresome, predictable dreck that adds nothing to the public discussion.

Mike Sylwester said...

His toxic brew of condescension, hate, and pretended intellectualism yields tiresome, predictable dreck ...

So, maybe he wasn't drunk when he wrote that particular article.

Or, maybe he always is drunk when he writes all his articles.

robother said...

"That Congress’ definition of violent is wrong."

No. Read the opinion. Immigrants convicted of crimes of violence are still subject to deportation. The SCOTUS was dealing with a subsidiary clause, where Congress tried to include non-violent crimes (such as burglary in the actual case) that might have involved theoretically violence (such as a homeowner surprising the burglar) even though the actual burglary did not.

Ignorance is Bliss said...
This comment has been removed by the author.
john said...

Gorsuch can only be Scalia's toady or Trump's toady. Life is simple to Mystal.

David Begley said...

And Mystal appropriated a seat at Harvard Law and Harvard College from a deserving person.

Mike Sylwester said...

The Above The Law website provides the following description of Elie Mystal (emphasis added).

--------
Elie Mystal joined ATL in 2008 by winning the ATL Idol Contest. Prior to joining ATL, Elie wrote about politics and popular culture at City Hall News and the New York Press. Elie received a degree in Government from Harvard University and a J.D. from Harvard Law School. He was formerly a litigator at Debevoise & Plimpton but quit the legal profession to pursue a career as an online provocateur. He's written editorials for the New York Daily News and the New York Times, and he has appeared on both MSNBC and Fox News without having to lie about his politics to either news organization.
--------

So, even though Harvard Law School gave him a law degree, he quit his first law job to become an online provocateur.

https://abovethelaw.com/author/elie-mystal/

Kevin said...

Oh I see we have a theme today. Or maybe it's just an exposition of the underlying structural dynamics.

Democratic voters tend to view politics as an arena of intergroup competition rather than a battlefield for opposing philosophies

Even when they're breaking down Supreme Court decisions...

The only thing Gorsuch and the liberals agreed on was that Clarence Thomas is an idiot.

Were this an ideologically-centered person, they would have explored how this opinion might uncover some of Gorsuch's ideology, such that they might find areas of agreement that help the left.

But the left can't have that. He's Gorsuch from the out group, period. He can do no good, only wrong. So any analysis based on intergroup competition must do two things (a) show that however Gorsuch ruled, he's still an outcast, and (b) punch Clarance Thomas by any means necessary because he's a traitor to his racial group.

You see, when you live in the land of intergroup rivalries the snark is not snark but the entirety of the argument. Everything else is just meeting the word count.

David Begley said...

Clarence Thomas was Alpha Sigma Nu at Holy Cross. He graduated from Yale Law. He was a sitting circuit Court Judge when nominated to SCOTUS. A real idiot.

Mike Sylwester said...

Harvard Law School should consider the consequences of enrolling a nitwit just because he is a Colored Person and then giving him a law degree.

Harvard Law School is degrading its own reputation.

People who read Mystal's articles and notice that he has a law degree from Harvard Law School will deduce that such a degree is something that even a nitwit can get.

Sebastian said...

"Congress tried to include non-violent crimes (such as burglary in the actual case) that might have involved theoretically violence"

I agree with Gorsuch on the general principle.

I disagree with the application in this case. Congress wanted to exclude aliens not just for violent acts but also for other egregious conduct that could have put Americans in danger. Instead of hamstringing judges by providing a list of felonies for which an alien could be deported, it gave them some leeway by articulating a general standard--substantial likelihood of involving violence. That is no more or less vague than many other standards, including, of course, the Constitution itself. Repeat burglaries reasonably fit the standard provided.

In fact, the supposed constitutional rule against "vagueness" is more vague than the statute declared unconstitutional here.

Mike Sylwester said...

a Colored Person

I meant to write a Person of Color.

I think that spell-check changed what I wrote.

EDH said...

"I'm guessing you don't have a PS3... you're more of a wooden horse with a wig kind of family."

Kevin said...

I disagree with the application in this case. Congress wanted to exclude aliens not just for violent acts but also for other egregious conduct that could have put Americans in danger.

I agree with that, but then let's not write the law about violent acts but egregious conduct.

And then let's go further and not leave it up to someone else to determine what is, and is not, egregious today.

Kevin said...

a Colored Person

I meant to write a Person of Color.


Right, because those who wish to control us begin by making us believe there is any difference between those two descriptions, let alone one which determines the inherent goodness of the person choosing between them.

Birches said...

I've always figured Elie Mystal couldn't pass the bar...

Larvell said...

I think it's safe to say that, if you asked Gorsuch to rank the justices in order of idiocy, he would not place Thomas anywhere near the top of the list.

Hagar said...

I bet the "burden to the US taxpayers" language is still on the books, and the prosecutors just chose the wrong (indefinite) language to charge the offender under.

Chuck said...

I always appreciate your law posts, Althouse, and your take on Gorsuch in Sessions v Dimaya is no exception. You, as much or more than anyone else I have been reading, have succinctly summarized the real meaning of the Gorsuch opinion.

Predictably, I suppose, Drudge headlined/categorized Gorsuch's opinion as being anti-Trump. It's always about Trump with Drudge. That is, when Drudge wants it to be about Trump.

The part that I don't get (I don't know if you'll agree or not), is that for anyone who thinks that Gorsuch's opinion was "anti-Trump," the presumption ought to be that the dissents (and there were two of them -- one by Roberts and one by Thomas -- in which a combination of the conservatives mostly all joined) were somehow "pro-Trump." And for any lawyer who reads the 100+ pages of opinion-writing carefully, the view of all if it in terms of "Trumpism" is moronic. There is nothing "pro-Trump" in any of the dissents.

No word yet on any commentary from Scott "I no longer care about the fucking law" Adams. Maybe there is some master persuasion in all of this.


Gahrie said...

There are *so* many people in law who sneer at a legalistic adherence to the letter of the law. It's really the norm.

Wait a darn minute!

I thought you were against an adherence to the letter of the law!

Someone please show me how you can find a right to privacy and/or abortion in the 14th Amendment by following the letter of the law............

Gahrie said...

@Chuckles

It's always about Trump with Drudge.

Project much?

David Begley said...

I consider Clarence Thomas to be one of the luckiest men in America. He is married to my Creighton Law classmate, Ginni Lamp. Ginni was easily the best looking woman in my class. Her dad Don was an engineer and he developed Ginger Cove; named after his only child Virginia. Ginger Cove is a sandpit lake outside of Omaha. Remarkably, all of the houses built on it are on leased lots. Ginni is worth $50 million, easy. Don Lamp was one sharp guy. How he pulled that off, I'll never know.

Kevin said...

And for any lawyer who reads the 100+ pages of opinion-writing carefully, the view of all if it in terms of "Trumpism" is moronic. There is nothing "pro-Trump" in any of the dissents.

No word yet on any commentary from Scott "I no longer care about the fucking law" Adams. Maybe there is some master persuasion in all of this.


So which is it, Chuck? It's not about Trump at all? Or it's totally about Trump and there's "some master persuasion" at work?

It's amazing how you contradict yourself in the same post. I chalk it up to making a reasoned argument which is undone by your need to take a swipe at Trump like leftists must always sneer at Thomas.

Jack Wayne said...

Some people can have the opinion that burglary is not violence. I assume they mean that a burglar needs to hit someone to commit violence. My opinion is that BREAKING and ENTERING is violence. Violence to my domicile and violence to me. In Texas I could shoot and kill someone who did that. According to you, if the burglar did not hit me, I would be the wrong person in that scenario.

Larvell said...

Predictably, I suppose, Drudge headlined/categorized Gorsuch's opinion as being anti-Trump. It's always about Trump with Drudge.

You do realize that the Elie Mystal piece being talked about here characterizes it in anti-Trump terms, right? And that practically every mainstream news article on the case describes it first and foremost as a defeat for Trump? "It's always about Trump" is not really just a Drudge phenomenon.

Chuck said...

Kevin, my mention of Scott Adams is whatcha call "a cheap shot." I had a need, to take a swipe at Scott Adams. I almost always feel a need to take a swipe at Scott Adams. In this case it wasn't even all that related to the subject, apart from it being a "law" post.

I truly do appreciate Atlhouse's "law" posts, like this one. And she makes the sound case that Gorsuch had an ideological reason for siding with the court's four liberals. And a great many people will need to have that explained to them after a reading a headline like the one on Drudge.

Angle-Dyne, Angelic Buzzard said...

Thanks for the morning dose of Bruegel, even if only a detail.

Birkel said...

Chuck, fopdoodle extraordinaire, has a need to take a shot at Scott Adams.
Scott Adams has absolutely no idea who Chuck is.

Advantage: Scott Adams.

Further, Gorsuch did not side with the liberal Justices. Gorsuch did not join their opinion. There is no majority opinion, only a plurality. And in such a case the precedential value or the case may be quite limited. Apparently Chuck, fopdoodle extraordinaire, is one of the "great many people (who) will need to have (this case) explained".

Chuck said...

Birkel said...
...

Further, Gorsuch did not side with the liberal Justices. Gorsuch did not join their opinion. There is no majority opinion, only a plurality. And in such a case the precedential value or the case may be quite limited. Apparently Chuck, fopdoodle extraordinaire, is one of the "great many people (who) will need to have (this case) explained".


That is exactly right. Gorsuch (one of the few redeeming features of the Trump presidency) "did not side with the liberals." You are entirely correct in that, Birkel. I knew that, and I agree with that appraisal on your part. I did not need to have it explained to me.

And I once again observe: that for the last 24 hours, Drudge has front-paged a headline, "Gorsuch sides with libs..." Drudge is misleading its readers, much the same way that Sean Hannity misleads his viewers, and Scott Adams misleads his readers.

Static Ping said...

I did not know who Elie Mystal before today.

Having been exposed to two sentences, I do not think I need to know.

Birkel said...

Chuck, fopdoodle extraordinaire:
I believe what you mean to type is "I was wrong in what I typed, in exactly the same way Drudge is currently wrong, and I admit my mistake. I should not have needed it explained, but was in error so your explanation was correct. My own animosity to certain people sometimes gets the better of me and I make myself look foolish."

You should try to act better than those you wish to insult. But you aren't capable, are you? Pity.

President-Mom-Jeans said...

The Asperger's is strong with Chuck today. He "needs" to take a swipe at Scott Adams. Just like he "needs" to fantasize about roughing up female television personalities.

He also "needs" to pretend to be an attorney and a republican.

What he really needs is to get smacked in his cock holster.

Gahrie said...

And I once again observe: that for the last 24 hours, Drudge has front-paged a headline, "Gorsuch sides with libs..." Drudge is misleading its readers, much the same way that Sean Hannity misleads his viewers, and Scott Adams misleads his readers.

So Chuckles needs to constantly attack Trump, Drudge and Adams. What do these men all have in common? They have enraged the Left. Once again the GOP Establishment prefers to submit to the Left rather than fight for their base.

holdfast said...
This comment has been removed by the author.
holdfast said...

"quit the legal profession to pursue a career as an online provocateur."

Yeah, that's the polite way to say he didn't want to actually work hard.

He also defaulted on his student loans. And is the son of a convicted criminal politician.

Chuck said...

Come on, guys; READ!

I wrote that I "needed to take a swipe at Scott Adams" in response to Kevin's comment aimed at me: "It's amazing how you contradict yourself in the same post. I chalk it up to making a reasoned argument which is undone by your need to take a swipe at Trump like leftists must always sneer at Thomas.

I don't always have a need to attack Drudge; but Drudge screws up a lot in connection with Trump. Trump screws up a lot in connection with almost anything.

And Scott Adams is coming off an particularly unusual week, in which he (a) raged against the execution of a duly-issued federal search warrant upon the records of attorney Michael Cohen, saying that he "no longer care[s] about the fucking law," and; (b) asserted that the story concerning the use of chemical weapons in Syria was a "hoax."

eric said...


Blogger robother said...
"That Congress’ definition of violent is wrong."

No. Read the opinion. Immigrants convicted of crimes of violence are still subject to deportation. The SCOTUS was dealing with a subsidiary clause, where Congress tried to include non-violent crimes (such as burglary in the actual case) that might have involved theoretically violence (such as a homeowner surprising the burglar) even though the actual burglary did not.


This stuff gets really hard to understand after awhile.

In the 9th circuit, you can beat your spouse and still not be deported. Spousal abuse is a crime of violence. Or at least, it could be. In Alaska, the way the state law is written, if you're convicted of spousal abuse, it could be due to willful or inadvertently beating your spouse.

So, even if the police report reads that he beat his wife around the neck and face causing bruises and lasherations you still can't deport the criminal because of the very specific way the law is written.

Even though anyone with a lick of common Sense would know it was a crime of violence.

But how did we get here?

Many years ago, a man driving drunk in Florida killed someone. The case went to SCOTUS and they determined it wasn't a crime of violence because of the inadvertant nature of the crime. The 9th circuit took this SCOTUS ruling and ran with it.

James K said...

I consider Clarence Thomas to be one of the luckiest men in America.

What you describe does not sound like "luck" to me. Winning the lottery is luck. Marrying a woman from a very wealthy family generally requires skill.

Rigelsen said...

Some certifiable idiots make a hobby horse out of calling other people idiots when the latter engage in thinking the former cannot follow. Strangely enough, it happens all the time.

Rigelsen said...

I think Elie Mystal was very drunk when she wrote the article.

"Drunk and stupid is no way to go through life."

Elie Mystal: "I'll take that challenge!"

Ignorance is Bliss said...

Rigelsen said...

Some certifiable idiots make a hobby horse out of calling other people idiots when the latter engage in thinking the former cannot follow. Strangely enough, it happens all the time.

Idiot.

Rigelsen said...

Idiot.

Hah!

southcentralpa said...

"cock horse". That reminds me that there was a local council in England that got so tired of the double entrendres that they insisted the traditional English dish be referred to as "Spotted Richard".

Florence said...

Static Ping said...
I did not know who Elie Mystal before today.

Having been exposed to two sentences, I do not think I need to know.


I was a couple years out of law school when ATL did that stupid "idol" contest. ATL was a daily click for me at that point when David Lat was running the site. I, embarrassingly, gave Mystal more than two sentences before I couldn't stand going to the site any longer. Now, every time I see his name, I know that I can automatically disagree with whatever follows.

The Godfather said...

This is the way our system is supposed to work. Congress (Legislative Branch) passed a law. A federal prosecutor (Executive Branch) brought an action against someone based on that law, and the defendant was convicted. On appeal (certiorari), the Supreme Court (Judicial Branch) decided that the law didn't clearly apply to what the defendant did. So Congress, if it thinks this kind of activity should be covered by the law, should amend the law to make that clear.

We know who the idiot is, and it's not Justice Thomas. But we can't punish the idiot reporter for being an idiot (First Amendment). But we can call the reporter an idiot (First Amendment).

I think it's a pretty good system.