"He keeps repeating the argument that 'purpose-related tools' can make 'our democracy more workable.'"

"The word 'workable' is used so many times in the book that it becomes a poignant refrain — that of an optimistic, pragmatic liberal jurist who wants to believe that if only he is clear enough, he can get his fellow justices to recognize that they are ultimately committed to the same thing. Does Breyer, who is so attuned to the irreducible complexity of the world outside the Supreme Court, truly believe that the world inside is so simple? Given his decades of experience, I find it hard to imagine he does — but then he still seems flummoxed by the Supreme Court’s right-wing turn. At his most baffled, he starts firing off strings of rhetorical questions, asking plaintively how anyone could ever want 'a world in which no governmental effort is made to cure environmental, medical or safety-related ills?'"

Writes the NYT nonfiction book critic Jennifer Szalai, in "The Retired Justice Who Doesn’t Understand the Supreme Court/Stephen Breyer means well. Why is his new book, 'Reading the Constitution,'' so exasperating?"

Reasons why I'm not making an Amazon link for the book:

"For years, Boston has allowed private groups to request use of the flagpole to raise flags of their choosing. As part of this program, Boston approved hundreds of requests..."

"... to raise dozens of different flags. The city did not deny a single request to raise a flag until, in 2017, Harold Shurtleff, the director of a group called Camp Constitution, asked to fly a Christian flag. Boston refused. At that time, Boston admits, it had no written policy limiting use of the flagpole based on the content of a flag. The parties dispute whether, on these facts, Boston reserved the pole to fly flags that communicate governmental messages, or instead opened the flagpole for citizens to express their own views. If the former, Boston is free to choose the flags it flies without the constraints of the First Amendment’s Free Speech Clause. If the latter, the Free Speech Clause prevents Boston from refusing a flag based on its viewpoint. We conclude that, on balance, Boston did not make the raising and flying of private groups’ flags a form of government speech. That means, in turn, that Boston’s refusal to let Shurtleff and Camp Constitution raise their flag based on its religious viewpoint 'abridg[ed]' their 'freedom of speech.' U. S. Const., Amdt. I." 

Writes Justice Breyer, joined by Chief Justice Roberts and Justices Sotomayor, Kagan, Kavanaugh, and Barrett, in Shurtleff v. City of Boston, issued this morning. Justice Alito has a concurring opinion, joined by Justices Thomas and Gorsuch, and Justice Gorsuch has a concurring opinion that is joined by Justices Thomas and Alito. Justice Kavanaugh also has a concurring opinion.

You might wonder whether the Establishment Clause can justify viewpoint discrimination, but that's been dealt with in the past. That's why all the Justices agree: precedent. 

The text (at the link) includes this photo of the site of the flagpoles, Boston City Hall, which is ludicrously ugly:

 

"Unfortunately Breyer’s book... is not a thoughtful exploration of the virtues and vices of well-meaning deception."

"In his stubborn avowal that the Court... remains an apolitical body, he perpetuates a lie that is anything but noble. I have written much that is entirely positive about his judicial opinions, so it pains me to say that his book reads as though it had been written by someone oddly unaware of the implausibility of its factual claims. Invoking Cicero, Breyer opens by noting that legal obedience, the kind a society needs if it is not to descend into chaos and what Tennyson called the law of 'tooth and claw,' requires either fear of punishment, hope of reward, or belief that the law is just even when it doesn’t deliver what you hope for. The central thesis of his book is that the reason Americans have over time abided by the Supreme Court’s interpretations of the law.... is that they have accepted the view that the justices are not acting 'politically.'... [H]e is content to express his belief that 'jurisprudential differences, not political ones, account for most, perhaps almost all, of judicial disagreements'—even while conceding that 'it is sometimes difficult to separate what counts as a jurisprudential view from what counts as political philosophy, which, in turn, can shape views of policy.' What accounts for these so-called jurisprudential differences? To what degree are they mere window dressing, attached after the fact to conclusions consciously or unconsciously reached on other grounds?"

Writes Laurence Tribe in "Politicians in Robes/Why does Stephen Breyer continue to insist that the Supreme Court is apolitical?" (NYRB).

"Shed of the black robe, he wore khaki shorts, a short-sleeved blue and orange striped shirt and sandals. Still, he remained a cautious conversationalist, declining to speak of the court's confidential deliberations."

From "Exclusive: Stephen Breyer says he hasn't decided his retirement plans and is happy as the Supreme Court's top liberal" by Joan Biskupic (CNN).

Are you cranked up about whether or not Breyer retires?

Yeah! He needs to withdraw before it's too late and let Biden appoint a young liberal.

Yeah! I hope he hangs in there so Biden can't appoint a young liberal.

No. He's fine where he is, but if he wants to go, I'm fine with that too.

No. I won't be prodded to get emotional about all this partisanship.

 

pollcode.com free polls

POLL RESULTS:

This has an excellent healing quality: "Biden to nominate Merrick Garland as attorney general."

CNN reports.

MEANWHILE: From Politico: "The results of the Georgia Senate runoffs aren’t yet final. But left-wing activists are already pressuring Supreme Court Justice Stephen Breyer to take advantage of a possible Democratic majority in the Senate and retire.... President-elect Joe Biden has committed to nominating a Black woman to the next open Justice seat... Bakari Sellers, a former South Carolina Representative who has been involved in several presidential campaigns, tweeted Tuesday night that if Senate Democrats win the majority 'I need Justice Breyer to announce retirement at 12:01pm on January 20th.'"

"The Supreme Court cleared the way for the Justice Department to carry out the first federal execution in more than 17 years..."

"[A] federal judge had delayed the execution hours earlier, saying on Monday that questions about the constitutionality of the lethal injection procedure the government planned to use had not been fully litigated.... The Supreme Court delivered an unsigned 5-to-4 ruling, with Justices Stephen Breyer and Sonia Sotomayor dissenting. They were joined by Justices Ruth Bader Ginsburg and Elena Kagan, the other members of the court’s four-member liberal wing.... [Daniel Lewis] Lee, 47, a former white supremacist who has denounced his ties to that movement, was set to be executed for his part in the 1996 killing of a family of three. The Trump administration announced its intention last summer to resume the federal death penalty after a nearly two-decade hiatus and to employ a new procedure to carry it out — a single widely available drug, pentobarbital — after several botched executions by lethal injection renewed scrutiny of capital punishment. But the government has been fighting off legal challenges to the single-drug technique.... In her ruling on Monday, Judge [Tanya S.] Chutkan wrote that lethal injection by pentobarbital could expose the inmates to the risk of flash pulmonary edema, or the rapid buildup of fluid in the lungs that resembles the feeling of drowning or asphyxiation...."

The NYT reports.

Here's a PDF of the Supreme Court opinion. From the majority opinion:

The Supreme Court holds that it violates freedom of speech to deny a trademark to the brand FUCT.

Justice Kagan writes the opinion, joined by Thomas, Ginsburg, Alito, Gorsuch, and Kavanaugh. There are 3 opinions that concur in part and dissent in part, one by Roberts, one by Breyer, and one by Sotomayor.

I haven't read it yet, but I'll be back with some excerpts. Here's the text, Iancu v. Brunetti.

ADDED: From Kagan's opinion:

Is the “immoral or scandalous” criterion in the Lanham Act viewpoint-neutral or viewpoint-based? It is viewpoint-based. The meanings of “immoral” and “scandalous” are not mysterious...

[T]he Lanham Act allows registration of marks when their messages accord with, but not when their messages defy, society’s sense of decency or propriety. Put the pair of overlapping terms together and the statute, on its face, distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation. The statute favors the former, and disfavors the latter. “Love rules”? “Always be good”? Registration follows. “Hate rules”? “Always be cruel”? Not according to the Lanham Act’s “immoral or scandalous” bar.

"ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B , II–C , III, and IV, in which ROBERTS, C. J., and BREYER, KAGAN, and KAVANAUGH, JJ., joined, and an opinion with respect to Parts II–A and II–D, in which ROBERTS, C. J., and BREYER and KAVANAUGH, JJ., joined. BREYER, J., filed a concurring opinion, in which KAGAN, J., joined. KAVANAUGH, J., filed a concurring opinion. KAGAN, J., filed an opinion concurring in part. THOMAS, J., filed an opinion concurring in the judgment. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined."

That's the line up in American Legion v. American Humanist Association, the case about the 32-foot cross on public land that honors soldiers who died in WWI. The American Legion won — the case is reversed and remanded. It will take me a little time to find my way through those opinions. The precedents in this area of the Establishment Clause have been very confused, and (as someone who taught those cases for many years) I want to know how the Court puzzled through them this time.

I hope to have something more soon or eventually. It's interesting that only Sotomayor and Ginsburg dissent. Breyer was the key vote in the 10 Commandments cases 14 years ago, so what he has to say is important. Maybe I'll start there.

ADDED: Breyer's concurring opinion is short, and it is joined only by Justice Kagan. The vote was 7-2, so there's a majority without including Breyer and Kagan. I'm reading this opinion first simply because Breyer was the decisive vote in the 2 10 Commandments cases in 2005, where he voted against the display in one and for it in the other. I blogged that here, with the conclusion:

So multifactored, contextualized judgment continues to be the rule about government displays with some religious content, and there will be borderline cases where the outcome is uncertain and reasonable judges will disagree.

Maybe the best advice is for the strict separationists to choose their battles well. And certainly, one thing is clear: leave the old monuments and courthouse friezes alone.

Now, onto Justice Breyer's new effort (which relies heavily on his concurring opinion in the 10 Commandments case (Van Orden)):

I have long maintained that there is no single formula for resolving Establishment Clause challenges. See Van Orden v. Perry, 545 U. S. 677, 698 (2005) (opinion concurring in judgment). The Court must instead consider each case in light of the basic purposes that the Religion Clauses were meant to serve: assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its“separate spher[e].”

"I understand that judges, including Justices of this Court, may decide cases wrongly. I also understand that later-appointed judges may come to believe..."

"... that earlier-appointed judges made just such an error. And I understand that, because opportunities to correct old errors are rare, judges may be tempted to seize every opportunity to overrule cases they believe to have been wrongly decided. But the law can retain the necessary stability only if this Court resists that temptation, overruling prior precedent only when the circumstances demand it. It is one thing to overrule a case when it 'def[ies] practical workability,' when 'related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine,' or when facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.' [Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 854–855 (1992).] It is far more dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question. The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it."

Writes Justice Breyer, dissenting in Franchise Tax Board v. Hyatt, in which a 5-man majority overruled Nevada v. Hall, 440 U. S. 410 (1979). Under Hall, a state could permit a private citizen to use its courts to bring a lawsuit against another state without the consent of that state. Today's decision interprets the Constitution to mean that the states retain sovereign immunity from these suits.

Both the majority and the dissent analyzed the question of overruling precedent following the factors laid out in Planned Parenthood v. Casey, the 1992 case that reconfigured Roe v. Wade, restating it in terms of its "essence," but declined to overrule it. Breyer's dissenting opinion today gestures at future abortion cases. He writes: "To overrule a sound decision like Hall is to encourage litigants to seek to overrule other cases...." and "Today’s decision can only cause one to wonder which cases the Court will overrule next."

"Suppose the Secretary puts in a question about sexual orientation. Suppose he puts a question in about arrest record. Suppose he says, I'm going to have the whole survey in French..."

"We have no role to play no matter how extreme?" Justice Breyer questioned the Solicitor General, who was defending the decision to put a question about citizenship on the 2020 census. (Here's the pdf of the oral argument.)

I couldn't find a story about the argument on the front page of the nytimes.com. I had to do a search, and I came up with this snippet:

The Supreme Court’s conservative majority seems poised to allow the Trump administration to add a question on citizenship to the 2020 census. Adding the question, government experts said, could depress participation in the census (about 6.5 million people might not be counted) and affect how congressional seats are allocated. 

Ah, that links to the Adam Liptak report on the argument. Here. Excerpt:

Big day in the Supreme Court — "the last scheduled day, but they could easily add another day if they wanted to."

I'm following the live blog at SCOTUSblog.

UPDATE 1: The first case is Abbott v. Perez, a 5-4 decision about racial gerrymandering in Texas:

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and GORSUCH, JJ., joined. THOMAS, J., filed a concurring opinion,in which GORSUCH,J.,joined. SOTOMAYOR,J.,filed a dissenting opinion, in which GINSBURG, BREYER, and KAGAN, JJ., joined.

From Alito's majority opinion:

It was the challengers’ burden to show that the 2013 Legislature acted with discriminatory intent when it enacted plans that the court itself had produced. The 2013 Legislature was not obligated to show that it had “cured” the unlawful intent that the court attributed to the 2011 Legislature. Thus, the essential pillar of the three-judge court’s reasoning was critically flawed.

When the congressional and state legislative districts are reviewed under the proper legal standards, all but one of them, we conclude, are lawful.

From Sotomayor's dissent (for the 4 liberal Justices):

This disregard of both precedent and fact comes at serious costs to our democracy. It means that, after years of litigation and undeniable proof of intentional discrimination, minority voters in Texas—despite constituting a majority of the population within the State—will continue to be underrepresented in the political process. Those voters must return to the polls in 2018 and 2020 with the knowledge that their ability to exercise meaningfully their right to vote has been burdened by the manipulation of district lines specifically designed to target their communities and minimize their political will. 

UPDATE 2: Ohio v. AmeEx, written by Justice Thomas, also 5-4. SCOTUSblog summarizes:

This is an antitrust case, in which a group of states are challenging a provision in the contract between American Express and the merchants that accept its cards; the provision bars the merchants from trying to steer their customers to use a particular credit card.... The Court holds that Amex's steering provisions do not violate federal antitrust law.... Court defines the market as two-sided, including both merchants and cardholders. When the market is defined this way, the Court says, it is clear that the plaintiffs have not met their burden to show anti-competitive effects.

And that's all for today, so I guess there will be another day.

AND: Breyer's dissent in Amex begins:

For more than 120 years, the American economy has prospered by charting a middle path between pure lassez-faire and state capitalism, governed by an antitrust law “dedicated to the principle that markets, not individual firms and certainly not political power, produce the opti­mal mixture of goods and services.”

That is, Breyer — a former antitrust lawprof — misspelled laissez-faire.

“The #Metoo movement... and the highly visible cases that are similar to Cosby (powerful men, similar patterns of behavior, multiple victims) make the environment one that is more supportive of the prosecution’s case."

Said Cornell Law School professor Valerie Hans, quoted in "Will the #MeToo Moment Shape the Cosby Case?" (NYT).

Also:

There has long been a debate on just how much judges are, or should be, swayed by public opinion. Justice Stephen G. Breyer of the United States Supreme Court said that listening to public opinion is “a road to perdition” for judges.

“We’re not there to be popular,” he added in a video that was posted on a public policy website, bigthink.com “We’re not there to decide according to the majority; we’re not there to decide according to what the press is going to write.”

Others, such as the Harvard law professor Michael Klarman have argued that certain landmark rulings like Brown v. Board of Education would never have been possible if judges had not been reflecting shifting social mores.

Understanding Justice Kennedy in the Masterpiece Cake case.

I took the trouble to read the oral argument transcript (PDF), and I "live-blogged" my reading of it. You can read my 32-point post here. Now, that post is raw material to mine for insight into Justice Kennedy, and that's worth having because it's almost a certainty that whatever side he takes will be the winning side. Looking only at things Justice Kennedy said during the argument, I will put what I think are his concerns, in the order of importance to him. (Some of this may be verbatim from my earlier post, but I won't clutter this up with quote marks where I'm only quoting myself.)

1. Empathy for the human beings on both sides of this controversy. Kennedy showed empathy for the gay people who face discrimination: If the cake-maker wins this case, he could put "put a sign in his window: we do not bake cakes for gay weddings," and that would be "an affront to the gay community." And there might be a movement to get all cake-makers to stop making cakes for same-sex weddings. But Kennedy also showed empathy for the cake-maker as he criticized the state for its lack of tolerance and respect for the cake-maker's religious beliefs. Kennedy seemed troubled not only about compelling the cake-maker to make cakes for same-sex weddings but also about requiring him to teach his employees that his religion is subordinate to the dictates of worldly government. Kennedy never seemed interested in the much-proffered answer that the the religious man could solve his own problem by getting out of the wedding-cake business. I'd say: Kennedy seems to care about the consequences to real people (whichever side wins).

2. Government hostility toward religious people. Not only did Kennedy chide the government's lawyer for the state's lack of tolerance and respect for religion (as noted in #1), he seemed willing to look into the subjective attitude of individual members of the 7-person commission that made the original decision that the cake-maker had illegally discriminated. One commissioner had said that using religion to justify discrimination is "despicable." This connects to Kennedy's opinion in Lukumi, which was about when strict scrutiny applies in a Free Exercise Clause case. There needs to be discrimination against religion (as opposed to a neutral, generally applicable law), and Kennedy's opinion in that case looked at evidence of the lawmakers' animus toward religion. I'd say: Kennedy reacts to what he perceives as hatefulness coming from or through government. There is no current problem of government animus toward gay people (now that the Court has protected their rights in cases authored by Kennedy that were very sensitive to animus toward gay people). The problem now is government animus toward the religious people who are burdened by the success of the gay-rights advances.

3. Judicial expertise in crafting a principled, limited exception to the state's anti-discrimination law. A big issue, throughout the oral argument was: How can the Court define a principled narrow exception to the state's law against discrimination against gay people, an exception that would allow the cake-maker with a religious compunction to refuse to make a cake for a same-sex wedding? Justice Kennedy became involved in some of this discussion about where to draw the lines — the ready-made/custom cake distinction, the speech/conduct distinction, and the distinction between selling a cake in a shop and supervising the cutting of a cake at a ceremony. But Kennedy stayed out of the distinction between what is art and what is not art (that seemed to entrance Justices Ginsburg and Kagan) and the distinction between the artist and the artisan (that captivated Justice Breyer).  And Kennedy didn't get involved in Justice Breyer's talk about the the superiority of legislatures in crafting religious exceptions to generally applicable laws and the problem of too many picky little cases that might burden the judicial system if courts try to solve problems like this.

These 3 points, in that order, suggest that Justice Kennedy is likely to provide the 5th vote for the cake-maker's religious exception. But if that's the outcome you like for this particular case, do not rejoice. I think that if, in the long run, you'd like to see more conservatives winning Senate seats and in a position to confirm judges nominated by a conservative President — nominees selected for their solid and forthright conservatism — you ought to hope the cake-maker loses.

If, on the other hand, you want the anti-discrimination side to win, you can still feel good if and when you lose. Practically, all you lose is a little access to cake, but if the Court impinges on the right of gay people to be served as equals in an ordinary shop, you will have a powerful political argument that that gay people are still exposed to cruel disrespect and that the so-called "conservatives" of the Supreme Court kicked into judicial activism to make up an unprincipled right to discriminate. What a fraud! Time for more Democrats in the Senate, obstruction of Trump nominees, and for God's sake get a Democrat in the White House in 2020.

Here's the oral argument transcript in the Masterpiece Cake case.

PDF. I'll just "live-blog" my reading of it.

1. Kristen K. Waggoner, the lawyer for the cake-maker, expresses her argument concisely:

The First Amendment prohibits the government from forcing people to express messages that violate religious convictions. Yet the Commission requires Mr. Phillips to do just that, ordering him to sketch, sculpt, and hand-paint cakes that celebrate a view of marriage in violation of his religion.

And Justice Sotomayor and Justice Ginsburg both try to jump in with the first question. Ginsburg prevails and asks what if there's no special order, just an attempt to buy a cake off the shelf. Waggoner says her argument is about compelled speech, and if the cake is already made, there's no compelled speech problem.

Justice Kennedy doesn't seem to be accepting this limitation based on what happened first. The cake-maker "expressed himself" when he made the cake, so why can't he withhold the cake when he finds out his expression will be incorporated into a larger speech event that makes the cake say something he doesn't want to say? Waggoner's answer refers to "the stream of commerce," as if once the cake is made and on the shelf, the cake-maker's speaking is in the past, and the customer's acquiring the cake for the customer's purpose exerts no compulsion on the mind of the cake-maker. (I'd add that if the cake-maker wants to exert control over the expression that is a wedding cake, he'd only need to refrain from selling "pre-made" wedding cakes.)

"Perhaps the longer a violation persists, the greater the affront to those offended."

Wrote 4th Circuit Judge Stephanie D. Thacker, responding to dissenting Chief Judge Roger L. Gregory, who said that the fact that the 40-foot cross had gone unchallenged for 90 years is a reason to let it stay where it is, on a highway median in Prince George’s County.

WaPo reports.

The initial challenge in Maryland was brought by the American Humanist Association, a Washington-based group that represents atheists and others. The group did not dispute the monument is a memorial, but said in court that a giant cross on government property sends a message of exclusion in violation of the First Amendment....

At oral argument last December, Thacker and Wynn suggested the legal issues could be resolved outside of court by moving the site of the cross — or by cutting off the arms of the cross to form an obelisk.

What message is sent by the government's cutting off the "arms" of a cross?! Talk about a cure worse than the disease. Were these judges joking?

I'm linking to the Washington Post because that's where I first saw the story, but I was confused by its statement that the cross "has marked a major intersection in Prince George’s County for 90 years" and "had been public property for 50 years without a constitutional challenge." Here's the actual judicial opinion, with the statement "the Cross has stood unchallenged for 90 years."

If the Post is leaving such glaring mistakes, what does that suggest about about the things that are hard to notice and check? The linked article has been up since 2:57 PM yesterday. Does nobody over there at least try to clean up embarrassing shoddiness?

Also, now that I'm reading the opinion, I see that the idea of cutting off the "arms" of the cross seems to have come not from the judges but the appellants. Footnote 7:

Appellants later clarified their desired injunctive relief as removal or demolition of the Cross, or removal of the arms from the Cross “to form a non-religious slab or obelisk.” [Joint Appendix] 131.

This question of giving special respect to old monuments goes back to something Justice Breyer wrote in one of the 10 Commandments cases in 2005. Breyer's vote was the deciding vote, and as I explained back in 2011, when issue of the day was "Big Mountain Jesus":

Justice Breyer quoted the 1963 school prayer opinion written by Justice Goldberg: "[U]ntutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious."

And Breyer concluded that taking down the old stone monument in Texas would "exhibit a hostility toward religion that has no place in our Establishment Clause traditions" and "encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation," which would "create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid."

That's the prevailing Supreme Court precedent to which we can compare the new 4th Circuit case. Think about that quote in the post title: "Perhaps the longer a violation persists, the greater the affront to those offended." But the longer the monument persists, the more taking it down feels like a message of hostility to religion.

Or do you think the people watching the arms cut off a cross would see the symbolic meaning as the enforcement of Establishment Clause values?

By the way, the obelisk originally "symbolized the sun god Ra, and during the brief religious reformation of Akhenaten was said to be a petrified ray of the Aten, the sundisk."


"Joseph Sells Grain" by Bartholomeus Breenbergh (1655).

The struggle to purge religion from public view will go on forever, because there is just too much religion embedded everywhere. To try to remove one thing is to create something else:

"Crews, wearing masks to cover their faces, worked under a heavy police presence starting at 3 a.m. to dismantle the statue..."

... of Jefferson Davis, in New Orleans.

[The city spokesperson] said the law enforcement officials took extra precautions because of “consistent threats, harassment and intimidation tactics” surrounding the removal.

Some protesters carrying Confederate flags shouted “cowards” and “totalitarianism” as it was removed....

Other works expected to be removed are a bronze statue of Gen. Robert E. Lee that has stood in a traffic circle, named Lee Circle, in the city’s central business district since 1884, and an equestrian statue of P.G.T. Beauregard, a Confederate general. Because of the threat of violence, the city would not release details on the timeline for when the remaining two statues would be removed.

ADDED: The statues are not getting destroyed. They're being warehoused, potentially to be displayed at some point in a museum setting, buffered by contextualizing historical materials. So this is not like the Taliban blowing up the Bamiyan Buddhas. Nor is it a case of a court dictating that a monument must come down. (My thoughts drifted back to Justice Breyer's decision against requiring the removal of the 10 Commandments monument on the Texas statehouse grounds.)

In New Orleans, we have the political branch of government making a decision about the design of shared public space. The people, acting through government, have the power to redesign their spaces to express their current values. Those who object to the new decisions have a right to protest (but not to commit or threaten acts of violence). They lost elections. Let them try to win in the future by arguing that the statues should be moved out of the warehouse and back to the public square (or simply that a dignified and accurate historical museum should be built).

We've talked before on this blog about removing statues from public places. We've seen it done for aesthetic reasons (where the honored person looked ugly), and we've seen it for political reasons:

Iconoclasm. If you're inclined to reach back into history, you will, perhaps, find it everywhere. From the Wikipedia article "Iconoclasm," here are "The Sons of Liberty pulling down the statue of George III of the United Kingdom on Bowling Green (New York City), 1776":



And I can't look at that and not think about the statue of Saddam Hussein that our military tore down in Bagdhad in April 2003. And what of all those monumental statues of Vladimir Lenin that came in for destruction when the Soviet Union dissolved. Would you like to see them all removed?

I know there's at least one still standing, because the NYT, just a couple days ago, ran a story cooing over an aging American couple who are using Airbnb to live in various European cities and the slideshow features the man, dressed in shorts, like a child, and standing, like a child, knee-high to "this statue of Lenin in Lithuania." The hand of the smiling child-man reaches out to encircle the index finger of Soviet dictator. In another photo, the woman, in a short skirt, poses at the feet of a giant Stalin. This one too is "in Lithuania." We're told there's "a sculpture garden." Isn't that nice?

I need to do my own research to find out about "Grūtas Park (unofficially known as Stalin's World...)... a sculpture garden of Soviet-era statues and an exposition of other Soviet ideological relics from the times of the Lithuanian SSR."

Founded in 2001 by entrepreneur Viliumas Malinauskas, the park is located near Druskininkai, about 130 kilometres (81 mi) southwest of Vilnius, Lithuania.... Its establishment faced some fierce opposition, and its existence is still controversial.... The park also contains playgrounds, a mini-zoo and cafes, all containing relics of the Soviet era. On special occasions actors stage re-enactments of various Soviet-sponsored festivals.

So there's an alternative to iconoclasm.

New Orleans needs its Grūtas Park.

Justice Breyer's cellphone rang during oral argument today.

SCOTUSblog reports the news and refers to the sound as a "lively chime."

Justices Samuel Alito and Elena Kagan chuckle. Breyer looks to Chief Justice John Roberts with an apologetic expression before sharing a laugh with Justice Clarence Thomas. Some of my colleagues think they see Breyer handing the phone to one of the court aides who sit behind the justices....

I would like to be able to say that after the argument, reporters retired to the press room and began discussing the finer points of personal jurisdiction. But all we can really talk about for several minutes is Justice Breyer’s cellphone....

Excerpt from the new Supreme Court opinion about the copyrightability of a cheerleader's uniforms.

Breyer dissented, if that helps.

Here's another excerpt:

... Van Gogh’s painting of a pair of old shoes, though beautifully executed and copyrightable as a painting, would not qualify for a shoe design copyright... Courts have similarly denied copyright protection to obects that begin as three-dimensional designs, such as measuring spoons shaped like heart-tipped arrows, candleholders shaped like sailboats, and wire spokes on a wheel cover. None of these designs could qualify for copyright protection that would prevent others from selling spoons, candleholders, or wheel covers with the same design. Why not? Because in each case the design is not separable from the utilitarian aspects of the object to which it relates.... [S]poons, candleholders, and wheel covers are useful objects, as are the old shoes depicted in Van Gogh’s painting....

[A] copyright on Van Gogh’s painting would prevent others from reproducing that painting, but it would not prevent others from reproducing and selling the comfortable old shoes that the painting depicts...

Consider Marcel Duchamp’s “ready-mades” series, the functional mass-produced objects he designated as art.... What design features could not be imaginatively reproduced on a painter’s canvas? Indeed, great industrial design may well include design that is inseparable from the useful article—where, as Frank Lloyd Wright put it, “form and function are one.”... Where they are one, the designer may be able to obtain 15 years of protection through a design patent.... But, if they are one, Congress did not intend a century or more of copyright protection....

Consider designs 074, 078, and 0815. They certainly look like cheerleader uniforms. That is to say, they look like pictures of cheerleader uniforms, just like Van Gogh’s old shoes look like shoes. I do not see how one could see them otherwise....

Were I to accept the majority’s invitation to “imaginatively remov[e]” the chevrons and stripes as they are arranged on the neckline, waistline, sleeves, and skirt of each uniform, and apply them on a “painter’s canvas,” that painting would be of a cheerleader’s dress....  Hence, each design is not physically separate, nor is it conceptually separate, from the useful article it depicts, namely, a cheerleader’s dress. They cannot be copyrighted.

Judge Posner "corrects" his statement that only Justices Ginsburg and Breyer are "qualified" to serve on the Supreme Court.

I blogged the statement yesterday, here. Maybe Judge Posner read some of your scornful comments, because now there's this:

The second correction I’d like to see made has to do with my saying that none of the sitting Justices (plus Scalia) is “qualified” for the Supreme Court except Ginsburg and Breyer. This could be misunderstood to mean that I think the others lack the necessary paper credentials, of which the most important are graduating from a law school and passing the bar exam (though one of our greatest Justices, Robert Jackson, had just a year of law school, and did not graduate). That was not my intention in using the word “qualified” (if I did use it). I meant good enough to be a Supreme Court Justice. There are something like 1.2 million American lawyers, some of whom are extremely smart, fair minded, experienced, etc. I sometimes ask myself: whether the nine current Supreme Court Justices (I’m restoring Scalia to life for this purpose) are the nine best-qualified lawyers to be Justices. Obviously not. Are they nine of the best 100? Obviously not. Nine of the best 1,000? I don’t think so. Nine of the best 10,000? I’ll give them that.

I wouldn't call that a "correction." It's pretty much what I understood him to mean the first time around.

And as long as I'm going back to that, let me explain what I meant yesterday when I related that Posner post to the post quoting Howard Stern saying that Donald Trump was able to do a good Howard Stern Show interview because he got in "the spirit of the show" which is "to talk like real people." I said:

Talking like a real person... then running for office. That's dangerous... unless you're a saintly real person. Most politicians get on-task, self-censoring, and robotic. That's the normal way to stay out of this kind of trouble.  

To get appointed to the Supreme Court you have to control your speech and not give the President's antagonists material they can use against you. You cannot be Robert Bork. That is, you cannot be an outspoken, interesting person like Judge Posner. That's what disqualifies you politically. So there's reason to say that everyone who is really qualified is politically disqualified.

And I do regret using the word "saintly." I think more highly of saints than that, and I bow to Paddy O's comment:

A saint would have even less chance than Trump. A real saint offends all the powerful, so wouldn't even get a chance to stand on a primary stage.

"I think the Supreme Court is awful. I think it’s reached a real nadir."

"Probably only a couple of the justices, Breyer and Ginsburg, are qualified. They’re okay, they’re not great."

Said Judge Richard Posner of the Seventh Circuit.

"Qualified" is the new high standard. We're lucky to get an okay judge these days. Greatness is showy and not a good way to get a lofty judicial nomination. Greatness is disqualifying... and I'm sure Posner knows that.