"I want to flag one case that’s really funny to me, Nuclear Regulatory Commission v. Texas. It’s sort of like the chickens coming home to roost..."

"... for the Supreme Court. A few years ago, the court made up the 'major questions doctrine,' the principle that when an agency makes a decision that involves a 'major question,' courts have a free-floating veto to block it. Well, the 5th Circuit used this doctrine to blow up the entire system of nuclear waste storage in this country, possibly forever.... The 5th Circuit sided with Texas in this case, declaring that the commission is actually powerless to grant licenses for the temporary storage of nuclear waste offsite from the plant... not because federal law says the commission can’t do that... [but because] temporary storage is a 'major question' because it involves nuclear material. And... Congress has to come in and authorize it even more clearly....Because the question 'has been hotly politically contested for over a half century.'"

Says Mark Joseph Stern, in "The Supreme Court Takes a Nuclear Waste Case Almost Too Wild to Believe" (Slate).

"The same justices who feel harassed and exposed because reporters are combing through their undisclosed financial dealings right now could have solved this problem..."

"... with candor and honest reporting of their financial dealings on the routine occasions on which they were asked. In the midst of the crisis, they eschew a commitment to candor to instead mutter something about the nature of checks and balances, with the proviso that they are susceptible to neither. These are the ploys of emperors.... He wields a gavel, not a scepter. And the Constitution grants him no overarching right to insulate his entire court from the kind of minimal accountability without which no democracy can thrive."

Write Dahlia Lithwick and Mark Joseph Stern, in "King Roberts/The chief justice’s latest trick to ward off oversight is the ploy of a royal, not a judge" (Slate).

But the Constitution does insulate the Court from political pressure. It's not complete insulation, but that's why this article is framed as a call for "minimal accountability." The question then is whether what Roberts's refusal to do was in fact only a request for minimal accountability. Senator Dick Durbin asked him testify before the Senate Judiciary Committee about the Court's ethics. Roberts, declining, wrote: 

“Testimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.” 

Was Durbin seeking "minimal accountability" or a theatrical occasion to smack the Chief Justice around? Roberts had good reason to suspect the latter.

And speaking of theatrical: that Lithwick and Stern piece in Slate. All this talk of emperors and wielding a scepter! 

I remember when that was the rhetoric of the right. Here's Ed Meese in 1997, railing about "The Imperial Judiciary":

"[A]fter the flurry of hard-right rulings this June, many professors had their 'own personal grieving period.'"

"But they quickly turned toward 'grappling with how we teach our students' to understand the Supreme Court’s reactionary turn.... A professor must say what the court claims it’s doing, then explain what it is actually doing, which is often something completely different. This technique can disillusion students, leading them to ask why they’re bothering to learn rules that can change at any moment.... Students confront a legal system in a crisis of legitimacy led by an extreme and arrogant court. Still, they must slog on, most gathering substantial debt as they go, pretending that 'law' is something different from politics, a higher realm of reason and rationality where the best arguments prevail.... My father, Nat Stern, retired from a 41-year career at Florida State University College of Law in May.... When I asked him why he decided to retire, he told me that he had no desire to explain the Supreme Court’s conservative revolution as the product of law and reason rather than politics and power.... 'For the bulk of my career,' he said, 'I’ve felt I could fairly explain rulings and opinions that I don’t endorse because they rested on coherent and plausible—if to me unconvincing—grounds. In recent years, though, I’ve increasingly struggled to present new holdings as the product of dispassionate legal reasoning rather than personal agendas.'"

Writes Mark Joseph Stern in "The Supreme Court Is Blowing Up Law School, Too/Inside the growing furor among professors who have had enough" (Slate). 

I got there via David Bernstein at Instapundit, who says: "We all know that left-learning lawprofs would be dancing in the streets if SCOTUS were equally aggressive to the left. And indeed, while Stern portrays discontent with the Court as a question of professional standards rather than ideology, he does not manage to find a single right-leaning professor to quote in his article."

I remember just before the 2016 election, when I was making my decision to retire.

"But if we can all agree what the GOP agenda has been, I remain utterly mystified by the Democrats. They have the votes to confirm [Ketanji Brown Jackson]..."

"So what are they afraid of? I wrote earlier this week about the utter failure on the part of Senate Judiciary Committee Democrats to connect this hearing to what is going to be a catastrophic series of progressive losses at the Supreme Court this term, and the almost staggering inability to lay out any kind of theory for progressive jurisprudence, or even a coherent theory for the role of an unelected judiciary in a constitutional democracy. My colleague Mark Joseph Stern wrote today about a broadside attack on the whole idea of unenumerated rights, substantive due process, and the entire line of cases that protect Americans from forced sterilization, indoctrination of their children, and penalties for using birth control, and afford them the right to marry whom they want. More mysterious than this coordinated GOP project... was the almost complete silence from Senate Democrats on these issues of substantive due process, privacy, and bodily autonomy. On the simplest level, the hearing might have been an opportunity to explain why Roe v. Wade is in fact the tip of the constitutional iceberg [sic].... I understand that the decision was taken to just get the nominee confirmed. Take the win. But for those of us watching and waiting to see Democrats support and back the nominee, there was an immense sense of underreaction."

Writes Dahlia Lithwick in "Cory Booker Aside, Democrats Stranded Ketanji Brown Jackson" (Slate). 

Here's the Cory Booker performance:

 

Sen. @CoryBooker to Judge Jackson: "I'm not letting anybody in the Senate steal my joy...Don't worry, my sister. Don't worry. God has got you. How do I know that? Because you're here and I know what it's taken for you to sit in that seat." pic.twitter.com/m7cGjLrftZ

— CSPAN (@cspan) March 23, 2022

Do I need to explain my "[sic]" on "the hearing might have been an opportunity to explain why Roe v. Wade is in fact the tip of the constitutional iceberg [sic]"? Lithwick cannot have wanted to characterize Roe and related cases as the iceberg. Aren't we rooting for the ship?

ADDED: I think I can solve the mystery of what the Democrats are afraid of. They're afraid of the electorate and that to lay out a "theory for progressive jurisprudence" would only alienate people. It's better to hold back, blandly honor the historic!!! nominee, and wait for the Republicans to create the opportunities to call them meanies. I strongly suspect that Lithwick knows this very well.

"In a per curiam (unsigned) opinion on the shadow docket, over the dissent of Justices Kagan and Sotomayor, the Supreme Court has rejected a redistricting plan that a divided Wisconsin Supreme Court had adopted..."

"... for drawing state assembly and senate districts.... The [Wisconsin] court adopted the [Democratic] Governor’s maps, and those maps added another majority-minority district around Milwaukee. The governor added this district saying it was required by the Voting Rights Act... The Supreme Court’s opinion today says either the Governor or the Supreme Court misapplied the Supreme Court’s VRA and racial gerrymandering precedents... The state supreme court should have considered under strict scrutiny 'whether a race-neutral alternative that did not add a seventh majority-black district would deny black voters equal political opportunity.'... [T]he Court used a case in an emergency procedural posture to reach out and decide an issue.... It decided these issues in ways hostile to minority voting rights without giving a full opportunity for airing out the issues and pointing out how this will further hurt voters of color."

Writes Rick Hasen at Election Law Blog.

Here's the opinion. 

Why do only Sotomayor and Kagan dissent? What about Breyer? From "The Supreme Court’s Astonishing, Inexplicable Blow to the Voting Rights Act in Wisconsin" by Mark Joseph Stern at Slate

Only Sotomayor and Kagan noted their dissents; it’s possible that Justice Stephen Breyer dissented as well, but chose not to note it. (This opacity is a perennial problem with the shadow docket.) He may have simply decided not to publicize his disagreement—choosing, perhaps, not to rock the boat months before his retirement. It is difficult, if not impossible, to believe that Breyer agreed with the majority, since he has publicly opposed its approach to the VRA in innumerable cases.

"What is Justice Elena Kagan doing?"

"So far this term, the liberal justice has crossed ideological lines at least three times to join the Supreme Court’s conservatives. Most recently, on Thursday, Kagan authored the majority opinion in Lucia v. SEC, a huge case that threatens to erode the political independence of multiple federal agencies. Tearing down the 'administrative state' is supposed to be Justice Neil Gorsuch’s pet project. In Lucia, though, it was Kagan who took the lead in undermining the civil service, authoring an opinion that prompted a sharp dissent by Justice Sonia Sotomayor, who accused her colleague of making legal and factual errors. Why is Kagan playing nice with the conservatives this term? What, put bluntly, is in it for her?... It’s possible... that these defections are tactical maneuvers—efforts to build a moderate coalition to keep the court from veering rapidly to the right. Kagan isn’t losing the battle to win the war. She’s wrestling the court’s far-right justices to a draw in order to forestall disaster...."

That's Mark Joseph Stern at Slate.

Liberal websites absorb/process the Al Franken news, part 4: Slate.

I think this one will be my favorite. I've been saving this up as I slogged through some other things. Here's the Franken-related material as situated on the front page of Slate:



You've got, first, most prominently, "Al Franken Should Resign Immediately / Democrats’ credibility on sexual harassment is at stake," by Mark Joseph Stern. That went up very quickly (at 12:11 p.m.), and you don't even need to click through to get the message, with is impressively forthright. Stern cares about principle, perhaps on the theory that it's the most effective strategy for the Democrats. Don't waffle! Stern is hardcore:

The Democratic Party now has a chance to set the proper example and prove that absolute intolerance for sexual harassment crosses party lines. Democrats should not hedge or wring their hands or await more accusations. The path forward is simple: If the party wishes to retain an ounce of credibility, it must demand Franken’s swift resignation.

Absolute intolerance. There are those in Congress who know more about what secrets have been hidden and therefore where an absolute-intolerance policy may lead. A Franken resignation won't affect the number of Democrats in the Senate. (Minnesota has the Governor fill an opened Senate seat, and it stays that way until the next election.) But will the Democrats insist on the resignation of all sexual harassers? And once they lock into that track, what will count as sexual harassment? If you go with feminist analysis, it could be quite a lot. Consider the next article:

"Al Franken's Humor Always Had a Mean Streak," by Laura Miller. If you click through, the headline tames down to "Comedians Know to Play to the Room. Al Franken Should’ve Known Better." Miller is pretty sympathetic to Franken, offering him the padding of context, but she says something I'm going to make a big deal about. I'll put it in boldface:

It doesn’t matter—as Franken, to his credit, now seems to realize—whether the photo portrays an actual grope or a near-grope. The joke was at Tweeden’s expense, a tedious unfunny entry in the long, long catalog of humor based on the idea that sex in any form is an advantage men seize over women, at women’s expense. That seems to have been a theme of Franken’s USO appearances with Tweeden, as well: him leering at her in order to win laughs from servicemen. It looks like the servicemen found this antique, Bob Hope-style shtick funny, but humor is notoriously dependent on context....

Every joke is meant for one room or another, some group of people with a particular set of values whose approval the joker hopes to gain....

As I've said a few times, we may be entering the era of That's Not Funny. If everything is going to get out, through social media, open microphones, and digital cameras everywhere, then maybe nobody should dare to be a comedian or at least comedians need to confine themselves to comedy shows and stay out of politics.

But let's look at that boldface and think about the burgeoning potential of the idea that you might not be able to safely express anymore. The whole "Bob Hope-style shtick" is off limits. All the jokes (and all the serious statements) about sexual transactions may become suspect, and any statement about unequal sex may turn you into a social pariah. In this new template, Trump could be denounced without any credible stories about groping a woman and without regarding the Access Hollywood remarks as a confession that he actually did go up to women and just start kissing them. Just the idea that he thought of kissing women as taking an advantage is enough to condemn him — even if it's true that the women want that kind of sexual domination when it comes from a star.

Here's something I wrote in 2005, when the feminist writer Andrea Dworkin died:

[T]his is a classic problem in American feminism: do you want to describe one big system that applies to all women or should you concentrate on the truly oppressed?.... In the area of sexuality, I can see why people like Dworkin wanted to say to all the women who were smug about their own lucky lives and proud of their mates to say look closely at what you've got and start identifying with women at other levels of sexual happiness: empathize with them and see the problems. Dworkin and MacKinnon said that women had eroticized domination. That's not absolutely accurate, but it is one of the most powerful ideas I have ever encountered in my life. It's a truly scary, unsettling insight and a lot of the intense reaction to them is an unwillingness to lose what you want to believe is good.

The feminism of the 1980s may be reviving, and I see it right there in Laura Miller's hostility to "the idea that sex in any form is an advantage men seize over women, at women’s expense." This is just one product that might emerge from the manufacturing process that takes in Al Franken as its raw material. And I do want to scare you! Soylent Green is people!

The third article from the front page in Slate is "Today in Conservative Media: Let’s Be Frank About Franken" by Osita Nwanevu, and I like this because it looks as though it might be the same as the idea I'm applying to liberal media, just doing it to conservative media. But it's just collecting quotes. No real commentary.

The headline on the front page has more analysis than anything in the article: "Conservative Media Sounds Gleeful About Al Franken." I guess that means it's wrong to be gleeful. You should be somber and empathetic toward the women who come forward to speak about sexual harassment, so if you let it show that you're enjoying taking down a political enemy, you're committing an offense, the offense of glee. But if you're going to crack down on that offense, you'll have to restrain yourself over Roy Moore and Donald Trump. So quit smirking and put on that face you're going to need to avoid disaster in the era of That's Not Funny.

"The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy."

"But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal. … Instead, the majority sets up a false premise — that the question before us is 'who should decide?' — and leads us through a largely irrelevant discourse on democracy and federalism. In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it. Because I reject the majority’s resolution of these questions based on its invocation of vox populi and its reverence for 'proceeding with caution' (otherwise known as the 'wait and see' approach), I dissent."

Wrote Judge Martha Craig Daughtrey in what Slate's Mark Joseph Stern calls "the Hilarious, Humane Dissent From the 6th Circuit’s Awful Gay Marriage Ruling."

Stern cannot fawn over Daughtrey enough:

Daughtrey’s opinion isn’t just blistering; it’s a scorching, bitterly funny, profoundly humane excoriation of Sutton’s sophistry. She opens with a witty jibe.... Daughtrey’s writing is searing, firm, and fiercely moral.... But if her logic is sound and satisfying, her parting shot is downright astonishing.... one of the more memorable gay rights opinions ever penned. 

Jeffrey Sutton, the author of the majority opinion, is guilty not only of "sophistry" (Daughtrey's word) but also — as Stern puts it — of writing a "craven, callous opinion" that amounts to a "timorous, waffling shrug" and an "ersatz submission to 'democracy,'" which "is the greatest sin a judge could commit."

That's laying it on awfully thick! I'd agree with Daughtrey's position on the merts, but the drama and attention-getting prose undermines what is the crucial foundation of judicial activism: that it's based on the judge's duty to do what the law requires.

Stern's pumping that prose up to a new level and insulting Sutton does Daughtrey no favors, but I'm sure it entertains the Slate crowd, and here I am linking to it, and I'm pretty sure that's a net gain for Stern and Slate, despite my criticism.