"In 2021, Columbia University law professor Philip Hamburger argued that the U.S. public school system violates the First Amendment."

"'Education,' he wrote, 'consists mostly in speech, and parents have a right under the First Amendment to exercise authority over what their children hear.' Forcing families to accept government messaging — or pay a steep price to escape it — amounts to unconstitutional pressure. A lawsuit filed in Nebraska on Aug. 13 brings that argument into court — and could open a path toward universal school choice."

From "Are public schools unconstitutional? A Nebraska court will decide. The challenge to compulsory education combined with public-school-only funding could lead to universal school choice" (WaPo)(gift link).

The headline is bad. The argument is about compelled public schooling, and the Supreme Court recognized long ago that parents have a right to choose to send their children to private school. The lively dispute is over whether privately schooled children are entitled to their share of public spending. If public school is the only free choice, then the choice is heavily weighted toward the government's preferred speech.

The Hamburger article, in the WSJ, is "Is the Public School System Constitutional? Education consists mostly in speech, and parents have a right under the First Amendment to exercise authority over what their children hear." The word "system" makes that headline less bad. The system is that if you pay your own way you can control your child's schooling but government schooling is free.

The old Supreme Court case is Pierce v. Society of Sisters, a unanimous 1925 case. Memorable passage: "The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."

"Mr. Zuckerberg isn't denying that the government caused some of Meta's censorship decisions. The letter is too carefully drafted..."

"... to say something so obviously untrue.... Mr. Zuckerberg's phrasing... avoids any overt concession that the efforts to influence the company actually caused Meta to suppress speech. The closest the letter comes to admitting causation is Mr. Zuckerberg's assertion that he told his teams at the time that 'we should not compromise our content standards due to pressure from any Administration in either direction -- and we're ready to push back if something like this happens again.' This sounds like bold defiance. But 'if something like that happens again' suggests that Meta didn't push back when it happened before -- a backhanded admission that government pressure caused Meta to 'compromise.'... Mr. Zuckerberg's caution about causation speaks volumes about his fears (or those of his lawyers) that, if the truth were out, Meta would be legally vulnerable."

Writes Philip Hamburger, in "The ‘Tell’ in Zuckerberg’s Letter to Congress/He neither admits nor denies that Meta bowed to government censorship pressure" (Wall Street Journal).

"[T]he framers believed that a republic— a thing of the people—would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable 'ministers.'"

Writes Neil Gorsuch, citing Federalist No. 11, concurring in yesterday's case, West Virginia v. EPA.

He continues:

From time to time, some have questioned that assessment.¹ 

That footnote goes to an attack on Woodrow Wilson (I've replaced the citiation with a hot link and added boldface):

For example, Woodrow Wilson famously argued that “popular sovereignty” “embarrasse[d]” the Nation because it made it harder to achieve “executive expertness.” The Study of Administration. In Wilson’s eyes, the mass of the people were “selfish, ignorant, timid, stubborn, or foolish.” He expressed even greater disdain for particular groups, defending “[t]he white men of the South” for “rid[ding] themselves, by fair means or foul, of the intolerable burden of governments sustained by the votes of ignorant [African-Americans].” He likewise denounced immigrants “from the south of Italy and men of the meaner sort out of Hungary and Poland,” who possessed “neither skill nor energy nor any initiative of quick intelligence.” To Wilson, our Republic “tr[ied] to do too much by vote.” 

Sometimes the Critical Race Theory comes from the right!

That's at page 4 of his opinion. At page 16, attack the dissent, he brings back Woodrow Wilson:

I watched some, but nothing close to all, of the Gorsuch hearing.

I mostly watched the Al Franken excoriation, but also, merely by chance, some of Hatch and Cruz softball interludes.

It is, of course, what I expected (as briefly outlined in "Can we expect the Gorsuch hearings to be anything but bland blather?").

Gorsuch is doing the usual routine as well as it can be done. He looks great. Wonderful voice. Not only unflappable but never giving rise even to the slightest anxiety/hope that he could become less than rock-solid unflappable.

The Democrats on the committee know there's no stopping him, so what are they doing? Each one gets so much time to labor through their questions, which — if I can judge from Franken — all seem to be paraphrasable as: Aren't you a big meanie who, like all Republicans, hates the little guy and wouldn't shed a tear if he froze to death before your very eyes?



The Democrats need to do some theater, enough to skirt criticism from their base. It's a little tricky. If they bear down, they look like they're politicizing the judiciary, and every damn time Gorsuch will deploy one of his 10 elegant ways to inform them — as if they're the slowest learners on the planet — that it is not the role of the judiciary to engage in politics.

I can only take so much, but I did watch Franken. You can watch the clip and hear him go on and on about a man who got fired for driving a truck — despite its malfunctioning brakes — because he was freezing and the truck would warm him up. [NOTE: That's not quite right, as explained under  "ADDED," below.] There was a statute that protected truck drivers from getting fired for refusing to drive a malfunctioning truck, but this was the opposite. His employer wanted him not to drive the malfunctioning truck, and he did it anyway, to save himself from freezing (or so we are told).

The legal question was only whether the statute applied, not whether we feel sorry for the man or whether we would have fired him. Judge Gorsuch used the plain meaning of the statute. But judges might depart from the plain meaning of the text when it is necessary to avoid giving the language an absurd meaning, but it's obvious that the statute had a non-absurd meaning (which was to protect drivers who decline to drive defective trucks). But Franken, blatantly twisting the meaning of "absurd" — and reminding us that he was once a comedian — said:

“It is absurd to say this company is in its rights to fire him because he made the choice of possibly dying from freezing to death or causing other people to die possibly by driving an unsafe vehicle. That’s absurd. Now, I had a career in identifying absurdity. And I know it when I see it. And it makes me question your judgment.”

If that's what counts as "absurd," then judges could take any statute and twist it to mean whatever it would need to mean to allow them to bestow victory on any party the judge feels empathy with. That's a terrible idea for statutory interpretation. But Franken was into his own cuteness, chuckling at the wittiness of "I had a career in identifying absurdity." But the absurdity is in thinking that the ways of comedy would transfer to legal analysis.

And did Franken even hear himself? He said it was absurd to fire a man who chose his own life over the lives of others: "the choice of possibly dying from freezing to death or caus[ing] other people to die possible by driving an unsafe vehicle." What's absurd about saying we don't want you driving for us if you'd choose to warm yourself up by driving a truck with defective brakes? The truck driver risked freezing to death if he didn't drive the truck, but driving the truck risked the death of himself and others. It's not absurd to say, he was wrong to drive the truck.

But even if you think it would be absurd not to drive the truck, the truck driver could only win if the statute that protected drivers who refused to drive defective trucks has only an absurd meaning if it's not stretched to protect drivers who don't refuse to drive defective trucks.

Gorsuch put up with the nonsense and didn't let all that taunting exasperate him. He knew that any show of irritation with Franken, any patronizing tone, might look like that lack of empathy Franken wanted to dramatize.

In Franken's heat about cold, Gorsuch kept his cool.

ADDED: I've got something really wrong about the case. The brakes on the trailer had locked, but the tractor unit could drive. Somehow the heat in the tractor unit was also broken. The man decided to unhitch the trailer and drive the tractor unit. The tractor unit itself was not defective, and he wasn't endangering others by driving that tractor unit in an effort to get somewhere to warm himself. But he disobeyed directions to stay with the trailer, and that's what got him fired. But the problem remains: He wasn't refusing to drive something that was defective. He was choosing to drive. We may agree that he made a good decision and think the company was cruel to fire him, but the legal question was whether he had a right to keep his job for doing something the company thought was a firing offense — abandoning the trailer.

Here's a detailed discussion of the legal question that brings out the issues much better than Franken did. I'm sorry I relied too much on Franken's emotive presentation of the case. There may have been some room to stretch the statute to give the man credit for refusing to pull the trailer (as he proceeded to drive the unhitched tractor unit). In fact, as you can see at that link, the Occupational Safety and Health Administration had interpreted the statute that way. This gets to the important subject of deferring to the agency's interpretation (Chevron deference), which is what the majority did in the case. Gorsuch was dissenting.

ALSO: While empathy has been central to the Democrats' idea of judging and this case gave Franken material to push that theme dramatically, it's the Chevron deference question that is most important from a legal perspective. Here's lawprof Philip Hamburger in "Gorsuch’s Collision Course With the Administrative State." Hamburger concludes:

Chevron is a widely cited precedent, and precedents should never be casually overturned. But Chevron deprives Americans of their right to have judges who exercise their own independent judgment without systematic bias. Chevron is thus grossly unconstitutional — not least, a persistent denial of the due process of law.

Judges have a duty to reject Chevron with candor and clarity. Judge Gorsuch has done this. Rather than be berated for it, he should be congratulated.

Judge Richard Posner on Philip Hamburger on judicial review.

A review — titled "Modesty and Power" — of the book "Law and Judicial Duty."

Hamburger believes deeply in judicial modesty. He argues that what has come to be called judicial review was intended to exemplify rather than to reject judicial modesty, which is why the framers of the Constitution took the power for granted, and so felt no need to talk it up in the constitutional text....

There is a deep ambiguity in the concept of judicial modesty. Hamburger advocates strict adherence to formal legal doctrines. That is a form of intellectual modesty: no policymaking, no talk of a "living constitution," let the chips fall where they may, fiat iustitia, ruat caelum. An alternative conception of judicial modesty, first clearly articulated by James Bradley Thayer in the late nineteenth century and embraced by Oliver Wendell Holmes, focuses on the consequences for democracy, liberty, progress, and welfare of too free-wheeling a conception of judicial power to invalidate legislation....

Hamburger has fallen in love with the judicial culture that he found in the Anglo-American past, and that he hates the modern judicial culture that is discontinuous with it.

Much more at the link.