"The court came to Monday’s argument equipped with hypotheticals — mall Santas who might refuse to take photographs with minority children, political speechwriters..."

"... who might be forced to write for the opposition, newspapers or websites told they could not choose which wedding announcements to publish. Justice Ketanji Brown Jackson brought up the mall Santa, wondering whether a photographer who wanted to create the ambiance of the movie 'It’s a Wonderful Life' might be able to exclude Black children. Alito countered by conjuring up a Black Santa at the other end of the mall who wanted to be free to refuse a photograph to a child wearing a Ku Klux Klan outfit. When Justice Elena Kagan said that Santa could refuse anyone wearing such an outfit, regardless of their race, Alito said it would be unlikely that his example would be a Black child.... Colorado Solicitor General Eric R. Olson said Smith was conflating speech with commerce. A store would be free to sell only Christmas items if it wanted to, Olson said. But it couldn’t post a sign that said 'No Jews allowed.'"

From "Supreme Court seems to side with web designer opposed to same-sex marriage/Colorado’s Lorie Smith says being forced to create websites for gay couples would violate her right to free speech" by Robert Barnes , reports on the oral argument in 303 Creative v. Elenis in The Washington Post.

For more background on the case, see the post I wrote this morning, before the argument, based on the NYT article by Adam Liptak.

"By the end of five hours of vigorous and sometimes testy arguments, a majority of the justices appeared ready to reconsider decades of precedents and to rule that the programs were unlawful."

 Writes Adam Liptack in the NYT.

ADDED: You can read the transcripts for the 2 cases here (University of North Carolina) and here (Harvard).

AND: From Robert Barnes and Ann E. Marimow in The Washington Post: "Conservative Supreme Court justices on Monday seemed open to ending decades of precedent allowing race-conscious admission decisions at colleges and universities, repeatedly expressing doubt that the institutions would ever concede an 'endpoint' in their use of race to build diverse student bodies." 

I'm pulled into the upper right hand corner of The Washington Post — so dangerous, so syrup-drenched.

Here's that corner (9 items):

It's an omakase breakfast — omakase, not omicron — the selections entrusted to the illustrious mainstream newspaper. I will update this post, course by course. 

1. "For Clarence Thomas, avowed critic of Roe v. Wade, Mississippi abortion case a moment long awaited" by Robert Barnes. There's oral argument in the big abortion case this Wednesday, and, we're told, Thomas receives "unprecedented deference" these days — because of all his new colleagues, who "think like him," and because there's a new method of asking questions at oral argument, and not only does he speak now, he goes first, and no one cuts him off. They let him finish "his low-key inquiries." Thomas has repeatedly written separate opinions to say that Roe ought to be overruled. "Thomas’s idiosyncratic views and his resistance to compromise still make him the justice most likely to write a solo opinion," writes Barnes. But what's to prevent these new Justices, who may genuinely respect him, from curing that loneliness? Asking that question, I thought of the adage, "Any man more right than his neighbors constitutes a majority of one already." And then I realized I'm talking about the person named in the next headline down, Henry David Thoreau.

2. "The Black people who lived in Walden Woods long before Henry David Thoreau": "'Down the road, on the right hand, on Brister’s Hill lived Brister Freeman, ‘a handy Negro,’ slave of Squire Cummings once... With him dwelt Fenda, his hospitable wife, who told fortunes, yet pleasantly – large, round, and black, blacker than any of the children of night, such a dusky orb as never rose on Concord before or since,' Thoreau wrote in 'Walden.'"

3. "Amid massive shortage, Canada taps strategic reserves — of maple syrup": "Petroleum stockpiles aren’t the only strategic reserves being tapped this season amid concerns of supply shortages and sky-high prices." There's a Canadian federation that, we're told, gets called "the OPEC of maple syrup." The shortage seems to have mostly to do with people cooking more pancakes and such on account of the lockdown, but there's also stress to the maple trees from climate change, so make sure to keep worrying about climate change. It affects pancakes!

4. "The Rule of Six: A newly radicalized Supreme Court is poised to reshape the nation" by Ruth Marcus. The conservatives are no longer just looking for a 5th vote. With 6, it's like "an heir and spare." They can afford to lose one. No more need to cajole that last one, the fussed-over "swing" voter. And Marcus tells WaPo readers to be be afraid, be very afraid.

5. "Hanukkah isn’t ‘Jewish Christmas.’ Stop treating it that way. No need to include our holiday in the winter extravaganza of commercialization, thanks." Sample sentence, representing the tone and message of the entire piece: "No Jew has ever gazed longingly at a 12-foot inflatable reindeer and wished in her heart she had an equally large Moses to display in front of her house."

6. "Greece was in deep trouble. How did it right the ship? Prime Minister Kyriakos Mitsotakis on the arrival of migrants — and tech companies." An interview with the prime minister. Highlights: "We should agree in principle that no country has a right to weaponize migrants. . . . We won’t let people come in as they please." About criminalizing “fake news”: "What we are doing is very measured and very valid."

7. "Five myths about the supply chain/No, self-driving trucks wouldn’t fix all our problems." "Much of today’s mess was caused by relying on extremely fragile — and extremely long — supply lines. Ohno would have shuddered at the thought that his ideas were being applied in this manner." Oh no! Taiichi Ohno originated the concept of just-in-time delivery.

8. "The newest coronavirus variant is raising alarms. The pandemic is not over." "It will take time to determine if the variant is more transmissible than delta, or more virulent, but it is a worrisome development." Won't there always be a new variant so that we will always be told we don't know enough yet and we will need, once again, to err on the side of safety? This feels like a treadmill that we can never step off.

9. "Stephen Sondheim made art that made life more real" by Alexandra Petri. A song "can’t be too clever, and it can’t be too dull. It has to land on your ear as a surprise. If it contains jokes, they have to rhyme. (If it contains rhymes, words that are spelled differently are funnier, Sondheim thought, than words that are spelled the same.)... The song has to take the character singing it somewhere. It has to be essential to the show. 'If you can take the song out,' Sondheim said, 'and it doesn’t leave a hole, then the song’s not necessary.'... Life also exists in time. You cannot stop it and start it and go back and hope to make yourself better understood. You must express yourself in the moments allotted and make yourself heard and choose what to say." 

If I hadn't committed to reading every one of those 9 stories, the ones I would have read would be: 1, 2, and 9. And I would have blogged all 3. 

Having read all the stories, I rank their bloggability, for me, beginning with: 1, 9, 2. Then, there's a big drop off. There's something I'd wanted to say that 8 gave me the chance to say, so I'll put 8 next. I'd put 3 dead last, because I don't really want to blog about the syrup supply, though it would shoot to the top if I had a "syrup" tag (and I might create a "syrup" tag, but it will take a while to add it retrospectively, and it's only interesting if it collects a lot of old things, which it will, more than 10). I put 4 next to last, because it's obvious to me what it will be from the headline and the author, and I don't need more of that. Third from last is 5, which is unnecessary holiday fluff, and I didn't like the insinuation that I was "treating" Hanukkah in any particular way. That leaves 6 in dead center. The Greek Prime Minister. I had to force myself to read that, but he was concise and hard core — quotable.

Oops, I forgot the supply chain. I know it's important, but it's not my thing. I put Greek Prime Minister at what I called "dead center" and in 5th place, so let's put 7 in 6th place. 

Final ranking: 1, 9, 2, 8, 6, 7, 5, 4, 3.

ADDED: I have now made the tag "syrup." Click. It's pretty exciting. 

"Young people need to have the ability to express themselves without worrying about being punished when they get to school."

"I never could have imagined that one simple snap would turn into a Supreme Court case, but I’m proud that my family and I advocated for the rights of millions of public school students."

Said Brandi Levy (now an 18-year-old college student), quoted in "Supreme Court sides with high school cheerleader in free-speech dispute over profane Snapchat rant" (WaPo).

The decision is 8-1, with only Justice Thomas dissenting, and Justice Breyer writing the opinion about Levy's barbaric yawp: "Fuck school, fuck softball, fuck cheer, fuck everything."

From the WaPo article (by Robert Barnes):

The first and last sentences of a Washington Post article titled "Supreme Court continues capital punishment trend with Barrett on the bench."

First sentence: "The Supreme Court continued its trend late Thursday night of allowing federal executions to go forward, with new Justice Amy Coney Barrett participating in her first capital punishment case on the court." 

Last sentence: "Hall and three others drove the teenager to a motel room in Arkansas, where they assaulted her and then beat her with a shovel before she was buried alive."

ADDED: Notice the switch to the passive voice: "they assaulted her and then beat her with a shovel before she was buried alive." Who buried her alive? 

AND: The writer of the WaPo article, Robert Barnes, draws attention to Barrett's religion:

"The Supreme Court ruled unanimously Monday that states may require presidential electors to support the winner of the popular vote and punish or replace those who don’t..."

"... settling a disputed issue in advance of this fall’s election. Justice Elena Kagan wrote for the court, and settled the disputed 'faithless elector' issue before it affected the coming presidential contest. The Washington state law at issue 'reflects a tradition more than two centuries old,' she wrote. 'In that practice, electors are not free agents; they are to vote for the candidate whom the state’s voters have chosen.' Lower courts had split on the issue, with one saying the Constitution forbids dictating how such officials cast their ballots."

Robert Barnes reports (at WaPo).

ADDED: Here's what I wrote about the case — Chiafolo v. Washington — back in January:

Wow! The answer had better be that these laws are constitutional or all hell will break loose!

Ha ha. Phew!

What if the electors have a constitutionally based power to make up their own minds and apply their personal judgment? It's one thing for them to think they might and to contemplate going off on their own and for some of them, occasionally, to do it. It would be quite another thing for the Supreme Court to enshrine this power in constitutional law, to specifically give the electors the go-ahead!

And how would we, the humble voters feel if we found out that we're not voting for Donald Trump or Biden/Sanders/Warren/Bloomberg but for some local character who's free to do what he/she thinks is best? There would be another dimension of analysis. Some person we haven't cared at all about will need to be scrutinized for iron-clad party fealty. Horrible!

On the other hand, for those who hate the Electoral College and have felt bad about the seeming impossibility of amending the Constitution to change it, the crazy chaos of constitutionally empowered electors could be horrible enough to push the states to ratify an abolition of the Electoral College.

"The Supreme Court will hear a third challenge to the Affordable Care Act, this time at the request of Democratic-controlled states that are fighting a lower court decision..."

"... that challenged the constitutionality of the law. The court’s review will probably come in the term that begins in October, which would not leave time for a decision before the November election. The law remains in effect. The court earlier had turned down a motion by the House of Representatives and Democratic-led states to hear the case this term."

Reports Robert Barnes in WaPo.

SCOTUSblog explains the legal issue like this:

In 2012, Chief Justice John Roberts agreed with the court’s four more liberal justices that the mandate was constitutional because the penalty imposed on individuals who did not buy health insurance was a tax, which the Constitution allows Congress to impose. But in 2017, Congress enacted an amendment to the ACA that set the penalty for not buying health insurance at zero – but left the rest of the ACA in place. That change led to the dispute that is now before the court: A group of states led by Texas (along with several individuals) went to federal court, where they argued that because the penalty for not buying health insurance is zero, it is no longer a tax and the mandate is therefore unconstitutional. And the mandate is such an integral part of the ACA, they contended, that the rest of the law must be struck down as well....

That is, the thing that is now nothing has become everything, because Congress would not have passed the ACA without the element that used to be something.

Can Democratic Party candidate get American voters activated over changing the Supreme Court?

I'm reading Robert Barnes in WaPo — "Polls show trust in Supreme Court, but there is growing interest in fixed terms and other changes":

●A Gallup poll that shows rising public approval for the court, with far more Americans thinking it is “about right” ideologically than either too conservative or too liberal.

●An Annenberg Public Policy Center survey showing two-thirds of people trust the court to operate in the best interests of the public, and 70 percent think the court has the right amount of power.

●A massive survey from Marquette Law School finding that a majority of Americans have more confidence in the Supreme Court than other parts of the federal government and that few believe the justices take extremely liberal or extremely conservative positions....

Apparently, people aren't feeling too activated about the Supreme Court, even after that uproar over Justice Kavanaugh last year. Nevertheless, there are ideas about changing it. There's ending life tenure, which requires a constitutional amendment and therefore won't happen, but Marquette asked about it and 72% favored fixed terms for Justices over life terms.

I think the results would be very different if the question had been, "The Constitution provides for Supreme Court Justices to have their positions for life; would you support an amendment process to change that to a fixed term?" That bundles 2 ideas that I think are influential: 1. If something is in the Constitution, it was probably put there for a good reason and is part of our tradition, and 2. It's so hard to change the Constitution, that any talk about it is just for political effect.

The other proposed change, as phrased in the Marquette poll, is "Increase the number of justices on the US Supreme Court." This would not require a constitutional amendment and there's a history to this idea, which is generally referred to as "Court-packing." The poll, quite properly, didn't use the word "Court-packing."

The respondents in the Marquette poll opposed “court-packing” by a 57 percent to 42 percent margin. But Democrats were evenly split on the idea, and even that 40 percent support was startling to [one law professor].

“I can’t emphasize enough what a sea change that is,” [she] said. The term court-packing “used to be an epithet.”

Yeah, but the pollsters did not use the term, and I think it would have skewed the results, because would be heard as pejorative.

I think it's a terrible idea for Democrats to push these changes. They should not be talking about tearing down what people respect, only about choosing better nominees and improving the balance of types of judicial minds on the Court. A subset of voters could get activated about changing the Court, but if that happened, it would bring out conservatism in far more people. Court-packing looks blatantly political, and advocating it makes a candidate looks untrustworthy.

ADDED: Pete Buttigieg just did an interview (with Cosmopolitan) in which he "floated the ideas" of Court-packing and term limits. He presents these ideas as a potential cure for "the descent of the Supreme Court into becoming yet another political body":

"The court said it was taking no position on 'whether Indiana may prohibit the knowing provision of sex-, race-, and disability selective abortions by abortion providers.'"

"It said that since the 7th Circuit is the only appeals court to have considered the issue, 'we follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional courts of appeals.' Justice Clarence Thomas, in a 20-page statement, said the court will eventually have to decide the question of what he called 'eugenic abortions.' 'The Court’s decision to allow further percolation should not be interpreted as agreement' with the 7th Circuit, Thomas wrote. He included a long history of the birth-control movement. 'Enshrining a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th-century eugenics movement. No other justice joined Thomas."

Writes Robert Barnes in "Supreme Court compromise on Indiana abortion law keeps issue off its docket" (WaPo).

I don't agree that preventing the state from looking into the minds of abortion-choosers "would constitutionalize the views of the 20th-century eugenics movement." It would only continue to constitutionalize the woman's right to make her own decision about going forward with a pregnancy and not impose an exception for when the decision is based on a reason that is legislatively designated as wrong. There are many bad reasons for having an abortion, and we could try to sort through what is good and what is bad, but the long-established right is to leave it to the one who is pregnant to go through the reasons and make a decision.

ADDED: I do think that the argument can be made that the case law establishes that there is one and only one reason that must be the reason for there to be a constitutional right to an abortion (other than to protect her own life or health): The woman must actually believe that what she is destroying is not a person.

The Supreme Court just granted cert. in the case about adding a question about citizenship to the 2020 census.

Robert Barnes reports at WaPo.

The census hasn’t asked the question of each household since 1950, and a federal judge last month stopped the Commerce Department from adding it to the upcoming count. He questioned the motives of Commerce Secretary Wilbur Ross, and said the secretary broke a “veritable smorgasbord” of federal rules by overriding the advice of career officials.

Those opposed to the question argue the census response rate will likely fall if households are asked whether undocumented immigrants are present, and make less accurate the once-a-decade “actual Enumeration” of the population required by the Constitution....

The case is Department of Commerce v. New York. New York said in its brief:

The enumeration affects the apportionment of representatives to Congress among the states, the allocation of electors to the electoral college, the division of congressional districts within each state, the apportionment of state and local legislative seats, and the distribution of hundreds of billions of dollars of federal funding....

For at least the last forty years, the [Census] bureau has vigorously opposed adding any such question based on its concern that doing so ‘will inevitably jeopardize the overall accuracy of the population count’ by depressing response rates from certain populations, including noncitizens and immigrants....

"Justice Ruth Bader Ginsburg will not be on the bench Monday when the Supreme Court hears oral arguments, the first time in her career she has missed a session."

Writes Robert Barnes at WaPo.

“As long as I can do the job full steam, I will do it,” Ginsburg said last year. She has hired law clerks through the 2020 term.

From the comments at WaPo: "11 more months until an election year, where we cannot replace Justices. Hang in there Ruth!"

ADDED: "As long as I can do the job full steam, I will do it" does not necessarily mean As soon as I cannot do the job full steam, I will not do it. There was no commitment to step down upon a reduction from full steam. It was a commitment to keep going, based on the implication that she had full capacity and hoped to maintain it. Must people retire at the point they detect some decline from "full steam"? Generally, I'd say no, because otherwise we'd be hostile to the disabled. Specifically, however, a Supreme Court Justice has so much power, so much ability to disguise a loss of a capacity, and life tenure, and that may mean that only a full-capacity Justice should hold onto the job. Ginsburg's quote — "As long as I can do the job full steam, I will do it" — suggests a belief in that proposition. But what about about the desire to control which President names your replacement? Is it ethical to hold onto the job, despite decline — and how much decline? Other Justices have done this, and many people, like the quoted commenter above, urge RBG to cling to her position no matter how far she declines. That encouragement is open and fervent, and I'm not seeing the expression of the opinion that it is somehow wrong not to let go when "full steam" is no longer attainable.

Both The Washington Post and The New York Times have front-page articles touting Chief Justice John Roberts as the new "swing vote."

From The New York Times, "With Kennedy Gone, Roberts Will Be the Supreme Court’s Swing Vote":

Justice Sandra Day O’Connor became more moderate when Justice William J. Brennan Jr. and Justice Thurgood Marshall left the court, said Michael C. Dorf, a Cornell Law School professor who clerked for Justice Kennedy, and Justice Kennedy likewise moved to the center when Justice O’Connor departed.

“It could manifest in compromise positions in his taking substantively more moderate stances on issues,” Mr. Dorf said. “He might want to go slowly before taking an abortion case or an affirmative action case, or a same-sex marriage case to potentially overturn Justice Kennedy’s handiwork.”...

Mr. Dorf said that Chief Justice Roberts might act differently now that Justice Kennedy — often the deciding vote in those cases — was gone, much like congressional leaders spare their most vulnerable members of Congress from casting deciding votes on politically difficult issues....

“The best hope is to appeal to the chief’s sense of the court as a special, above-politics institution,” [said David S. Cohen, a law professor at Drexel University]. “Overruling [Roe v. Wade or the same-sex marriage case] in these circumstances would make the court and its justices appear like petty politicians.... [But] these justices don’t get to the point they are at in life without being political actors.... and this may be his political goal.”

From The Washington Post, "Roberts gets another key role on Supreme Court: Swing vote" (that's the front-page teaser headline, inside it's "If it wasn’t the Roberts court already, it is the Roberts court now"):

A court in which Kennedy is replaced by another Trump choice “is also likely to encourage conservative legal activists to shoot for the stars — look for cases seeking to overrule Roe v. Wade, reverse or undermine LGBTQ rights, including marriage equality, and erode the progress toward racial justice that the civil rights movement has fought tirelessly to have recognized by an often recalcitrant court,” [said Elizabeth B. Wydra, president of the liberal Constitutional Accountability Center].

Such bold action is not usually Roberts’s style, and the Supreme Court is institutionally averse to overturning precedents, a legal principle called stare decisis. Roberts’s preferred path, his defenders and detractors say, involves limiting the court’s precedents rather than reversing them....

Leah Litman, a liberal law professor at the University of California at Irvine, said the justices need not overturn the same-sex marriage decision to undermine it. “They could recognize a right for religious objectors not to marry LGB individuals; not to serve them; not to provide them health care; not to allow them to adopt,” she wrote.....

Michael McConnell, a former Republican-nominated federal judge and head of the Stanford Constitutional Law Center, said... “If Justice Kennedy is replaced with an interesting, relatively non-doctrinaire conservative (like the best names on Trump’s list) this could augur a more fluid court with a more substantive middle and fewer 5-4 splits,” he wrote in an email.... "Every action seems to have a countervailing reaction,” McConnell said. “It would not surprise me to see a few of the conservative justices breaking more frequently with the liberal side. The court as an institution does not like to see itself as the instrument of an ideological movement.”

ADDED: The center position is so powerful. Having seen the attention and (faux) adulation given to Justice Kennedy over the years, the Justices must be eyeing the vacancy. Some new person will get Kennedy's seat, but he is likely to be a staunch conservative like Gorsuch. The real vacancy we're seeing is in the "swing vote" position, and any Justice could feel pulled to try to sit there. Now, the liberals can't really aspire to occupy the position, but one of them, probably Justice Kagan, might become the force behind the swinging of one of the conservatives, and Roberts is the most likely to get swung. I picture Roberts seeing an opportunity to improve the reputation of the Court and to overcome the overt political look it's acquired over the years. I think there should be more elegant ways to do that than to simply throw his vote to the liberal 4 now and then. But if that's all he can do, I suspect he will.

"Mueller’s unprecedented prosecution raises three novel arguments: first, that speaking out about American politics requires a foreign citizen to register under the Foreign Agents Registration Act..."

"... second, that speaking out about American politics requires a foreign citizen list their source and expenditure of funding to the Federal Election Commission; and third, that mistakes on visa applications constitute 'fraud' on the State Department. All appear to borrow from the now-discredited 'honest services' theories Mueller’s team previously used in corporate and bribery cases, cases the Supreme Court overturned for their unconstitutional vagueness. The indictment raises serious issues under the free speech clause of the First Amendment and due process rights under the Fifth Amendment."

From "Does Mueller Indictment Mean Clinton Campaign Can Be Indicted for Chris Steele?" by Robert Barnes, who observes that Mueller chose targets who will never be brought to trial and therefore knew he was using a legal theory that would not be tested in court.

"For first time in 10 years, Justice Clarence Thomas asks questions during an argument."

"The content of the Thomas inquiry was of less interest than it having happened at all," writes Robert Barnes in WaPo. The question was just:

“Can you give me — this is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?” He then went on to ask a number of follow-up questions....

The constitutional right in question is the right to bear arms.

ADDED: In the NYT, Adam Liptak connects the new vocalization of Justice Thomas to the loss of Justice Scalia (who talked a lot and whose black-draped chair is right next to Thomas's):

It was hard to escape the conclusion that the absence of the voluble Justice Scalia, who had dominated Supreme Court arguments, somehow liberated Justice Thomas and allowed him to resume participating in the court’s most public activity.

Somehow liberated? As if Scalia's excessive talking blotted out Thomas. If we're speculating, we should also speculate that Thomas feels infused with the spirit of his departed colleague. A less mystical version of that is that Scalia's absence at oral argument leaves a big, obvious gap and Thomas is expressing great respect by stepping in to fill the vacated niche.

Did I slight Adam Liptak? His NYT Supreme Court piece is titled: "Supreme Court Prepares to Take On Politically Charged Cases."

My first post of the day — my first-Monday-in-October post — focuses on the Washington Post article "because the headline so perfectly sums up the reason mainstream media think you could or should care: 'Supreme Court faces politically charged election-year docket.'"

But now I see the NYT article has nearly the same headline: "Supreme Court Prepares to Take On Politically Charged Cases."

Politically Charged!!!

Is that some kind of secret code or do court-focused reporters just naturally end up there? The idea — as observed in the earlier post — is, I think, that ordinary reader will only be interested in the court if they feel that it's really politics. That's simple titillation. But, of course, I must also suspect The Washington Post and The New York Times of continually massaging its readers into voting for liberals, and creating anxiety about the Court's effect on political issues is the longstanding convention.

But "politically charged" is a great phrase, one I'm going to watch. It lets you call things political without taking responsibility for charging anyone with responsibility for the politically charge. For example, it was said that the Pope's visit to the U.S. was "politically charged," but that didn't mean the Pope is a politico. He might be, but the headline wasn't saying so.

ADDED: The New York Times celebrates the tweeting expertise of Donald Trump in "Pithy, Mean and Powerful: How Donald Trump Mastered Twitter for 2016."

In an interview at his office — interrupted repeatedly by Mr. Trump’s picking up his Samsung Galaxy cellphone, loading new tweets with his index finger and marveling at his nonstop mentions (“Watch this!” he implored) — the candidate compared his Twitter feed to a newspaper with a single, glorious voice: his own.

“The Ernest Hemingway of a hundred and forty characters,” he said, quoting a fan.

In the past, Mr. Trump said, when dealing with a dishonest rival “there was nothing you can do other than sue.”

“Which I’ve done,” he added. “But it’s a long process.”

Now, he simply tweets. Caustically, colorfully and repeatedly.

Suddenly, he said of his foes, “I have more power than they do. I can let people know that they were a fraud... I can let people know that they have no talent, that they didn’t know what they’re doing. You have a voice.”

Much more at the link.

It's the first Monday in October, so the Supreme Court is back on the bench, and mainstream media are telling readers which upcoming cases to care about.

SCOTUSblog collects links.

I'll just read the one in The Washington Post, from Robert Barnes, which I'm choosing because the headline so perfectly sums up the reason mainstream media think you could or should care: "Supreme Court faces politically charged election-year docket."

The "politically charged" issues that might matter to an ordinary person — because they might affect how you'll vote in the presidential election (the all-important question of our time) — are: "the legality of racial preferences to encourage diversity; how far government must go to accommodate religious liberty; how far government may go to restrict a woman’s right to abortion."

I'm not an ordinary person. I'm a law professor, and I've been a law professor for a very long time. From that perspective, I'm going to home in on the language discrepancy between: "how far government must go to accommodate religious liberty" and "how far government may go to restrict a woman’s right to abortion."

The "must" is deceptive if not wrong. The cases about accommodating religious believers are not about what the Constitution requires — what government must do — but about the Religious Freedom Restoration Act ("RFRA") — which is a limitation that the federal government chose to take on and which the government may change by statute. We already know — and the current cases are not about — that the government need only treat religious believers the same as everybody else when it comes to regulating conduct. That's the constitutional law. As I've explained before on this blog, RFRA was a reaction to the Court's rejection of constitutionally required accommodation: "The RFRA bill was sponsored in the House by Congressman Chuck Schumer and in the Senate by Teddy Kennedy. (Each had a GOP co-sponsor). The Democrats controlled Congress, but the Republicans all voted for it too (with the sole exception of [arch-conservative] Jesse Helms)." President Clinton signed the bill, which he effused over: "The power of God is such that even in the legislative process miracles can happen."

The government — Democrats and Republicans — chose to accommodate religion, and the Court is simply stuck determining what their statute means. Government can repeal or amend RFRA or put language in statutes (e.g., the Affordable Care Act) saying RFRA doesn't apply, so we are not talking about how far government must go to accommodate religious liberty.

Adjust your presidential preferences accordingly.

How does Sonia Sotomayor really feel about affirmative action?

Instapundit calls attention to Sonia Sotomayor's dissent in yesterday's Schuette case. He links to James Taranto's "First Among Equals: An Orwellian dissent from a muddled ruling" and to my post "The way to get a concurring opinion out of Chief Justice Roberts is to rewrite his famous aphorism." I'd counted 11 repetitions of the phrase "race matters" within a short segment (4 paragraphs) of Sotomayor's very long dissent, and Instapundit quips: "She also repeats the phrase 'race matters' a lot. But then, it does. It’s how she got her job."

You might think, as I initially did, it's wrong to degrade a particular individual's status by saying they only got it through affirmative action. How many times has Clarence Thomas expressed his outrage at that kind of abuse? But then I happened upon The Washington Post's treatment of the Sotomayor dissent (by Robert Barnes) and saw this:

Sotomayor, 59, has spoken extensively about how affirmative action was key to her rise from a public housing project where her parents spoke only Spanish. The search for minorities to diversify student bodies in the 1970s won her invitations and scholarship offers from Ivy League schools she had only just learned existed.

She excelled at Princeton, winning the top undergraduate prize, and went to Yale Law School. But she has drawn diametrically different lessons about the experience than Justice Clarence Thomas, the court’s only African American, who said affirmative action cheapened his Yale Law degree.

So I guess the Instapundit gibe bounces off Sotomayor and hits Clarence Thomas. And why not? Sotomayor is going to vote to uphold affirmative action, even as Thomas consistently votes against it. (Doesn't "vote" look wrong there? Is it too late or too prissy or too unrealistic to say we should scrub "vote" from our speech about the judicial work that's done in group-project form?)

But — as Barnes detected (combing through the 58-page dissent) — Sotomayor has arrived at an aversion to the term "affirmative action." As Barnes puts it:

She even wrote that she was not going to use the term “affirmative action” because of its connotation of “intentional preferential treatment” such as quotas, because the court has outlawed such practices. Instead, she called it a system of “race-sensitive admissions policies.”

She even wrote… What is the function of "even"? Barnes credits Sotomayor with enthusiasm for affirmative action, then encounters her rejection of the term and substitution of a euphemism. The word "even" implies additional enthusiasm, not its opposite. I found that a bit puzzling. Here's the relevant text from Sotomayor's opinion, at footnote 2:

Although the term “affirmative action” is commonly used to describe colleges’ and universities’ use of race in crafting admissions policies, I instead use the term “race-sensitive admissions policies.” Some comprehend the term “affirmative action” as connoting intentional preferential treatment based on race alone—for example, the use of a quota system, whereby a certain proportion of seats in an institution’s incoming class must be set aside for racial minorities; the use of a “points” system, whereby an institution accords a fixed numerical advantage to an applicant because of her race; or the admission of otherwise unqualified students to an institution solely on account of their race. None of this is an accurate description of the practices that public universities are permitted to adopt after this Court’s decision in Grutter v. Bollinger, 539 U. S. 306 (2003) . There, we instructed that institutions of higher education could consider race in admissions in only a very limited way in an effort to create a diverse student body. To comport with Grutter, colleges and universities must use race flexibly, id., at 334, and must not maintain a quota, ibid. And even this limited sensitivity to race must be limited in time, id., at 341–343, and must be employed only after “serious, good faith consideration of workable race-neutral alternatives,” id., at 339. Grutter-compliant admissions plans, like the ones in place at Michigan’s institutions, are thus a far cry from affirmative action plans that confer preferential treatment intentionally and solely on the basis of race.

Here is this term — "affirmative action" — composed of 2 very positive words —  "affirmative" and "action" — a term that has been used and defended for decades, and Sotomayor decides it's time for a euphemism? She may perseverate for 58 pages, but that backing off from the traditional term of art shows insecurity in the soundness of the position. In fact, going on for 58 pages — longer than the 4 other opinions combined — can also be regarded as a sign of insecurity.

What if a Supreme Court Justice, writing an opinion upholding the right to abortion, suddenly announced — in a footnote — that she wasn't going to use the word "abortion" anymore, because "some comprehend" it to mean things she thought were incorrect and distracting? Henceforth, she's only going to call it "reproductive freedom."

I'm sure you can think of other examples to make the point that it's a sign of insecurity in the acceptability of the practice. Imagine a 19th-century judge writing an opinion upholding the right to own slaves and dropping a footnote to say he wasn't going to use the term "slavery" anymore, because it set opponents' minds reeling into thoughts he needed to control. He's only going to refer to it as "our peculiar institution."

So… how does Sonia Sotomayor — the Justice chosen for her empathy — really feel about affirmative action?

Minimizing the crimes of women (in a serious case about federalism).

Here's how WaPo's Robert Barnes begins his report about a case of attempted murder:

A melodramatic love triangle begat a ham-handed revenge poisoning. That led to what one Supreme Court justice called an “unimaginable” federal prosecution of the scorned wife under a law enacted to implement a global chemical weapons treaty.

As long as the victim didn't actually die, it's just some kind of joke?

Now, there is a problem with the feds taking over this prosecution, and that should be the focus of the story about this case. But you should see how outrageous it is to diminish the criminal behavior in this gendered fashion.

Carol Anne Bond, a Pennsylvania microbiologist... ordered a rare blend of chemicals, partly off the Internet, and over the next several months tried to poison [Myrlinda] Haynes 24 times by putting them on her doorknob, car and, critically, mailbox.

Just some nutty lady's bumbling parry in a cat fight?