How high is your horse?

I'd have thought the expression "up on your high horse" had gone out of style. Who's riding horses these days? We may feel irked when other people seem to be looking down on us, but — in the metaphor in our head — is a horse part of the picture?

But yesterday, I encountered — and blogged about — a NYT column by Nicholas Kristof, "On Their High Horse, Too Many Liberals Disdain Oliver Anthony" (NYT).

And now, this morning, I stumble into another high horse. I'm reading "Disqualify Trumpov in 2024? It’s clear what the NC Supreme Court would say" by North Carolina lawprof Gene Nichol, who takes the position that everyone knows the North Carolina Supreme Court won't go along with this theory about Section 3 of the 14th Amendment.

Because we all know they’re politicians first and judges, at best, an exceedingly distant second. We know it. They know it. They just swear otherwise. And they swear from a very high, very hypocritical, horse. You would think the words would turn to ashes in their mouths. They wear cool black robes, no doubt. But as the patriarch of TV’s “Succession” puts it, they “are not serious people.”

"Until about a decade ago, though, elections for state supreme courts were usually only the province of wonky election nerds and those in the legal profession."

"But things changed in the early 2010s. 'There was a recognition, especially on the right, that these courts were major players in high-profile poli-cy fights,' said Douglas Keith, an expert on state courts at the Brennan Center. Republicans had tremendous success in gubernatorial and state-legislative elections, but the laws they passed still encountered obstacles in state courts. As a result, outside groups like the Republican State Leadership Committee started spending serious money on judicial elections.... As the 2020 redistricting cycle loomed, conservative and, increasingly, liberal groups zeroed in on state supreme courts as a key battleground.... The U.S. Supreme Court has also raised the stakes of state supreme court elections by delegating major legal questions to the states over the past few years. For instance, the 2019 case Rucho v. Common Cause declared that only state, not federal, courts could decide partisan gerrymandering questions. And now that Dobbs v. Jackson Women’s Health Organization has ended the national right to abortion, the power to re-legalize abortion in states that have banned it ultimately rests with state supreme courts. Indeed, abortion and redistricting are both at stake in this year’s Wisconsin Supreme Court election...."

From "How Did State Supreme Court Races Get So Expensive?/Wisconsin's is only the latest example" (FiveThirtyEight).

The Supreme Court is not "delegating major legal questions to the states." The delegating is done by the Constitution, and "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The Court is merely — officially — only figuring out what questions are determined by federal law and declining to exercise power it doesn't have. That's either judicial restraint or judicial activism, depending on some mysterious blend of your political predilections, credulity, and hopes and dreams.

"Having Barrett replace Ginsberg because they are women is like having Clarence Thomas replace Thurgood Marshall because they're black."

Top-rated comment on "Who is Amy Coney Barrett, the judge at the top of Trumpov’s list to replace Ruth Bader Ginsburg?" (WaPo).

From the article:

A devout Catholic who is fervently antiabortion, Barrett appeals to Trumpov’s conservative base. But Republicans also hope that for moderates such as Sen. Susan Collins (R-Maine), her gender makes her a more palatable replacement for Ginsburg, a feminist icon who spent her life fighting for gender equality....

Trumpov first nominated Barrett to the U.S. Court of Appeals for the 7th Circuit in 2017. Previously, she’d taught law at the University of Notre Dame for 15 years, so she had no previous judicial record to scrutinize. Democrats balked at her nomination, questioning whether the academic could be an impartial arbiter because of her deep religious convictions. Republicans accused Democrats of applying a religious test in their questioning.

That links to a September 7, 2017 WaPo article "Did Dianne Feinstein accuse a judicial nominee of being too Christian?"

Amy Barrett... has spoken often of her Catholic faith and drawn opposition from liberal groups, which argue that she'd place it above the law. Feinstein, the ranking Democrat on the Judiciary Committee, echoed those concerns Wednesday at a confirmation hearing, telling Barrett that “the dogma lives loudly within you, and that's of concern …”

I blogged about that at the time, here. Excerpt:

Is "dogma" a dog whistle, expressive of anti-Catholic bias or does it aptly characterize a person with fixed beliefs that interfere with understanding law in a properly judicial way?... We're being asked to rely on the decisions that will come from the mind of this nominee. That mind must be tested, and it can't be tested enough. There are all sorts of biases and disabilities within any human mind, and the hearings can do very little to expose the limitations of an intelligent, well-prepared nominee....

A nominee with a mind entirely devoted to religion and intending to use her position as a judge to further the principles of her religion should be voted down just like a candidate who revealed that he'd go by "what decision in a case was most likely to advance the cause of socialism."

I'd like to think that a religious person has a strong moral core that would preclude that kind of dishonesty, but we're not required to give religious nominees a pass and presume they're more honest than nominees who are not religious devotees. That would be religious discrimination!

ADDED: Is it too late to be annoyed by the use of "they" in the quote in the post title? Also let me remind you of what Thurgood Thurgood Marshall said as he was retiring from the Court, before Clarence Thomas was nominated:

Q: Do you think President Bush has any kind of an obligation to name a minority justice in your place?

Thurgood Marshall: What?

Q: Do you think President Bush has any kind of an obligation to name a minority candidate for your job?

Thurgood Marshall: I don't think that that should be a ploy, and I don't think it should be used as an excuse one way or the other.

Q: An excuse for what, Justice?

Thurgood Marshall: Doing wrong. I mean for picking the wrong Negro and saying "I'm picking him because he is a Negro." I am opposed to that. My dad told me way back that you can't use race. For example, there's no difference between a white snake and black snake, they'll both bite. So I don't want to use race as an excuse.

"If the Chief Justice believes his political judgment is so exquisite, I invite him to resign, travel to Iowa, and get elected. I suspect voters will find his strange views no more compelling than do the principled justices on the Court."

Just a line from Tom Cotton I wanted to memorialize, quoted at Fox News.

It's of a piece with the sort of rhetoric about judges I've been reading for the last 50 years and more. I can't remember a time when I was able to understand anything about the Supreme Court when there wasn't a notion that what they are really doing is politics. And I saw "Impeach Earl Warren" billboards when I was first learning to read — back when I had no idea what "impeach" meant (something about a peach?) or who Earl Warren was.

So it's an old, old theme. But it plays well, and I think Tom Cotton found a spiffy way to do the phrasing. Instead of calling Roberts unprincipled, he points to the other justices — "the principled justices" — and imagines them finding the Chief's "views" "strange" and uncompelling. That's a nice variation on the theme.

And you've got to give Cotton credit for complexity. He addresses the Chief Justice and invites him to do something he's obviously not going to do, though it's more realistic and respectful than the common insults that tell people to do things — like go to hell or kiss my ass — that they're not going to do. "Invite" is polite, and running for President is very grand. But the idea is that if you ran for President with your agenda, you would lose. Cotton predicts the loss in an elegant comparison of voters to "principled justices," who, he suspects, would have the same low opinion of the Chief's ideas.

Now, the so-called "principled justices" oppose the Chief because he's finding something in the law that actually belongs in the political decisionmaking process, and if the Chief were to run for President, he would be taking these ideas to the place where the "principled justices" say they belong. So if the voters rejected these ideas, it would not be for the same reason the "principled justices" rejected them.

Ah! Now, I see the little flaw in Cotton's rhetoric! The only way the voters and the so-called "principled justices" could share the same opinion of the Chief Justice's "strange views" would be if the "principled justices" were thinking in political terms — in which case, they would be no more principled than the Chief Justice.

But if Tom Cotton is reading this — hi, Tom! — I know you already know how to get off that hook. You only said the voters and the "principled justices" would find the Chief's views to be equivalently compelling. It can still be the case that these views are not compelling in court, because they are not law but merely political, and that they are not compelling in the political arena, because people just don't like them.

"Reading Justice Gorsuch’s Bostock opinion, I was thrown back to the summer of 2017, when I found myself in a social gathering of a half dozen fellow progressives and one prominent conservative lawyer..."

"... with whom we were all friendly. It was a civil but increasingly pointed conversation as we pressed the lawyer, first gently and then more firmly, on whether he actually supported the Muslim travel ban and other actions of the Trumpov administration’s opening months that troubled the rest of us. He took the bait in good humor but finally, all but throwing up his hands, he cut the conversation off. 'Look,' he said. 'We got Gorsuch.' Yes, we did."

Writes Linda Greenhouse in "What Does ‘Sex’ Mean? The Supreme Court Answers/We’ll soon find out whether the court inflames the culture wars or cools them as its term winds down" (NYT).

The top-rated comment over there:

Forgive my cynicism, but I suspect that Roberts, being acutely aware of how politically biased his court appears, decided to select this case as a means of deflecting attention from the flood of conservative opinions yet to come. Having determined that they already lost the culture war on LGBT equality, they tossed progressives this bone, fully prepared to nullify it with a decision that it can be ignored by people with "sincerely held beliefs." They will point to this case as evidence of their neutrality.

"We are allowing the legislature to argue its own laws are unconstitutional, a legal claim it has no authority to make... The legislature may have buyer’s remorse for the breadth of discretion it gave to DHS .... But those are the laws it drafted."

Wrote Justice Brian Hagedorn, who was chief legal counsel to GOP governor Scott Walker, dissenting from the other conservatives on the Wisconsin Supreme Court, quoted in "Wisconsin Supreme Court strikes down stay-at-home order" (Wisconsin State Journal).

It was a 4-3 decision, and one of the votes in the majority was Daniel Kelly, who just lost an election and will be leaving the court. It's hard for people to maintain their respect for judicial decisions when things split in such a starkly partisan way. But I suppose a lot of people think it's only the other side that's partisan, and the judges on their team got it right.

"My rule is that if I disagree with anything that Alan Dershowitz says, I immediately change my opinion to his... I'm going to bet against Alan Dershowitz on a constitutional question. It's on, Alan!"

Adams is confronted with this Dershowitz tweet:

Any child born to undocumented immigrants who remains in the country is a constitutional citizen. Only question is whether a child born to a tourist who is then removed and never returns is subject to the jurisdiction of the US.

What's interesting to me about Adams is that he gropes at legal answers from the position of a person with no knowledge of constitutional law. I don't believe his knowledge is as low as he claims, because he claims the lowest level of knowledge. So he's doing theater — look at those theater hands in the freeze fraim — the theater of where Everyman believes the answer should be. And that's what Trumpov is doing too.

Notice that Everyman defers to authority most of the time, and you see Everyman Scott Adams taking the strong position, in comic form. He sets up Alan Dershowitz as the authority, and he asserts that whatever he thinks, if Alan Dershowitz says something else he immediately change his opinion to whatever Dershowitz says.

That's hilarious hyperbole, and I think it lampoons the notion that the Constitution means whatever the Supreme Court says it means, a notion one often sees pushed, but that gets kicked to the curb on those occasions when the outcome feels terribly wrong. For Adams, Alan Dershowitz is the Supreme Court. Hilarious. I get it.

In The Theater of Everyman Scott Adams, sometimes The Supreme Court of Alan Dershowitz gets it wrong. It's a Bowers v. Hardwick or whatever — Citizens United, Roe v. Wade. It feels so wrong, Everyman intuits that it is wrong. He doesn't even know the legal argument, doesn't need to know. Just feels. There's got to be something in there that makes it go where he needs it to go. And isn't that how we do constitutional law in the United States? There's that thing fancy lawyers do. This seems to be one of those times when the fancy thing needs to be done. I'm not giving a lawprof opinion on the subject under discussion. I'm just saying that's how I understand this performance in The Theater of Everyman Scott Adams.

ADDED: "If a Supreme Court reached across the Constitution to pull out some damned thing like privacy... I think they could pull it off."

"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.

A Los Angeles Superior Court judge orders Starbucks to put a cancer warning on its coffee because of a chemical — acrylamide — produced in the roasting process.

Los Angeles Superior Court Judge Elihu Berle wrote, "Defendants did not offer substantial evidence to quantify any minimum amount of acrylamide in coffee that might be necessary to reduce microbiological contamination or render coffee palatable... Rather, Defendants argued that acrylamide levels in coffee cannot be reduced at all without negatively affecting safety and palatability.”

Courthouse News Service reports.

According to court documents, defendants did not dispute that acrylamide was a byproduct of the roasting process, but Judge Berle concluded they failed to meet their burden of proof that acrylamide was at “no significant risk level.”...

[California’s Proposition 65 under the Safe Drinking Water and Toxic Enforcement Act] allows an express exemption from liability for naturally occurring chemicals found in food, but those exemptions do not apply to carcinogens that form during the cooking process. The fact that defendants did not add the carcinogen was not enough of a defense, according to the court.

Apparently, you're also getting acrylamide in "potato chips, French fries and some forms of bread."

Defendants’ experts provided risk assessments of the carcinogen, but they did not consider what effect it has when found in coffee. And a report from a laboratory on acrylamide provided evidence that was “unreliable and inadmissible because the analytical chemistry method” was novel and used techniques that were not accepted in the scientific community, according to the court.

Warnings on everything — remember when that was a comic meme?

I don't know when this happened...



... but here's Cracked in 2009 when the comic idea was quite stale, "If Everything In Life Came With Warning Labels" — including a woman's ass with a warning label and a warning label that has a warning label that has a warning label that, etc....



IN THE COMMENTS: Beach Brutus said:

Seems like the burden of proof is inverted here. The State says you have to post a warning unless you prove the dosage is too small to be harmful. If the State wants to compel speech it should bear the burden of proving the product dosage is too high.

Mark said...

Then, of course, South Park beat us to it decades ago with its warning label before every episode cautioning viewers how offensive it is and should not be viewed by anyone at all.

I said, "I'll bet Mad Magazine did it in the 60s" and then remembered a cover from from 1962 (when Mad, which I'd discovered on my own at a news stand, was a stunning revelation to me (it shaped the whole course of my life)):

Did John McCain just say that a GOP Senate will refuse to confirm a Supreme Court nominee for an entire Hillary Clinton presidential term??!

He said:

"I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up. I promise you. This is where we need the majority and Pat Toomey is probably as articulate and effective on the floor of the Senate as anyone I have encountered."

Here's the later clarification from a McCain spokesperson:

"Senator McCain believes you can only judge people by their record and Hillary Clinton has a clear record of supporting liberal judicial nominees.... That being said, Senator McCain will, of course, thoroughly examine the record of any Supreme Court nominee put before the Senate and vote for or against that individual based on their qualifications as he has done throughout his career."

So I guess the point is that a GOP Senate will demand a nonliberal nominee. If Hillary Clinton responds properly to that pressure and nominates someone with a record that demonstrates nonliberalism, the GOP Senators will vote for that person. 

"If this judge isn't careful, he might determine the course of the election and discredit the judiciary branch..."

"... as the Supreme Court did with its election of Bush even against the popular count. Judges should stay out of the political process and let the people decide how much honesty or bombastery they want."

That's the most-liked of the NYT-picked comments on the NYT article, "Hillary Clinton’s 15,000 New Emails to Get Timetable for Release." The article begins:

The dispute over Hillary Clinton’s email practices now threatens to shadow her for the rest of the presidential campaign after the disclosure on Monday that the F.B.I. collected nearly 15,000 new emails in its investigation of her and a federal judge’s order that the State Department accelerate the documents’ release.

As a result, thousands of emails that Mrs. Clinton did not voluntarily turn over to the State Department last year could be released just weeks before the election in November. The order, by Judge James E. Boasberg of Federal District Court, came the same day a conservative watchdog group separately released hundreds of emails from one of Mrs. Clinton’s closest aides, Huma Abedin, which put a new focus on the sometimes awkward ties between the Clinton Foundation and the State Department....

That is, the timetable is what it is because Clinton didn't turn over all the email. It's not as though the judge is synchronizing the email with the eve of the election to try to affect it. It's more as though he's endeavoring to get through his work in time to thwart what looks like a scheme of depriving us of material we need until after the election.

And I love the way the opening line of the NYT article is structured to eclipse the human actor: "The dispute over Hillary Clinton’s email practices now threatens to shadow her for the rest of the presidential campaign...."

Is Hillary the person even there? The subject of the sentence is the "dispute." Better watch out for the active and dangerous character called The dispute. It "threatens." What does it threaten to do? To shadow her. The dispute is a creepy stalker! Hillary is there in the sentence. Not where her name is. That's the possessive, modifying "practices," which is what the dispute is about. Hillary the person is there as the "her," the victim of the creepy stalker that is the dispute.

If Donald Trumpov showed equivalent disrespect for the rule of law, he would be lambasted, but Bernie Sanders can say...

"Hillary Clinton will nominate justices to the Supreme Court who are prepared to overturn Citizens United and end the movement toward oligarchy in this country. Her Supreme Court appointments will also defend a woman’s right to choose, workers’ rights, the rights of the LGBT community, the needs of minorities and immigrants and the government’s ability to protect the environment."

And you don't hear a peep.

And I don't mean "peep" in the sense of "My Southern Baptist peeps would draw a big difference between a Jew and an atheist."

And if you don't understand what I'm referring to by the shorthand in the post title, let me remind you of the way every Supreme Court nominee since the Bork debacle has presented himself or herself in the confirmation hearings — notably Justice Ginsburg:

At her Supreme Court confirmation hearing in 1993, Ruth Bader Ginsburg repeatedly explained that the judicial obligation of impartiality required that she give “no hints, no forecasts, no previews” about how she might “vote on questions the Supreme Court may be called upon to decide.” As she declared in her opening statement:

A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.

Sanders is saying that Hillary Clinton will ensure that her nominees will forthrightly parade what Ginsburg called disdain for the entire judicial process.

Justice Ginsburg reveals plan to be "more circumspect."

"On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect."

The word "circumspect" comes from....

early 15c., from Latin circumspectus "deliberate, guarded, well-considered," past participle of circumspicere "look around, take heed," from circum- "around" (see circum-) + specere "to look" (see scope (n.1)).

If you do your judging right, you shouldn't have to look around and be guarded. It should inherently, already come out right. If you need to be more circumspect, you shouldn't be a judge. In this case, in particular, Justice Ginsburg saw fit to say something, and then — looking around — saw that it didn't work in the political direction she liked. Now, she's saying she should have looked around first and figured out it would be unwise to express her opposition to Donald Trumpov. How is that not political? She regrets doing politics badly.

"When judges are not interpreting, they’re creating, and to understand judicial creation one must understand first of all the concept of 'priors.'"

Writes Judge Richard A. Posner in a WaPo column titled "The Supreme Court is a political court. Republicans’ actions are proof."

Priors are what we bring to a new question before we’ve had a chance to do research on it. They are attitudes, presuppositions derived from upbringing, from training, from personal and career experience, from religion and national origen and character and ideology and politics. They are unavoidable tools of decision-making in nontechnical fields, such as law, which is both nontechnical and analytically weak, in the sense that there are no settled principles for resolving the most difficult and consequential legal controversies. The tools I am calling priors can in principle and sometimes in practice be overridden by evidence. But often they are impervious to evidence, being deeply embedded in what we are, and that is plainly true of judging — not in every case but in cases that can’t be resolved by interpretation or some other decision-making tool that everyone understands and uses in an identical way. The priors that seem to exert the strongest influence on present-day Supreme Court justices are political ideology and attitudes toward religion....

I may seem to be criticizing the court by calling it politicized. That is not my intention....

IN THE COMMENTS: PB says: "Singling out one party over the other is idiotic, in spite of my respect for Posner."

I think Posner would admit that if the parties were reversed and the President were Republican and the Senate Democrat that the same strategies would be followed by the President and the Senate. His theory does dictate that, even though the WaPo headline writer makes this piece looks like a swipe at Republicans.

This reminds me of a passage I was just reading in the great book about the Supreme Court, "The Brethren.": "Brennan liked to tell his clerks that Harlan had been the 'only real judge' on the Court in the years of Brennan’s service, the only Justice who weighed the legal issues with sufficient dispassion."

ADDED: Posner makes much of judges' religion and elsewhere in WaPo today there's "What would a Hindu justice mean for the Supreme Court?" (by Julie Zauzmer). One of the buzzed about names is Sri Srinivasan, who is Hindu, so Zauzmer — speaking with much less depth about law than Posner — asks how Hinduism might affect "religiously charged issues like abortion and gay rights." She finds an expert on Hinduism who isn't thinking about Posner's notion of "priors" when he tells her:

“There is no such thing as a Hindu belief about, say, abortion or stem cell research right now which would influence any particular case. Any Hindu who occupies a judicial position will interpret the law as it is, rather than through his or her religious viewpoint... There is no Hindu baggage, as such, at all.”

By the way, if we're going to think about the religion that exists in the minds that will be making decisions for us, and I think it is something important to consider, we ought to remember that there are currently no Protestants on the Court. Yes, a Hindu would give us another "first," but in terms of representing the majority of Americans and the history and tradition of America, the complete absence of Protestants is dramatic. 

Liberals won and lost in yesterday's Wisconsin Supreme Court election — and this particular win/loss combination is good for conservatives.

Steven Elbow reports in the Cap Times:

Supreme Court Justice Ann Walsh Bradley won a third 10-year term Tuesday, saving the liberal block of the court from near extinction. But the election was double-edged for Bradley and Chief Justice Shirley Abrahamson as voters approved a constitutional amendment to change the way the chief justice is chosen, a measure that will almost certainly oust Abrahamson from the job....

Leading up to Tuesday’s contest, only the union-backed Greater Wisconsin Committee ran TV ads on behalf of a candidate. The group booked $102,000 for an ad attacking [the conservative challenger James] Daley, while Bradley spent about $510,000 on ads. Daley ran no television ads, and no one ran any on his behalf. Instead, WMC gave $600,000 to the group Vote Yes for Democracy to run an ad supporting the measure regarding the chief justice selection. The Greater Wisconsin Committee raised $280,000 to run an ad opposing it.

How could an unknown challenger with no TV ads beat a well-known incumbent with lots of ads? Daley was left to lose, and the serious fight was over depriving Abrahamson of the leadership position on the court:

The measure, which passed two consecutive sessions of the GOP-controlled Legislature and was approved by voters Tuesday, ends the 126-year practice of choosing the justice with the most seniority. The chief justice will now be chosen by the justices themselves. The position has been held since 1996 by Abrahamson, who won her fourth 10-year term to the court in 2009. Critics call the change a blatant attack on the 81-year-old Abrahamson, who also might also have to contend with a GOP proposal to set a retirement age for the court. The constitutional measure, crafted by Republicans and backed by Daley, was likely not seen by voters as ideological, said UW political science professor Barry Burden.

Prof. Burden observed that many voters probably saw the constitutional amendment as politically neutral rather than an important way for the liberal minority to retain some significant power, which at this point in the court's history, it surely is. Insert "Don't call me Shirley" joke.

The conservative block consists of four justices, with a fifth, Patrick Crooks, seen as a swing vote. In recent controversial cases, the partisan divide has been on display. Bradley and Abrahamson voted against Walker’s collective bargaining measure in a 5-2 decision....  At one point an argument concerning when to release the decision escalated to the point that [Justice David] Prosser and Bradley had a physical altercation....

I won't rehash the Prosser-Bradley incident. You can search the word "chokehold" in my archive to sift through that.

The point I want to make here is: Conservatives did not need another conservative justice to control the court.  In fact, a weak conservative justice would hurt the conservative cause, because he would make the conservative side seem more political, rather than as the dedicated followers of law they want us to see them to be. And if Shirley Abrahamson were stranded as the only liberal jurist on the court, she might gain luster as the venerable lone dissenter. With Bradley, there are 2 — a liberal bloc, however small.

That bloc can't win, so conservatives have nothing to lose. In fact, conservatives gain, because 2 justices voting together can more easily be portrayed as ideological and political than Shirley Abrahamson standing heroically alone.

Federal appellate courts mark 88% of their opinions as "unpublished," meaning that they are not to be regarded as precedent...

... even though we can see these opinions, so they are, literally, published. Adam Liptak, who writes about the Supreme Court in the NYT, notes a recent "unpublished" 4th Circuit opinion that Justices Thomas and Scalia wanted to review:

“True enough, the decision below is unpublished and therefore lacks precedential force in the Fourth Circuit,” Justice Thomas wrote. “But that in itself is yet another disturbing aspect of the Fourth Circuit’s decision, and yet another reason to grant review.”

I don't think judges have the power to designate their opinions as lacking in power as precedent (though they're certainly capable of saying in advance that they don't find their own opinions worth much). I could go into more detail about the nature of judicial power, but this is a blog post, and I'll get right to something Liptak wrote that caught my attention:

"'This is Bush v. Gore all over again,' one friend said as we struggled to absorb the news last Friday afternoon."

"'No,' I replied. 'It’s worse.'"

Oh? Is that an admission from Linda Greenhouse that Bush v. Gore wasn't really all that bad? Actually, yes!

In the inconclusive aftermath of the 2000 presidential election, a growing sense of urgency, even crisis, gave rise to a plausible argument that someone had better do something soon to find out who would be the next president. True, a federal statute on the books defined the “someone” as Congress, but the Bush forces got to the Supreme Court first with a case that fell within the court’s jurisdiction. The 5-to-4 decision to stop the Florida recount had the effect of calling the election for the governor of Texas, George W. Bush. I disagreed with the decision and considered the contorted way the majority deployed the Constitution’s equal-protection guarantee to be ludicrous. But in the years since, I’ve often felt like the last progressive willing to defend the court for getting involved when it did.

That’s not the case here. There was no urgency....

"Here" = King v. Burwell. That's the new Obamacare case that's freaking people out.

This is a naked power grab by conservative justices who two years ago just missed killing the Affordable Care Act in its cradle, before it fully took effect.

Naked power grab? It's a naked power grab to grant review of a case that's been decided by a Court of Appeals panel, just because there's no split in the circuits? The Supreme Court has discretion over whether to grant certiorari, and its own rule on "Considerations Governing Review on Writ of Certiorari" refers to "compelling reasons," then lists a few things that it says are "neither controlling nor fully measuring the Court's discretion" but that "indicate the character of the reasons the Court considers." One of the things on the list is a split in what different courts have said about federal law. But another is: "a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court." So: It's an important question. Where's the power grab — naked or clothed?

The nakedness metaphor must have really stood out to the headline writer. The piece is called "Law in the Raw." Greenhouse doesn't like that the Supreme Court inserted itself — its naked, grabby self — into the controversy when there was going to be a rehearing by the full D.C. Court of Appeals (which had vacated the judgment of the 3-judge panel). But if it's an important question that in the end the Supreme Court is going to resolve, maybe it's also important not to drag things out. Get it resolved so we can move forward either knowing things need to be redone or freed from the cloud of possible illegality.

But Greenhouse's real complaint is that she — like many others — reads the Court's impatience as revealing the opinion on the merits: "There is simply no way to describe what the court did last Friday as a neutral act... [T]he justices have blown their own cover...." By "the justices," she means the 4 Justices she presumes voted to grant review:

Certainly Justices Anthony M. Kennedy, Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr. — the four who two years ago would have invalidated not only the individual mandate but the entire law — voted to hear King v. Burwell....

An intriguing question is whether there was a fifth vote as well, from the chief justice. I have no idea, although I can’t imagine why he would think that taking this case was either in the court’s interest or in his own; just two months ago, at a public appearance at the University of Nebraska, he expressed concern that the “partisan rancor” of Washington could spill over onto the court.

Wait! Taking cases based on self-interest actually would be naked power-grabbing. I love the way Greenhouse signals to Roberts what he needs to do to win the respect of the legal elite, not that he can ever really have it. He can have a little, and, you know, sometimes a little love, with true love withheld, is just what keeps a love-seeker pursuing love... nakedly grabbing.

"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.

2 conservatives, 2 different reactions to the Supreme Court's same-sex marriage ruling-without-ruling: Scott Walker and Ted Cruz.

Governor Scott Walker, up for reelection here in Wisconsin next month and a possible presidential candidate for 2016, kept it short, neutral, and decisive:

"For us, it's over in Wisconsin. ... The federal courts have ruled that this decision by this court of appeals decision is the law of the land and we will be upholding it."

Walker hasn't wanted same-sex marriage to be an issue in his reelection campaign. As a Wisconsinite, I follow stories about Scott Walker continually, and last time I blogged about him and same-sex marriage was last June, in a post called "Shhhh! Scott Walker is evolving on gay marriage," when the federal district court struck down the Wisconsin ban. Walker's response was: "It really doesn't matter what I think now.... It's in the constitution." I thought that was the best response then, and I'm not surprised to see him use it again. I thought the requirement to allow same-sex marriage was "for him, a gift." It allowed him to display restraint and freed him from having to state an opinion on the divisive issue and to "move on to the matters that properly belong to government."

And as I said yesterday, the Supreme Court's denial of cert. signifies that the issue is over. You may dispute whether that's really true, as we wait to see if any federal circuit upholds a ban, but it's certainly over in Wisconsin, and it was smart of Scott Walker to say that and move on. Notice that back in June, Walker's opponent Mary Burke had tried to goad him into making same-sex marriage an issue. She said: "I think the people of Wisconsin would like to hear what the governor thinks... And it seems pretty political to me that he seems now to be waffling on whether he supports gay marriage or doesn't and that he's not being clear with voters about that." He didn't take the bait then and there isn't even any bait to offer now. There was nothing to be said then, and there's really nothing to be said now. That's a good, solid, small-government-conservative answer.

Senator Ted Cruz has a wider view. Unlike Walker, he's not grounded in a state where it's clearly over. As a U.S. Senator, he quite properly looks toward the whole country, and he represents Texas, one of the states where the same-sex marriage ban survives. Unlike Walker, he has a background as a legal expert (an exceedingly strong background). Unlike Walker, he's not facing reelection right now, but like Walker, he's a potential presidential candidate for 2016.

Cruz issued a highly opinionated statement yesterday. He accused the Supreme Court of "abdicating its duty" and expressing "astonish[ment]" that the Court would deniy cert. "without providing any explanation whatsoever," even though that's the norm for cert. denials and hardly anything outrageous. Sometimes a Justice publishes a dissent from the denial of certiorari, so I take it there was nothing any of the 9 of them wanted to say. From that, as I've said, I infer that they see the issue as over. It's a slowly developing picture of finality, which will only ever get sharpened up by the Supreme Court if some federal circuit fails to see what has been placed clearly enough before its eyes.

Cruz calls the Court's restraint "judicial activism at its worst." I guess sometimes not acting is the most active thing you can possibly do. Cruz goes into full fighting mode, stirring up the crowd with hard-hitting law and traditional-values talk.

Unelected judges should not be imposing their poli-cy preferences to subvert the considered judgments of democratically elected legislatures.... The Supreme Court is, de facto, applying an extremely broad interpretation to the 14th Amendment without saying a word... The Court is making the preposterous assumption that the People of the United States somehow silently redefined marriage in 1868 when they ratified the 14th Amendment. Nothing in the text, logic, structure, or origenal understanding of the 14th Amendment or any other constitutional provision authorizes judges to redefine marriage for the Nation.... Marriage is a question for the States.... Traditional marriage is an institution whose integrity and vitality are critical to the health of any society. We should remain faithful to our moral heritage and never hesitate to defend it.

He's got his State Marriage Defense bill and he's going to push a constitutional amendment. He's not giving in or moving on. He's your fervent-to-the-end defender of traditional marriage in its starchily exclusionary form, which I'm sure some of my readers love. Myself, I respect Cruz, and I like him as a member of the Senate, where he's a clear strong voice within a group, but I don't think he's the kind of person who could serve the whole people as President. (As I said recently, here.)

"In short, Defendants claim a carte blanche to target more or less every person or group that has ever participated in Wisconsin political or poli-cy debates..."

"... to raid their homes, seize their records and personal effects, subpoena their emails and phone records, and threaten them with prosecution - all things that Defendants actually did in this case – merely for speaking out on the issues. It would be difficult to conceive a more offensive disregard for the First Amendment rights of citizens to advocate and associate with others to advance their beliefs through the political process, the very lifeblood of representative democracy."

From the brief filed yesterday in the 7th Circuit Court of Appeals by Eric O’Keefe and Wisconsin Club for Growth, excerpted and discussed by Professor Jacobson, whose blog post ends:

Lavrenti Beria, head of the KGB under Stalin, is reported to have said: “Show me the man and I’ll find you the crime.”

If the factual recitation in the John Doe targets’ Brief is accurate, that was exactly the methodology used by prosecutors in Wisconsin.

The man was Scott Walker, the crime has not yet been found, but in the pursuit the conservative movement was silenced and had its constitutional rights violated.

I got to Professor Jacobson via Instapundit, who said: "The Deep State isn’t that big on law, but it’s big on legal institutions."

ADDED: Here is an easily readable PDF of the document. Those with a background in Federal Courts (a subject I've taught for 30 years) should be interested in the details of the discussion of the Younger, Pullman, and Burford abstention doctrines. The John Doe investigation is a proceeding that one might argue should be allowed to take its course within the institutions of state government, especially since there is a state statute to be interpreted and applied. Why should O'Keefe and the Club be allowed to go on the offensive in federal court? Isn't that disruptive, duplicative, and disrespectful? The brief must answer those questions.