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Felagund


				
				
				

				
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Okay, more clearly.

In general, when you have arguments, there are assumptions. You can make some argument, and reach the conclusion, and so claim that that the conclusion must be true, this being a form of modus ponens ("the putting way"). But people could instead think the conclusions are obviously false, and so conclude that a premise must have been wrong, which is modus tollens ("the overturning way"). This is pretty much always going to be possible in arguments.

If we have a phrase:

If A, then B.

From this, one can say, A, hence B.

But some might say not B, hence not A.

This says that, if you make a claim, some might choose not to go with the proof you meant, but choose to say that the first phrase must be false.

Now I will stop with the use of short words.

The amount of disagreement has decreased, maybe?

I'm far too late, but I wrote up the (unevenly too long) following on a plane ride.

A few noteworthy, or amusing things I didn't see mentioned:

  • The Vidal case is essentially 5-4 on methodology, despite all that mess. I don't really see why the majority is doing what it's doing, at all?

  • Alito using "alien" and Jackson "noncitizen" at every possible opportunity, which is hilarious.

  • The dissent from Gorsuch in the bankruptcy case is pretty strongly phrased. Jackson, in turn, quotes back Gorsuch's own words from a previous case, that the dissent is "just that."

  • Barrett's trademark opinion at one point refers to someone attempting to register a trademark for Duchess of Windsor for ladies' underwear.

Regarding your point on the conservatives disagreeing more, the liberals agreed in eight of the nine cases the last two weeks—the only case not unanimous between them was the (in effect) 8-1 NLRB case, (and I suppose if you want to count it, agreeing with different portions of Barrett's concurrence). Meanwhile, the conservatives were less unified. Nearly every pair of conservative justices had some disagreement somewhere in the past two weeks:

Gorsuch disagrees with the other conservatives on the immigration case. Barrett disagrees with the other conservatives on the trademark case. Roberts disagreed with the remaining conservatives on Native American healthcare. Thomas disagrees with the Alito and Kavanaugh on the bankruptcy case. That leaves only Alito and Kavanaugh who didn't really disagree at all these last two weeks.

Anyway, now to what I had written:

Two days of opinions, this last week, in six cases. I've commented on the one about mifepristone here—in short, the doctors trying to get it removed from the FDA had no standing, that is, nothing that made them eligible to bring their case, no harm done, no remedy, etc.

As to the others:

Thursday's cases were all 9-0, at least in judgment, but only the above was truly unanimous; the others had some form of disagreement.

I had a bit more time, so I wrote more.

Starbucks Corp v. McKinney

Thomas wrote the opinion and everyone except Jackson signed on. Jackson filed an opinion which agreed with part of what they said, but had more to say, and I think, disagreed with what the practical outcome should be, despite agreeing on the court's action. That is, Jackson is "concurring in part, concurring in the judgment, and dissenting in part."

That's opaque, so let's get into it.

The case is between Starbucks and the National Labor Relations Board (NLRB). Some starbucks workers tried to unionize and called in a news crew to support them. Starbucks fired them. The NLRB was contacted, who filed a complaint with Starbucks, and filed a §10(j) petition (of the NLRA) asking for a preliminary injunction (that is, until the actual judgment) making Starbucks reinstate the fired employees. Notably, the judgment will be by the NLRB itself. The question is how exactly that petition should that be handled.

§10(j) authorizes a district court "to grant … such temproary relief … as it deems just and proper."

Courts follow two sorts of tests: a two-part test, used by the 6th circuit, or a four-part test. The two-part test is peculiar to the NLRA, and asks whether "there is reasonable cause to believe that unfair labor practices occurred" and whether granting the injunction is "just and proper." Note that "reasonable cause" is kind of broad—you don't actually have to think that they're right, this just requires that it's not "frivolous". This also seems to be derived from the statute of 10(j), as listed above.

The four-part test is from for preliminary injunctions more generally. They cite another SCOTUS case here, which, I think, applies to preliminary injunctions more generally. What this requires is that they are (1) likely to succeed, (2 )to suffer irreparable harm unless granted such a preliminary injunction, (3) "that the balance of equities tips in [their] favor", and (4) "that an injunction is in the public interest." Note especially that "likely to succeed" is a good bit more stringent than the previous "reasonable cause to believe," and "irreparable harm" than "just and proper."

Thomas argues that section 10(j)'s "just and proper" phrase isn't establishing any other standard than the already accepted one, and so they should use the four-part test.

But the board, and Jackson, yield this. Where the disagreement rests is how those should be applied. Thomas addresses this in II-B, but first we'll turn to Jackson's dissent, on the same topic

Jackson argues that, from Hecht Co. v. Bowles, the courts must take into account the judgment and intent in the act from Congress. (This act was also cited by Thomas, but to a different end.) Jackson argues for a two part-standard to decide how the court should judge: first, "whether Congress has clearly displaced courts' equitable discretion," and second, "if no such clear statement exists, we evaluate how that discretion should be exercised in light of Congress's choices in the NLRA." She agrees on part 1, the question is on part 2, which she thinks the majority has hardly addressed.

Jackson thinks three of the four factors follow straightforwardly: for irreparable harm, that the interim relief is necessary to remedy the violation of labor rights. For balance of equities, they may consider harms to (in this case, Starbucks), but not its "desire to continue engaging in an alleged violation of the NLRA." For public interest, they defer to Congress in issuing the NLRA. Only the likelihood of the case's success remains. But in this case, it is the Board itself which issues the judgment, and requesting the injunction is a pretty good sign of what it's going to think in the actual judgment, especially since the NLRB doesn't ask for many injunctions, and since the board is granted quite a bit of deference in the appeal.

Okay, that's Jackson, now back to Thomas. He says that the Board actually thinks what the Sixth Circuit is doing is about the application of the statutory criteria. He argues that the reasonable cause standard goes well beyond what's in the traditional criteria, as "likely to succeed" is far more of an evaluation than "reasonable cause to believe." Then, in one paragraph, which is, as far as I can tell, practically the only one actually dealing with what Jackson is asserting, he states that "none of the views advanced in a §10(j) petition represent the Board's final position—they are simply the preliminary legal and factual views of the Board's in-house attorneys."

I don't know what I'm talking about, legally speaking, so I could be off-base, but he didn't explain that at enough length for me to be convinced that Jackson is wrong—if the NLRB is judging the case after the NLRB submits an injunction, then it seems reasonable enough to think it'll win on the merits. I'm not used to siding with the 1 in an effective 8-1 where the 1 is Jackson. Perhaps if I misunderstand this in some respect, it'd be great if any of you who are more knowledgeable could clear it up.

Practically speaking, this doesn't seem like it matters very much in the specific context that it's applied in. 14 injunctions filed per year doesn't seem like much, though I imagine that it could matter more if some of those are large in scope. I can't speak to whether there will be any larger effects regarding willingness to defer to the judgment of agencies.

Vidal v. Elster

Also 9-0 in judgment, but quite the mess in terms of who's with whom.

THOMAS [Sorry, I don't know how to do small caps on themotte], J., announced the judgment of the Court and delivered the opinion of the Court, except as to Part III. ALITO and GORSUCH, JJ., joined that opinion in full; ROBERTS, C. J., and KAVANAUGH, J., joined all but Part III; and BARRETT, J., joined Parts I, II–A, and II–B. KAVANAUGH, J., filed an opinion concurring in part, in which ROBERTS, J.J., joined. BARRETT, J., filed an opinion concurring in part, in which KAGAN, J., joined, in which SOTOMAYOR, J., joined as to Parts I, II, and III–B, and in which JACKSON, J., joined as to Parts I and II. SOTOMAYOR, J. filed an opinion concurring in the judgment, in which KAGAN and JACKSON, JJ., joined.

So, all in all, six different positions, considering the opinions together. But really, it's more like 2, the men versus the women.

The case regards the matter of trademarks. Steve Elster sought to register the trademark "Trump too small," (referring back to the Rubio comment in one of the 2016 debates) and was refused, because the Lanham Act prohibits registration of a trademark that "consists of or comprises a name…identifying a particular living individual except by his written consent." Elster claims that this restriction, as a content-based restriction, violates the first amendment. The whole court agrees that it doesn't but has some substantial disagreements over why, exactly.

First, to Thomas's opinion (and I'll break them down a little further, because of all the partial concurrences).

In section I (Signed onto by all the conservatives, including Barrett) Thomas mostly just says the same things as I said two paragraphs ago, but at more length, and with a little more detail. Since he'll get into the detail later, I see no reason to look more.

In II–A (Also agreed upon by all 6), Thomas lays out the first amendment claim. Essentially, (by precedent) government content-based regulations are presumptively unconstitutional. Viewpoint discrimination is distinguished (by precedent) as a particularly bad kind of content discrimination. The court's already agreed in 2017 and 2019 that viewpoint-based discrimination, such as the Lanham Act's ban on disparaging trademarks and on immoral/scandalous trademarks were violations of the First Amendment, were unconstitutional. The names clause doesn't discriminate on viewpoint.

(I'll note here that my instinctive reaction to trademarks is backwards to that of the court—they feel more like prohibitions on speech than a case of speech themselves to me, but the court protects with the first amendment registering trademarks as a sort of speech.)

In II-B (also agreed on by all 6), Thomas considers the constitutionality of content-based but viewpoint neutral trademark restrictions.

Thomas begins by saying that there should not be heightened scrutiny here, most importantly because they have always coexisted with the First Amendment. Trademarks have been around from before the founding, going back to English law. Their purpose was to mark the manufacturer. The first federal trademark law was in 1870 (before that, purely states), and included some content restrictions (as did a SCOTUS case), which didn't change with the Lanham Act in 1946. They always involve content restrictions, including, for example, barring the registration of a trademark that is likely to cause confusion with another trademark. Thomas argues that because they have always coexisted with the first amendment that therefore there should not be heightened scrutiny. Further, content-based restrictions are inherent to trademarks more generally, as prohibiting confusion over the manufacturer requires looking to the content of the mark.

Thus far, Barrett signs off on it. In II–C, she departs, leaving us with five justices. Here Thomas chooses not to give a framework as to when content-based trademark restrictions are permissible, but chooses instead to look at history and tradition. It is for this, as we shall see, that he gets excoriated by the defense. Anyway, onto the history of name restrictions. Because people own their own names, trademarking names, even their own, was illegal (consider: there is more than one John Smith, so a ban on using it merely because another had the same name, would be a problem). Trademarks could contain one's name, though, if they also had other content. Originally, this allowed others with the same name still to use it (see, for example, SCONY's Faber v. Faber in 1867). The Lanham Act is to be seen to be incorporating existing trademark law, not making up a new one. The names clause serves to help identify the source, and to protect the markholder's reputation, by prohibiting the use of the name of another without permission. And no one has a "first amendment right to piggyback off the goodwill another entity has built in [that entity's] name."

Thomas concludes that there's a tradition of resisting trademarking of names, coexisting with the First Amendment. He declines to develop a comprehensive theory. Yes, nearly his sole argument in this opinion is that there's a history to it, therefore it's constitutional.

In part III, Thomas briefly addresses Barrett and Sotomayor, arguing that their analogy-based approaches are bad. He is joined in this only by Alito and Gorsuch, Roberts and Kavanaugh having dropped out. I'll return to this later. Part IV is a summary.

Kavanaugh's concurrence (joined by Roberts) is very short, one nine-line paragraph, only adding that such a content-based trademark restriction may well be constitutional even without the history backing it up, and that can be addressed in the future.

Now to Barrett's opinion. Kagan joins in its entirety, Sotomayor joins as to parts I, II, and III–B, and Jackson joins as to parts I and II. She disagrees that history and tradition settle the constitutionality for two reasons: first because the history doesn't suffice to match the names clause, and second, because the court never explains why the whole look for predecessors of the clause is the right approach anyway. Barrett prefers to adopt a standard.

Again, I'll break it down by section, because of the partial endorsements. In Section I (agreed by all four), Barrett begins by framing the constitutional issue as that content-based prohibitions are generally prohibited because they work to drive ideas or views out, but there may be some cases where there's no realistic possibility of suppression of ideas (citing precedents). Content-based trademark restrictions are not presumptively unconstitutional. It's always been content based. For example, trademarks merely describing a quality of an item were prohibited, as other manufacturers should be allowed to use them—that's a content-based rule. Barrett explicitly mentions the incorporation of the first amendment in 1868, which it seems to me, the majority really ought to have done, and agrees that content discrimination was inherent to "the very definition of a trademark" at that time. Hence content-based trademark rules have been needed historically. They've also coexisted with the free speech clause because they do not suppress ideas, and even can help protect them, by preventing things that shouldn't be, like the word "potato" from being trademarked. (example mine, sentiment hers)

In section II (still agreed upon by all), Barrett turns to decide how to judge this. She follows an analogy (proposed by the solicitor general) to limited public forums, when government allows speech on its property, but in some restricted manner. Rules restricting speech in limited public fora are judged based upon "whether they are reasonable in light of the purpose which the forum at issue serves." She thinks that though trademarks are not limited public fora, it's an apt enough analogy. Therefore, "content-based criteria for trademark registration do not abridge the right to free speech so long as they reasonably relate to the preservation of the markowner's goodwill and the prevention of consumer confusion," and therefore, if it helps to serve as source identifiers. The names clause passes.

Before we get to section III (where Barrett addresses the Court), let's return to Thomas' thoughts on Barrett. He comments in two places: in a footnote in section II, and in section III. For the time being, only section III is relevant. Recall that section III is only Thomas, Alito, and Gorsuch, not the opinion of the court. Thomas argues that she doesn't justify why that makes sense, merely says that it is "apt," and that the rule is about fora, specifically, and that this is not a forum, and so as there is no analogous forum, it is hard to see why such a test should apply. (Barrett, in response, notes that she didn't say it was a forum, just analogous in that they form content-based restrictions, and states that Thomas ignores her reasons for drawing the analogy.)

Now to part III. Here, Barrett addresses the court's methodology, stating that she does not think the historical record suffices. In III–A, with Kagan alone, she argues that the history does not support what the majority does. Barrett is not convinced that the common law provides protection to someone seeking a trademark including someone else's name. She cites the SCOTUS case Thaddeus Davids Co. v. Davids. Mfg. Co. from 1914, where a "fairly complete" list of invalid marks are made, among which is not listed any names-clause analogue. Further, the sources cited in that case are against enforcing a trademark against individuals with the same name, not prohibitions on names without permission more generally. Barrett argues that the names clause prevents uses of names that may have been permissible under common law, citing several cases that allowed the use of names even of living individuals in the right case, such as Bismarck (because he was famous. The trademark was not to pretend the product is made him). The legislative history backs up that it was not merely common law, but meant to exclude cases like Bismarck, or "the Duchess of Windsor for brassieres and ladies' underwear" that might otherwise be permissible. (Thomas argues that the names she cites are not applicable, being dead, or already generic terms. Barrett rejoins that the cases explicitly allowed for living individuals, and in the case of Bismarck, he was alive at the time.)

In III–B, where Sotomayor joins back on, but not Jackson (and Kagan remains with Barrett), Barrett argues that tradition should not be the proper bar, even if it should be yielded to in some cases for purposes of stare decisis (that is, not changing up the law on everyone for minor reasons). She argues that the majority does not treat the history itself merely as "a persuasive data point," but as the constitutional argument itself. Rather, the court should articulate principles. Her preferred takeaway from history is that trademark restrictions have "been central to trademark's purpose" and "have not posed a serious risk of censorship," and states that this is a good way to think about whether such restrictions work with the first amendment.

Thus far Barrett. Now to Sotomayor, who is joined by Kagan and Jackson. (Simple, for once.) This is another methodological disagreement. Sotomayor argues against the use of looking to history and tradition in general. She points to Barrett's disagreement as indication of the uncertainty of such an analysis, and that the justices are looking at these without them having been raised by litigants, and that nonhistorians are doing historical analysis. She argues further that usages of it in Bruen are problematic, as it has led to confusion. Sotomayor would also prefer "a doctrinal framework drawn from this Court's First Amendment precedent," with the standard being that trademark restrictions should be viewpoint neutral and reasonable for the purpose of trademarks. Sotomayor, in accord with Barrett, allows some use of history, such as to understand what the purpose of trademarks is. Sotomayor argues that the reason that registration restrictions is fine with the first amendment is that failing to get a trademark registered is not a restriction on speech, merely the withholding of a benefit. She argues that there are several cases which back this up, including limited public forums (yes, she uses that plural, not the latin plural. Barrett used no plural, so I said fora due to nerdiness) and monetary subsidies. Those precedents permit imposing a "resonable, viewpoint-neutral limitation on a state-bestowed entitlement." (Thomas, in section III thinks that these are too different; Sotomayor thinks that the underlying principle is still useful.) Because here, if a mark is ineligible for registration, it can still be used anyway (but not restricting the use of others) it's not a problem. It only does not confer exclusive rights to speech, it does not restrict that speech.

My thoughts: I found the (in effect) dissents quite compelling, and am not a fan of the majority's use of historical analysis as sufficient. One interesting thing to think about is what factors may have led some justices to sign onto parts and not onto other parts of opinions. I assume the difference between Barrett and the liberal justices in whether they agreed in part with the main opinion had to do with whether they wanted to show solidarity. Perhaps Barrett didn't sign onto Sotomayor's due to the more oppositional tone, as well as, perhaps, that it seems slightly harsher towards use of history more generally? I imagine Sotomayor either didn't want to engage in any historical analysis (by endorsing Barrett's), or agreed with Thomas that it wasn't sufficient. I'd guess the former. No idea why Jackson declined to sign onto Barrett's part 3. I assume Roberts and Kavanaugh chose not to sign onto Thomas's part three because they didn't want to reject the tests of Barrett and Sotomayor, merely not sign on to them on this occasion?

Now to Friday's cases.

United States Trustee v. John Q. Hammons Fall 2006, LLC

6-3 Opinion by Jackson, joined by Roberts, Alito, Sotomayor, Kagan, and Kavanaugh. Dissent by Gorsuch, joined by Thomas and Barrett.

In Siegel v. Fitzgerald, the supreme court ruled that differing bankruptcy fees in districts governed by the U.S. Trustee Program vs. the Bankruptcy Administrator Program is unconstitutional (yes, it's weird that there are two types of districts). This case is about what remedy those harmed should have. Specifically, those who paid the higher amount when others paid the lower amount.

The majority rules that the only remedy is to be equal prospectively. They argue that the harm is inequality, not high fees, and that such a harm may be remedied in three ways: reimbursing those who overpaid, exacting more now from those who underpaid, or only changing things prospectively. Jackson then turns to Congress' intent as to how the remedy should occur (citing precedent). Since Congress wanted to raise fees in order to keep the U.S. Trustee Program to be self-sustaining, they would not have wanted something financially burdensome upon the program, and so remedying it would plainly be opposed to congressional intent. Further, such a remedy would make the disparity worse—if some are rewarded the remedy, then that would merely increase the amount, unless practically everyone, as only 2% of the bankrupt got to pay lower fees. Then, turning to the question of whether congress would want to impose higher fees, they argue that it did not, looking at its subsequent decisions, and that it would have pretty negative consequences. Hence, only prospectively. The remainder of the opinion responds to the dissent, so I'll turn to that first.

Gorsuch's dissent is rather up-in-arms. (And in turn, Jackson's opinion cites Gorsuch's own language that the dissent is "just that."—i.e. only a dissent.)

The dissent argues that Hammons should be entitled to a refund: the U. S. Trustee is agreed to have promised it, and Congress is agreed to have appropriated funding for refund, it is agreed that the suit is timely. Further, when "there is a general right to sue," but no specified form of relief, courts may use any remedy. It's long been the case that the proper remedy for overpayment is to pay them. They argue that this is no remedy at all—the past harm is not remedied. The dissent also casts some doubt on the whole process of imagining what Congress would do. Gorsuch also thinks that congressional intent is in favor of a refund, looking at the statutory text, where the program is authorized to provide refunds. Further, he characterizes it as a bait-and-switch, by promising the the refunds by standard procedures, and now denying any such possibility, and that that bait-and-switch violates due process. Gorsuch also attacks the argument that it would be disruptive as a turn to policy, but "not how remedies work." It's always cheapest not to give remedies.

Okay, now the majority, addressing the dissent: They argue that the dissent misunderstands the problem: to remedy a disparity, not to pay damages. Further, turning to congressional intent for a refund, it's passed regularly and therefore (only applies to ordinary situations, not ones involving 326 million? This is my best guess, it's not quite explicit.). And third, the government didn't really make a promise, but merely that it would wait to remedy until exhausting all appeals.

Jackson argues also that the dissent is wrong in its understanding of due process—she doesn't think the tax cases apply here, and there was a meaningful chance, which satisfied the due process clause.

I think I find the dissent more convincing, but am not sure. A lot would turn, I think on where precisely the harm in nonuniform bankruptcy rests: is it upon those who got a worse deal, or is it something ethereal upon the whole system?

Campos-Chaves v. Garland

Written by Alito, joined by Roberts, Thomas, Kavanaugh, and Barrett. Jackson wrote the dissent, joined by Sotomayor, Kagan, and Gorsuch.

This case is about deportation hearings. Aliens have to be provided with written notice. There are two varieties: in paragraph 1, it describes the notice to appear (NTA), and in paragraph 2, a notice saying the new time and place. Here, there were three individuals each of whom got notices that were defective, in that they had TBD or similar written in place of the time. They were subsequently given a notice saying what the time of the hearing was, but didn't show up. The defendants argue that they failed to be served the proper notice, and so should not be removed from the country.

Part of this has to do with the word "or". The statute says, "did not receive notice in accordance with paragraph (1) or (2)." Unfortunately legal statutes don't have parentheses, so such combinations of ors and negatives tend to be ambiguous. Alito argues that a notice of either variety counts. More specifically, it has to be whatever notice is relevant—whichever one is connected to the hearing missed.

Alito also interprets the phrase in the statute of changing the time to include the change from TBD to some concrete time.

Jackson disagrees, seeing this as giving the government a pass for writing incomplete and therefore invalid NTAs under paragraph 1. Because time and place is a necessary part of the notices to appear, failing to include them makes them not count under paragraph 1. But a paragraph 2 notice should be dependent upon a paragraph 1 notice: 2 only describes notices changing the time and place, which Jackson thinks should mean that there is already a valid notice to appear before 2.

Jackson also argues that the majority's understanding of the word "change" is a bit unreasonable: the passage is clearly talking about replacing one time with another.

I think I found Jackson more compelling—it's at least a little unintuitive to have a valid notice dependent on an invalid one. The court's remedy (show up and mention the lack of proper notice) helps, at least.

As a side note, it's pretty funny to see Alito using the word alien at every possible opportunity, whereas Jackson uses noncitizen as much as possible (and maybe even bracketed alien out, in a footnote? I didn't check.).

Garland v. Cargill.

Thomas writes the opinion, which the other conservatives join. Alito writes a one-page concurrence. Sotomayor writes a dissent, which the remaining justices join.

The National Firearms Act defines a machinegun as "any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger." The question: are bump stocks machineguns? Thomas argues no. This used also to be the ATF's position, prior to the Las Vegas shooting, but afterward they included bump stocks. The core of Thomas' argument is as to what the words "a single function of the trigger" refers to. He argues that it refers to the trigger of the weapon, well, triggering once. (And he goes through, with diagrams, how exactly a trigger works.) Bump stocks do not change that there is one pull of the trigger for each shot. The finger pushes the trigger once for each shot. They argue, as a different route to the same point, that bump stocks do not cause it to happen automatically, as the forward pressure required is an extra thing in such a way that it is not automatic.

Alito mentions that the ATF should not have changed the rules—rather, congress should. And that the Las Vegas shooting doesn't change the meaning, merely reveals that regulation of bump stocks is probably a good idea. He agrees that the original congress would have wanted bump stocks banned, but denies that they did.

Sotomayor on the other hand argues that "a single function of the trigger" should not refer to how many times the lever of the gun moves, but rather its relation to the user, whether it's a single pull to the user. And in this case, as bump stocks allow for the use of them in a single motion, it should be considered a single function of the trigger. the relevant quality for a trigger is the relation not the user, not to the gun.

I found the dissent in this case more compelling than I expected, given the political valence. I'm not sure who I'd agree with, if I had to choose. But this case is essentially guaranteed to make liberals mad. Not good for trust in the court.

Heinz Field

Technically now Acrisure Stadium, I suppose.

Roberts and Kavanaugh definitely vote together more with each other than with Barrett.

I don't think the liberal justices are insincere, exactly. (Actually, I'd need to go back and look at Dobbs to see whether I'll stand by that.) I think it's just closer to turning to asking what Congress/the Constitution/former versions of the court would want, which in practice are interpreted as benevolent entities in accord with their own opinions.

But it's a textual nightmare; it means the statute about update notices qualifying never applies.

It's not that it wouldn't apply, it would just be that it would only apply if the time/place had to be changed (from another time/place), right?

Oh, but Hanania's known for more generally being a troll and bothering people, so I wouldn't trust opinions of him as reflective of the popularity of this one stance (though I think he not infrequently has interesting things to say). I don't currently have time right now, but maybe I'll look later.

here are a large number intelligent people I share a country with who actually just have irreconcilable value differences; people who have such crazy policy preferences to me not because they disagree about facts like the far-left people I meet, but because they honestly believe that people should be treated differently solely because of the race they were born as.

This might be less clear than you think. I think quite possibly the largest contingent of people here are in favor of colorblind meritocracy, roughly. But in the absence of data, then your priors would be affected by race. That is, you should think a random Asian you meet is probably a bit smarter than average, until you actually get to know them or they go through some other filtration mechanism so that you know more accurately. This is technically treating people differently by race, but it's due to variation and knowledge constraints, not value differences.

That said, you only said that here are a large number, and the more substantially racist minority may still be a large number to you.

Sorry for my slowness on the court. I've gone through the first three decisions for this week, but not written them up. I just saw that there are another three, so expect more of a delay.

But yeah, this one's the most straightforward opinion of the lot, and rightly so.

Standing is the doctrine that the court can't just rule on anything, but has to be dealing with an actual legal case, where there are harms that can be remedied to the petitioners, along with a few other requirements. They have to always be acting as a court, in essence, not a "I want to change the law" machine, even if they politically are treated more as the latter.

The opinion of the court is just Kavanaugh saying, "No, this theory of standing that the petitioners try to claim to be able to make their case is dumb and wrong. No, this other theory of standing is also dumb and wrong. No, that other one is wrong too" and so forth. He's compelling; the doctors are stretching anything they can to come up with standing.

The concurrence is very Thomas. Writing lone opinions to explain what he thinks the law should be in nonmajority opinions, without regard to factors other justices consider, like whether the petitioners requested it, or stare decisis, is something he often does (see, for example, his Dobbs concurrence). I love it.

Thomas is arguing that associations shouldn't have standing on behalf of their members (he also briefly throws in at the beginning that the rarely used third party). He says that this was essentially fabricated in the mid-20th century, without really any reasoning behind it. Further, it doesn't work with ordinary principles of standing (how, exactly, do you help the people by aiding the organization), or of ordinary legal process (it allows people more than one chance with the same suit, as they are treated differently than individuals containing them.) Rather, the proper vehicle for the interests of many individuals is a class-action. I think he had a few other points.

I generally found this compelling, but am not really acquainted with law for standing, as I'm not a lawyer.

And it should be explicitly noted that the cause of the loneliness epidemic is in large part the internet: the destruction of in-person interaction, and a turn to interractions oriented in ways other than centered on people, whether that be consuming content, or interacting with individuals about a topic as we are right now.

A friend's having a kid, and is skeptical about vaccines. I'm believe she's doing her own research, but have no idea how reliable whatever sources she's looking at are.

Do any of you happen to know of anyone who goes through which childhood vaccines are best, weighing concerns people raise against likelihood and severity of disease? My immediate searches just bring up either government sites or similar, and extreme skeptics, which is not helpful.

Fair enough. Then substitute in the argument for people who are persuasive or helpful.

Yeah, that's probably fair.

Primary elections are worth voting in, at least, then.

Is it? When you measure per 1000 births rather than per family I think it wouldn't be?

I don't think anyone, even the staunchest of free will advocates, believes that outside influences don't have a significant weight in the choices you make. But again, as I understand it determinism is saying that those are the only thing that matter, and that one's course is set in stone from the moment their life begins (with no actual choice to be made).

Again, I'll affirm that we choose stuff, though I'm sure we disagree on what exactly "choose" means—to me deliberation between choices and, based upon that deliberation, coming to have in your will definitive intent would certainly suffice for choice, but you don't think it so, evidently. I'd accordingly affirm that we have plenty of agency, we choose to do stuff all the time, and our actions obviously bear the imprint of our own character and agency—it's not like they're happening apart from and abstracted away from us.

But I fundamentally don't see things like "I'm habitually lazy" as some outside factor in my decision-making. It's something inside, a part of you, and your doing things accordingly is a natural outflow of you.

So, perhaps another question: can choices be accurately be described, in your view, as the product of a mixture of a determined part, including all the reasons motivating, your character, the circumstances, etc, combined with an indeterminate, arbitrary part? Perhaps, could we express it as a random number generator, with the choose/choose otherwise set at some threshold, not necessarily 50% depending on the other factors?

Because that seems to me something like what you're describing, and that isn't at all like what I'd want choices to be like. I want to be the doer, and I'm a thing, with real states and properties, not something arbitrary. Causelessness seems to subtract agency, to me.

Well, most of those things seem like democrats would satisfy more of those. I'm not going to try hard to convince you to vote for them, as I dislike democrats more, and think most of those policies are not worth doing. Is it all the woke things that you see as horrible among the democrats?

(If you like, just say the word, and I'd be happy to give my opinions on those policies in more depth, but no pressure, there's no need to argue over all your political beliefs if you don't want to.)

thanks to people buying into the myth that a third party is "wasting your vote"

And Duverger's Law.

It could be worth voting for your preferred third party just as a protest. Colorado's one-sided enough that it isn't vital that you vote for someone with a chance—even if it could still go either way, it'll probably only go red if the election overall is in a best-case scenario for Trump, I imagine.

Your flair fits.

Anyway, I would agree that 1-3 don't really matter that much. Less clear on 4-5. I don't think it's inherently wrong for them not to be saved, because I don't think God had to save us. But I am generally convinced that a propitiatory sacrifice was necessary, and that it was for this reason that Christ became incarnate. Would that require another incarnation?

Which sort of state are you in? If it's one that could go either way, I'd hold my nose and vote for the least-bad option with a chance. If elsewhere, I'd vote for the best protest who will get non-negligible votes. Signaling a protest vote at least helps display your dissatisfaction to the parties.

Which was the correct call, Roe v Wade was obviously a forced reading of the constitution.

Well, what do you care about in politics, more generally? What policies would you want? What should the country be doing?

Is there any level of office where your vote would matter (like maybe local government)?

When there isn't, in the races where your vote truly doesn't matter, maybe go with a protest vote, voting for candidates that have no chance but at least seem better (but still, preferably, are prominent enough that they'll get a decent number of votes—you want your protest to be heard).

Yes, but I think that that would be the case when fertility is high, as well, wouldn't it, if twins don't affect pregnancy count?

This would only affect fraternal twins, as I believe only that is heritable.

I think there's equivocation here on fertility—you mean something like "ability to have children," which while it is what fertility means in common parlance, is, I believe, in technical terminology, fecundity, and hydroacetylene means something like "tendency of the overall population to have children," which is fertility in its technical sense, like the F in TFR.