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Lots of big Supreme Court decisions this week, all important in various ways--none, if you ask me, likely to be nearly as impactful as imagined by either their proponents or opponents. But I was struck by a particular take on the religious freedom in commerce case that I saw popping up in a few places today.
Very roughly, here's the deal: American courts can only decide "cases and controversies." This is a procedural thing, basically you need a plaintiff who has actually been harmed in some cognizable way before you can file a lawsuit. Sometimes this means you need someone willing to engage in a little civil disobedience, breaking the law for the express purpose of getting prosecuted. "Plaintiff shopping" is something activist lawyers have been doing for centuries. But to layfolk this can look a little suspicious, in much the way that forum shopping can seem suspicious. In fact American law is mostly indifferent to this kind of gamesmanship, and in some cases we even regard it as a clever thing to do (at least, when our ingroup pulls it off).
The CNN story presents itself as a "just the facts" observation that--hey, here's a party to the facts of this case who claims he didn't do what the record says he did! Isn't that interesting? Gosh, how "concerning," he says! Nobody even thought to contact him in six years!
No one is saying this changes anything, oh, no! Just, isn't it suspicious? (Is that... winking I hear?) Well, regardless, Stewart is only identified by his first name; CNN was able to contact him "through information in court filings." Although, in another funny coincidence,
Now, CNN is only a mid-sized comedy troupe, but it does rival some legitimate news organizations in size and scope. Still, what are the odds, huh?
I've got several friends in my social feeds sharing the story, now, making snide remarks about how Lorie Smith clearly ginned up this whole case out of nothing. Of course, the CNN story doesn't actually say that; it just reminds the reader how suspicious it is for a plaintiff to have, shall we say, gussied up their case.
But the point of this post is not to take the piss out of CNN. Rather, what struck me was one other remarkable coincidence. There is another incredibly famous LGB rights case from the Supreme Court in which the actual facts of the case are completely irrelevant to the holding: Lawrence v. Texas.
That link is to a New Yorker article called "Extreme Makeover." If you're not familiar with Lawrence v. Texas, this was the 2003 SCOTUS case in which Justice Kennedy declared that the government has no business telling you who you can have sex with, as long as it's consensual and you're in the privacy of your home. Much like the later Obergefell case, Kennedy's opinion in Lawrence is packed with paeans to the sanctity of love and the primacy of intimacy--so packed, indeed, that there is essentially no room for coherent legal analysis! But here's the crazy bit:
There was no gay sex in Lawrence. Indeed, there was no gay couple in Lawrence.
The plaintiffs were gay men, charged under Texas' anti-sodomy statute. If you haven't heard the story, you really must read the New Yorker article. But in short, Lawrence and Garner were not together, sexually or otherwise, before or after the case. But since they were the two charged under the anti-sodomy statute, and activist lawyers wanted a case to take to the Supreme Court...
And so:
Perhaps better court-watchers than myself had some idea of what was going on, but I did not know anything about any of this until the New Yorker article ran nine years later. Does it make any difference? Well, maybe it makes you suspicious. Maybe not. Maybe you're thinking, "hmm, isn't tu quoque an informal fallacy?" Well, I'm not really staking a claim either way. I don't like forum shopping, I don't like plaintiff shopping, but I don't think I have anything like a thoroughly-developed account of why--it's more like a general distaste for gamesmanship. But without gamesmanship, American jurisprudence might scarcely exist at all! So I don't know.
But taking CNN's "just asking questions" article at face value, it makes me wonder where all the real gay people are, and why we can't seem to get a gay rights case in front of SCOTUS with parties who aren't being puppeted, Chicago-style. Okay, that's a bit of hyperbole, but still, two points form a line. So long as Congress remains sufficiently split that impeachment and amendments are off the table, the Supreme Court is the last word on American law. Why bother with the democratic process, if you can convince five unelected and unaccountable moral busybodies to make the law instead? All it takes is a bit of theater, apparently.
It doesn't necessarily end well for the puppets, of course--from the New Yorker again:
I don't know what the moral of the story is. Being disillusioned with the legal process is nothing new or insightful. But this was what occurred to me when I read the CNN piece, and saw people sharing it around as proof positive of the Court's perfidy. No, silly people, the Court is not fundamentally deceptive. The Court is always and altogether--albeit willfully, like a moviegoer whose suspension of disbelief is essential to the process, like a wrestling fan whose kayfabe is the lifeblood of the art form--deceived.
The weird thing is that, perhaps unlike Lawrence v. Texas, there were plenty of real cases in the system. The original Masterpiece Cakeshop was such a case, and there have been several others (including more against Masterpiece Cakeshop) since. That it is this case -- one where all parties agree that the harm was merely expected, not actual -- which made it to the Supreme Court for a decision on the merits strikes me as the Supreme Court (or rather, the conservative majority) wanting to make a statement without any particulars to cloud things up.
And of the recent decisions, this is likely to be the only one with any effect. Harvard has already all but announced it'll use Roberts's talisman to get around the affirmative action decision. Biden has already announced he's going to work around the student loan decision AND smack "defect" as hard as he can on the deal which ended the payment moratorium. But this one doesn't provide easy outs and lower courts do accept the First Amendment as something to consider.
Is there even any mechanism to punish the president or any relevant legislatures if they keep repeatedly enacting something already shown to be unconstitutional?
No. It used to be that you got punished for violating norms by getting banned from the club; having to cry alone in your mansion instead of drinking cocktails at the gala style thing.
That boat sailed with Grover and Gingrich and finally Mcconnell proving positively that norms aren't real and rules that require a majority vote are just loyalty checks.
Just like conservatives are picking up some lib tactics in the culture war; libs are finally waking up to the fact that political compromise is fucking stupid and you can just lie to your opponents and it will never actually come back to you.
Ah, but there are consequences to being unable to make any deals with the opposition. Each day Democrats further retroactively justify Republican obstructionism during the second term of the Obama administration.
Your causal arrows are backwards. Watching Obama get cucked over and over by the legislature (even when he had a majority!) managed to finally penetrate the thick ridge of bone the average congress critter uses to protect the part of their brain that turns sense data into long term memory.
I think the trauma of loosing two seats on the unelected unaccountable high priest council finally traumatized regular dems into realizing that the reps aren't playing the same game as them.
Nah, it's as someone else once said - Republicans defected on a game show, Democrats burned down the set.
Republican obstructionism is not even in the same ballpark as, "Literally every institution in the country must discriminate by race, based on my racial revenge fantasy, without any evidence that this will work, forever. By the way, I'm going to post in major medical journals about how your race should be 'eliminated'."
In my view, as a response it's completely unhinged. I'm closer to thinking the party should be legally dissolved at this point to force a reboot of their coalition than I would like.
I'm prepared to give the Republicans almost anything they want, because "merit is white supremacist" is incompatible with industrial civilization in a way banning abortion is not.
This view is irrational. You are treating your tribal positions as the default.
Until recently, AA with the majority opinion. As in, more than 50% of all people said "yes, good". It is therefore rational in a democracy to implement it. The republicans didn't even give much of a shit about AA because their donor class still could (and still can) just buy seats at whatever table they want.
That is changing now; but only over the last 4-6 years, long after conservative obstructionism hit full swing.
Conservatives deciding to make governance impossible against all norms wasn't some sort of principled stand against the bugbear of AA; it was a realpolitik move to consolidate power.
When team R does X and it works, you can't be surprised when team D does X right back.
You misread the post as referring only to elite college admissions, when actually it refers to incidents like race-based medical rationing based on a "white" vs "everyone else" system which is scientific racism much less sophisticated than conventional race science, major outlets referring to the existence of asians in engineering departments as a "problem", and explicitly race-based debt relief that had to be shut down by the courts. These are all mainstream, center/left-of-center sources.
This is just what ideas like "white privilege" theory and "race conscious" policy mean.
It is true that Republicans were opposed to Democrats in 2010, but this change, kicking off around 2014, is wildly disproportionate to what the Republican Party actually did.
The Democrats are a party of irrational, tribalistic, collective, intergenerational ethnic grievance, as seen by use of terms like "BIPOC" that make no sense as a scientific category. Their proposed interventions have no beneficial effects, and they have abandoned the modest evidence for modest success they used to have for their previous policy set in 2010.
This makes me immensely more comfortable with the manipulation of procedural outcomes to prevent the Democratic Party from gaining more power and resources than I was in 2010. Republicans playing hardball with the Supreme Court was apparently necessary for me to keep my human rights, as seen by the recent rolling back of "corrective" racial discrimination programs.
The Democrats could simply have some frank conversations to break their coalitional interest deadlock instead of doing this weird racialist nonsense that has even less backing than conventional scientific racism. They're not obligated to be, somehow, as inconceivable as it was from 2008, literally color supremacist.
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