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Notes -
If you have to ask, the answer is probably “yes.”
I am pretty skeptical of comments evaluating the quality of “argumentation.” At worst, it’s drawing one’s opponent as the Soyjak. At best, you’re still going to get wildly different interpretations. Compare our board after the AA and debt decisions: were the conservative justices extra-principled? Was Barrett, Kavanaugh, Kagan or Sotomayor a hack? Did Roberts sandbag as part of a devious liberal strategy?
The answer to all these questions is most likely “no,” but you can find each of them argued in the parent thread. Such is the risk of evaluating literal opinions. Our own debate is weak evidence.
Likewise, I don’t think the comments are great evidence that Wynn and Thacker are hacks. Leiter himself starts out on firmer ground, and I appreciate his analysis of Garcetti. The merits of this case do look pretty suspicious! I’m just…not ready to jump to accusations of hackery. Reading the tea leaves about right- or left/coded jurisprudence, or who clerked for whom, should be secondary to analysis of the actual opinions. Unfortunately, the FIRE links are broken, and I get a 404 when I try and evaluate the argumentation for myself.
Edit: found it.
There were three points of contention. The court denies that two of them were protected, since they did not have political valence. For the third, a blog post, they argue that the timeline doesn’t line up, and the complaints of the firing process don’t focus on it. I think this amounts to saying Porter was enough of a dick to get fired even if he had been expressing the opposite political opinion. Is this true? Maybe. Is it chilling? Probably. Does it meet the “rigorous” standard? You know, I could be convinced.
Naturally, FIRE spins this as a “troubling” development and dismantling of Garcetti. Leiter already questioned that. Despite my preference for improved speech protections, I am loath to take FIRE as an unbiased source.
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