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Culture War Roundup for the week of June 10, 2024

Vidal's breakdown is... less interesting than it seems from the top line.

  • Thomas I, IIA, and IIB are pretty standard breakdowns of the case history and the most immediately relevant caselaw. There's not really anything to disagree with, here.
  • Thomas IIC points to pre-Revolutionary British and early-American law and tradition. The liberals and Barrett split here.
  • Thomas III is a teardown of Barrett and Sotomayor's analysis of more distant First Amendment jurisprudence (limited public forums and public benefits, respectively). Kavanaugh and Roberts left here, in addition to the liberals and Barrett. There's a philosophical position where the, but since neither Roberts nor Kavanaugh joined in the liberal more likely it's just collegiality uber allies.
  • Kavanaugh said even without a historical tradition, a viewpoint-neutral and content-based trademark rule would still be constitutional (why? doesn't say). Roberts joined.
  • Barrett I and II argue that trademark law is newer than the Founding era, and as a result, more expansive analogies are required, including matters like limited public fora. This... works, but it reads very much as finding an answer first and then reaching for something that would justify it, even by her own words: "I view the content-based nature of the limited public forum as analogous to the trademark registration system." Kagan, Sotomayor, and Jackson joined here.
  • Barret IIIA argues that some of the early laws Thomas points to did not include the prohibition on names that he thinks they did. This lost Sotomayor and Jackson, probably because they neither know nor care to be shown wrong.
  • Barret IIIB argues that even if the evidence were "rock-solid", she wouldn't focus on, but instead note that trademark law as a whole has generally revolved around content-based limits. It's kinda interesting that Jackson didn't sign on, here, but it's probably just her reading Barret's history here as more focused on the pre-1950 era.
  • Sotomayor wrote for the liberals, arguing in favor of looking more at judicial precedent. It's also conveniently pointing to the height of progressive control of the courts, but the bigger motivation is just blasting at historical analysis: there's a ton of cites, not always in context, about other complaints about it (even to an amici in Rahami). There's ways to read it as more compelling than 'stare decisis of the Warren Court', but they're pretty hard to get to.

This part of a longer and larger conversation on an originalists-versus-formalists-versus-progressives-trying-to-figure-out-a-principle thing, but I don't expect it to take a very memorable part of that.

Garland v. Cargill is... disappointing.

Especially from the left branch. I was kinda hoping for a Caniglia, here: not only was the bump stock ban a Trump act, it just touched on so many matters that should appall the progressive side of the branch, and they still (and it's a pretty nakedly partisan Sotomayor opinion that can't even get the facts right). It's not a Second Amendment case, and it wasn't a Chevron case, just bare statutory interpretation. Can the feds rewrite a law decades later with serious criminal penalties as punishment without involving an actual bill? Does the rule of lenity mean anything, if it doesn't apply where even regulating officials were apparently 'confused' by the text of the law?

I guess on the upside, I don't think even Sotomayor would condone a President unilaterally declaring thousands or tens of thousands of people into federal felons with nothing more than an APA notice, outside of a matter where she doesn't like it. But, uh, that's... not actually a compliment.

Alito signed off on federal laws banning machine guns -- no, he doesn't openly say he thinks it's constitutional, but it's very clearly why he wrote it. Which a) not a huge surprise, guess it's good to have the writing on the wall, and b) invites lower courts handling state assault weapons bans or other more arguable cases to read expansively.

Thomas' opinion is technically interesting (embedded images!) so yay.

But the biggest downside is just the procedural stance the whole thing got to SCOTUS in, and how little any member of SCOTUS seems to recognize that or try to cordon it off from repetition. As far as I can tell, no circuit court actually applied a preliminary injunction, most lower courts found for the government in increasingly-messy text, SCOTUS punted here on Aposhian v. Garland (2022), Gun Owners of Am., Inc. v. Garland (2022), Guedes v. ATF (2020), and even Hardin (I think?) end up in a bizarre indefinite stay. The Trump bump stock ban went into action 03/26/2019.

It's 2024.

Yes, no small number of people had boating accidents, often without owning a boat, and will be doing some impressive magnet fishing for aluminum. But this was a blatantly unlawful regulation, and in almost all of the United States, acting in accordance with that would leave you at serious risk of a long prison sentence for over five years. There's reason all the plaintiffs here were people who'd surrendered their stocks, and they're not alone. You'd be a moron (or hate your dog) not to! The ATF will have destroyed (or 'destroyed' into someone's private collection) any and all it received, no takebacks or cash-on-receipt; manufacturers have been driven out of business or moved into different fields; inertia gained ground.

Even prospective owners should consider, seriously, that all of those takings clause concerns and Second Amendment matters mean, at best, they'll be joining the landlocked boat club, and more likely that they'll be hung out to dry. They're inviting those threats in the future, and likely the near future.

Which is funny for bump stocks, but it's not like this has stuck to bump stocks.

Campos-Chaves v. Garland is... very Gorsuch.

The nexus for this case is that various government groups have been sending Notices to Appear with a Date of TBD, then sending the actual date later. The statute requires illegal immigrants to have a Notice to Appear with a specific date included (along with other information that seems to have actually been included) or a notice updating them after a change in proceedings.

This isn't as arbitrary a difference as it sounds at first glance -- illegal immigrants are more likely than citizens to miss individual papers, or be delayed receiving them, or have trouble with legal paperwork. And Campos-Chaves didn't appear before an immigration judge in 2005; if he was properly ordered removed at the time, he's still subject to removal; otherwise, he's eligible for discretionary relief from deportation (that he will almost certainly receive) under the 'continuous presence' rule.

((Though this does make Jackson's displeasure that the federal government did not behave better after SCOTUS gave notice in 2018 and 2021 rather uncompelling. His co-respondents aren't much better, here; Signh's NTA was issued in 2016 and repeatedly rescheduled, once due to Sighn's non-appearance, and Mendez-Colín was 2001 and he showed up to several immigration court appearances until it was clear he wasn't going to win (and was removed, probably 2005ish?).))

The law is written poorly, and I can see the potential for abuse: the strictest literal version would allow the state to send just a date and time, and not any of the other info, which has significant due process concerns. (As a pragmatic matter, it's not entirely clear why the government isn't just issuing the full I-862s with a rescheduling checkbox. Maybe privacy?)

But it doesn't seem like anyone has claimed the government has, or even wants to; both these cases and previous ones Jackson highlights seem more trying to get illegal immigrants out of custody quickly, even where the final hearing date isn't available. And from a pragmatic perspective, it's very far from clear that it would be better for ICE to issue I-862s with a knowingly false date, only to give a 'real' one later: it wouldn't change the stop-clock stuff, and obviously increase confusion. There are even some marginal cases where the government's arguments would lead to longer time being run before the 'stop-clock', compared to that counterfactual, though I doubt any would matter.

Jackson's position seems to be based on the argument that the update notices are always invalid without fully complete initial NTAs, and that they can't be said to have been issued at all. And at first glance that's not a crazy pragmatic matter. But it's a textual nightmare; it means the statute about update notices qualifying never applies.

Starbucks

Jackson's dissental is mostly trying to argue in favor of vastly increased deference to the NLRB -- while she says concurring in judgment, it's very hard to see her version of Winters as going against the NLRB, here. Probably under the assumption that, like a lot of Breyer's later work, it'll get cited as by lower courts as often as the opinion itself.

It's not a crazy argument -- Congress does often limit judicial review of some agency decisions, and it might even be reasonable in the NLRB's context -- but it's hilarious in contrast with her anti-Munsingwear takes.

Transnational Thursday for June 13, 2024

My (admittely amateur) impression is that this is not the thing the doomers were dooming about and the effects are likely to be pervasive and long term rather than immediate and flashy.

Friday Fun Thread for June 14, 2024

Im not sure how much you would consider "heavy" but i have and the results were... not good.

On the flip side the requirements I work with tend to be much more stringent than anything the rank-and-file web or game developer has to work with.

Culture War Roundup for the week of June 10, 2024

I am not a Russia hawk, but I would need to see some evidence that Azov could actually topple the Ukrainian government before I believed it. As it is, the Ukrainians are hardly in a position to be picky.

More credible would be the threat of violent reprisals against Russians or Russian speakers in Ukraine, particularly in those regions that it seeks to reconquer, which seems very likely to me.

Oh, and I might add - Ukraine is not Germany. Germany is a great industrial and military power. Ukraine is poor and corrupt and has little industry. It doesn't even have young people. Even supposing it was taken over by Nazis (already a great stretch), it would not threaten Europe.

Friday Fun Thread for June 14, 2024

Top Gear fans often characterize Hammond as "the token American" due to his propensity to crash expensive vehicles and put cheese on everything.

Edit: this comment was supposed to be a reply to @pusher_robot above.

Friday Fun Thread for June 14, 2024

Discussion requires polemics. Almost all political discussion on Twitter is polemic, for instance. The last polemic post in main thread, on Ukraine, is at -3 for some reason.

Culture War Roundup for the week of June 10, 2024

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.

Culture War Roundup for the week of June 10, 2024

However, I 100% agree that Marvel movies are stupidly written and don't make sense. The superheroes are weak in relative terms. A couple of Stryker brigades could demolish Thanos's army. Iron Man is worth maybe five to ten jet fighters. None of them could handle tactical nukes. All superhero movies seem to adore Bronze age tactics: mass charges and 1v1 duels.

Good luck making a show about tactics like the survability onion the thing is that modern tactics make terrible movies. You can't talk to the villan when all your weapons move at mach 2 and a lot of defensive tactics are based around stealth, evasion and recon. The staple trope of superhero movies of the villan/hero discussing the villan's plan doesn't work at all when the entire conflict strategy is to not be seen heard or detected and the fighters can't even see each other.

Unless you're one of the weird nerds who wants their shows to seem "real" it's typically accepted to do completely irrational actions so that the movie can actually be good. (Otherwise you get the Saga of Tanya the Evil where the magical characters actually do use rational tactics but the show has little character)

Culture War Roundup for the week of June 10, 2024

I'm asking for a quantification of how many women out there are actually likely to pass the filter.

Like I have been saying, almost all of them. The number of normie women who want marriage and kids with normie men is almost certainly greater than the number of number of normie men looking for the same thing. That there’s a huge number of men-hating women out there categorically uninterested or unfit for marriage is a super weird cope made up in red pill/incel/sigma male Twitter. I know this because unlike these people I touch grass regularly and almost every single woman I interact with is normal and wants a normal relationship. Off the top of my head I can think of >10 single women in the Bay Area who are great and looking hard for their guy.

That a lot of these women are below men’s standards for other reasons (too fat, had sex with too many guys, etc) is a different issue and comes down to facing up to the fact that if you’re a 4/10 guy and want to get married you’ll probably have to marry a 4/10 woman.

Friday Fun Thread for June 14, 2024

He was hired by SNL and then fired quickly after in 2019 after some impressions of Chinese people and what was called "homophobic" humor surfaced from old podcast episodes. I can't remember the specific jokes.

I see his stuff occasionally and he's definitely not afraid of certain things, mental disability and even talking about different races in positive and negative ways. He's pretty moderate i would say, just wants to make people laugh

Culture War Roundup for the week of June 10, 2024

The length of the Parkway through the Point is only about a thousand feet, and most of that space is occupied by ramps.

This is indeed the problem! I am reminded of the anecdotal debate among engineers about what kind of engineer designed the human body. The conclusion was that it must have been a civil engineer, because who else would route a sewage system through a recreational area?

There are certainly other ways to build a park rather than to route seven-odd lanes of freeway traffic through it. If tunnelling under the park would not have been possible, it would have been better to move 279 north to the edge of the park instead. The land immediately north of the bridges seems to be primarily parking lots anyway.

I don't think that people are usually fooled by trees and embankments and it is indeed absurd that (eyeballing the map) something like twenty percent of the park is freeways and interchanges. I brought up road noise multiple times in my other posts and you did not respond to this point, so I must imagine that there is indeed a noticeable road noise in the park.

I've spent my fair share of time in parks regrettably close to freeways. Freeways are noisy, they emit pollution, being near them plain sucks. We only tolerate them because they benefit motorists, and while perhaps we can say that the pedestrians should take the L in this case, it really seems like a bridge too far to say that the freeway benefits the people trying to enjoy some time in the park because it's a nice overpass. Again, if the freeway did not pass through the park, I cannot imagine that anyone would miss it.

Moderations, Bans, and the State of the Motte - Let's have a Discussion

Dude, look, as a fellow atheist, lose the edgy atheist schtick. We can debate religion here, you can debate the merits of religion, but just laying down "hurr hurr religion is just wrongdumb fantasy nonsense" doesn't actually get you anywhere and gets you reported a lot for being obnoxious.

Culture War Roundup for the week of June 10, 2024

Maybe he'll prove me wrong -- Williams v. Kincaid in the 4th Circuit is kinda an anti-matter Bostock, where there's absolutely no question that the explicit ADA statute excludes a wide array of sexuality and gender-related stuff

Perfect example of the use of institutional capture. Congress excludes "gender identity disorders". The (captured) APA drops "gender identity disorders" and replaces them with "gender dysphoria", and the Fourth Circuit says "Oh, that's totes different".

Culture War Roundup for the week of June 10, 2024

I dont think it's "risk aversion" so much as the issue @MaiqTheTrue touches upon upon above. The "lab environment" is not the "real world" and a fun toy for students and script-kiddies does not a useful business tool make.

Edit: see my comment above as well.

Culture War Roundup for the week of June 10, 2024

This turned into more of a rant than I intended, but I do think it supports the argument of some right-wingers that "thoughtful" conservative Justices can be a liability...

One part that I'd add is that we don't really have any such examples of a Gorsuch opinion that's bizarre textual literalism that benefits the right or part of its allegiances.

Maybe he'll prove me wrong -- Williams v. Kincaid in the 4th Circuit is kinda an anti-matter Bostock, where there's absolutely no question that the explicit ADA statute excludes a wide array of sexuality and gender-related stuff, and lower federal courts have decided that Congress must have really 'intended' for this exception to not apply for a wide array of sexuality and gender-related stuff.

Wouldn't put money on it, though.

Culture War Roundup for the week of June 10, 2024

Thus, Azov aren’t really Nazis, they’re just… LARPing, I guess?

What is "really a Nazi"? The German NSDAP party (1920-1945) has been defunct for generations. It's physically impossible to be a real Nazi then. And yet people keep using that word without irony and demanding to be taken as if they are speaking seriously.

I, personally, continue to be confused and angered by other's dialog around this fetishezed word. How it's used is clearly propaganda and point blank logical fallacy usage. The equivocation fallacy, I believe. X thing holds the mental symbolic resonance of [evil] thing we all hate. People want Y thing to be hated too, so they use the title of X and expect transference of associations, even though Y is objectively different than X in all the ways that made X probable to be associated with the mental color [evil]. Namly Y is not a militarized authoritarian party in the 1940s running Auschwitz and making massacre graves on the Eastern Front. What I don't get is why people, you included, seem to believe their own propaganda. This shit ain't real. "Nazis" are no longer real. Is there confusion on this?

What there is, and has been before, during, and after Germany 1920-1945 is the an ultra "right-wing" mentality and disposition. Some of these people do in fact engage in LARPy antinomian symbology and acts associated with the past NSDAP party (e.g. swastikas, salutes, black sun) - intentionally because they are so taboo most likely, because there's limited good ultra-right art/iconography to draw on, as well as admiration for the high point of the German ultra-right at its apex when it was winning. People love a winner and tend to rally behind one. But the ultra right mentality would exist if God deleted Germany from all time. People are their own thing. Again, is there confusion on this?

Culture War Roundup for the week of June 10, 2024

I don't have anything to add, but i enjoyed the read.

Culture War Roundup for the week of June 10, 2024

Jackson's starting to have her own windmills to tilt at: the anti-Munsingswear solo dissents and concurrences, and while they have obvious political ramifications (tactically mooting a case after receiving a favorable injunction in lower courts is mostly useful for current progressive goals, if only because SCOTUS demonstratably isn't going to wait before slapping down the 5th Circuit), it's at least a meaningful position with not-crazy-partisan political underpinning. She's not a Thomas or Gorsuch on that (yet!), but it took a few years for Thomas, at least, to grow into it.

I don't like the position, and maybe it's not enough to pull her from the 'reliably' partisan, but not an obvious thing either.

Culture War Roundup for the week of June 10, 2024

Is this fear of Ukranaian Nazis genuine, or just an attempt to sap anti-Russian energy in the West by associating Ukraine with one of the past century's great villains?

Yeah, I'm pretty anti-Western as far as it goes, but this is one of the lamest arguments in circulation. Like, who do you expect to voluntarily show up to face bullets, artillery fire, and drones? It's going to be the same type of guy in practically every country.

Culture War Roundup for the week of June 10, 2024

I wrote an entire story based on a (well, not realistic) but more NrX/libertarian viewpoint on superheroes, right here.

https://fiction.live/stories/Molon-Labe/tykhbTXTZhJn3FHQ4/home

Culture War Roundup for the week of June 10, 2024

To me, a much more satisfying conflict among good guys would be for good people to fight over complex issues and/or ideological divides, and do so rationally rather than emotionally.

This would be more satisfying, but it would make a totally crappy movie. We don't go to the talkies for reason, we go to have our adrenals stimulated.

Culture War Roundup for the week of June 10, 2024

Having so many different writers work on big projects is my least favorite parts of western comics, and that's stiff competition against all the other stuff they do wrong.

I read all the early Judge Dredd comics once, and important details got changed every single episode on the whim of some writer who couldn't even be bothered to coordinate with his coworkers.

Culture War Roundup for the week of June 10, 2024

INTJ is just Myers-Briggs for autist, I guess.

But seriously, another INTJ reporting in. If I recall correctly, it’s among the rarer MBTI types. I wonder if you’re right about your assessment of this place as having massive overrepresentation.

Have we ever done surveys or tried to get a handle on the demographics here? Given the amount of wrong think/number of witches, it might be interesting. Or people might not want to participate and we’d see skew as a result.

Culture War Roundup for the week of June 10, 2024

I don't think I'll ever forgive him for Bostock, but he's easily the best Justice since Scalia, and as good a replacement as anyone could have hoped for.

Culture War Roundup for the week of June 10, 2024

However, I 100% agree that Marvel movies are stupidly written and don't make sense. The superheroes are weak in relative terms. A couple of Stryker brigades could demolish Thanos's army. Iron Man is worth maybe five to ten jet fighters. None of them could handle tactical nukes. All superhero movies seem to adore Bronze age tactics: mass charges and 1v1 duels.

The superheroes are weak, which is actually a double penalty because the armies/countries have to be weak for them to matter. So Asgard's army has to be useless outside of flashbacks, and let's not even get started on any battle in Wakanda. And the bad guys basically have to be incompetent hordes literal children can fight.

Say what you want about Snyder but you actually get why people with modern armies would actually keep his superheroes around.