Category: reason

Earlier today, President Biden issued a list of the members of his planned Presidential Commission on the Supreme Court of the United States. This is the judicial reform commission he promised to create during the presidential campaign. As expected, the Commission will be co-chaired by former Obama White House Counsel Bob Bauer, and Yale Law School Professor Cristina Rodriguez. Most of the rest of the members are legal scholars, including my fellow Volokh Conspiracy bloggers Will Baude (University of Chicago) and Keith Whittington (Princeton).

Perhaps more importantly, this is a genuinely bipartisan and cross-ideological group. In addition to Will and Keith, there are several other conservative or libertarian members, including Jack Goldsmith (Harvard), Judge Thomas Griffith (formerly of the DC Circuit), Michael Ramsey (University of San Diego), Tara Leigh Grove (University of Alabama), Caleb Nelson (Univ. of Virginia), and Adam White (my George Mason University colleague). This group will be in a minority on a commission with some thirty-six total members. But it will be large enough to have some real clout.

I won’t go through their credentials here. But the commissioners, both left and right, are an impressive group with a vast array of knowledge and experience collectively including almost every aspect of the Supreme Court’s work.

As I predicted back in January, the composition of the Commission is also bad news for advocates of court-packing, who may have hoped that it will produce a report endorsing the idea. Obviously, I am confident none of the right-of-center members would endorse such an idea. But several of the liberals (including co-chair Bob Bauer and Laurence Tribe) are also on record opposing it.

There are likely some court-packing advocates in the group. But it is highly unlikely they can command majority support in the Commission. The same goes for various proposals to enact court-packing by another name, such as “rotation” and “court balancing.”

While the Commission is unlikely to endorse court-packing, it could potentially agree on other reforms that have much broader cross-ideological support, such as 18-year term limits for Supreme Court Justices. I support that idea myself, but also believe it requires a constitutional amendment. By contrast, some legal scholars (including commission member Jack Balkin), contend that it (or something close to it) can be enacted by ordinary legislation. That issue may well be a focus debate within the Commission.

One interesting aspect of the Commission is that its mandate will be limited to considering proposals to reform the Supreme Court only:

The Commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals. The topics it will examine include the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.

I take it this means they will not consider possible reforms to the rest of the federal judiciary. Most presidential commissions don’t amount to much. They often end up just issuing reports that are quickly forgotten, doomed to gather dust on bookshelves. But there is at least some real chance this one could be an exception, if it can reach a broad consensus in favor of term limits or some other similar proposal.

The Commission will hold hearings where it will take testimony from experts, and is required to issue a report within 180 days of its first public hearing. I, for one, look forward to reading it!

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It has long been clear that the conventional understanding of the “opioid crisis,” which focuses on patients who inadvertently become addicted to pain medication, is highly misleading. A new study reinforces that point.

The study, reported in the journal Injury, looks at the relationship between pain pill prescriptions and injury-related deaths, including unintentional deaths and suicides involving drugs, in all 50 states and the District of Columbia from 2006 through 2017. “This is the first study to combine national mortality and opioid data to investigate the relationship between legally obtained opioids and injury-related mortality,” the authors write. “In every state examined, there was no consistent relationship between the amount of prescription opioids delivered and total injury-related mortality or any subgroups, suggesting that there is not a direct association between prescription opioids and injury-related mortality.”

That is a pretty remarkable finding when juxtaposed with the common assumption that excessive prescribing is driving opioid-related deaths, either directly among patients who take drugs prescribed for them or indirectly among former patients who start using heroin or fentanyl after developing a taste for opioids. If that were the main explanation for the increase in opioid-related fatalities seen during the period covered by the study, you would expect to see a clear association between legal opioid shipments and unintentional deaths, which the researchers did not find. The results are consistent with opioid-specific data from the Centers for Disease Control and Prevention, which show that states with high prescribing rates do not necessarily have high rates of opioid-related mortality, even when the analysis is limited to deaths involving pain pills.

The focus on pain pills has driven ham-handed efforts to reduce opioid prescriptions, including legal restrictions and official guidance that discourages medical use of these drugs. Those efforts have succeeded in driving down prescriptions but not in reversing the upward trend in opioid-related deaths, which has not only continued but accelerated. Meanwhile, bona fide pain patients have been deprived of the medication they need to control acute or chronic pain.

Phoenix surgeon Jeffrey A. Singer, a Cato Institute senior fellow (and a donor to Reason Foundation, which publishes Reason), hopes the Injury study will encourage physicians to reconsider indiscriminate reductions in the medical use of opioids. “Writing last month in General Surgery News, Josh Bloom and I criticized the recrudescent opiophobia sweeping the medical profession, fueled by the prevailing—and wrong—narrative,” Singer writes. “Surgeons have been encouraged to use intravenous acetaminophen (Tylenol) to treat postoperative pain, rather than risk ‘hooking’ their patients on opioids. We cited research that shows intravenous acetaminophen is ineffective for controlling postoperative pain. This latest study will hopefully further convince surgeons to shake off their opiophobia.”

The other perverse effect of the crackdown on pain pills is that it has driven nonmedical users toward black-market substitutes, which are far more dangerous because their potency is highly variable and unpredictable. A 2017 study reported in the journal Addictive Behaviors, for example, found that the share of people entering addiction treatment who said heroin was the first opioid they tried rose nearly fourfold between 2005 and 2015.

“Our data document that, as the most commonly prescribed opioids— hydrocodone and oxycodone—became less accessible due to supply-side interventions, the use of heroin as an initiating opioid has grown at an alarming rate,” the researchers reported. “Given that opioid novices have limited tolerance to opioids, a slight imprecision in dosing inherent in heroin use is likely to be an important factor contributing to the growth in heroin-related overdose fatalities in recent years.”

That problem has only been magnified in recent years as illegally produced fentanyl, which is much more potent than heroin, has become increasingly common as a heroin booster or substitute, which has increased the variation in the strength of black-market opioids. The category of opioids that includes fentanyl and its analogs accounted for 73 percent of opioid-related deaths in 2019, up from 14 percent in 2010. “Natural and semisynthetic opioids,” which include commonly prescribed analgesics such as hydrocodone and oxycodone, were noted in connection with less than a quarter of opioid-related deaths, and many of those cases also involved heroin or fentanyl. The number of opioid-related deaths in 2019 was higher than ever before, and preliminary data suggest the record was broken once again in 2020.

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Last December, Andrew Gruel had finally had enough. He’s the founder and owner of Slapfish, a growing seafood chain based in Huntington Beach, California, with restaurants in 10 states and the United Kingdom. The past eight months had been so brutal for business that he and his wife set up a fund to pay laid-off food workers, which had already disbursed hundreds of thousands of dollars. Outdoor and even some indoor dining had come back over the summer, but represented only a fraction of the volume from before COVID-19 darkened everyone’s doors.

Then, right after Thanksgiving, Gov. Gavin Newsom announced a new lockdown prohibiting outdoor dining in most of the Golden State’s restaurants. A regular on the Food Network and other cooking channels, Gruel uncorked an inspired video rant that went viral on social media.

“I can go into Walmart, I don’t even have to wear pants, nobody wears a mask at Walmart, I can go get a pink cockatoo for my Christmas tree, but I can’t go and dine outdoors at a restaurant,” he said, listing all sorts of arbitrary rules that had been put into place during the pandemic. He noted that Newsom didn’t even make the case that food establishments weren’t complying with mask mandates and that public health officials agreed that outdoor dining wasn’t a big spreader of COVID-19.

“I can go to Target, Amazon’s making tons of money, big business is getting rich,” he said, before concluding: “Outdoor dining doesn’t lead to any of that. Okay, screw that…we’re staying open outdoors. It’s that simple. I’m not an asshole. The governor is.”

Nick Gillespie sat down to talk with the 40-year-old Gruel about what it’s been like to run a business with government at all levels arbitrarily flipping the on-off switch, why innovation is central to both capitalism and cuisine, and why he’ll never open another franchise in California due to the tax-and-regulatory climate. They also discuss Gruel’s culinary journey that started at the Jersey Shore, the country’s rising sophistication when it comes to food, and his commitment to innovative, open-ocean aquaculture that he says will save at-risk fisheries while improving the diet of the typical American.

Interview by Nick Gillespie; edited by Zach Weissmueller; camera by Ben Gaskell; additional graphics by Meredith Bragg.

Photo credits: Keith Birmingham/ZUMAPRESS/Newscom; Cindy Yamanaka, Cindy Yamanaka/ZUMA Press/Newscom; Cindy Yamanaka/ZUMAPRESS/Newscom; Watchara Phomicinda/ZUMAPRESS/Newscom

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Them: Covenant. Available now on Amazon Prime Video.

First, let’s discuss what Them: Covenant is not. Despite the name and the 1950s setting, it’s got nothing to do with big ants. And even though it’s about black people moving north to escape racism, only to find themselves in a haunted house, it’s not the second season of HBO’s Lovecraft Country.

That latter guess is rather close, though—too close, probably, for Covenant‘s own good. It’s the second TV show in a year to use the horror genre as a tool for the exploration of the totalitarian nature of American racism in the first half of the 20th century and the epic effort it took for black people to resist. Had Covenant not languished in development hell for a couple of years after Amazon first struck a deal for it, it probably would have been first and avoided the faint whiff of been-there-done-that which clings to it.

Not that there are major differences in the two shows. Lovecraft Country used—not very successfully—its namesake’s Cthulhu mythos to portray 1950s America as a malign and irrational landscape where racist violence could come boiling up, unprovoked, at any moment.

Covenant, by contrast, is a conventional haunted-house story set against the backdrop of the so-called Great Migration, during which 7 million blacks—spurred on by what they saw of the Jim Crow-free north as World Wars I and II shuffled soldiers and defense workers around the country—relocated away from the south. Livia and Henry Emory (Deborah Ayorinde of Luke Cage and Ashley Thomas of Salvation) are among them, heading along with their two young daughters from rural North Carolina to Southern California in the wake of World War II.

The Emorys are in part drawn by the post-war technology boom in Los Angeles (he’s an engineer, she’s a schoolteacher). But they’re also fleeing some cloudy recent trauma, the details of which emerge only in drip-by-drip flashbacks at the start of each episode. Either way, their hopes of a tranquil new life are in vain. First, drawn by an inexplicably cheap house, they’ve elected to locate in suburban Compton.

Compton these days is known for its black street gangs and rough-and-tumble rap culture. But in 1950 it was a prim little white suburb that intended to stay that way; the only street gangs were white, working with the cops to keep would-be black homeowners out. The entire city (like much of Southern California) was enmeshed in a thicket of protective covenants.

The Supreme Court two years earlier had outlawed the housing covenant, but its presence on the Emorys’ bill of sale made the neighborhood’s attitude clear. And if it didn’t, the line of white harpies waiting in front of the house on their first day, playing radios tuned to egregiously racist pop music, certainly made the message plain. From there, it’s a short step to strangling the family dog, burning the words “NIGGER HEAVEN” into the lawn, and hanging a line of black dollies dangling from hangman’s nooses on the front porch.

If the anti-welcome-wagon neighbors weren’t scary enough—and they are, director Nelson Cragg has a blood-chilling talent for racist choreography—the Emorys soon discover there’s something amiss with the house, which is pretty enough but comes fully equipped with banging windows, echoing footsteps and generally Amityvillian phenomenon—including, of course, a dank, underlit basement possibly populated by phantoms. (Covenant, like so many haunted-house movies, is set in pre-flashlight America.)

What makes the haunts even worse is that both Livia and Henry Emory suffer from hallucinations (he from being used as a guinea pig in U.S. Army biochemical experiments during World War II, she from that nameless trauma back in North Carolina) and it’s never quite clear whether they’re really seeing what they’re seeing. What’s beyond doubt: “There’s something bad in this house,” as their kindergarten-age daughter Gracie (newcomer Melody Hurd, in an outstanding performance) puts it.

Covenant is so effective at illustrating the racial ugliness of the post-war era that at times you have to wonder if it’s exaggerating things. (Would a Southern California classroom really break into jungle noises the first time a black student spoke? And would a teacher really send that student to the office for “disrupting class” as a result?) But in the broad strokes, at least, the show is alarmingly truthful. White race riots, particularly when residential color lines were broken, were a depressingly common occurrence in the north during the Great Migration, in Detroit, St. Louis, Chicago, Washington D.C., and many other cities. In Chicago at one point, eight black homebuyers were bombed in three months.

The ruthless fury of white homeowners described in nonfiction accounts like Kevin Boyle’s Arc of Justice makes the white neighbors of Covenant seem, if anything, somewhat mild-mannered. (At least in the four episodes I watched, they didn’t kill anybody or blow anything up.)  Somehow, however, their lack of true derangement makes their cold-bloodedness all the more frightening. Interestingly, creator-screenwriter Little Marvin has made the neighborhood’s women the intellectual authors of the terrorism against the Emorys, hectoring and belittling their husbands for not using a harder hand.

The most frightening of them is a blonde Barbie doll named Betty (Alison Pill, who played a Manson girl in one season of American Horror Story), who in a sidewalk confrontation with Livia Emory icily warns her, “If it were me, I can’t imagine living someplace I wasn’t wanted.” Her slight twist to the word “living” makes it sound like a temporary condition.

For all Covenant‘s effectiveness at depicting the insane frustration of black life in America in 1950, it still has multiple failings as a drama, particularly on the supernatural side of story. Who those underlit and underwritten ghosts are, what they want, and even what they’re doing is never apparent. And at times, Little Marvin forgets he’s telling a story and lapses into editorial-writing. What in hell is “Dem Niggers Ain’t Playing,” a ranting 1971 rap record by the Watts Prophets, doing on the soundtrack of a show set in 1950? Little Marvin’s got a chilling tale to tell about the Great Migration. There’s no need to junk it up with confused ghosts and anachronistic rappers.

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Setting the record straight on gun show sales. In announcing new gun control plans yesterday, President Joe Biden commented on alleged loopholes in gun background checks. “Most people don’t know, you walk into a store and you buy a gun, you have a background check. But you go to a gun show, you can buy whatever you want and no background check,” according to Biden.

Multiple fact-checkers have taken issue with this claim.

The Washington Post fact-check team notes that federally licensed gun show sellers are indeed required to conduct background checks on buyers and to “file substantial paperwork.” You can check out the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) guidance for gun show sellers here.

Some people do try to circumvent these rules by pretending they are not actually in the business of selling guns. However, “gun dealers who pretend to be gun hobbyists but actively trade guns at gun shows are prosecuted,” point out the Post‘s Glenn Kessler and Salvador Rizzo. “It’s also against federal law to sell a gun to any person you have reasonable cause to believe is a prohibited person, such as a felon.”

Politifact also took issue with Biden’s statement. Fact-checkers Louis Jacobson and Amy Sherman point out that:

When it comes to background checks for gun purchases, what matters is who sells the guns, not where the guns are sold — and when a federally licensed seller is a vendor at a gun show, they have to run a background check just as they would if they were back at a bricks-and-mortar gun store.

What matters is if the seller is in the business of selling guns—in which case they must be licensed by the feds and must conduct background checks or else they’re already running afoul of the law—or a private seller who just happens to be selling a gun. More from Politifact:

Specifically, the law says that a license is required if “a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.”

The law specifically rules out a required license if a person “makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”

The administration defended Biden’s comments by saying that it is possible for someone to buy a gun at a gun show without being subject to a background check. This is true but misleading, since it’s possible for someone to buy a gun anywhere from a private seller and not be background checked; gun shows aren’t the issue.

“Biden’s phrasing can leave the impression that no background checks are required at gun shows,” notes the Post. “Our colleagues at PolitiFact labeled Biden’s statement as ‘mostly false.’ We would lean more toward ‘half true,’ (i.e., Two Pinocchios) given how Biden’s statement could be misinterpreted.”

On Thursday, Biden announced six new actions related to gun control. Reason‘s Jacob Sullum goes into detail about Biden’s proposals here.

As is to be expected, these measures—including new restrictions on the sale of gun kits and the appointment of anti-gun activist David Chipman to lead the ATF—have raised a lot of praise from progressives and a lot of consternation from conservatives and libertarians.

One especially worrying development is Biden’s attention to private gun sellers. Biden alone can’t do much to change the rules surrounding gun gifting and sales between individuals. But he is throwing support behind legislation that would clamp down on such exchanges.

“Many Democrats and gun control advocates now want almost all sales and transfers to face a mandatory review,” including sales and transfers “between friends and extended family,” notes the Associated Press. “Connecticut Sen. Chris Murphy, the lead Democratic negotiator on guns, said he’s been on the phone with Republican colleagues every day ‘making the case, cajoling, asking my friends to keep an open mind'” about this proposal and also told the A.P. that Biden was “ready and willing to get more involved.”

FREE MINDS

Republican gender policing efforts get more extreme. “A handful of Republican lawmakers in North Carolina want to force school officials to monitor kids for signs of any genderbending and to snitch on them to their parents,” Reason‘s Scott Shackford reports:

The bill, sponsored by Sens. Ralph Hise (R–Spruce Pine), Warren Daniels (R–Morganton), and Norman Sanderson (R–Minnesott Beach), orders school officials and child welfare workers to notify parents or guardians in writing whenever a minor under their supervision “has exhibited symptoms of gender dysphoria, gender nonconformity, or otherwise demonstrates a desire to be treated in a manner incongruent with the minor’s sex.”

In other words, the aim here isn’t to “protect” struggling teens who have doubts about their gender identities from making life-changing decisions too soon. The bill sets out to police gender conformity. By its very nature, it will target gays and lesbians as well as trans kids—and opens the door to surveilling boys and girls who are neither gay nor trans but simply don’t manifest typical masculine or feminine traits.

FREE MARKETS

“States keep repeating the same mistake with marijuana legalization,” complains Slate. That mistake: making it too complicated to open and operate a legal business, leading to the legal marketplace being dominated by large, multi-state weed conglomerates.

Increasingly, a group of larger companies known as multistate operators, or MSOs, dominate the industry. While still small compared with, say, liquor companies, the largest MSOs have dozens of stores and hundreds of millions in annual revenue. Leading MSOs such as Curaleaf, Cresco Labs, and Columbia Care have raised money by going public in Canada.

Left behind are mom-and-pop entrepreneurs, including those who could benefit from equity programs. In the mainstream economy, entrepreneurs of color often struggle to access capital, but in the cannabis world, the entire industry is locked out of the financial system. Some banks are willing to quietly work with pot companies and charge them high fees, but smaller businesses can’t afford this option.

QUICK HITS

• The latest on the George Floyd murder trial:

The prosecution in Derek Chauvin’s murder trial argues that the former Minneapolis police officer killed George Floyd by pinning him facedown to the pavement for nine and half minutes. In that position, prosecutors say, Floyd could not breathe enough to stay alive. Today expert witnesses reinforced that account, saying the evidence indicates that Floyd—who complained 27 times that he was having trouble breathing—died from lack of oxygen.

• Biden hedges on getting troops out of Afghanistan by May 1.

• Kat Murti and I debunk myths about women, work, and the pandemic.

• Tennessee joins 18 other states that allow permit-free carry:

I signed constitutional carry today because it shouldn’t be hard for law-abiding Tennesseans to exercise their #2A rights. Thank you members of the General Assembly and @NRA for helping get this done. pic.twitter.com/xv2ZenOEZq

— Gov. Bill Lee (@GovBillLee) April 8, 2021

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Justice Sonia Sotomayor is the first Puerto Rican Justice to serve on the Supreme Court, the first Latino. She is often also described as the first Hispanic Justice. Some, however, have maintained that Benjamin Cardozo, as a Sephardic Jew, was the first Hispanic Justice.

Federal and state law typically defines “Hispanic” as being of “Spanish origin or culture.” There are at least two federal administrative decisions discussing whether Sephardic origins make someone “Hispanic.” In Rothschild-Lynn Legal & Fin. Servs., No. 499 MSBE-94-10-13-46, 1995 WL 542398, an administrative law judge found that it does, regardless of whether the individual in question speaks Spanish, has a Spanish surname, or otherwise has other indicia of Hispanicness. In re Storer Broadcasting, 87 FCC2d 190 (1981), finds the FCC accepting Sephardic heritage as evidence of Hispanic status, but it was cumulative of much other evidence of such status in that case.

Given that, one might conclude that Benjamin Cardozo was Hispanic, especially because that he and his family belonged to New York’s Spanish and Portuguese synagogue, showing that he maintained a Sephardic identity.

The problem is that according to a Cardozo expert I consulted, the Cardozos insisted that the Cardozo line had never lived in Spain. Most Portuguese Jews wound up there after fleeing persecution in Spain in the 14th and 15th centuries, but the Cardozos claimed this did not apply to them.

On the other hand, Portuguese Jews who were members of the Sephardic communities in Europe and North America almost certainly over several hundred years married descendants of Spanish Sephardim. So while Cardozo’s paternal line may not have had Spanish origins, surely he had Spanish Jewish ancestors, and thus was of partial Spanish origin.

Nevertheless, I conclude that under current laws and cultural norms, Cardozo was not Hispanic. Because his family insisted that they were Portuguese and not Spanish Jews, Cardozo apparently did not identify himself as being of Spanish origin, even if he did have Spanish maternal ancestry. And if Cardozo did not self-identify as being of Spanish origin, he almost certainly would not identify himself as Hispanic if he were alive today (only 2% of Portuguese-Americans consider themselves “Hispanic,” though some affirmative action programs, including the federal Department of Transportation, do include people of Portuguese origin in their definition of Hispanic). And without self-identification as a Hispanic, he would not be considered Hispanic based on partial Spanish descent.

Verdict: Sonia Sotomayor is the first Hispanic Justice.

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