Category: reason

–3/5/20–

@Clerk: DeRay McKesson, Black Lives Matter leader, filed petition for writ of cert. Divided CA5 panel held he negligently staged a protest, in which an officer was injured. The First Amendment did not provide a dissent. J. Willett dissented.

–6/17/20–

@BigRed: Did you really intend to write such a broad opinion in Bostock?

@RobeNotCapes: Intent is irrelevant Clarence. All that matters are the specific words I deliberately chose to express my personal beliefs.

@PhilliesFan: I can think of some four-letter words right now….

@TheChief: Just wait till my DACA opinion tomorrow. I have been committed to this position for months. No flip-flopping from me.

@BeachWeek: We know, John. You haven’t changed your mind. Happy Blue June everyone.

@Clerk: Briefing is completed in McKesson v. Doe. Case will be distributed for long conference on September 29.

[Private Group Chat: Ruth’s Troops]

@RBG: What do you all think about the BLM case? If we push for cert, will Neal join us?

@TheRealChief: Absolutely, Ruth. And we may get the Chief as well.

@MyBelovedWorld: I don’t know, Elena. He may not be down for BLM. Race matters, after all.

@BreyerPager: I think this case is important enough to take. Let’s see what happens.We have four.

[/end Private Group Chat: Ruth’s Troops]

—

9/18/20

[Private Group Chat: Elena’s Angels]

@BreyerPager: Now we have three votes.

@TheRealChief: I got this, Steve.

[/End Group Chat]

—

9/29/20

@TheChief: Happy long conference everyone. Welcome back.

…

@TheChief: Now we turn to 19-1108, McKesson v. Doe. Any interest?

@TheRealChief: We have three votes to grant. Anyone want to give a courtesy fourth? Neal?

@RobesNotCapes: Nope, I’ll pass. Still stinging from Bostock.

@TheRealChief: Anyone? No? Come on, Don Willett dissented. Remember how funny his Twitter was?

@TheChief: I muted him a long time ago. Elena, would you like to prepare a dissent from denial of certiorari?

@TheRealChief: Hold on. I thought of a novel way to punt on a controversial issue: Let’s certify the case to the Louisiana Supreme Court!

@BigRed: Has the Supreme Court ever issued a certification order before certiorari was granted?

@TheRealChief: Well, I found one case from 1963. We certified a question to the Supreme Court of Florida from the shadow docket.

@BigRed: Is that it? That precedent is not really helpful.

@TheRealChief: Well, I have another idea. In a 1974 case, after argument, we remanded a case to the old Fifth Circuit to “reconsider whether the controlling issue of Florida law should be certified to the Florida Supreme Court.” Let’s do that again!

@TheChief: Now I am intrigued. What would that order look like?

@TheRealChief: Just spitballing here. How about, “We therefore grant the petition for writ of certiorari, vacate the judgment of the United States Court of Appeals for the Fifth Circuit, and remand the case to that court for further proceedings consistent with this opinion.”

@BigRed: So we strongly suggest the Fifth Circuit certify, without actually telling the panel to certify?

@TheChief: It’s perfect. I join.

@RobesNotCapes: Works for me. Certification is very federalist-y.

@BigRed: I dissent. This remand is a waste of time. Let’s deny cert on this case already.

–11/2/20–

@Clerk: Order issued in McKesson v. Doe.

@MyBelovedWorld: Excellent punt, Elena. This case will come back to us in about 2 years after Court expansion.

@BreyerPager: I won’t be here for it. I will be announcing my retirement as soon as Biden is sworn in. Polls looking good! Now because of the rigors of Article III standing, Texas may finally turn blue.

@TheChief: WTF!?

@BeachWeek: Oh come on.

@RobesNotCapes: Tell us what you really think.

@BigRed: Was that message meant for all of us?

@MyBelovedWorld: I’m sorry, chief, did it again. Those messages were supposed to be for our private group chat. Sorry everyone.

@TheChief: You have a private group chat?! Article III says there is “one Supreme Court.” One. That means “one group chat.” You aren’t allowed to have private group chats. That basically violates Article III.

@TheRealChief: It’s not so bad. It’s like having panels on the Supreme Court. You know, maybe we should look into cases where only a panel of us decides a case. Think of how much easier things would be if there were more than nine of us to spread the work around.

@TheChief: You know, I really don’t appreciate this incessant court-packing chatter.

@GoIrish: Everyone ready for the election tomorrow!

@TheChief: This chat is closed.

—

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There’s no telling where the destruction wrought by a President Joe Biden would end. Not even our most prized obelisks would be safe.

On Monday afternoon, President Donald Trump’s campaign tweeted out a screenshot of an imagined future CNN report from the “D.C. Autonomous Zone” where the demolition of the Washington Monument is well underway. “This would be Joe Biden’s America,” the caption reads.

This would be Joe Biden's America pic.twitter.com/qCILb8SMNo

— Trump War Room—Text TRUMP to 88022 (@TrumpWarRoom) November 2, 2020

The tweet is perhaps meant as a bit of tongue-in-cheek hyperbole. (By the Trump campaign’s standards, it’s even relatively charitable to CNN in depicting the network neutrally covering urban unrest.)

It’s nevertheless in keeping with the dark closing message of Trump’s campaign: A Democrat-controlled White House will use the immense power of the Oval Office to remake America.

“The Biden lockdown will mean no school, no graduation, no Thanksgiving, no Easter, and no Christmas, no Fourth of July and no future for America’s youth,” warned Trump at a campaign rally in Fayetteville, North Carolina, Monday, conjuring up the risk that a Biden administration would do its best to shut down most social and economic life to fight coronavirus.

It’s not the first time that Trump has claimed Biden would prosecute the War on Christmas with a renewed vigor. It’s also not the only thing that would be in President Biden’s sights.

“Him and his group,” Trump warned Monday in North Carolina, will “destroy the suburbs, dissolve your borders, terminate religious liberty, outlaw private health insurance…shred your Second Amendment, confiscate your guns and indoctrinate your children with anti-American lies.”

His Twitter feed over the last few days has rung similar alarm bells about gun rights, the Supreme Court, and school choice.

Biden will terminate school choice, eliminate charter schools, defund religious schools, ban prayer in public schools, indoctrinate your children with Anti-American lies, and force you to subsidize extreme late-term abortion. We believe that every child is a Sacred Gift from God!

— Donald J. Trump (@realDonaldTrump) November 1, 2020

Biden will repeal your Second Amendment and Pack the Court!

— Donald J. Trump (@realDonaldTrump) November 2, 2020

Some of these criticisms are more on point than others. But Trump’s warnings about Biden represent the president’s choice to end his campaign with a strongman’s song that dabbles in the language of liberty while still managing to be overwhelmingly hostile to the idea of individuals leading their own lives. Trump’s pitch isn’t ultimately about freedom, it’s about control.

“America will never be a socialist nation,” Trump said in North Carolina Monday, which is always good to hear. But every warning about high taxes and the end of Christmas is pared with a warning that Democrats will make it too easy to trade with other countries or for people to move to this one. Even as the president was praising school choice at his rally and on his Twitter account, he was signing executive orders setting up a federal commission to encourage “patriotic education” in public schools.

The destructive potential of a Biden administration doesn’t necessarily mean the federal government is too powerful as is, Trump argues. Rather, it means we need to keep electing to right people to wield that power correctly.

“This election comes down to a simple choice: do you want to be ruled by the arrogant, corrupt, ruthless, and selfless [sic] political class, or do you want to governed by the American people themselves?” said the president in his speech Monday.

The choice of being governed a little less is apparently not on the ballot.

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Coronavirus is back with a vengeance. After dwindling over the summer, new cases are rising in many countries and reached a record high this week in America. France and Germany are reinstating lockdowns. But however strong the case may have been for the extreme measures of the spring, when the world was flying blind in the face of this nasty virus, lockdowns are neither workable nor desirable in America at this stage.

Does that mean we should throw caution to the wind and return to business as usual, as President Donald Trump seems to be suggesting? Not really. Our best bet at this stage is encouraging millions and millions of adaptations at the individual level that will let life resume, albeit not in a “normal” way. This approach is best visualized by precisely the thing President Donald Trump panned in the second debate: “plexiglass cubes” in restaurants. “Are you going to sit there in a cubicle wrapped around in plastic?” he chided. Yes.

Should Trump get re-elected, we should do our best to ignore him. If Joe Biden wins on Tuesday, he should wholeheartedly back such adaptive responses, staking out a middle ground between doing nothing and putting everyone under lock and key.

If there is any epidemiological rationale for President Trump’s “don’t let this dominate your life” and go-about-business-as-usual approach, it is that social distancing measures diminish exposure to the virus and therefore come in the way of achieving population-wide herd immunity—a critical mass of people developing resistance and forming a firewall against disease spread.

But this rationale is flawed. No one really knows what percentage of the population would have to become infected to get to herd immunity. Reaching that point might involve an unacceptably high death and sickness rate. It’s not even clear herd immunity can be achieved without a vaccine.

Sweden is the closest real-life example of this approach. That Nordic country went maverick and rejected radical shutdowns. It opted only to ban large gatherings while closing universities and high schools. It also urged people to work from home to the extent possible. Otherwise bars, restaurants, primary schools, and retail shops stayed open.

Supporters of the model claim that this allowed Sweden to avoid economic devastation while maintaining a death toll in the European middle—between the U.K.’s high and Denmark’s low. But that’s misleading, because Sweden’s 576.25 deaths per million fatality rate is much closer to England’s 682 deaths per million (almost on par with America’s 690 per million) than Denmark’s 122.88—even though Sweden’s population density is only 1/6th that of Denmark’s. (Norway, whose population density is similar to Sweden’s, has an even lower 52.36 per million death rate.)

Although Sweden’s infection and death rate has now tapered off and is in line with the rest of Europe’s, that doesn’t mean it got things right. Its frontloading of deaths would make sense if it meant saving more lives later. But given that at this stage a vaccine within a year seems likely and therapeutics keep improving, such a strategy, as George Mason University’s Tyler Cowen points out, “is akin to charging the hill and taking casualties two days before the end of World War I.”

The failure of Sweden’s herd immunity strategy doesn’t mean that France and Germany’s new lockdowns are a rational approach either. France has imposed a national shelter-in-place order requiring people to stay at home. Germany has shut down not just theaters and bars but also all hotels.

Prior to this pandemic, lockdowns had never been deployed, not even during the Spanish flu. They were no part of the Centers for Disease Control and Prevention’s pandemic response planning—no doubt because planners intuitively understood that such drastic steps would impose massive economic and health costs of their own. And they have.

Indeed, unemployment in America rose higher in three months of COVID-19 than two years of the Great Recession, with 14 million Americans losing their jobs. Meanwhile, whatever the flaws of the Great Barrington Declaration, a controversial statement signed by 9,000 epidemiologists, economists, and other experts opposing lockdowns, it is dead right that such policies will result in lower childhood vaccination rates, worsening cardiovascular disease outcomes, fewer cancer screenings, and deteriorating mental health —all of which will result in more deaths and worse health outcomes that public health stats won’t capture for a year. Inadequate tuberculosis treatment alone could cause an estimated 400,000 deaths worldwide.

The lockdowns may have made sense in the spring, when we had very little idea what we were up against and every interaction seemed fraught. But now it is possible to separate relatively dangerous from relatively innocuous activities—and avoid the former until entrepreneurs can come up with innovative business models that make it possible to engage in them safely, precisely the kind of adaptation that hunker-down orders thwart.

To be sure, there might be no business model that could rescue some industries. Contrast, for example, movie theaters with restaurants.

At this stage, the government couldn’t pay people to go to the movies (and shouldn’t try), because everyone knows that huddling with strangers in a dark, enclosed space for two hours is asking for trouble. Regal Theaters has permanently closed its doors, and AMC, the country’s biggest theater chain, is on the verge of following suit.

But the restaurant industry found a way to hang on. Many eateries shifted their operations outdoors or switched to takeout and implemented other safe practices. They mandated masks and switched to disposable or scannable menus to minimize contact. Some even check patrons’ temperatures before allowing them in. The industry still experienced a 27 percent loss of business, but the real challenge will be in winter when outside dining becomes difficult in much of northern U.S. Restaurants then will have to scramble and experiment with all kinds of new strategies, including plexiglass cubicles, to remain in business.

Political leaders who pan such innovations are just as unhelpful as government lockdowns. There is enough public awareness to make a more laissez-faire approach to coronavirus workable, provided that the powers-that-be don’t actively lead people astray—by encouraging them to attend super-spreading events, for example, or ditching masks.

To get through the pandemic, America needs to encourage personal responsibility and private initiative. Top-down diktats are suboptimal. Silly leaders are even worse.

A version of this column originally appeared in The Week.

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Class 21: Due Process Clause III: “Economic” Liberty Through and After the New Deal

• West Coast Hotel v. Parrish (967-974)
• United States v. Carolene Products (974-980)
• A Footnote to Footnote Four (981-984)
• Williamson v. Lee Optical of Oklahoma (993-996)

(Part I)

 

(Part II)

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A nakedly political legal manuever that sought to invalidate about 127,000 votes in a deep blue part of Texas was blocked by a federal judge on Monday evening.

The ruling should put an end to an attempt by a group of Republican lawmakers and candidates to block Harris County, which includes Houston, from counting votes cast at a drive-thru voting station. The lawsuit claimed that the drive-thru voting station was illegal under Texas law, which allows so-called “curbside voting” only for individuals with disabilities. Harris County contended that the drive-thru voting station met all the requirements to be a standard polling place under state law: individuals had their IDs checked and voted within the privacy of a temporary tent erected for the purpose.

Republicans had asked both state and federal courts to reject those ballots. The state Supreme Court rejected that request on Sunday night and federal Judge Andrew Hanan followed suit on Monday.

Monday’s emergency hearing in federal court had drawn national attention because the case landed before Hanan, a George W. Bush appointee with a history of controversial rulings. Liberals and voting rights activists worried that he might rubberstamp a GOP plot to invalidate hundreds of votes on the eve of Election Day.

But Hanan’s ruling turned out to be a thorough rebuke of the Republican challenge. The judge dismissed the case on a technicality—the plaintiffs did not have standing in the lawsuit—but went on to say that he would not have invalidated the already-cast ballots even if the lawsuit had been judged on its merits.

In all ways, that seems like the right outcome. As I wrote yesterday, there was little reason to think those voters should have their ballots tossed out since they were not doing anything wrong. The legal challenge argued that Harris County had overstepped its authority by setting up the drive-thru voting station, but voters using it had merely been complying with the instructions they were given by local election authorities.

There was nothing remotely fraudulent about the 127,000 votes cast in Harris County’s drive-thru voting station. Republican efforts to disqualify those votes were nothing more than partisanship gamesmanship. The courts are right to have dismissed these lawsuits.

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If governments don’t completely eliminate fossil fuels by 2040, society is doomed, says Jeff Nesbit, author of This is the Way the World Ends.

That kind of apocalyptic rhetoric “costs us trillions, hurts the poor, and fails to fix the planet,” says Bjorn Lomborg, author of False Alarm.

Are fossil fuels an imminent threat to human life, or are attempts to eliminate them more destructive? That was the subject of an Oxford-style online Soho Forum debate hosted on Sunday, October 18th, 2020.

Arguing in favor of the complete elimination of fossil fuels over 20 years was Nesbit, the executive director of Climate Nexus. He went up against Lomborg, the president of the Copenhagen Consensus Center. The debate was moderated by Soho Forum director Gene Epstein.

Narrated by Nick Gillespie. Edited by Ian Keyser. Intro by John Osterhoudt.

Music: “Under Cover,” by Wayne Jones

Photos: Gina M Randazzo/ZUMA Press/Newscom; Sebastian Silva/EFE/Newscom; imageBROKER/Jim West/Newscom; Stefan Boness/Ipon/SIPA/Newscom

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