From the Senate resolution, which came out about a month ago, but which I only learned about several days ago (underlining added to note some key phrases):
WHEREAS on April 28th, 2020 in the course titled “Introduction to Comparative Studies in Race and Ethnicity,” Professor Rose Salseda was invited to teach and said, “nigga,” while reciting lyrics to the 1988 classic by N.W.A., “Fuck tha Police;” and
WHEREAS on May 4th, 2020, in the course titled “Riot!: Visualizing Civil Unrest in the 20th and 21st Centuries” Professor Salseda wrote “Niggaz” twice while writing the full name of the group N.W.A and discussing their artwork, and …
WHEREAS use of the n-word by a White person or Non-Black person of color is offensive and highly inappropriate, especially in courses whose teachings intend to value and center Black liberation; and
WHEREAS this is not the first incident of racial violence against Black students in which a non-Black lecturer has employed and said the n-word while teaching, but hopefully will be the last; …
THEREFORE BE IT BE RESOLVED BY THE UNDERGRADUATE SENATE
THAT the Undergraduate Senate is appalled by and condemns Professor Rose Salseda’s continuous aggressions against the Black community and Black students, particularly her repeated use of the n-word in Canvas discussion board communications on May 4th, 2020. Reckless actions of this manner and Salseda’s disturbing presence teaching Black art and art history in our intellectual community must be dealt with….
THAT the Undergraduate Senate calls for the Center for Comparative Studies in Race and Ethnicity to reconsider what courses Professor Rose Salseda can teach (i.e Introduction to African-American Art), bring her back to Introduction to CSRE to listen / fully take ownership of her actions, participate in identity and cultural humility training ….
Prof. Salseda, an assistant professor, apologized; nearly everyone does, of course. What have things come to, though, that university professors (and surely also students) can’t accurately quote important music, literature, or film that they are discussing? (Unless, of course, they’re the right color.) Presumably Stanford professors discussing the lyrics would be required to say, “I don’t know if they fags or what / Search a n-word down, and grabbin’ his nuts.” (Or should it be “I don’t know if they f-words or what …”?) I wonder what the members of N.W.A. would think about that.
And of course you can’t simply play the song (or the movie, whether it’s To Kill a Mockingbird or Pulp Fiction or Godfather, Part II or The Shining or Rocky or Platoon or many others), as the UCLA Ajax Peris incident shows: He was faulted both for reading a passage with the word “nigger” from Martin Luther King, Jr.’s Letter from Birmingham Jail and for “show[ing] a portion of a documentary which included graphic images and descriptions of lynching, with a narrator who quoted the n-word in explaining the history of lynching.” Presumably you’d have to edit the song or video to bleep out the word—bleep it out not for the sake of small children, but for the sake of adult university students.
It’s as if the Stanford Undergraduate Senate decided that, to protect Holocaust survivors and their children or grandchildren (perhaps now, or perhaps in 1960, when there was an ever closer connection between some students and the Holocaust), all swastikas in photographs, on maps, or in movies had to be fuzzed out, and when talking about death camps, you’d have to say “Au-place” and “Tre-place” (at least unless you were Jewish). Are swastikas offensive? Of course. Can seeing them be upsetting to people for whom the Nazi reign of terror hit close to home? Sure. But it seems to me that American universities should show and talk about history as it is, without fuzzing or bleeping or expurgating. Likewise for showing and talking about film, music, literature, and legal disputes.
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As federal, state, and local governments respond to the COVID-19 pandemic, some are loosening rules to ensure consumers can get adequate sustenance.
Last month, the U.S. Department of Agriculture and the Food and Drug Administration (FDA) temporarily relaxed food-labeling rules to allow some companies to sell things that are not labeled for individual sale. That includes foods such as those that had been labeled for sale to a restaurant, hotel, or university food service provider, which typically don’t contain the Nutrition Facts labels that are required to appear on items sold directly to consumers. That has given states and cities leewayto allow the restaurants they regulate to sell groceries that don’t comply with some current FDA labeling rules. Many states have also relaxed liquor laws during the pandemic by allowing restaurants to offer to-go alcohol with takeout food.
In March, the Trump administration suspended enforcement of rules that set the maximum hours that truck drivers who are delivering key supplies, including food, may work without a break. While that’s a smart approach given the supply-chain issues the food system is experiencing, it came as many restaurants—including those at highway rest stops—were limiting hours or closing. And many restaurants that have remained open now offer drive-thru service only, which can prevent semitruck drivers from accessing them. In April, California’s state transportation department, Caltrans, decided to allow food trucks that obtain a free permit to park at rest stops in the state and sell food to truck drivers and others there. Some California counties, it turns out, have no rest stops—but at least regulators appear to be trying.
Cutting red tape temporarily during a nationwide emergency is prudent. But easing the regulatory burden on food businesses doesn’t make sense only during a crisis. Will Californians be harmed if the state continues to allow food trucks to serve truckers? Nope. Will people be harmed if restaurants can sell groceries or fill to-go alcohol orders? Probably not.
Rolling back regulations supports both short-term goals (making sure people have sufficient access to food) and long-term ones (facilitating commerce and allowing the economy to recover). Making many of these relaxed rules permanent is a start, but taking a scalpel to the many, many burdensome rules still on the books must be the next step.
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As federal, state, and local governments respond to the COVID-19 pandemic, some are loosening rules to ensure consumers can get adequate sustenance.
Last month, the U.S. Department of Agriculture and the Food and Drug Administration (FDA) temporarily relaxed food-labeling rules to allow some companies to sell things that are not labeled for individual sale. That includes foods such as those that had been labeled for sale to a restaurant, hotel, or university food service provider, which typically don’t contain the Nutrition Facts labels that are required to appear on items sold directly to consumers. That has given states and cities leewayto allow the restaurants they regulate to sell groceries that don’t comply with some current FDA labeling rules. Many states have also relaxed liquor laws during the pandemic by allowing restaurants to offer to-go alcohol with takeout food.
In March, the Trump administration suspended enforcement of rules that set the maximum hours that truck drivers who are delivering key supplies, including food, may work without a break. While that’s a smart approach given the supply-chain issues the food system is experiencing, it came as many restaurants—including those at highway rest stops—were limiting hours or closing. And many restaurants that have remained open now offer drive-thru service only, which can prevent semitruck drivers from accessing them. In April, California’s state transportation department, Caltrans, decided to allow food trucks that obtain a free permit to park at rest stops in the state and sell food to truck drivers and others there. Some California counties, it turns out, have no rest stops—but at least regulators appear to be trying.
Cutting red tape temporarily during a nationwide emergency is prudent. But easing the regulatory burden on food businesses doesn’t make sense only during a crisis. Will Californians be harmed if the state continues to allow food trucks to serve truckers? Nope. Will people be harmed if restaurants can sell groceries or fill to-go alcohol orders? Probably not.
Rolling back regulations supports both short-term goals (making sure people have sufficient access to food) and long-term ones (facilitating commerce and allowing the economy to recover). Making many of these relaxed rules permanent is a start, but taking a scalpel to the many, many burdensome rules still on the books must be the next step.
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West Palm Beach, Florida, Mayor Keith James declared a state of emergency after protests spurred by the death of George Floyd. The declaration banned the sale of alcohol, guns and ammunition and prevented store owners from displaying weapons for 72 hours.
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West Palm Beach, Florida, Mayor Keith James declared a state of emergency after protests spurred by the death of George Floyd. The declaration banned the sale of alcohol, guns and ammunition and prevented store owners from displaying weapons for 72 hours.
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From Justice Jackson’s majority opinion in the case striking down mandatory flag salutes and pledges of allegiance, West Va. Bd of Ed. v. Barnette (1943), decided 77 years ago today:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
Thanks to Prof. Glenn Reynolds (InstaPundit) for the reminder that today is the anniversary.
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From Justice Jackson’s majority opinion in the case striking down mandatory flag salutes and pledges of allegiance, West Va. Bd of Ed. v. Barnette (1943), decided 77 years ago today:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
Thanks to Prof. Glenn Reynolds (InstaPundit) for the reminder that today is the anniversary.
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Cartoon criticizing Franklin D. Roosevelt’s 1937 court-packing plan.
For much of the period from 2017 to 2019, there was an active public debate over “court packing.” The first round of that debate was kicked off by prominent conservative law professor Stephen Calabresi, who (along with Shams Hirji) drafted a plan for Republicans to increase the number of lower-court federal judges, so as to enable Donald Trump to tilt the balance of these courts to the right with new appointments (for the record, I strongly opposed their idea). With the 2018 nomination of Justice Brett Kavanaugh to the Supreme Court, it was the left’s turn to advocate court-packing in order to offset what they viewed as the illegitimate GOP appointments of Kavanaugh and Neil Gorsuch; the latter’s seat, they argued, was “stolen” as a result of the GOP-controlled Senate’s refusal to hold hearings on Judge Merrick Garland, Barack Obama’s nominee to fill the seat vacated by the death of Justice Antonin Scalia in 2016.
The conflict over court-packing seemed to abate after the Democratic Party chose a presidential nominee—Joe Biden—who has said he opposes the idea. In addition, court-packing has been pushed out of the news by the coronavirus pandemic, the death of George Floyd and resulting protests over police brutality, and other events. Now, however, some progressive activist groups are trying to get the idea back on the political agenda:
The movement on the left to pack the Supreme Court is gaining momentum.
A group of progressive organizations is for the first time supporting the proposal to add justices to the court in hopes of weakening the conservative majority, according to a memo provided to POLITICO. The move comes weeks before the Supreme Court is expected to hand down opinions on several hotly contested issues, including President Donald Trump’s tax returns, abortion rights and the fate of “Dreamers.”
The Progressive Change Institute, Be a Hero, Friends of the Earth, Presente and 350 are among those groups that are newly joining the call, according to organizers. Take Back the Court, Demand Justice and the Sunrise Movement, which previously backed the idea, also signed onto the open letter.
“Trump and the Republicans in Congress have used aggressive tactics, including eliminating the filibuster, to pack the courts with conservative ideologues and prevent the will of the people from being heard,” said Erich Pica, president of the environmental group Friends of the Earth. “From the fight for racial justice to efforts to stop climate change and protect our clean air and water, the current configuration of the court has consistently stood in the way of progress. We simply do not have a generation’s worth of time to replace judges.”
The once-fringe idea of packing the court got a major boost during the Democratic presidential primary, when several candidates said they were open to the plan or supported it. Democrats have argued the hardball tactic is needed after Republicans blocked former President Barack Obama’s Supreme Court nominee Merrick Garland and others on the lower courts.
Whether these groups can succeed remains to be seen. During the court-packing debate in 2018-19, the idea found a number of influential supporters on the left, but also numerous notable critics, including Harvard law Professor Laurence Tribe, Senator Cory Booker, Obama White House Counsel Bob Bauer, and prominent constitutional law scholars Neil Siegel and Noah Feldman. For present purposes, the most important liberal critic of court-packing was Joe Biden. He e explained its dangers well:
At a debate last year, he said, “I would not get into court packing. We add three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all.”
If the Democrats pack the court, the GOP will respond in kind, as soon as they get the chance. The predictable result will not only be a loss of “credibility” for the Supreme Court, but also the elimination of judicial review as an effective check on the other branches of government. If the president can pack the court any time his or her party controla both houses of Congress, they can prevent the court from making decisions that curb unconstitutional policies they may wish to enact.
These types of concerns were a key factor in the demise of President Franklin D. Roosevelt’s 1937 plan to pack the Court in order to break its resistance to his New Deal policies. As Democratic Senator Burton Wheeler put it in a speech opposing FDR’s plan:
Create now a political court to echo the ideas of the Executive and you have created a weapon. A weapon which, in the hands of another President in times of war or other hysteria, could well be an instrument of destruction. A weapon that can cut down those guaranties of liberty written into your great document by the blood of your forefathers and that can extinguish your right of liberty, of speech, of thought, of action, and of religion. A weapon whose use is only dictated by the conscience of the wielder.
Neutering judicial review may seem like a feature rather than a bug, to those who oppose strong judicial review generally, or at least think that a neutered Court is better than one with a conservative majority. I have criticized such claims elsewhere, including here and here.
Today’s liberal court-packing advocates claim their plan won’t set a dangerous precedent because it is a response to the special circumstances caused by the bad behavior of the GOP in blocking the Garland nomination and confirming Kavanaugh in the face of a accusations of sexual assault. Liberal legal scholars Noah Feldman (Harvard) and Neil Siegel (Duke) have offered strong rebuttals to such claims, explaining why court-packing would be an escalation of the conflict over judicial nominations, not merely retaliation in kind. I expanded on their arguments here.
From the standpoint of preventing a court-packing spiral, the key factor is not the “objective” merit of the Democrats’ critique of GOP behavior, but whether Republicans and conservative independents are likely to accept that critique, and thereby forego retaliation for Democratic court-packing. For reasons I summarize here, I think it’s pretty obvious the answer to that question is “no.” I have some sympathy for Democrats’ complaints about the way the Kavanaugh nomination was handled—much less so for their critique of the “theft” of the seat that eventually went to Gorsuch. But, for present purposes, it doesn’t matter much what I think. What matters is how Republicans are likely to react to a Democratic court-packing initiative. That reaction is unlikely to be a favorable one.
At this point, the odds are still against a successful liberal court-packing plan. In order for it to work, the Democrats would have to win the White House and both houses of Congress—an outcome which is entirely possible, but far from certain. In addition, Biden would likely have to reverse his position on the issue.
A court-packing plan is unlikely to succeed without strong presidential support. For the moment, Biden does not seem to have changed his mind. But, like many politicians, he has a history of shifting positions when doing so seems advantageous to him or his party. It has happened on other issues, and could potentially happen on this one, too. A high-profile confrontation between the Court and the executive branch could potentially persuade Biden (or another Democratic president) to promote court-packing even if that wasn’t his initial plan.
Biden could also be tempted to adopt a proposal such as the “rotation” plan endorsed by Bernie Sanders during the Democratic primary, or the “court-balancing” plan proposed by Yale law professors Ian Ayres and John Fabian Witt in 2018. These ideas are slightly different from conventional court-packing, and thus could give Biden an opportunity to create a liberal majority on the Court without technically reversing his previous position. But for reasons I discussed here and here, such plans amount to a slightly different type of court-packing and have most of the same dangers.
If I had to guess, I would say Biden—should he become president—is unlikely to pursue either court-packing or other similar ideas. He would probably prefer to spend his limited political capital elsewhere. But I’m far from a perfect political prognosticator, and I could turn out to be wrong on this point.
Since the defeat of FDR’s court-packing plan in 1937, the idea has been marginalized in mainstream political discourse. But the events of the last few years have at least weakened the taboo against it. Both Democrats and Republicans have done much to undermine it. Whether it breaks completely remains to be seen.
The only truly foolproof guarantee against court-packing is a constitutional amendment fixing the size of the Supreme Court at nine (or some other number). Prominent liberal political scientist Larry Diamond recently published a column endorsing such an idea, I too would be happy to see such an amendment enacted, but doubt it could happen without a deal under which Democrats got some sort of reciprocal concession from the GOP. Unless and until that happens, it is important that liberal Democratic opponents of court-packing prevail over the idea’s supporters within their party.
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