Category: reason

By a vote of 6-3, the U.S. Supreme Court held that the Constitution requires unanimous jury verdicts for convictions in criminal cases. Writing for the Court in Ramos v. Louisiana, Justice Neil Gorsuch explained that ” the Sixth Amendment right to a jury trial—as incorporated against the States by way of the Fourteenth Amendment—requires a
unanimous verdict to convict a defendant of a serious offense.” (Whether jury unanimity is required in cases involving “petty offenses” was not before the Court, as noted in a footnote to the opinion.) This decision overturned the conviction of Evangelisto Ramos, who was convicted by  nonunanimous jury in Louisiana. Nonunanimous jury verdicts in criminal cases were also allowed in Oregon.

The division among the justices in Ramos is quite something:

GORSUCH, J., announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II–A, III, and IV–B–1, in which GINSBURG, BREYER, SOTOMAYOR, and KAVANAUGH, JJ., joined, an opinion with respect to Parts II–B, IV–B–2, and V, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined, and an opinion with respect to Part IV–A, in which GINSBURG and BREYER, JJ., joined. SOTOMAYOR, J., filed an opinion concurring as to all but Part IV–A. KAVANAUGH, J., filed an opinion concurring in part. THOMAS, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., joined, and in which KAGAN, J., joined as to all but Part III–D.

Here’s how that breaks down: Six justices (Gorsuch, Thomas, Ginsburg, Breyer, Sotomayor, Kavanaugh, agreed with the Court’s bottom line conclusion, but Justice Gorsuch’s opinion is only joined in its entirety by three justices (Gorsuch, Ginsburg). Justice Alito’s dissent was joined by Chief Justice Roberts and Justice Kagan, in part.

Justice Thomas wrote separately because he wanted to “make clear that this right applies against the States through the Privileges or Immunities Clause of the Fourteenth Amendment, not the Due Process Clause.” Historically, the Court has incorporated rights against the states through the Due Process Clause. Many academics think this is an error, and Justice Thomas has long indicated he does as well.

One issue dividing justices in Ramos is the treatment of precedent, as the decision overturned Apodaca v. Oregon, a 1972 decision upholding the constitutionality of nonunanimous criminal convictions in state court. Both Justices Sotomayor and Kavanaugh wrote separately to discuss the reasons for overturning Apodaca. (Sotomayor also wanted to note the “racially biased origins” of laws allowing nonunanimous juries to convict people of criminal offenses.)

Justice Alito’s dissent stressed the importance of stare decisis. This issue also likely explains the Court’s lineup here, as Chief Justice Roberts and Justice Kagan are the Court’s most vocal defenders of upholding precedent (though not always in the same cases). Justice Kagan has become particularly vocal in her defense of stare decisis, so it’s also no surprise that she does not join the portion of Alito’s dissent that explains why, in his view, the argument for overturning Apodaca was not as strong as the argument to overturn precedents in other recent cases.

(See also Eugene’s post on the opinion below.)

Today’s second opinion, Thryv v. Click-to-Call Technologies, concerning inter partes review of patent claims also had an interesting 7-2 lineup (if, perhaps, less interesting subject matter). Justice Ginsburg wrote for a seven justice majority. Justice Gorsuch, joined by Justice Sotomayor, dissented. Interestingly, Justices Thomas and Alito declined to join a small part of Ginsburg’s majority, and Sotomayor declined to join the last part of Gorsuch’s dissent.

Today’s third opinion (about which I hope to say more later), was Atlantic Richfield v. Christian, an interesting case involving the availability of state law remedies for hazardous waste site cleanups under the federal Superfund law. The Court was unanimous on some issues, but split 8-1 on one question, and 7-2 on another.

Chief Justice Roberts wrote the opinion for the Court in Atlantic Richfield. In the first part of his opinion, the Court unanimously concluded it had jurisdiction to hear the case. As noted above, the remainder of the opinion was either 8-1 or 7-2. Justice Alito dissented in part, on the basis that the Court was too permissive in allowing state court challenges to federally approved Superfund cleanups.  Justice Gorsuch, joined by Justice Thomas, dissented from a different portion of the opinion which would preclude landowners from pursuing state common law remedies for hazardous waste site cleanups. In Justice Gorsuch’s view, the federal Superfund statute was intended to supplement traditional state law remedies, not supplant them. (Time permitting, I’ll write a separate post on this case after I’ve had the time to dig in.)

Two other tidbits: Justice Gorsuch was the one justice to write an opinion in all three cases decided today. Also, in today’s orders, the Supreme Court denied the Solicitor General’s request for oral argument time as an amicus for the first time in a decade.

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Last week, many Americans became sick of life under lockdown and started calling for a more balanced and less-restrictive approach to fighting the pandemic. Or else, as others would describe it, Trump-inspired right-wingers set out to undermine public health efforts to control the spread of COVID-19. As with everything else these days, reactions to stay-at-home orders are subject to partisan interpretation; nobody can hoist a sign in front of a television camera without prompting speculation about the impact on the presidential election. Whatever your interpretation, Americans across the country are taking to the streets to oppose top-down mandates that are meant to save lives, but that also kill jobs and prosperity.

“This week, a rash of well-organized protests against state restrictions broke out—a jolting reminder that not everyone is on board with the new, government-mandated limits on public assembly and economic activity,” noted The New York Times.

Are the protests just political theater? They’re certainly political, since they target government policy. But the large turnout for some of them points to anger and desperation more than partisanship as motivation.

“Rallies organized through social media such as Facebook and Twitter cropped up this week across the country with a common message to governors: relax the strict stay-at-home orders deployed to combat the novel coronavirus,” reported USA Today. “Thousands of motorists gridlocked Lansing, Mich., on Wednesday in perhaps the largest protest so far.”

Conservative groups helped to organize at least some of the protests—the Michigan Conservative Coalition enthusiastically promoted the car-based Operation Gridlock in Lansing, Michigan, for instance—but these organizations couldn’t evoke thousands of participants out of thin air. Michigan Gov. Gretchen Whitmer’s seemingly panic-fueled flurry of restrictions on business activity, visits between households, landscaping work, travel to second homes, and sale of “non-essential” goods by large retailers may be the most draconian in the country. That’s inspiration enough to protest for people watching savings accounts dwindle, businesses disappear, and lives stagnate.

And while President Donald Trump tweeted his support to anti-lockdown protesters in three states with Democratic governors (assuming that’s what LIBERATE MICHIGAN!, LIBERATE MINNESOTA!, and LIBERATE VIRGINIA mean) he did so on Friday, April 17. That was well after the protests had already spread across the nation without his blessing.

Protests have targeted stay-at-home orders issued by Republican governors as well as by Democratic governors. That includes demonstrations in GOP-led Arizona, Florida, Indiana, Maryland, New Hampshire, Oklahoma, Ohio, Texas, and Utah. Those rallies are identical to the ones targeting orders issued by Democrats in states including California, Kentucky, Michigan, Minnesota, New Jersey, North Carolina, Virginia, and Wisconsin.

Meanwhile, libertarian concerns feature in some protesters’ comments and much of the coverage of the rallies.

“We seem to be forgetting that we live in the land of the free, not the land of the forced medical tracking or forced medical procedures,” Stephanie Locricchio, organizer of a demonstration in Trenton, New Jersey, told reporters.

On the opposite coast, hundreds of people showed up for a Huntington Beach, California, rally that organizers advertised as “for freedom, liberty and reopening the California economy.”

“The backlash may be less about fears that the response will cause economic harm, and more about a sense of outrage at an infringement on liberties,” mused coverage of the protests in The New York Times. The piece went on to speculate that “something other than libertarian outrage may need to become a central theme. Perhaps fear of undue economic strain could play this role.”

If libertarian outrage isn’t enough to bring more people into the streets to demand a return to voluntary practices rather then government impositions, there’s plenty of economic strain to go around. That’s true even if it hasn’t (yet) affected journalists in their home offices to the same extent that it’s hit people who’ve been laid off or seen their livelihoods shattered.

Writing at the end of March, Federal Reserve Bank of St. Louis economist Miguel Faria-e-Castro projected a 32.1 percent unemployment rate for the second quarter of 2020 as a result of stay-at-home orders closing businesses and sidelining workers. That was a prediction, but we appear to be on our way there already.

“The jobless rate today is almost certainly higher than at any point since the Great Depression. We think it’s around 13 percent and rising at a speed unmatched in American history,” Justin Wolfers, professor of economics and public policy at the University of Michigan, wrote earlier this month.

After more weeks of forced closures to control the spread of COVID-19, and job losses “effectively erasing a decade worth of job creation,” as a Bloomberg report put it, the unemployment rate appears to have crept above 17 percent—and to be on its way to over 20 percent by the end of April.

The economic damage we suffer now in our efforts to reduce public health risk may linger for decades. “Significant macroeconomic after-effects of the pandemics persist for about 40 years, with real rates of return substantially depressed,” economists affiliated with the Federal Reserve Bank of San Francisco and the University of California, Davis wrote in a working paper on the long-term economic consequences of events like the worldwide spread of COVID-19.

Ignoring such economic carnage while battling the pandemic is guaranteed to inspire more people to protest—including those who may not share libertarian outrage at how various authorities are handling containment measures.

For their part, many of the protesters seem to take the public health threat as seriously as they prize their liberty and fear economic harm. While pundits who mock the demonstrations focus on social distancing violations and conspiracy theorists who deny the reality of COVID-19, organizers in Michigan and elsewhere emphasize car-based protests and good hygiene to minimize contagion.

“We are all concerned for those afflicted with COVID 19,” cautions the Michigan Conservative Coalition on its Operation Gridlock webpage. “Yes, many of the personal behaviors we have been reminded to use are good practices. Wash your hands. Cover your cough. Stay home if you are sick.”

That’s not to say that all of the participants come to identical conclusions about the proper response—nor should they. People live different lives and have varying tolerances for risk. It’s nothing less than bizarre to impose one-size-fits-all restrictions on a nation that varies from young and healthy to old and ill, from white collar to blue collar, from well-to-do to just getting by, and in which some people live in dispersed rural settings and others in densely populated cities. That disconnect between cookie-cutter mandates and people’s perception of what’s right for them is yet another reason to take dissent to the streets.

Government officials might regain a little respect and support if they placed as much faith in the public to voluntarily do the right thing as do protest organizers. If they learned to balance risks to the same extent as the angry people swarming state capitals, demonstrations against restrictive pandemic policy wouldn’t be as necessary as they are. Until then, you should expect the demonstrations to grow.

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So the Supreme Court just held this morning, in an opinion (Ramos v. Louisiana) by Justice Gorsuch, joined by Justices Ginsburg, Breyer, Sotomayor, and Kavanaugh (with Justice Sotomayor and Justice Kavanaugh writing separately in part as to why a contrary precedent should be overruled). Justice Thomas agreed on the result, though argued that the unanimous jury trial guarantee of the Sixth Amendment majority should be seen as applied to the states via the Privileges or Immunities Clause of the Fourteenth Amendment, not the Due Process Clause (his view as to the Bill of Rights more generally).

Justice Alito, joined by Chief Justice Roberts and (largely) Justice Kagan, dissented. They would have upheld nonunanimous verdicts because of the past precedent supporting them, the splintered decision in Apodaca v. Oregon (1972). More on this later today, I hope, but here’s the closing from Justice Gorsuch’s opinion (joined on this by Justices Ginsburg, Breyer, and Sotomayor):

On what ground would anyone have us leave Mr. Ramos in prison for the rest of his life? Not a single Member of this Court is prepared to say Louisiana secured his conviction constitutionally under the Sixth Amendment. No one before us suggests that the error was harmless. Louisiana does not claim precedent commands an affirmance. In the end, the best anyone can seem to muster against Mr. Ramos is that, if we dared to admit in his case what we all know to be true about the Sixth Amendment, we might have to say the same in some others.

But where is the justice in that? Every judge must learn to live with the fact he or she will make some mistakes; it comes with the territory. But it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right.

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They’re sewing face masks, 3D-printing ventilator valves, converting snorkeling gear into respirators, and crowdsourcing research into diagnosis and treatment. In response to the COVID-19 pandemic, all across the world people who are locked in their homes are still organizing in novel ways that may have a lasting impact on culture and society well after this crisis fades.

In communities around the globe, people are pooling resources and providing assistance to neighbors in need—a throwback to the mutual aid societies that acted as a social safety net before the rise of the welfare state.

They’re relying on shared documents like the Coronavirus Tech Handbook, which started out as a one-page shared Google Doc just weeks ago and has grown into one of the largest and most widely used online libraries of tools in the fight against the virus. The internationally crowdsourced compilation of tips, guidelines, and resources has thousands of users and active projects.

As the severe shortage of personal protective equipment became apparent, home sewing networks sprung into action to make improvised face masks. Schools, businesses, and hobbyists have turned their 3D printers into micro-factories for medical equipment. A team out of Massachusetts Institute of Technology recently released specs for a $100 mechanical ventilator, and technologists around the world are building on each other’s open-source data and plans. Other DIYers are developing diagnostic tools that require no physical testing kits, such as by analyzing voice samples that people record on their phones.

The 2020s may be off to a rough start, but efforts such as these show the potential for technology and human ingenuity to empower individuals in the coming decade, even when they’re sitting on their couches.

Produced, written, and edited by Justin Monticello

Music: “consciousness hacker” by el_vis, CC BY-NC-SA 3.0 license; “Newsroom” by Riot; “Third Time” by Jingle Punks; “Diamond Knight” and “Hurry Up” by Silent Partner; “Critter Cruise” by Matt Harris

Photos: Jo Prusa posing in 3D-printed face shield, Jo Prusa; 3D-printed face shield, Stratasys; 3D-printed door handles and PEEP masks, Materialise; 3D-printed valves, Cristian Fracassi; 3D-printed respirators, CIIRC; 3D-printed test swabs, Formlabs; 3D-printed Charlotte/other valves, CRP Technology; 3D-printed adapter, Northwell Health; 3D printers at Cochin hospital, BONE3D; Stopgap Face Mask, 3D Systems; Isinnova posing with valves, Isinnova; Photocentric 3D-printed valves, Photocentric; Face mask in 3D printer, Roboze; St. Barnabas face shields, iMakr; BCN3D face shields, BCN3D; VESper ventilation expansion splitter, Prisma Health; Manual ventilator converted to automatic, UC San Diego; AON3D printing face shields, McGill University; Leitat field respirator, IAM3DHUB; Fast Radius face shield, Fast Radius; Mutual aid in Milan (3), Claudio Furlan/ZUMA Press/Newscom; Mutual aid in St. Petersburg, Alexander Demianchuk/ZUMA Press/Newscom; Mutual aid in Moscow (2), Vyacheslav Prokofyev/ZUMA Press/Newscom; Man using phone in Ethiopia, Caro / Trappe/Newscom; Man using phone in Algeria, Oscar Carrascosa Martinez/Westend61 GmbH/Newscom; Man on couch, Jo Kirchherr/Westend61 GmbH/Newscom; Woman on couch, VITTA GALLERY/Westend61 GmbH/Newscom; Man in mask on phone in Lima, SOPA Images/Miguel Angel Valero / SOPA Image/Newscom; Homeless man using phone in Pasadena, Keith Birmingham/ZUMA Press/Newscom; Girl using phone in Nairobi, Donwilson Odhiambo / SOPA Images/Newscom; Woman on phone in Sochi, Vladimir Smirnov/TASS/Sipa USA/Newscom; Woman on phone in Changchun, Wang Haofei Xinhua News Agency/Newscom; Woman on phone in Ethiopia, Caro / Trappe/Newscom.

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COVID-19 lockdown protests are spreading and so is misinformation about them. As a series of demonstrations against COVID-19 lockdown orders sweep the U.S., protesters have shown wildly varying degrees of responsibility and realism. Some have been staying 6 feet from others or even protesting from within cars, while simply asking for some shutdown leeway for local businesses and entrepreneurs who are willing to take extra steps to keep pandemic-times customers safe. Alas, others have been crowding up against each other in large numbers—without masks or any other precautions—while suggesting that the entire coronavirus outbreak might be a hoax.

Some folks online have started spreading rumors that protesters are paid “crisis actors”—alleging their signs too well-made or similar and that their websites have fishy origins. But we needn’t turn to conspiracy theories for an explanation; we’ve been seeing in real time as the president and his media supporters encourage protests against COVID-19 containment measures, while popular fringe figures like Alex Jones portray the protests as “leading the way against the tyrants.” No nefarious backers need to whip out their checkbooks when cult favorites are on the case.

On the flip side, people’s revulsion at the more reckless or bratty elements of these protests is setting up social media for a round of fake protest news.

Over the weekend, flyers were posted around Tottenville, Staten Island, advertising an “End the Lockdown Rally.” The flyers, which bore President Donald Trump’s campaign slogan “Make America Great Again” and a MAGA hashtag, called for people to gather without masks at Conference House Park on April 19, adding “bring your children” and “if you’re sick still come, it’s your right.”

Twitter has been buzzing with condemnations of the protest and the Trump fans who were allegedly organizing it. But whatever the intentions of those who posted it (a political prank, either attempting to make Republicans look dumb and evil; trying to make it look like liberals are trying to make Republicans look dumb and evil; or a genuine attempt to cause chaos and contagion are all possible, I suppose, though in varying degrees of likelihood), no one showed up.

After last week’s protest around the Michigan Capitol, a picture of someone holding a large swastika flag that said “TRUMP PENCE” began circulating on social media as a sign of the supposed Nazi leanings of Trump supporters and the people protesting. But after some viral outrage about the kind of people the conservative organizers of these protests were in cahoots with, it turns out that the picture in question actually came from a March 2 Bernie Sanders rally in Boise, Idaho.

Edit for clarification: This was at a Bernie Sanders rally, the trump supporters were counter protesting. It was held at the Ann Morrison park in Boise, ID.

Today I witnessed a bunch of trump supporters crashing a peaceful rally I was attending with my family. They were profane. https://t.co/mQcejBpGuT

— Thunder Walks About (@notaxiwarrior) March 3, 2020

The man holding the swastika flag also showed up at a rally in Arizona, where he was kicked out, shouted anti-Semitic slurs at people, and was subsequently reported on by Buzzfeed. He was identified as Robert Sterkeson, who describes himself as a “stunt activist” and the Anti-Defamation League describes as a white supremacist.

It does not seem that the man’s flag was meant to be a critical commentary on the Trump administration, as some have suggested, nor a false-flag operation to make Trump supporters look bad. But it also wasn’t part of social-distancing protests in Michigan.

Whatever your stance on business shutdowns, stay-at-home orders, and protests against them—I tend to think one can’t make any pronouncements on these things at large, as so much depends on the way they’re being done and under what local conditions—these stories should serve as a good reminder that the more outlandish and horrific claims about life under COVID-19 quarantine should always be approached a little skeptically at first, especially when they tidily confirm your prior perceptions or fears.

FREE MINDS 

On the COVID-19 era internet, “we are living under an emergency constitution invoked by Facebook, Google, and other major tech platforms,” argues Evelyn Douek, an affiliate with Harvard’s Berkman Klein Center for Internet and Society, at The Atlantic.

In normal times, these companies are loath to pass judgment about what’s true and what’s false. But lately they have been taking unusually bold steps to keep misinformation about COVID-19 from circulating.

As a matter of public health, these moves are entirely prudent. But as a matter of free speech, the platforms’ unconstrained power to change the rules virtually overnight is deeply disconcerting.

More here.

FREE MARKETS

In France, “antitrust authorities ordered Google to negotiate with publishers to pay for the news content shown in search results” and (sigh) president and chief executive of the News Media Alliance David Chavern thinks that’s a model for the U.S. to emulate. The New York Times ran on op-ed yesterday in which Chavern argued:

There are several ways the pressure on Google could be brought to bear. If Congress passes the Journalism Competition and Preservation Act, publishers would be allowed to negotiate rates with Google as a group. Alternatively, publishers might finally be forced to undertake their own lengthy copyright litigation. In any case, I believe that Google will eventually be required to treat news publishers, like music publishers, as equals.

Read Reason‘s Scott Shackford on why this is a terrible idea.

ELECTION 2020 

The COVID-19 outbreak could keep Libertarians and Greens off ballots. “In 2016, the Libertarian Party was on the general election ballot in all 50 states; this year, it has secured ballot access in just 35,” points out Politico. And while the Green Party made it onto 44 state ballots during the last presidential election, this year it will only be on the ballot in 22 states.

This could amount to a crisis for the Libertarian and Green Parties, Politico‘s Bill Scher explains:

Without ballot access, national pollsters won’t feel obligated to include Green and Libertarian candidates in their surveys; voters will be less aware of their nominees and platforms; journalists will be less likely to pay any attention to them; and the probability diminishes that either the Libertarians or Greens can reach the holy grail of 5 percent of the popular vote—the point at which they would finally qualify for federal campaign matching funds.

COVID-19 BEHIND BARS 

At just three Ohio prison facilities, more than 1,300 prisoners have contracted COVID-19.  From CNN: “Officials decided to test all inmates and staff at the facilities starting Thursday, and results have been coming back in stages, said spokeswoman Melanie Amato of the Ohio Department of Health. She said 103 staff members also tested positive at Marion. One of those staff members died, and no additional details were immediately available on the death.”

In Philadelphia:

20 people to a room, infrequent sanitization & soaring anxiety levels in Philly jails. Vital reporting here from @MaxMMarin and @awmoselle https://t.co/b0QGjRkqfR

— Maura Ewing (@mauraewing) April 19, 2020

QUICK HITS

• In a typical Trump retort, the president claimed without any evidence on Saturday that Drudge Report traffic had been drying up as the site grew more Trump-critical. On the contrary,  “the past 30 days has been the most eyeballs in Drudge Report’s 26 year-history,” Matt Drudge told CNN.
• Alexis Martin, who was sentenced to prison for “murdering” the man forcing her into prostitution at 15 years old when that man was shot by someone else in the course of a robbery, will be granted clemency by Ohio Gov. Mark DeWine.
• “Abortion is a time-sensitive procedure. Delaying a woman’s access to abortion even by a matter of days can result in her having to undergo a lengthier and more complex procedure that involves progressively greater health risks, or can result in her losing the right to obtain an abortion altogether,” a federal judge in Tennessee wrote in his ruling against the state’s attempt to ban abortion during the pandemic.
• Phoebe Maltz Bovy reviews Woody Allen’s new autobiography.

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