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Does the quality of legal argument in Supreme Court opinions matter?

[ 10 ] December 14, 2010 |

I have a piece at the Daily Beast about the ACA decision which suggests some reasons to be skeptical.

I’m particularly interested in the assertion that the professional quality — as measured by the craft values of the legal profession — of the arguments in SCOTUS opinions has or at least in certain circumstances can have a serious effect on the Court’s perceived legitimacy. It’s a commonplace of criticisms of particularly controversial Supreme Court decisions to assume this is the case. Indeed justices make the claim themselves routinely, as for example in the concluding passage of Justice Stevens’ dissent in Bush v. Gore:

It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.

Is there any evidence of such an effect, either in regard to Bush v. Gore or other SCOTUS decisions?

Don’t Cry No Tears Around Me

[ 5 ] December 13, 2010 |

John Boehner was blubbering on 60 Minutes last night about something or the other, which a nice illustration of how it’s OK for macho Republican men to secrete strategic tears as fast as the Arabian trees their medicinal gum.

Such displays are by nature far more problematic for Democrats, who are typed as “soft” due to their (largely hypothetical) reluctance to kill foreigners with enthusiasm, or worship at the shrine of television characters who are tough enough to save American lives by torturing people etc.

Needless to say all these rules are even more abstruse for women politicians and pundits, who are under continual suspicion of being either hysterical little girls or ruthless ball-breaking bitches. It’s complicated!

A working class hero was something to be

[ 11 ] December 8, 2010 |

John Lennon
Thirty years ago tonight John Lennon was murdered by a mentally ill fan. By a simple twist of fate the story was broken by sportscaster Howard Cosell during a ABC Monday Night Football telecast. After the shooting police responding to the scene took Lennon to a nearby emergency room, where an ABC employee was being treated for a broken leg. The employee overheard the police discussing the shooting, then witnessed Yoko Ono’s grief-stricken disbelief when told minutes later that her husband was dead (Ono had been with him when he was shot). The employee hobbled to a pay phone, and called in the story. MNF producer Roone Arledge was instructed to tell the announcing crew to break the news on the air. The crew were given the news during a commercial break, and had less than a minute to figure out how to handle the situation. Cosell, who knew Lennon personally and indeed had interviewed him on MNF six years earlier, didn’t want to do it. Frank Gifford insisted he had to, and Cosell gave the horrible news the memorable treatment linked above.

I was watching the telecast in my dorm room in Ann Arbor. The Youtube video brought the shock of that moment back as if it had all happened yesterday. (Today of course something like this would have been tweeted almost before the shots had stopped echoing).

Besides being a great musician, John Lennon was an interesting political figure. His politics were of course not “serious” in the sense that Very Serious People give that word — they reflected a kind of utopian radicalism that found its expression in absurdist performance art, such as the infamous Bed-Ins for Peace he undertook with Ono in 1969. Lennon paid a real personal price for his opposition to the Vietnam War: the basic story is told well if a bit simplistically in the documentary The U.S. v. John Lennon.

I dislike “if X were alive today” speculations on principle, since such musings invariably conclude that the departed’s hypothetical present opinions would be identical to the author’s current views. Nevertheless I very much wish John Lennon were alive today for all sorts of reasons — not the least of which is the desire to still have his voice advocating, through art and activism, for that most feared and despised thing, a world of free and equal human beings.

Lesbians are actually kinda hot and make good soldiers too

[ 11 ] November 23, 2010 |

van alden

So sign ‘em up for Team America: World Police.

There’s a lot to savor here: The time machine that takes you back to 1953; the just-so evolutionary biology; the characteristically creepy mixture of obsession with and attraction/repulsion toward the subject matter; the sexualization of the work place. It’s a heady brew, as Agent Van Alden might say.

Update: I read this after The Daily Caller had removed the original final sentence, which per the Amanda Hess piece Scott links above, read “My solution would get the distaff part of our homosexual population off our collective ‘Broke Back,’ thus giving straight male GIs a fair shot at converting lesbians and bringing them into the mainstream.”

Another big win for the blogosphere

[ 18 ] November 19, 2010 |

Three days ago, LGM suggested that playing a football game with a (padded!!) brick wall on the end line of the field might be a dubious idea. Apparently this stunning insight “went viral” as the kids say, because this morning . . .

(The lawyers who were planning to sit in the east end zone to be first off the mark when filing PI suits can now use their strategic positioning to organize a class action for the benefit of everybody who bought tickets on that end of the field).

Update: Look at these ticket prices!

A friend reminds me that Chicago baseball fields seem to be magnets for horrible promotional ideas:

Disco demolition

Maybe humanity isn’t doomed after all

[ 5 ] November 18, 2010 |

Nowledge triumphs.

Mental decency

[ 24 ] November 18, 2010 |

show trial

Glenn Greenwald as usual does an excellent job summarizing the Orwellian proceedings surrounding the detention and trial of Ahmed Ghailani.

One point that bears particular emphasis is that the government, or more precisely the Obama administration through its Department of Justice, made clear at the trial that Ghailani would not be released no matter what verdict the jury might reach. Despite this (and despite the fact Ghailani was convicted of a charge that by itself will result in a sentence of 20 years to life, to be served in a Supermax facility, i.e., under conditions of solitary confinement that are themselves somewhat difficult to distinguish from the torture to which Ghailani was subjected, and which made much of the evidence against him unadmissable), people like Bill Kristol and Liz Cheney denounced the proceedings as far too civilized for their taste:

Bad ideas have dangerous consequences. The Obama Administration recklessly insisted on a civilian trial for Ahmed Ghailani, and rolled the dice in a time of war. The Department of Justice says it’s pleased by the verdict. Ask the families of the victims if they’re pleased. And this result isn’t just embarrassing. It’s dangerous. It signals weakness in a time of war. The Ghailani trial was supposed to be a test case for future trials of 9/11 terrorists.

We urge the president: End this reckless experiment. Reverse course. Use the military commissions at Guantanamo that Congress has authorized. And, above all–accept the fact that we are at war


(The enemy in this war is unspecified, but I imagine it’s either Eastasia or Eurasia).

Speaking of Orwell, conservatives have special affection for this quote:

“First of all, a message to English left-wing journalists and intellectuals generally: Do remember that dishonesty and cowardice always have to be paid for. Don’t imagine that for years on end you can make yourself the boot-licking propagandist of the Soviet régime, or any other régime, and then suddenly return to mental decency. Once a whore, always a whore.”

Apparently they missed the italicized phrase.

FOX goes PC: Bows to pressure to characterize murder of American general by ruthless savages as military “defeat.”

[ 16 ] November 17, 2010 |


Monday USA TODAY ran a seemingly innocuous little story about a children’s book putatively authored by Barack HUSSEIN Obama. Some sharp-eyed patriot at FOX News, always on the alert for signs of subversion at the highest level of our government, noticed one graph in the middle of the story, and repackaged the piece as a four-graph article, with the fourth graph bolded for emphasis.

Then, an attempt to make sure the point of this orthographical pedagogy didn’t fly over the audience’s collective head, the story’s title was altered from “Obama Shares Dreams for his Kids in Book on 13 Americans” to “Obama Praises Indian Chief Who Killed U.S. General.” Sadly on Tuesday an army of jackbooted PC stormtroopers descended on the FOX News building in midtown Manahattan, and after a tense standoff that included hostage-taking and the use of impolite language by bra-less radical Feminazis, the headline was changed to “Obama Praises Indian Chief Who Defeated U.S. General.”

I’ll say this for FOX: at least they know what they’re trying to accomplish. Too bad the same can’t be said for MSNBC.

Best idea since Irwin Mainway’s Bag ‘o Glass

[ 40 ] November 16, 2010 |


Illinois and Northwestern are playing a college football game at Wrigley Field on Saturday. That’s an actual photograph of one end zone.

My favorite detail is the advertising signage at the spot where the brick wall intersects the goal post.

Hope we don’t see any incidents of paralysis followed by frivolous lawsuits.

Armistice Day

[ 68 ] November 11, 2010 |

I will come to a time in my backwards trip when November eleventh, accidentally my birthday, was a sacred day called Armistice Day. When I was a boy, and when Dwayne Hoover was a boy, all the people of all the nations which had fought in the First World War were silent during the eleventh minute of the eleventh hour of Armistice Day, which was the eleventh day of the eleventh month.

It was during that minute in nineteen hundred and eighteen, that millions upon millions of human beings stopped butchering one another. I have talked to old men who were on battlefields during that minute. They have told me in one way or another that the sudden silence was the Voice of God. So we still have among us some men who can remember when God spoke clearly to mankind.

Armistice Day has become Veterans’ Day. Armistice Day was sacred. Veterans’ Day is not.
Vietnam War Memorial
So I will throw Veterans’ Day over my shoulder. Armistice Day I will keep. I don’t want to throw away any sacred things.

Kurt Vonnegut, Breakfast of Champions

Breakfast of Champions is not Vonnegut’s best book, but I read it in high school, and it was probably the first novel that ever suggested to me that the world might be more complicated than how it was portrayed in school and on TV.

Frank Buckles.

Olbermann suspended for making campaign contributions

[ 28 ] November 5, 2010 |


This story seems odd on a number of levels.

First, NBC’s rules, which apparently require journalists to get permission from their bosses before contributing to or otherwise participating in political campaigns, are pretty ridiculous. (News organizations have a wide variety of policies regarding this sort of thing, from anything goes at FOX to above the fray appearance of objectivity at all costs at places like the New York Times). Is anybody under the impression that Keith Olbermann is supposed to be maintaining an appearance of objectivity, whatever that means in this crazy mixed up world where the problems of three little people don’t amount to a hill of beans? (It’s unclear whether Olbermann did get permission before contributing a combined total of a little more than $7K to two congressional and one senate campaign).

Second, Olbermann’s flouting of his organization’s rules, however ridiculous those rules may be — if he did flout them; again this isn’t clear — seems tactically very unwise. His influence as a commentator is exponentially more valuable to candidates whom he favors than the piddling sums he’s legally allowed to contribute to them. Making such contributions without clearing them first creates yet another bogus issue for the Scream Machine to whinge about as it goes on about Mainstream Media Bias etc etc.

Living in the hysterical world

[ 7 ] October 29, 2010 |

Today’s “terrorist” “incidents” don’t seem too terrifying:

The rare military escort for a civilian flight heightened the drama of the still unfolding terrorism investigation, as officials isolated cargo planes at two other American airports and searched a delivery truck in Brooklyn for packages said to have been sent from Yemen to addresses in the United States.

None of those packages proved to be dangerous, but officials in Dubai found one that contained explosive material, and another — the first one to be discovered, in Britain — contained a device that appeared similar to an improvised bomb but contained no explosives.

Nevertheless President Obama held an impromptu news conference to discuss these barely newsworthy events. Obama is in a Catch-22 situation here: On the one hand if he acts like a grownup he will be excoriated from the right for not being taking The Existential Threat We Face from Islamoterrofascism seriously. On the other, we can be pretty sure that the next couple of days will feature lots of speculation regarding whether this whole thing has been trumped up by the administration for electoral purposes (it will be interesting to see if any GOP establishment mouthpieces pick up this theme).