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A Footnote I Can Agree With

[ 85 ] June 26, 2015 |


While most of Thomas’s dissent today is deeply misguided, I do think he makes an excellent point in Footnote 8:

The majority also suggests that marriage confers “nobility” on individuals. I am unsure what that means. People may choose to marry or not to marry. The decision to do so does not make one person more “noble” than another. And the suggestion that Americans who choose not to marry are inferior to those who decide to enter such relationships is specious.

I have found marriage happy and congenial myself. But the idea that my choice somehow makes me better than anyone else is indeed self-aggrandizing nonsense.

…Rebecca Traister has related thoughts.

Comparisons between Loving v. Virginia and the gay marriage cases aren’t apt

[ 33 ] June 26, 2015 |

I discuss the differences, which are more significant than the similarities.

Remarkably, a majority of Americans, and a huge majority of white Americans, continued to say they were opposed interracial marriage until the late 1990s, 30 years after Loving v. Virginia. (I suspect the number of people willing to say they’re opposed is actually a good deal smaller than the number who are actually opposed). The situation with gay marriage is quite different:

First, contrary to claims of cultural conservatives, the Supreme Court’s ruling today can’t be characterized as the imposition of elite political preferences on the nation as a whole. The solid majority of the nation as a whole supports gay marriage, and it seems likely that within a very few years, opposition to the institution will be as marginal a position as (at least open) opposition to interracial marriage is today.

Second, the history of opposition to interracial marriage indicates that a Supreme Court decision by itself will often do little or nothing to sway public opinion in regard to this sort of issue. In 1967, the Supreme Court of the day threw down a legal gauntlet to one of the most powerful – and, as it would develop – intractable symbols of institutionalized racism in America. That decision seems to have had almost no effect on public opinion, which changed very slowly, and largely if not wholly for other reasons.

By contrast, today the Supreme Court is merely putting its stamp of approval on a political movement that was already winning the battle in the court of public opinion. And that stamp will probably have little effect on the cultural processes that determine how quickly gay marriage receives something closer to universal public acceptance

On Obergefell

[ 91 ] June 26, 2015 |

Anthony Kennedy

Obviously, I’m happy about the judgment. I would forgive Kennedy his bad-undergraduate-essay prose (all-too-representative sample: “From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage”) if he would tell us what the law is:

While Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito and Clarence Thomas are wrong about same-sex marriage, they weren’t wrong about Kennedy’s majority opinion, which leaves a lot to be desired. All of Kennedy’s same-sex marriage opinions have all contained passages whose legal reach exceeds their rhetorical grasp, and even people sympathetic to Kennedy’s conclusions will wince in recognition when reading Scalia’s snarky lines about Kennedy’s “straining-to-be-memorable passages” and “inspirational pop-philosophy.”

Much worse that its aesthetic problems, however, is where Kennedy leaves equal protection law as it pertains to LGBT rights more generally. As with Kennedy’s DOMA opinion – about which I wrote that he “flirt[ed] awkwardly with federalism, due process and equal protection rationales without ever quite summoning up the courage to invite one to the prom” – he maddeningly continued in this opinion to vaguely invoke both equal protection and due process theories without clarifying the applicable standard when it comes to LGBT rights more generally. “Each concept – liberty and equal protection – leads to a stronger understanding of the other,” asserted Kennedy.

Nonetheless, he ended up in the right place, and that’s what’s most important. You may be surprised to learn that I find the calls for judicial restraint coming from the persons responsible for Shelby County hard to stomach (and Scalia’s standup routine needs a lot of work.) And finally, let us recall that “Borking” was great and there should be more of it.

Whole Paycheck

[ 104 ] June 26, 2015 |


One has to wonder how deep into Whole Foods corporate culture ripping off consumers goes:

Sticker shock has always been part of the shopping experience at the city’s Whole Paycheck luxury stores, but now it turns out some of these prices may be illegal. An investigation by the city’s Department of Consumer Affairs has uncovered some shady price tags at our fleet of Whole Foods stores that show customers have been overcharged for their already pricey pre-packaged goods. “DCA tested packages of 80 different types of pre-packaged products and found all of the products had packages with mislabeled weights,” according to a DCA press release. And we were just starting to trust you, Whole Foods.

The investigation looked at products that are weighed and labeled and found a “systematic problem” whereby customers were routinely overcharged for things like nuts, snack foods, poultry and other grocery products. Eight packages of chicken tenders—priced at $9.99 per pound—were inaccurately priced and labeled to the tune of a $4.13 overcharge to the customer per package, a store profit of $33.04 for the set. DCA says one package was overpriced as much as $4.85. “Additionally, 89 percent of the packages tested did not meet the federal standard for the maximum amount that an individual package can deviate from the actual weight, which is set by the U.S. Department of Commerce.”

A current Whole Foods employee, who spoke to us on condition of anonymity, says the issue is incompetence. He says the company was aware of the labeling issue but actually eliminated the job position responsible for checking price tags, sales signs and tare weights in a bid to save money.

This isn’t the first time the chain has been accused of and cited for overcharging customers. Last year, the company was fined nearly $800,000 in California for not deducting tare weight, selling less than the weight on products sold by the pound and other violations. Not to be outdone by our neighbors to the West, “our inspectors tell me this is the worst case of mislabeling they have seen in their careers, which DCA and New Yorkers will not tolerate,” according to DCA Commissioner Julie Menin.

One might chalk this up to a bad employee or two at a distribution center, but given the extreme nature of the overcharging, the corporate indifference to it, and the California case, corporate culture seems to hold significant responsibility here.

Scalia and the West

[ 212 ] June 26, 2015 |

The most important part of Scalia’s dissent is when he defines California as not part of the West. Because San Francisco and Hollywood no doubt.


This is like an even dumber version of the inevitable graduate seminar in US West history argument over what is and is not the American West.

“They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

[ 425 ] June 26, 2015 |

Hey, when you’re wrong 66% of the time, you’re completely right 33% of the time!

More on the historic decision soon.

Friday Links: The Repulsion of the Moopish Invasion Edition

[ 59 ] June 26, 2015 |



[ 102 ] June 25, 2015 |


Above: Bobby Jindal raises one digit for each vote he will receive in the Iowa caucus.

Remember when people took Bobby Jindal seriously. Yeah, that was a long time ago. Jeb Lund on the utter disaster that is Jindal’s political career since 2009.

Corporations, Not Activists

[ 109 ] June 25, 2015 |
Third Reich box cover.jpg

“Third Reich box cover”. Via Wikipedia.

This is an example of reacting to a controversy without really understanding what the controversy is about:

Today, Apple decided to start yanking games that use the Confederate flag in any way (viaTouchArcade). For example, you can now no longer buy the strategy iOS games Civil War: 1862, Civil War: 1863, Civil War: 1864, and Civil War: Gettysburg, which, as you might guess, use the Confederate flag because they’re video games about the Civil War.

With any luck, this will work itself out in a couple of days, and the games will be restored. Right wingers are going apeshit, of course, but as far as I know there are no anti-flag activists of any standing who have decried the use of the Confederate flag in Civil War video games.  Apple’s action stems from a misunderstanding of the arguments of activists, accompanied by a apparently complete disinterest in what they’re actually calling for. And to go out on a bit of a limb, this is a good example of why technology companies, and the corporate world more generally, should have an interest in supporting some degree of liberal arts education; it shouldn’t be difficult to sort through the differences between flying the Confederate flag from the South Carolina statehouse, and depicting it in a video game about the Battle of Gettysburg.

Moops, He Did It Again

[ 252 ] June 25, 2015 |

A major and surprisingly unequivocal victory. Roberts and Kennedy aren’t heroes for rejecting what should have been laughed out of court, but in the political universe we do live in I give then due credit. And unlike Roberts’s Sebelius opinion there are no arbitrary bones thrown to the challengers or federalism nonsense, just the lucid opinion carefully explaining that the statute means what everyone involved always thought it meant.

The protesting-too-much purple prose in Scalia’s dissent has been well picked-over, but I do want to highlight his continuing daydream believing about Republican legislators:

As he did at oral argument, Scalia also showed himself as embarrassingly out of touch with American politics circa 2015. “The Court predicts that making tax credits unavailable in States that do not set up their own Exchanges would cause disastrous economic consequences there,” wrote Scalia. “If that is so, however, wouldn’t one expect States to react by setting up their own Exchanges?” Apparently, Scalia intends this question to be rhetorical; but the actual answer is Of course we would not. We’ve already seen more than 20 Republican-governed states turn down large amounts of free federal money that could be used to expand Medicaid, inflicting significant human as well as economic costs on their states. The idea that these states would act to cooperate – or simply in the best interests of their citizens – this time is absurd. And whatever Scalia thinks, Congress didn’t think they would, either, and established a federal backstop exactly for that contingency.


As Greg Sargent said earlier today, I think that the work that he and other journalists and scholars — a non-exhaustive list would also include Nick Bagley, Abbe Gluck, Jon Cohn, Stephen Brill, Michael Hiltzik, and Eric Segall — was very important, particularly given that at least Kennedy probably changed his mind after the cert vote. A strict “card says Moops!” argument was always going to be a tough sell for Roberts and Kennedy, which is why Adler and Cannon invented their ridiculous theories about congressional intent in the first place. The relentless accumulation of evidence that Congress absolutely did not intend to establish a federal backstop that didn’t work…certainly didn’t hurt. Optimism of the will.

Thoughts on the Lions winning the Super Bowl

[ 38 ] June 25, 2015 |


You read it here first.

Blogging is About Trust

[ 296 ] June 25, 2015 |

6amfI, for one, will never trust Lemieux again.

The Supreme Court cemented President Barack Obama’s signature achievement on Thursday by affirming that the Affordable Care Act intended to help all Americans who need help paying for their insurance.
In their 6-3 majority in King v. Burwell, the justices ruled that Americans are eligible for subsidies regardless of whether their state set up its own exchange. The result preserves premium assistance for 6.4 million customers in the 34 states that rely on the federal marketplace. On a practical level, it also preserves the mandate, at the center of the law and of its controversy, that every American buy health insurance.

[SL] …hey, my prediction could have been worse:

More soon, of course. I’m not shocked that Roberts voted for the government, but I am pretty shocked by how unambiguous the win was.

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