But Were They Jewish?

As the old maxim goes: "Two Jews, three opinions." Today, Jonathan Adler points to the D.C. Circuit's decision in Estate of Mark Parsons v. Palestinian Authority, where the three judge panel released four opinions. Judge Tatel wrote for the court, but also wrote a concurring opinion. Judges Henderson and Brown each wrote opinions concurring-in-part and dissenting-in-part as well.

The case was about whether the estate of a State Department employee killed by a roadside bomb in Gaza could sue the Palestinian Authority under the Anti-Terrorism Act of 1991. The appellate panel agreed with the district court that the conspiracy claims were too speculative to stand, but reversed a decision which would have prevented the case from proceeding to a jury on material support for terrorism claims.

It's Easier To Attack Than Defend

The 11th Circuit, in a 2-1 decision, has struck down the individual mandate of the Affordable Care Act (it upheld the rest of the act, reversing the lower court decision striking it down in total). This represents the first appellate court to strike down (part of) the law, and it also evens the tally of judges "crossing party lines" -- Judge Hull, part of the majority in this case, was appointed by President Clinton (the 6th Circuit decision upholding the law was authored by conservative rising star Jeffrey Sutton).

I've only skimmed the majority and dissent (the opinions, in total, run over 300 pages). But it is notable that the majority couldn't bring itself to embrace the fabled activity/inactivity distinction -- at least not directly. Instead, it seems to rely on a vague pastiche of constitutional red-flags (as the opinion puts it "indicia of constitutional infirmity"), including the mandate's "unprecedented" nature, the status of health care as a traditional state function, and the inactivity problem which appears to flit, ghost-like, in and out the majority opinion.

Faced with such an amorphous majority opinion, Judge Marcus wrote a dissent that is, in my opinion, sterling. In part, I think that's simply because it is easier to write a dissent than a majority opinion. It's easier to attack than defend, easier to break down than build up, easier to negate than affirm. The majority's struggle to simultaneously strike down the law while circumscribing their decision is indicative of this slant. Still, it's ironic that a high-profile dissenting opinion might represent the most aggressive and persuasive defense of the ACA in the judiciary today.

Judge Marcus hits the critical points, which are (a) that the case against the ACA entails a dramatic shift in Commerce Clause jurisprudence that has not yet been hinted in Supreme Court jurisprudence, (b) that many of the objections against the ACA are based not on infirmities with the law itself, but rather vague gestures towards a "slippery slope" which don't take into account the constitutional limits on the commerce power that actually already exist, and (c) the tendency of anti-ACA advocates to demand the courts act as "super-legislatures", using the blunt hammer of judicial review to strike down laws on basis of technical objections to their scope and structure. He also observes that, without relying on the supposed activity/inactivity distinction, the majority never in fact clearly states what the constitutional problem with the law actually is.

Hey, Wanna See Something Cool?

Say hello to David Schraub, Visiting Assistant Professor of Law.

Critical Jewish Studies?

This is cross-posted from Concurring Opinions. I don't think the content will be particularly new for long-time readers of this blog, but I figured some might be interested.

The first two areas I could say I had an actual scholarly interest in were Church/State law and Critical Race Theory. This wasn't an accident -- I got interest in CRT because the method of analysis it used really spoke to me as a Jew. It seemed to do a better job of capturing the various problems and barriers faced by members of marginalized groups beyond the standard, thin liberal story.

When I finally got access to Lexis as an undergraduate at Carleton, one of the first things I did was run a search for something approximating a "Critical Jewish Theory". And I came up with ... virtually nothing. With one very notable exception -- Stephen Feldman at the University of Wyoming (I know, I know: Jewish studies in Wyoming -- could it get any more cliched?) -- it was a virtual dead-end. Even Professor Feldman's work, which I admire and has influenced me greatly, focuses primarily on the American Church/State context. An important topic, to be sure, but hardly the only one which intersects with Jewish lives and areas of concern (international law, in particular, seems like a gimme).

This absence struck me as very strange. In general, the CRT movement has been pretty good about extending itself to a variety of different identities. Though the original works focused primarily on African-Americans (and really, African-American men), we now have Critical Race Feminism, LatCrit, Asian-American themed CRT, Queer Studies, and a host of others. The lack of an analogous school of discourse applied to the Jewish experience is not a function of disciplinary narrowness.

So what gives? I have some thoughts, but I don't find any of them particularly satisfactory. The cheap answer is that CRT is a "left" movement and contemporary anti-Semitism is primarily a leftist project. I reject that for two reasons: first, because I don't think right-wing anti-Semitism is as dormant as conservatives like to claim, and second, because the various crit movements have never really shied away from "friendly fire". There have been some particular points of tension between CRT writers and the Jewish community -- Mari Matsuda's famous hate speech article in the Michigan Law Review strongly considered the possibility of labeling Zionism "hate speech", one of Daniel Farber & Suzanna Sherry's critiques of CRT was entitled Is the Radical Critique of Merit Anti-Semitic? (83 Calif. L. Rev. 853 (1995)) -- but nothing severe enough to force a permanent fissure.

Possibly the best answer I have relies on the particular form in which anti-Semitism is often instantiated in the modern world. Most other -isms are predicated on inferiorizing their targets. This can be done contemptuously (as often is the case in racism), or clothed as paternalism (as often is sexism). Modern anti-Semitism, by contrast, does not treat Jews as incompetent or inferior at all. Much the opposite -- it views them as hyper-powerful; a conspiratorial, parochial sect whose tentacles control the government, the media, and the banks, but whose loyalty lies only with themselves. There's often a grudging respect to it, but the respect one gives to a particularly dangerous villain. It's easy to see these tropes popping up again and again in "anti-Zionist" discourse worldwide, where accusations of dual loyalty are very much part of the discussion and standard Jewish interest-group lobbying is seen as uniquely nefarious and abusive. Still, the crits, focused on groups whose problem is that they don't have enough voice or sway, are ill-equipped to talk about a group whose "problem" is that they are seen in the popular eye as being too influential. Couple this with the fact that Jews, as a group, are relatively well-off (though this flattens distinctions within Jewish subgroups) and it can be hard to see them as suffering from an "oppression" worth analyzing.

But obviously, economic wherewithal is not the alpha and omega of CRT-style analysis (after all, a considerable portion of the movement's energy is dedicated to refuting the idea that "it's not race, it's class!"). And Jewish history in particular is replete with instances of Jews being placed in the role of the "buffer", given a fair amount of influence but designed to be the targets of popular resentment. Simply taking at face value that Jews have it all and that prejudice against them has been relegated to sporadic acts of rabid hate by Klansmen is precisely the sort of quiescence that Crits tend to rebel against.

Indeed, the fact that the mechanics of anti-Semitism in particular are not adequately captured by contemporary stories of oppression is all the more reason why it desperately needs analysis akin to what CRT has provided in the context of race. And I do believe a similar approach has a lot to offer in the Jewish context. The allegedly pervasive presence of the "race card" is the old nemesis of anti-racist workers everywhere, but of late the "anti-Semitism card" has been an increasingly prominent method of dismissing claims by Jews of unfair treatment. The myth of the "Judeo-Christian" tradition (which, as a political trope, is invariably 100% Christian) acts to sublimate an independent Jewish political voice -- while there are many Jews in politics, there are very few who speak "as Jews", particularly when doing so would seriously challenge dominant conceptions of the Jewish role or place. It is highly notable, in my view, that "Judeo-Christian morality" is seen as a deeply conservative normative commitment, despite Jews being among the most socially liberal denominations in America today. That Christians politicians have appropriated Jewish experience in ways foreign to the actual Jewish political and theological tradition is an example of the boundaries on the "love" they have for us; that Jews have been unable to effectively resist is an example of our marked political limitations. And while Israel certainly has its fair share of sins, the massively disproportionate vitriol and condemnation directed its way (indeed, directed to the very concept of it existing) by international legal actors clearly implicates anti-Semitic norms (and the fact that I, an early supporter of J Street and a strong critic of the Netanyahu administration, feel compelled to verify that "yes, I can tolerate criticisms of Israel without labeling them anti-Semitic" is itself symptomatic of a discourse gone badly awry).

It's not the case that nobody has done any writing on these topics. In addition to Feldman, Albert Memmi's The Liberation of the Jew would have to be considered a foundational text in any "CJT" movement, and David Hirsh has recently written a stellar paper entitled Anti-Zionism and Antisemitism: Cosmopolitan Reflections (Hirsh also writes often for the Engage blog, which is essential reading for anyone interested in this subject). But there's a lot more to be done, and I still find it odd that the disciplinary gap has persisted for this long.

The Good, The Bad, and the Uncertain

The good: Those recent Israeli protests might bring down Netanyahu's government. Shas in particular may be primed to bolt (Shas' religious conservatism is paired with a strong welfare state mentality that has a lot of overlap with the protesters).

The bad: The relative vulnerability exposed by the protesters caused Netanyahu to back out at the last minute of a planned Israeli/Turkey rapprochement.

The uncertain: A recent poll finds that if elections were held today, Kadima, Labor, and Meretz would combine for 48 Knesset seats while Likud, Yisrael Beiteinu, and Shas would combine for 47. On the one hand, Shas' 8 seats in that set are a bit swingy (see the "good", above). On the other hand, there are still 25 Knesset seats unaccounted for in that tally, some of which will go to the Arab parties, some of which will probably go to the Israeli Communist Party, and some of which will go to various fringe settler parties. The question of how those minor parties shake out will ultimately determine who is the real winner.

Champaign Versus Chicago: The Early Evaluation

My comparison of Chicago versus Champaign is very strange. Chicago is a huge city. Champaign is a small town. Yet Champaign has the early edge in "big city" characteristics, and while Chicago is winning on "small town" things.

For example, there are more good restaurants in close walking distance of our Champaign Apartment. And the Chinese delivery we've gotten is much better. On the other hand, our downtown Chicago apartment was very quiet and peaceful, while we're on top of two beer gardens in Champaign, one of which decided to bring out a live brass band to play at 12:30 in the morning.* I also had more of a "community feel" in Chicago than I do here, though that's a little unfair of a metric.

In any event, so far the noise in the beer garden has dropped off by around 1:30 each night. And other than that, I'm a happy camper.

* I'm already plotting my counterattack to this. Since we're in downtown, a noise complaint probably won't fly. So instead, I'll just fight fire with fire -- blast out the most obnoxious rap and heavy metal I can think of out my second-story window. I can just imagine the ensuing complaint:

"What the hell are you doing?"

"Playing music. What are you doing?"

Who's Afraid of the Big Bad Recall?

Today's recall elections in Wisconsin are starting to wrap up. As of now, three Republicans (Sheila Harsdorf, Rob Cowles, and Luther Olsen) have held onto their seats, while two (Dan Kapanke and Randy Hopper) are out. One more seat (Alberta Darling's) is still up in the air, but it looks like once again Waukesha County will be the death of us.

So, we won two out of six, three if we're lucky. Obviously, this affects the narrative considerably, because three is the magic number needed to take back the State Senate.

But regardless, I think the recalls might have achieved one thing -- spooking some GOP caucus members. After all, there are quite a few state senators who were not subject to recall this time around (there is a minimum amount of time they must serve after their election before they can be recalled). And many of them are reasonably vulnerable -- at least six are in seats more liberal than all those challenged today, save Dan Kapanke's. They have to know that they're next in line.

Will it cause them to moderate a bit? I don't know. Republicans tend to be better at whipping their wobblies into line. But it can't hurt. And even if we don't take back the chamber, it definitely gives Democrats far more leverage.

Cheering up the Base

Right-wing Rep. Michael Burgess (R-TX) met with some of his Tea Party supporters who were unhappy that he eventually supporting a debt ceiling increase. Responsible governing being an anathema to the base, Burgess promised to cast no such vote again.

But he still needed to do something to placate angry conservative, something that would provide a more effective way of obstructing the President's agenda (clearly, one of the major failures of the Republican Congress has been its inability to effectively obstruct). And he thinks he's got the answer: impeachment!

When one attendee suggested that the House push for impeachment proceedings against President Barack Obama to obstruct the president from pushing his agenda, Burgess was receptive.

"It needs to happen, and I agree with you it would tie things up," Burgess said. "No question about that."

When asked about the comment later, Burgess said he wasn't sure whether the proper charges to bring up articles of impeachment against Obama were there, but he didn't rule out pursuing such a course.

"We need to tie things up," Burgess said. "The longer we allow the damage to continue unchecked, the worse things are going to be for us."

Undoubtedly, when the founders included an impeachment provision in the Constitution, they meant it to be just one more tool for a recalcitrant Congress to use for delay. Hell, Burgess doesn't even know what charges would be appropriate. That step comes later -- the important thing is to further "tie things up."

Moving On In

Greetings from glorious Champaign, Illinois (and courtesy of the coffee shop located directly below my feet, whose Wi-Fi I have liberated until I regrettably return to Comcast's clutches). The new apartment is fantastic, and one of the three rooms even looks reasonably inhabitable (the other two still have packed and unpacked boxes strewn about with reckless abandon).

Today is, in a particularly real (or perhaps particularly metaphorical) way, the first day of the rest of my life.

Game on.

To Champaign I Go!

I'm moving down to Champaign tomorrow (well, later this morning). Very exciting! Unfortunately, the AT&T shenanigans likely mean my internet access will be severely restricted once I get there. We're close to some coffee shops, and rumor has it my office at the law school might be ready (or might not), so I won't be entirely out of contact. But it's all pretty unknown.

Anyway, this is my goodbye to the city of Chicago. It's been real. The apartment we lived in this year was fantastic, Printer's Row is a lovely neighborhood, and all-in-all it was a very solid, successful year. Can't ask for more than that.