Grieving Choices Not Made

The big diplomatic news of the week is the rush of longtime Israel-supporting countries -- Canada,  France, Australia, and the UK among them -- announcing their formal recognition of Palestine as a state. Israel and its supporters have sought to discredit this move as "rewarding" Hamas for its 10/7 terror initiative. To that, my semi-sardonic response has been to say that it is indeed very important that initiatives like these not be presented as "rewarding Hamas" -- they must instead be framed as "punishing Israel". Punishing Israel for its intransigence, for its hyper-aggressiveness, and for its brazen acts of sabotage towards the possibility of a two-state solution.

In all seriousness, I think that is a more plausible description of what is going on. These countries have no interest in elevating Hamas -- indeed, they've presented their recognition as in explicit opposition to Hamas (and the PA, for admittedly self-centered reasons, affirms the same). What has motivated them to action is a complete (and completely justified) collapse in any faith that Israel is operating in good faith -- that it harbors any serious commitment to securing a just peace with the Palestinians, that its campaign in Gaza is remotely compatible with the laws of war or even is (at the point) significantly motivated by a desire to see the hostages return, and that the far-right racist extremists in Netanyahu's government aren't entirely running the show. This collapse in confidence is reflected here too -- a dramatic shift in public opinion against Israel, not just amongst Democrats but (younger) Republicans as well, that threatens to leave Israel as a super-Sparta Hermit Kingdom.

I think there are a lot of Jews who look at these developments, look at how they are the bitter harvest of Israel's own choices, and think "I wish they would have chosen differently." Why did they have to go down this route? Why did they have to choose the path of the most bloodshed, the most extremism, the most intransigence, the most of everything awful?

And "choose" is critical here. Anyone who has spent time in Zionist circles is familiar with the old complaint that the world acts if the Palestinians lack agency -- as if none of the current situation is the result of their decisions, it's all just thrust upon them by the big bad Israel. Yet right now, I think it is the Israel apologists who are refusing to reckon with the concept of agency -- they act as if there was nothing (or only the most marginal tweaks) that Israel could have done differently post-10/7: it had to fight Hamas this way, it had to use starvation as a weapon of war, it had to kowtow to settler extremists launching pogroms, it had to publicly announce that blocking the formation of a free Palestinian state was the government's raison d'etre.

No. It did not have to do anything of these things. It chose them, and what we are seeing is the consequence of choices that could have been made differently.

"Choose" critical here. The very first post I wrote after 10/7 was titled "Ghouls, Failure, Fatalism, and Responsibility." The "fatalism" portion of that post read as follows.

Finally, there is almost no chance that the fallout from this assault has any consequence other than catastrophe for innocent Israelis and Palestinians alike. And yet, we must resist the sort of fatalism about that seeming inevitability that leads to an abdication of responsibility. Too many voices I've seen today have, in one way or another, expressed sentiments to the effect that the events of today and/or those to come are the inevitable consequence of history's weave. How could you expect Hamas wouldn't seize an opportunity to massacre Israeli civilians en masse? How could you expect Israel won't respond with zero regard for Palestinian life?

No. There is agency here. The word of the day I'm already growing to hate is "(un)provoked", as in an emergent discourse which wants to be absolutely sure we all know that whatever hideous crime Hamas just committed or whatever overwhelming military incursion Israel may be about to launch, there is a reason behind it -- it didn't just happen out of air. Which -- no kidding. In the context of a conflict that's resulted in a half dozen international wars in the space of less than century, nothing is ever "unprovoked". But that doesn't absolve anyone of agency. Hamas made a choice to launch this attack -- a brutal, violent, targeted assault on a civilian population whose only tactical objective was the sowing of terror. They are not the passive receptacles of historical forces beyond their ken. And Israel's choices too (both those that preceded today's events and those that will follow) are choices -- they are not the inevitable consequence of some immutable historical arc.

And what I want to say right now is, it's okay to grieve the choices not made. One need not and one should not indulge in the fatalism of those who said that this was all inevitable -- a fatalism that is ultimately identical regardless of whether it speaks in critical or exculpatory language. In fact, I feel incandescent rage towards those who portray any of this as an inevitability -- that the bloodshed and the massacres and the abuses and the torture and the kidnappings had to happen. They did not have to happen, people chose for them to happen, and different choices could have and should have been made. It is okay to grieve the choices not made.

It is okay to grieve the choices not made. But one still has to acknowledge the choices that were made. Israel made choices that caused it to lose the confidence of erstwhile stalwart defenders, that made large swaths of Americans view it as foe rather than friend, that made not just the "usual suspect" critics but very sober observers take seriously the most serious and severe charges against it as a brutalizer, ethnic cleanser, even genocidaire. We can wish that it made different choices. But it didn't, and for all our grief we must still live in the world that was made by the choices that were made.

First Amendment Coronado-ism

We are right now living through one of the most significant rollbacks in First Amendment law since the 1950s. To name a few examples:

• University employees are being fired for speech deemed critical of Charlie Kirk, in circumstances where it is almost impossible to argue that the terminations satisfy the Pickering standard for speech on matters of public concern.
• Legal immigrants are facing deportation for speech that opposes the current foreign policy orthodoxy of the American government; 
• The Attorney General is suggesting, in defiance of decades of well-settled law, that there is a "hate speech" exception to the First Amendment.
• The President is extorting settlements from critical media outlets via utterly frivolous defamation lawsuits, even as more and more conservative judges seek to roll back the landmark defamation decision in New York Times v. Sullivan in order to make such extortions even easier to launch.

There is irony to this. Until very recently, the constitutional law zeitgeist had been to raise alarms over "First Amendment Lochner-ism" -- the use of "First Amendment" claims as a cudgel to block governmental regulations (think 303 Creative or NIFLA v. Becerra). In this telling, our problem is a First Amendment that has spiraled out of control, a hypertrophic commitment to "free speech" that swallows up anything and everything (since what law doesn't, at some level, regulate "expression"?). In a world of First Amendment Lochner-ism, "rollback" was the furthest thing from anyone's minds.

However troublesome or misguided the First Amendment Lochner cases might be, one might think that their saving grace is that their expansiveness offers a bulwark against the sort of First Amendment regression we're seeing today. Yet few -- and I include myself in this -- seem to actually have confidence that these First Amendment principles will in fact serve as a meaningful shield now in the face of these new conservative assaults. It turns out that we don't have a hyperexpansive First Amendment, we have a First Amendment that implacably guards against enforcement of liberal policy objectives while pliable to the point of contortionism in order to accommodate conservative bugaboos.

This, too, reflects the Lochner era. Lochner itself refers to the Supreme Court's finding of a "liberty of contract" implicit in the Fourteenth Amendment's due process clause, which significantly curtailed states' authority to pass economic regulation. But the Lochner era also encompasses a series of rulings that similarly hamstrung federal authority to pass economic regulation -- limits ironically justified by reference to state's rights and respect for federalism. So, for example, in United States v. E.C. Knight, the Supreme Court struck down application of the Sherman Antitrust Act to a sugar refining monopoly, concluding that manufacturing was not "commerce" and so the law impinged on an arena reserved to the states.

Already the heads-I-win-tails-you-lose logic is apparent here: the feds can't pass economic regulations because of states rights, and the states can't pass economic regulations because it violates federal constitutional limits. But the apex of this logic came in a little-known Lochner era case, Coronado Coal Co, v. United Mine Workers, where the Supreme Court considered applying the Sherman Antitrust Act's prohibition on restraints on trade against union activity targeting a coal mine. Again, E.C. Knight had already concluded that the Sherman Act was unconstitutional as applied to employers (and subsequent cases had explicitly held that mining was akin to manufacturing in not being "commerce"). As bitter a pill as that might have been to swallow for the emergent labor movement, at the very least one might think that this logic would equally prevent leveraging the Sherman Act against collective action by employees (via unions). But no -- in Coronado, the Court concluded that the Sherman Antitrust Act, though not constitutionally enforceable against mining companies or manufacturing concerns, could be enforced against labor unions. The hyperexpansive Lochner rules suddenly were quite pliable once a union tried to be their beneficiary.

So I will suggest that today we do not have a regime of First Amendment Lochner-ism. We actually have First Amendment Coronado-ism. If Lochner stands for judges blocking democratic actors via hyperexpansive interpretations of constitutional law; Coronado highlights judges dropping those barriers the instant they pose an obstacle to their own faction's policy objectives. Lochner is bad law; Coronado is simple lawlessness.

And on a professional level, it has to be said that it is nearly impossible to teach Constitutional Law in a such an environment, at least not without collapsing into complete cynicism. I can defend to my students the position that the First Amendment protects even hateful speech; I can't defend the position that the First Amendment protects hateful speech in all circumstances except quoting Charlie Kirk's own words verbatim. I can defend to my students different standards of proof for defamation cases, I can't defend a rule that says it's defamation for a newspaper to criticize a presidential candidate. These developments breed contempt in my students for the entire notion of "free speech" as it's currently operationalized, and frankly I can't blame them for it -- they see it as a sucker's bet, a check they'll never be able to cash. And as someone who does believe in many of the classic free speech shibboleths it breaks my heart to see it.

A few days ago, Justice Barrett defended herself from Justice Jackson's allegation that the Court's only governing principle was "this Administration always wins" by arguing that the Court's rulings are not about this president but all presidents, and "so the decisions that we make about executive power today are the same ones that will still be precedent three or four presidents from now." Even if they were for "all presidents", these decisions would be catastrophic. But there is ample reason to be skeptical that these decisions do in fact augur a general theory of judicial deference to the executive branch, at least when Democrats occupy the office (quoth Scott Lemieux: "don't google 'Biden v. Nebraska'!").

When Justice Barrett pretends that she's enforcing a principle accessible to all, nobody believes her, and nobody should believe her. And just as I predicted the hyperexpansive religious liberty protections would suddenly find their limits when liberal Jews try to access them, so too do I strongly suspect we're going to see a significant rollback of supposed First Amendment Lochner-ism now that it stands in the way of letting conservatives crush speech they do not like.

The Legend No One Knew

At the start of Terence Crawford's history-making bout against Canelo Alvarez, Max Kellerman remarked that he'd never seen a fight with as dramatic stakes for one man's legacy as this match did for Crawford. If Crawford won, he'd cement himself as his generation's greatest fighter. If he lost, he'd be written off as a guy who couldn't quite reach greatness in his biggest fight.

The downside I thought was a bit harsh. But the upside was right, as was the overall tenor: A Crawford victory would rocket him to the top of the all-time greats list; a loss and he'd be viewed as a very good fighter but not one making any major historical mark.

Whatever dispute I and Kellerman might have is moot, of course. Crawford soundly outboxed Canelo, winning a unanimous decision and instantly making his status as one of the greatest to ever lace up gloves inarguable.

It is amazing, when one thinks about it, how Crawford got to this point while essentially -- as far as the wider world is concerned -- being an unknown. Terence Crawford is not a household name. I don't think I've ever seen him in a beer commercial or doing a cameo Hollywood appearance. But he has quietly, decisively, been a dominant force in the sport for over a decade.

This fight against Alvarez reportedly marked the first time Crawford had been a betting underdog since his 2013 match against Breidis Prescott. Though not the most scintillating performance, that fight was a coming out party for Bud. He came in on short notice as, more-or-less. a nobody -- a decent amateur pedigree but not from a boxing hotbed (Omaha, Nebraska) and without much hype behind him. Boxing fans, frankly, are familiar with this archetype -- glossy record but Podunk background equals soft-touch for a bigger name still riding off his Amir Khan upset. Instead, Crawford cruised to an easy victory, soundly outboxing his Columbian opponent -- but not in a way that instantly suggested "a star is born."

Yet from then on out, Crawford was nothing but dominant. He dropped down to lightweight to win a title against Ricky Burns, and from that point forward never left the upper echelons of the sport. If Prescott was the last time that Crawford was a betting underdog, we could also ask when was the last time Crawford seemed to be truly challenged in a fight. For me, that was the very early rounds against Yuriorkis Gamboa -- but Crawford turned that fight around with a vengeance, dropping Gamboa four times from the fifth round forward en route to a ninth round stoppage. And after that, can one remember a point where Crawford genuinely, seriously seemed to be in trouble in the ring? It is no disrespect to Canelo to say it didn't happen last night -- not that Crawford dominated Alvarez, but he always seemed in control, always seemed just a little bit better.

How can one be so dominant, for so long, and have nobody outside the sport's insiders really know you? Part of it was temperament -- as noted, he never seemed interested in making himself into a celebrity. But even in the ring, Crawford's was a deceiving appearances sort of domination. He was never viewed as a knockout artist, even though he had plenty of fighters. He wasn't seen as a search-and-destroy punisher, but he was a ferocious finisher. 

What he had was a preternatural sense of control, coupled with one of the meanest streaks I've ever seen in the ring. Crawford liked to beat people up. And he was very good at it.

Look at the cast of characters whose careers Crawford essentially ended, at least at the upper echelon of the sport. On his way to unifying the junior welterweight division, Crawford demolished both Viktor Postol and Julius Indongo; both were undefeated, both became essential non-entities in boxing going forward. Felix Diaz had one more win after Crawford beat him in 2017; Jeff Horn only won twice. Jose Benavidez was never the same after Crawford was through with him. Amir Khan and Kell Brook were basically sent into a swan song against each other after Crawford violently dispatched both. He sent Shawn Porter into retirement; he may have done the same to Errol Spence. These are very, very good fighters. Crawford didn't just beat them. He wrecked them.

And yet even then, many thought this fight against Canelo was a gimmick. Crawford had unified at 147, and then he did what a lot of folks did in pursuing a vanity title at 154 pounds. This is no disrespect to Crawford; it's a career move we've seen from many of the greats around his size. Floyd Mayweather did it; Oscar de la Hoya did it, Manny Pacquiao did it. And I don't think we're disrespecting Israil Madrimov to point out this his name isn't quite in the same class as Errol Spence or Shawn Porter or Kell Brook. But jumping up another two weight classes on top of that? To face the biggest star in the sport and a man who was still one of the pound-for-pound elites? It seemed absurd. It seemed like a cash grab.

It was neither. It was greatness.

At the end of the fight, Crawford dedicated his win to the nobodies. For so long, despite all of his accomplishments, Terence Crawford was one of those nobodies. Now, through sheer talent and force of will, he has made himself into somebody the sport will never forget.

On Hostility to Religious Views (for Non-Religious Reasons)

The other day, the Second Circuit in Mid Vermont Christian School v. Saunders ruled in favor of a Christian private school in Vermont which had been suspended from state extracurricular competitions after it refuses to allow its girls basketball team to play against a team with a transgender athlete. The school averred that playing such a game would force it to affirm that transgender girls are girls; the relevant Vermont agency decided this was discriminatory and expelled the school. The court, in turn, concluded that Vermont's actions evinced hostility to the school's religious views and thereby violated the First Amendment.

There are some complex factual issues in this case. But there are aspects of the court's opinion that I think have to be wrong, in terms of how it treats the question of "hostility toward the school’s religious beliefs." To put the matter bluntly: people (and the government) are allowed to have hostility towards a school's (or anybody's) "religious beliefs", and such hostility cannot itself be a First Amendment violation. What they cannot do is have hostility to these beliefs because they're religious, or hostility specifically tied to them being held by a particular religious group. But it cannot be the case that hostility to a given belief, where that hostility has nothing to do with religion and extends to any holder of the belief (religious or not), becomes unconstitutional religious hostility just because this particular holder of the belief believes it for religious reasons.

The court recognized that a "neutral" law or policy of "general applicability" does not become unconstitutional because it happens to impinge upon (even a sincere) religious belief. But it said, following Masterpiece Cakeshop, that a neutral law can still fail if it is not applied "in a manner neutral toward and tolerant of . . . religious beliefs." Fine, as far as it goes. But the way the court identifies what it means to be "intolerant" towards religious beliefs at times verges on suggesting that anytime one defends (as a general, neutral principle) a position that is (in the particular case at hand) antagonistic to a proffered religious belief, one is displaying unconstitutional "hostility" -- and if that's true, then it is functionally impossible for there to be a "neutral" law in the first place.

Let's take some examples. Suppose someone asks for a Kosher meal at a school event to substitute for the planned ham and cheese sandwich. The chef is derisive: "I can understand ethical objections to eating meat or other foods, but I'm not going to cook up a new meal just because your fantasy Sky God says so." That's hostility to religious belief -- the same (basic) belief is viewed disdainfully because it emanates from religion.

Compare a situation where someone explains "at our college, we prohibit interracial dating." You respond and say that is racist and discriminatory. They then say, "it's our religious belief." You respond "I don't care -- it's still racist and discriminatory." At one level, you are of course expressing "hostility toward the school's religious belief." At another level, your hostility has nothing to do with it being a religious belief; an it's a hostility you are entirely entitled to hold. The First Amendment simply cannot mean that this sort of "hostility" is constitutionally problematic. If it were, then it would be impossible to defend a neutral and generally applicable rule against racial discrimination in any circumstance where someone wanted to racially discriminate for religious reasons, since the very act of explaining why the rule against racial discrimination is important would be reclassified as anti-religious antagonism.

So in the present case, the critical question ultimately should be whether the state's antagonism towards the anti-trans beliefs of Mid Vermont are due to those beliefs being religious, or whether the state is equally "intolerant" of those beliefs no matter who holds them, with the fact that Mid Vermont happened to be a religious believer being wholly incidental and irrelevant. As alluded to, there is some evidence in this case that points in the former direction (I think it's weak, but Masterpiece Cakeshop made a mountain out of a molehill of weak evidence of religious hostility that other minorities wish they could access). But my main problem with this opinion is that it strongly suggests that the First Amendment problem would be the same even if we were unambiguously in the latter camp.

Consider one of the critical excerpts, from how the Vermont agency explained why it did not find compelling Mid Vermont's complaint that playing with transgender athletes would "endorse" beliefs about gender it wished to reject:

Participating in an athletic contest does not signify a common belief with the opponent. Brigham Young University athletes do not compromise their Mormon faith—or endorse Catholicism—when they play Notre Dame. The act of playing together on a basketball court does not imply any approval of the values or beliefs of the opponent.

The court analyzed that passage thusly:

That statement did not just question Mid Vermont’s religious sincerity. It also attacked the validity of Mid Vermont’s objection. But “[a]n individual claiming violation of free exercise rights need only demonstrate that the beliefs professed are sincerely held and in the individual’s own scheme of things, religious.” That is because “courts should not inquire into the centrality of a litigant’s religious beliefs.” .... Put simply, the VPA may not impose discipline based on its view that Mid Vermont's religious objection was "wrong."

This is, I'm sorry to say, deeply confused analysis. The sincerity/validity divide goes to whether or not Mid Vermont's claim is actually a religious one, and it's absolutely correct that the state has no business telling Mid Vermont that it's claim is a "wrong" understanding of Christianity. But that's not what the state was doing. The state isn't saying that Mid Vermont's logic is wrong as a religious proposition, it's saying it's wrong as a general proposition. In that circumstance, of course the state is entitled to "impose discipline" because it thinks the objection was wrong. Vermont has a policy, Mid Vermont thinks that policy is wrong, Vermont thinks Mid Vermont's objection doesn't hold water and so continues to apply the policy. That's completely anodyne, and it doesn't change because Mid Vermont's objection stems from its sincere religious beliefs. Under the Court's logic, any time any actor raises any sincere religious objection to any policy, they must win automatically because the act of rejecting the objection would suggest the religious objection was "wrong". Again -- I can't stress this enough -- religious objections can be wrong, so long as the reasons the adjudicating body thinks they're wrong are not themselves based on religion or religious hostility.

One last note: there may be circumstances where a policy is genuinely neutral and generally applicable, and not motivated or applied with religious hostility, but should still contain exceptions for religious objectors. I won't comment on whether this case is one of them. I'll only say that such cases are not, for the most part, religious hostility cases, and the problem in those cases is not one of a lack of neutrality. The outcome of Mid Vermont can, I think, be debated, but the logic of it I think is severely misguided (and, it must be said, I think is primarily traceable to courts giving super-protected status to anti-LGBTQ ideologies in a manner they've very consciously rejected in the racial discrimination context).

Who's Talking About Including Political Diversity on Campus?

Many people hate DEI (no news there). Many of those same people also are emphatic that universities must do more to prioritize intellectual and political diversity on campus. And in the overlapping diagram, it is taken for granted that the DEI apparatus is apathetic if not antagonistic to the project of promoting political diversity. It's not even something argued for; it is a presupposition that forms part of the foundation explaining why DEI is unjust.

And yet, in my experience, the academic site where one is most likely to see discussion about and concern over political diversity is ... in the DEI space.

We had our first faculty meeting of the year yesterday, which included the various faculty committees getting our formal charges. I'm chairing the law school's DEI committee (we're still allowed to have one, I guess). One thing last year's committee did was commission a "campus climate" survey, and the questions (on feelings of inclusion, prevalence of harassment, etc.) included ones keyed to political differences. The questions regarding how to facilitate a campus environment that's inclusive political diversity emanated primarily out of the DEI committee.

That's not because the rest of the faculty is apathetic to the issue. Rather, most issues in academia -- including important issues, including issues which predominantly occupy the public's attention when they deign to think about academia -- don't get thought of that much by most professors, most of the time, for the simple reason that we only have so much time and there is a lot to think about. So we delegate and we divide labor, and the result is that many important issues are reliant on being "picked up" by a specified office or committee within an academic space. And in my experience, the space that "picks up" the issue of intellectual diversity in general and potential feelings of alienation experience by political minorities in particular are the DEI offices and officers -- a role that is entirely overlooked given the near-universally believed dogma that DEI officers are implacably opposed to intellectual diversity in general and conservatives in particular. 

We saw a version of this in the fallout of the Kyle Duncan incident at Stanford, where DEI Dean Tirien Steinbach took the fall for how she managed student protests at a Federalist Society event. Almost entirely occluded in the hatefest Steinbach endured as a supposed ideological commissar of DEI wokeness was the fact that the Federalist Society had identify Steinbach as one of its few allies on campus; a figure who stood out precisely because she was invested in ensuring that FedSoc could participate fully and equally in campus life. It is hard to imagine a clear illustration of this paradox -- the assumption that DEI is the enemy of political diversity and inclusivity; the reality that the DEI official was one of the most active proponents of political diversity and inclusivity -- than this.

Now, to be sure, the political form of "inclusion" isn't straightforward -- and in particular, it doesn't map on especially well to how we think about "inclusion" vis-a-vis ascriptive identities like race or religion. Ascriptive identities are not typically thought of as being appropriately subjected to normative criticism. A place where significant members of the population took positions of the form "I think it is illegitimate/immoral/wrong/incorrect to be Black" would be failing to be inclusive of racial difference in an obvious way. I imagine virtually all would think the same regarding religion ("It's wrong to be Jewish"); I'd say the same thing about sexual and gender identity (though here of course many conservatives would disagree, and very much want to defend the legitimacy of those who assert "it is wrong to be gay or trans").

By contrast, ideological orientations are defined by content that by definition is properly the subject of ongoing normative contestation. To be conservative (or liberal, or Marxist, or MAGA) is to endorse a cluster of normative positions which others will inevitably judge as right or wrong, correct or incorrect, or legitimate or illegitimate. A university could not function at the most basic level if members are not allowed to make those judgments (what would it even mean to say that the law school's mission is thwarted when its members make normative appraisals of ideological positions?). Unlike "I think it is wrong to be Jewish", statements of the form "I think it is wrong to oppose gay marriage" or "I think it is wrong to abolish qualified immunity" cannot be viewed as inherently problematic in a university space -- those are exactly the sorts of statements we expect to see, and there is no intrinsic foul just because one's peers think you've taken the wrong side of an ideological controversy.

This doesn't mean there isn't any space to consider how persons who take ideologically dissident positions in a given space can or should be "included". One thing we can (and I think should) say is that healthy respect for intellectual pluralism means we should be tolerant of a wide range of positions on publicly contested issues, even those we disagree with, and generally relate to such positions via the "normal" processes of respectful dialogue, debate, and consideration. Some think we shouldn't abolish qualified immunity, others we should, but even if "abolish qualified immunity" is the consensus position on campus, we should still be willing to think about the issue critically and debate it in a manner that respects the divergent views. Cultivating that sort of respect for ideological plurality seems very healthy, and hopefully can alleviate some feelings of exclusion conservative students might face. But notice that this isn't how I think we envision what "inclusion" looks like for ascriptive identities -- I do not think our goal with respect to antisemitism should be "some people think Jews are okay, and some don't, but the important thing is that we make sure that persons with all range of views on 'are Jews okay' are able to openly debate and discuss the issue." The sorts of interventions that make sense along the axis of ideological orientation are ill-equipped to address racial or religious (or, I think, sex/gender) identity.

So the issue is not straightforward, and the people who act like it is are selling you a bill of goods. The issue of inclusivity towards political diversity on campus is a complex one and one that requires serious thought. But overwhelmingly, the people who are thinking about it in a serious and systematic way -- not as rabble-rousers, not as part of a bad-faith gotcha game trying to sabotage the university -- are found in DEI offices. And I wish they got more credit for the hard work they're putting in.

Reasonable Suspect

In 2016, I published an article titled "Unsuspecting" in the Boston University Law Review that explored how a constitutionally "suspect" classification (like race) might lose that status. In its conclusion, I argued that suspect classification was doing more harm than good for the groups it purportedly protected. It had become only a tool to strike down legislation that sought to achieve racial equality.

I termed this dynamic "partial racial politics". Far from representing a near per se rule against de jure wielding of race, the actual doctrine is that "government can legislate on race freely, except when it expressly seeks to combat ongoing racial inequality." "Suspect classification doctrine is a vestigial artifact that only comes into play when racial minorities appear to be winning the political game." The government relying on race to cut off Black communities from White neighborhoods, or to decide who to execute? Supposed "strict scrutiny" falls silent. Too many minority students going to college, or voting, or entering into political office? Then strict scrutiny and a commitment to radical colorblindness suddenly comes roaring back. We might as well 

I wrote that article, again, in 2016, and while living in California. I presented it in Louisiana, where one bit of pushback was basically to argue that the risks of giving up suspect classification for race look different in California versus Louisiana. Just how confident was I, really, that suspect classification doctrine was no longer deterring any sort of racist legislation? Who knows what sorts of White supremacist malice would be unleashed if the "democratic" branches were unshackled once more?

Today, in a typical unreasoned shadow docket opinion, the Supreme Court (by a likely 6-3 vote) cleared the Trump administration to use racial profiling as part of its immigration enforcement raids. Racial background can validly be part of the basis for forming reasonable suspicion that a person is in the United States without legal documentation. The only Justice to write substantively in defense of this atrocity was Justice Kavanaugh, who suggested that undocumented immigrants have no legally protected interest in "evading questioning" and documented immigrants and U.S. citizens suffer no material injury because "the questioning in those circumstances is typically brief, and those individuals may promptly go free after making clear to the immigration officers that they are U.S. citizens or otherwise legally in the United States." What's a little race-based "stop and show me your papers" in the land of the free?

I look at today's decision, and I can't decide whether the conclusion to my 2016 paper was correct. On the one hand, the Court since then has grown only more aggressive in declaring an implacable commitment to colorblindness in the aforementioned circumstances of too many Black and brown people going to school or voting. The juxtaposition of those commitments, chest-thumpingly backed by an ironclad commitment to "colorblindness", against the willingness to sanction "color-consciousness" when it is deployed as a tool to terrorize immigrants (or those suspected of being immigrants, or those the government simply wants to terrorize under the guise of regulating immigration), seems to be a crystalline manifestation of the "partial racial politics" dynamic I identified in my article.

And yet, my Louisiana interlocutor's critique also feels more salient than ever before. In a 2025 where the government is not even nominally constrained from race-based policymaking, what horrors lie just beneath the surface, waiting to emerge? It somehow seems to simultaneously be true that the Supreme Court is doing nothing to stop (indeed, is the handmaiden of) the tidal wave of White supremacist fury crashing over the polity, and also that if we explicitly told the federal judiciary to butt out things could only get worse -- and worse in ways so terrifying I struggle to name them.

I don't have a resolution to this dilemma. We live in impossible times, where nakedly White Supremacist Senators align with a White Supremacist presidency and a White Supremacist Supreme Court to wage war on American constitutional liberty. Against this onslaught, what doctrine could ever hope to save us?

A Question About Extradition

Hypothetical question:

Suppose a U.S. citizen kills the citizen of another country on the high seas. Suppose further that the American judicial system refuses to impose legal liability on the citizen (e.g., because they conclude his actions weren't a crime, or they find some immunity doctrine bars the prosecution). The victim's country, by contrast, does want to prosecute.

Can the United States extradite the citizen to the other nation as a way of getting around the functional immunity provided by our own courts? (Does the "high seas" part of the hypothetical matter? What if the foreign national was killed or injured on U.S. soil?).

Purely a hypothetical question, of course.

Nathaniel Updates

What's new in the world? Boooo!

What's new with my adorable baby? Yaaaay!

Here are some of the latest developments on the Nathaniel front (for the record, he's 7.5 months):

Sleeping: He remains an absolutely incredible sleeper. Down at 7 PM, always sleeps through the night. I give him a bottle at around midnight, but he dreamfeeds it. We've even mostly reached the point where we don't have to rock him to sleep -- just plop him in his crib and he'll handle himself. If I die in the next few months, know it's likely that a jealous parent assassinated me.

Rolling over: He did this several months ago and then kind of just, stopped. Well, he's started again in earnest, especially in his crib. This does have one unfortunate consequence though -- he doesn't always seem to realize he can roll back over (from stomach to back). The rare times he wakes up crying, it's usually because he got on his stomach and is mad about it.

Bouncing: We got one of those bounce slings for him to sit in while we are in the kitchen and it is his favorite thing in the world. Hugs from mom and dad? Eh, take it or leave it. Time in the bounce sling? Forever, please!

Quiet: I took Nathaniel out to visit some art galleries the other day, and the gallerist remarked that he was the quietest baby she'd ever met. Which checks out -- when we're out of the house, he is the mellowest guy you'll ever meet. He's alert, and interested in what's happening around him -- but he scarcely makes a peep (or a smile).

(Interest in) crawling: He's not crawling yet, but he's definitely interested. We're seeing more knee shimmies and butt waggles when he's on his stomach, especially if there's a toy in front of him he wants to reach. To be honest though, I'm of two minds of how much of a mover he's going to be. On the one hand, he loves to move (see "bouncing"). On the other hand, he's often happy to sit quietly without moving for long stretches (see "quiet"). So I can imagine him zooming around the room at the first opportunity, and I can also imagine him just hanging out because, like, why is over there any better than over here?

Things People Blame the Jews For, Volume LXXVI: Shutting Down the Internet

 

The above screenshot is of prominent tech journalist Taylor Lorenz screenshotting a 4chan post where some claims "[REDACTED] are going to lock down the entire internet very soon." 

Can you guess what word was redacted?

If you answered "Jews", bzzt. Sorry, but that's not quite right.

The correct answer is "kikes". It's the "kikes" who are "going to lock down the entire internet very soon."*

Lorenz, to be fair, does make sure to point out one area of disagreement with the 4channer she's promoting. She thinks that "shut down" is not going to be literally true (rather, the internet will be "censored into oblivion"). But on the whole "kikes" thing, no correction apparently is needed. (And of course, even with the whole "kikes" things, you still get people saying "but it's just anti-Zionism!")

* Fun fact: When I told my wife the answer wasn't Jews but that it was "close", her next guess was "globalists". And I was like, "oh, you're reaching for euphemisms and that's going in the wrong direction here."

Seasonal Gradations

In the same vein as my post about the color green, I had a thought today about seasons.

Today is August 28, and we're in the middle of a heatwave here in Portland. This doesn't seem especially remarkable. It's August, the dog days of summer -- of course it might get hot.

However, once September rolls around -- just a few days from now -- then it would seem worthy of remark. September is fall. Fall is cool. A hot day in September isn't shocking, but it's not something taken for granted like a hot August day is. September is fall. Fall is cool. A hot day in September yields comments like "man, it's stayed hot late this year!"

August is summer and September is fall, and there is not a smooth gradation between them. February and March, aka winter to spring, is the same. Snow on February 28? Sure, it's February -- dead of winter. Snow on March 1? That's spring snow -- weird!

November/December (fall/winter) is a little less disjointed, but still has a clear break. Snow in December is completely normal, snow in November feels very early for snow.

The only seasonal break that, for me, has a truly smooth gradation is spring into summer over May and June. I can't think of a weather event in May that I'd think "wow, it's early for that" or one in June that I'd think "wow, it's late for that" (save something truly extreme like June snow). And that made me realize that I think of summer and spring as basically the same thing -- summer is spring, only more so.

Spring and summer are the warm seasons, and winter and fall are the cool seasons. Winter and fall further get divided into snow/no snow, but spring and summer have no such divisions. So spring can fade smoothly into summer without anything feeling weird about it -- the only such smooth gradation amongst all the seasons.

Trump's (Dis)order Gamble

Trump is invading U.S. cities.

It's a disgraceful assault on American liberty; the predictable upshot of electing a tinpot authoritarian to the most powerful office in the world.

But because this is still (nominally) a democracy, we also have to consider how it will play out politically.

These moves are not popular. And I think that over the mid-term, they will backfire on Trump, because paradoxically they give the appearance of disorder.

To be clear, I think it's clear that the main motivator of the Trump invasion of our cities is not about short-term political calculus at all. It is a genuine, earnestly-felt commitment to sadistic authoritarianism that in particular views terrorizing blue city residents as its own reward. We shouldn't overinterpret this as a product of deep strategy.

That said, the political logic at work here is I think clear enough: it's a gamble that when voters see these images of the disordered city, they'll instinctively race back to the "law and order" party. Cities are dangerous (so dangerous we need the military to step in); Trump is keeping you safe.

But I don't think the gamble is going to pay off. When one sees men in army fatigues marching down city streets accosting residents (and the inevitable protests and resistance such conduct inspires), the thought that tends to follow is rarely "things are going great!" Deploying troops to American cities is the sort of thing one does in chaotic, all-is-near-lost situations. And so the more we have imagery coming out of an America where our communities are under military occupation, the more it entrenches a public sense that we're in dire straits -- a sentiment that rarely redounds to the benefit of the incumbent party.

So I do think that Democrats need to press that sense of disorder -- not randomly or haphazardly, but intelligently and judiciously (and yes, I recognize the paradox of promoting strategic, well-calibrated "disorder"). You want to encourage voters to associate the Trump reign with thoughts like "things are falling apart," "I'm afraid to go downtown because of the men Trump sent there," "is my job going away?", "things feel very unstable," and "I'm sick of this ride and I want to get off."

The trick -- and it's not always an easy trick -- is to make it so that voters attributed these sentiments to Trump, not the Democrats resisting Trump. But one major advantage Democrats have is that they're the out-party, and voters (rightly or wrongly) tend to attribute anything going on in the world, good or bad, to the incumbent. And in the current moment, where Trump is doing so many things that seem to prompt those negative thoughts, Democrats have a lot of opportunities to entrench a very simple overarching message: All those fears, all those anxieties, all those bad thoughts you're having -- that's Trump.

The Supreme Court Gave Us This Hell

I know, I know. That title could apply to anything.

But what I'm actually referring to is the escalatory arms race currently occurring over partisan gerrymandering.

After Donald Trump demanded mid-decade gerrymanders from Texas and Missouri in order to shore up a faltering GOP majority, California Democrats have responded by seeking to undo anti-gerrymandering provisions in their state to provide a counter, and New York may follow. Things are growing increasingly chaotic -- Texas Democrats briefly fled the state to deny the legislature a quorum, and now that they're back they're being locked inside the legislative chambers like fairy tale princess kidnapped by an evil dragon.

While those demanding Democratic unilateral disarmament are the usual useful useless idiots, it's true that nobody who cares about democracy can think this is healthy. This entire spectacle is embarrassing, and toxic, and a mockery of the electoral system. And the hell we are in can be laid entirely at the Supreme Court's feet, due to its abominable Rucho decision. 

Rucho pretended that this was an issue that could be resolved at the state level. But the falsely-modest, actually-arrogant hand-washing of the obligation to nationally police partisan gerrymandering virtually guaranteed a national race to the bottom, and that's what we're seeing now. (Also, the fact that states had proven themselves capable of constructing anti-gerrymandering rules obviously falsified the Court's plaintive whine that there could be no judicially-manageable standard governing partisan gerrymandering). Rucho also acted as if it wasn't endorsing partisan gerrymandering; this, too, was clear bullshit at the time and clearer still after the Alexander decision canonized partisan gerrymandering into a constitutional entitlement. Rucho was indefensible on every level, and I fear even the latest contretemps only scratch the surface of the disastrous impact it will have on our basic democratic structure. The horror show we're seeing in Texas and Missouri and California and New York is the natural and inevitable result of the Supreme Court's reactionary arrogance. 

But just as Rucho's democratic hell was not inevitable, neither is unaccountable Supreme Court arrogance. In Kiryas Joel v. Grumet, the Supreme Court struck down the creation of a new school district that would have tracked the borders of a largely Satmar Hasidic Jewish community. The district was created because disabled children in that community needed special education services, and the Supreme Court in a prior case (Aguilar v. Felton) struck down the practice of sending public school teachers to parochial schools to provide those services. But the Court struck down this policy as well, concluding that creating a school district that tracked the borders of a single religious community represented an illegitimate form of religious favoritism.

Justice Kennedy wrote a concurring opinion in Kiryas Joel acknowledging that the state of New York was merely trying to "free the Satmar from a predicament into which we put them." It was the Supreme Court's Aguilar decision which forced the New York to go to the lengths it did to provide adequate educational services to the Satmar. The policy struck down in Aguilar would have been preferable to the "unfortunate course" of creating a bespoke school district for the Satmar, and so the moral Justice Kennedy drew was that Aguilar needed to be revisited. Three years later, the Court would come to agree, and Aguilar would be overturned.

Whatever one thinks about the particularities of Kiryas Joel and Aguilar, Justice Kennedy's writings always struck me as having an admirable modesty to them. No doubt the Aguilar court did not anticipate how its decision would unjustly burden small religious minorities. But once Justice Kennedy saw how the Court's decisions had led to an unjust and unworkable state of affairs, and were pushing religious communities into political arrangements that were even less desirable and justifiable than the one Aguilar sought to foreclose, he acknowledged the old precedents were due for reconsideration.

The states that wish to ban gerrymandering, but which now feel compelled to engage in grotesque counter gerrymanders just to blunt the impact of their more rapacious neighbors, are also in "a predicament which [the Supreme Court] put them." It did not have to be this way, it is this way because of an ill-advised and ill-considered Supreme Court decision. A more modest and self-reflective court would grasp the lesson. It would understand that Rucho was wrong when it was decided and it is wrong now, and it would correct its error.

But we don't have a modest Court. We have a massively, massively entitled Court; one for whom it is scarcely possible to imagine admitting to even the most obvious mistakes. So we seem stuck, in a hell of their devising. At least we can be clear on the blame.

The Audacity of Jeanine Pirro

Yesterday, the Washington Post published an editorial by Washington D.C.'s Trump-appointed U.S. Attorney Jeanine Pirro, where she demands the elimination of various D.C. laws that provide leniency to juvenile offenders under the guise of making D.C. "safe." These include the Youth Rehabilitation Act, which suspends mandatory minimums for many crimes when the defendant is under the age of 25, and the Incarceration Reduction Amendment and Second Look Amendment Acts, which lets persons imprisoned for crimes committed while under the age of 25 to petition for resentencing after 15 years of incarceration.

I've written before about my art collection, and in particular the story of Halim Flowers (whose work in large part prompted my interest). Flowers was the beneficiary of the laws Pirro is indicting here -- he committed his crime when he was sixteen, sentenced to life in prison, but was eventually released after serving 22 years (when he was nearly forty). If Jeanine Pirro had her way, he would still be locked up, and we would have lost the beauty he has created as a sacrifice to our misplaced pride -- the arrogance to know that these children can never and will never have anything to offer society, and that we lose nothing by keeping them caged forever. Halim Flowers is testament to why laws like this must exist. 

Whenever I think about laws insisting on the lifetime incarceration of juvenile offenders, I think: would we as a society really be better off if he was still warehoused? How much else in the way of beautiful art are we depriving ourselves of by locking away so much of our human potential? Or forget art -- or business, or writing, or anything else externalized by the outside world. How much love are we giving up? How many relationships are we stymying? How many families are we poisoning? Who does this help? Perhaps there are some criminals who are truly incorrigible (though most age out of violent criminality by forty or so), but for any individual kid it's hard to imagine knowing that with so much advance confidence that one will refuse to even let the child have a chance to become a different person. Our assumptions about which children are incorrigible criminals are very often wrong, and we should have the humility to allow ourselves to be proven wrong.

The retort, of course, is the put oneself in the shoes of the victims. It's of course hard for me to imagine  a world where my wife or my son was murdered -- my brain sort of does an emergency shut-off at the thought. My best guess is that it would turn me into a broken shell of a man, and nothing would resurrect me from my nightmarish hell. It would be too cheap to say that's freeing (why bother imposing any punishment if, either way, I'll still be a broken shell of man trapped in an inescapable nightmare?) -- I certainly think I'd want the wrongdoer to be held accountable in some fashion for what they've done. But I imagine (and again, this is only imagination) that eventually, all I'd want is to not have to think about the murderer again. I don't know if I could ever forgive him. But nor would I want to expend energy hating him. The gravest injustice someone could do to me, twenty years after the fact, would be to make the murderer my mental responsibility -- whether it's the responsibility to declare "he should he go free" or the responsibility to insist "he must stay locked up." Just let me pretend that I can forget. Is that too much to ask?

What Pirro is doing here is not to the benefit of the victims or their families. They deserve better than to be pulled into this debate. The people who want leniency will urge them to show forgiveness, the people who want punitiveness will lean on them to recount their trauma. Both demands are torturous. It is an injustice on top of an injustice that we ask this of them. Just leave them alone. They've suffered enough.

Impossible questions don't yield easy answers, and I don't pretend these answers are easy. But their very impossibility makes it more essential that D.C. residents be the ones to decide for themselves -- not an outsider commissar imposed on a subjugated population deprived of its democratic rights. Jeanine Pirro does not want what's best for D.C. residents. Jeanine Pirro does not care about D.C. residents. Crime in D.C. is in fact falling (and the most prominent recent incident of mass criminality in D.C. was of course orchestrated on Trump's behalf and the site of mass pardons by Trump to inaugurate his second term), but this was never actually about what's good for one of the American colonies anyway. Jeanine Pirro is literally inventing more misery so that she can inflict more misery on the world. What a despicable human being.

One other side note: When I clicked the link to open Pirro's column, I saw with bittersweet amusement a banner informing me that my Washington Post subscription will expire in one more day (I canceled in October following their Harris non-endorsement fiasco, but I had renewed last August for a year). Even now, this is a hard moment -- I grew up with the Post, I loved it dearly, and even now I know its reporters do some great journalism. But it is, in a way, helpful to get a reminder of the feckless, Vichy nihilism that the paper now embodies (the publication of this editorial wouldn't have offended me so much if the Post hadn't just announced new ideological limits on the opinion pieces it would run -- tell me, is Pirro's lock-up-the-kids crusade in the category of "personal liberties" or "free markets"?). No principles, no values, just crass accommodation of the worst people in power. Who could really miss a newspaper like that? For that, and that alone, I'm grateful to the Post for giving me a perfect sendoff as my time as a subscriber draws to a close.

The MAGA Embrace of the Nazi Aesthetic

A few days ago, the Department of Homeland Security put out an ad for new ICE recruits that featured a rather distinctive font:

It was yet another wink and nod to Nazism -- the original, German variety -- a move that was already present during Trump's campaign but has become increasingly ascendant since he entered office.

Consider a few examples:

• Another ICE ad running the slogan "Which Way, American Man?" -- a reference to the neo-Nazi tract "Which Way, Western Man?"
• E.J. Antoni, the Trump administration's new nominee to head the Bureau of Labor Standards -- an unqualified hack on any metric whose main appeal is clearly a willingness to manipulate the data in Trump's favor -- did an interview where he put a giant painting of the Nazi battleship Bismarck (sunk by the Allies in 1941) as his background.
• Fox commentator Greg Gutfield urging conservatives to "reclaim" the word "Nazi" ("with a hard 'I'"), leading his panel in such hilarious banter like "what up, my Nazi" and "Nazi please!".
• The Washington Times ran a story on army recruiting featuring a pink triangle (the Nazi symbol for gay men) with a "cancel" slash through it; Trump himself reposted it image and all.

I will pause here so we can all let out the collective "CAN YOU IMAGINE IF ILHAN OMAR!!!!" that's slowly been building to a breaking point.

Now, in all these cases, one can -- with extraordinary effort -- try to explain them away. The DHS' font is not technically called "the Nazi font" (it's "Fraktur"), it's just wildly popular with neo-Nazis (despite being banned by the Nazi Party in 1941!). We've already heard tale from Harlan Crowe about how enjoyment of Nazi paraphernalia doesn't make one a Nazi, just a history buff. Even Gutfield's gleeful embrace of being a "Nazi" was framed as "reclaiming" a slur.

That all of these excuses are dumb and unpersuasive is no barrier. Indeed, the foolishness is the point -- recall Sartre's famous discussion of how antisemites like to "play"; to force their adversaries to take seriously their frivolous assertions, then mock them for treating the frivolous as serious. The antisemites wink at their fellows with their choice of font, then say "dude, it's just a font!" with a smirk when the alarm is raised.

But also, it's easier to dismiss these cases when they're viewed in isolation. Put together, there's a pattern, and that pattern is a straightforward embrace of Nazi imagery as a key part of the MAGA aesthetic. This, of course, is coupled with the promotion of policy and personnel who also align with neo-Nazism and White Supremacism. And while the policies are obviously more concretely dangerous, the aesthetic choice is, in its way, more damning as evidence of who this administration is -- it cannot hide behind putatively neutral "policy debates", it serves no purpose other than to elevate bigots and haters. That's what it's designed to do, and that's what it is doing. The arrows all point in the same direction. And we should not hesitate to name what is happening.

UPDATE: JTA has two news stories on these events, one on Antoni's "Nazi warship" and one on antisemitic dogwhistles coming out of the Department of Homeland Security.

Is It Illegal To Call a Conservative Antisemitic?

The title of this post feels like an exasperated cry of a liberal media critic.  One can imagine looking at the contortions journalists go through to avoid calling, say, Thomas Massie antisemitic even after he distinguished "Zionism" from "US Patriotism" and introduced a "Dual Loyalty Disclosure Bill" and shouting "Goodness, is it illegal to call a conservative antisemitic or what?"

But alas, this isn't a purely rhetorical question. Eugene Volokh reported the other day that the ADL has apparently settled a defamation case filed by a conservative activist who claimed that the ADL defamed him by calling him an "extremist" and saying he peddles "antisemitic beliefs" (details of the settlement don't appear public, but apparently the ADL has removed references to this activist from its website).

The ADL's statements are quintessential examples of protected opinion, but the presiding judge, far-right extremist (can I say that?) Reed O'Connor, twisted the law into knots to let the claim survive a motion to dismiss. Presumably reading the writing on the wall (including the fact that any appeals would go up to the equally lawless Fifth Circuit), the ADL elected to settle.

There's been a lot of discussion recently about the ADL's right-ward pivot over the past few years -- Noah Shachtman had a fantastic deep dive in New York Magazine, and I too have offered some of my thoughts. But one aspect that can be overlooked is the incredible pressure the ADL came under in recent years to stop calling out conservative antisemitism -- paradoxically, precisely because ideas once contained to the far-right were increasingly being embraced by "mainstream" conservatives, which (in the eternal-victim mindset of the right) proved that the ADL was "biased".

For a long time, this pressure mostly came in the guise of working the refs -- just repeating, over and over and over again, that the ADL was left-wing and biased and in thrall to the Democratic Party and ever so unfair to the conservative movement. One would never know from these critics that the ADL was facing mounting criticism from liberals (not the left, which always has loathed the ADL, but mainstream progressives who've long made up the ADL's base) for being too solicitous towards conservatives. Still, their efforts yielded results. Fox News parrots right-wing talking points about the ADL promoting "Critical Race Theory"; the ADL quickly promises a "thorough review" to placate them. Elon Musk demands the ADL denounce the anti-apartheid chant "Kill the Boer" (as part of his promotion of the "White genocide" conspiracy); the ADL immediately obliges.

But now, the conservative efforts are pushing past propaganda and into concrete legal action to harass anyone who tries to police conservative antisemitism. The abuse of defamation law (surely, the irony is intentional) is one manifestation. The Twitter/X lawsuit against Media Matters for (accurately) reporting that hateful content was appearing on the platform next to advertiser content -- also a Reed O'Connor special -- is another. And at least adjacent to the point is the threat by the Attorney General of Missouri, Andrew Bailey, to investigate AI chatbots for daring to give Donald Trump low marks on antisemitism -- literally arguing it is a form of fraud and misrepresentation to not give Trump his flowers on the subject. Bailey insist that giving Trump a superior grade on antisemitism is a matter of "objective historical facts," even as less than a third of American Jews approve of Trump's handling of antisemitism and more than half think is personally antisemitic.

So the pressure is very, very real -- which is not at all to justify bending to it, but we need to pay heed to what is actually going on. The right is committed to abusing its legal power to decimate any organization -- absolutely including any Jewish organization -- which dares try to call out conservative antisemitism. This can and should be called what it is: a declaration of war on the Jewish community, and an existential threat to our security and well-being.

Finally, one cannot miss the parallel here between the ADL and the American university -- another institution whose reputation for liberalism was not entirely unearned but certainly greatly exaggerated.  There, as here, venerable American institutions were slammed over and over again with complaints about "bias". There, as here, that decades long rhetorical war has now crested into the most flagrant abuses of authoritarian power we've seen in my lifetime. And there, as here, the attempt to appease the fundamentally authoritarian with humiliating acts of supplication will not work -- they will never trust you, they will always demand more, and you will never be a better fascist than the true believers.

Things People Blame the Jews For, Volume LXXV: World War I

CNN reports:

TikTok this week removed an inflammatory anti-Israel video posted by celebrity beauty mogul and influencer Huda Kattan.

I've never been so happy to be unable to relate to any part of a sentence.

But what were the "anti-Israel" sentiments being expressed? 

Kattan, the founder and face of the billion-dollar brand Huda Beauty, shared a video to her more than 11 million followers on TikTok, accusing Israel of orchestrating World War I, World War II, the September 11 terrorist attacks and Hamas’ attack on Israel on October 7.

[....]

“All of the conspiracy theories coming out and a lot of evidence behind them — that Israel has been behind World War I, World War II, September 11, October 7 — they allowed all of this stuff to happen. Is this crazy?” Kattan said on camera in her since-removed TikTok post, which included other unfounded claims about Israel. “Like, I had a feeling — I was like, ‘Are they behind every world war?’ Yes.”

Alert readers might immediately notice that some of these events occurred before Israel was established. Perhaps the more forgiving among us might overlook that problem for World War II -- Israel was founded only three years after its end, and it was such a Jewy war after all.

But World War I? That's a new one on me. We didn't even have the Balfour Declaration at the start of World War I! Roping Israel into it is really an extra special stretch.

I'd also be remiss if I didn't flag the interesting language "allowed all of this stuff to happen." What I like about this is that it takes for granted that Israel and the Jews control the entirety of global affairs, and is only mad at their non-interventionist mindset. I suppose once you've decided that Jews are like all-powerful gods, theodicy becomes our problem too.

All this talk of global Jewish domination does remind me of a thought I once had, though. Among all the people who think the Jews run the world, there must be somebody who thinks we're doing an okay job of it, right? I'm just imagining some guy in a Peoria bar, overhearing grousing about the damn Jews who run our society, slamming his beer down and yelling "Hey! They're trying their best, okay? I'd like to see you juggle running the banks and the media and the universities and Hollywood and the United Nations!"

And honestly? That guy would be right. It's hard managing all of that at once, and nobody gives us an iota of credit for it.

It's Not Easy Seeing Green

Okay, bear with me for a moment.

Red, yellow, blue -- those are the primary colors.

Red and yellow makes orange. And when I look at orange, it totally looks like a mixture of red and yellow.

Red and blue makes purple. And when I look at purple, it absolutely looks like a mixture of red and blue.

Blue and yellow makes green. And when I look at green -- I don't see blue or yellow at all. Green might as well be another primary color.

The thing is, I've thought this my whole life, to the point where it didn't occur to me that maybe not everyone thinks this. It was just obviously the case that green was distinct in being "independent" of its two bases. And it was literally last night that I had the epiphany that this might not be a universal perception.

So I asked my wife, and sure enough -- she didn't see it that way at all. Green to her looks like a mixture of blue and yellow, just as much as orange and purple look like mixtures of their two primaries.

Apparently, I've been nuts for my entire life. Unless the internet can now come to save me.

Israel is How Europe Can Stick It To Trump

Over the past few days, we've seen a spate of hitherto solid Israel allies in Europe announce they'll be recognizing the state of Palestine. France kicked things off, and it was swiftly followed by the UK and Canada. (There also has been an interesting wave of Arab states calling on Hamas to demilitarize and relinquish power).

I'm not going to comment here on the substance of the decision. Briefly, it is obvious that Palestinians deserve self-determination in a recognized state, and I'm unpersuaded by those who are arguing the move will backfire against the Palestinians. As for those who claim that recognition "rewards Hamas", I say that, if we are to think of this decision in those terms, it's better to see this as not as rewarding Hamas for 10/7, but as punishing Israel for its conduct after 10/7.

But that's not what I want to focus on here. Rather, I want to explore a different question: Why now? What made these countries take this step now?

Obviously, there is not one single answer to that. But in addition to some of the obvious factors -- increased sympathy for the Palestinian cause and increased frustration with Israeli intransigence chief among them -- I suggest an additional cause is that stepping out on Israel is a comparatively cheap and insulated way to symbolically repudiate Trump and Trumpism.

The Trump administration's pivot away from our traditional allies and alliances has been met with a justified mixture of alarm of fury from those we've abandoned. From escalating trade wars to threats of annexation, Trump has done unprecedented damage to America's global standing. People want to see their leaders punch back. But many of the most obvious avenues for retaliation come with substantial risks of their own. As idiotic and self-destructive as tariffs are for the United States, it remains the case that European countries must be careful and adroit in their own trade negotiations. Symbolism has its place there, but it can't be the whole story; missteps can exact real and serious tangible damage on one's own people.

But sticking it to Israel offers much of that same symbolic flouting of Trump, at a much lower risk. Most of the "damage" there, if there is any, will be externalized, not internalized. To the extent some countries might have been reluctant to step out against Israel for fear of alienating the United States, that ship has sailed; today these countries are looking for opportunities to signal they're standing up to the American madman. And while the Trump administration might make noises about retaliation, I think they're fighting on too many fronts for protecting Israel diplomatically to be a serious priority -- and that's even if one believes that Trump's Israel policy is based on sincere ideological commitment, which I don't. If one thinks Trump is just using "Israel" as an excuse to enact various forms of domestic repression, the ultimate disinterest can be doubled. In essence, Europe recognizing Palestine (a) looks increasingly justified and sensible given recent Israeli conduct and (b) offers an opportunity to be seen as standing up to Trump, in a context where tangible blowback is likely to be minimal. No wonder it's looking more attractive!

None of this should be seen as warranting any sympathy for Israel of course. They've chosen their course -- lashing themselves to the most extreme and vicious iteration of global rightwing ultranationalism -- and they have to live with the consequences. That's the risk of hitching your wagon entirely to a single powerful but widely loathed patron -- if daddy gets distracted, you're on your own and you've made yourself an awfully tempting target. Once again, when the right is done finding Israel useful, it will leave it in the wreckage.

A Cracking Good Word, Part II

A few years ago, I wrote about how much I liked crack (the word). The basic reason why was that it has a wide range of definitions that cover a lot of seemingly unrelated territory, without many clear indicators of how the different definitions might be connected to one another.

In that post, I listed off many such definitions, from "crack" as in "fissure" to "crack" as in "a joke". But one slangier usage I didn't talk about is "cracked" in gamer-speak, where it means something like "awesome" or "unbeatable" ("That strategy is totally cracked!").

In fairness, I did talk about "crack" is in "elite" -- "crack troops guarded the valley" -- which is pretty close to the slang usage.

But I would bet significant money that, despite their similarity, "cracked" in gamer lingo doesn't derive from this adjacent "crack" dictionary definition.

Rather, my guess is that the gamer meaning comes from "cracked" as in "unlocked", possibly as in saying that the awesome player "solved the puzzle of the game", but more likely from an older hacker usage: a game is "cracked" when a pirate successfully removes the DRM and distributes it. Doing this successfully was considered quite a praiseworthy achievement in some gaming circles, and it seems likely that it migrated from there to the slang usage today.

But isn't that interesting? A contemporary slang usage of a word, that is at least adjacent if not identical to a "regular" dictionary definition of that same word, but whose entrance into the lexicon probably has nothing to do with this parallel definition.

That's cracked!

How Do You Watch Sad Kids' Movies With Your Kid?

When I was a kid, I didn't watch violent movies (violent defined broadly -- I'm not talking about gore, I mean even a PG-13 action movie). It wasn't really a "rule" -- I just wasn't interested. I remember being reticent to watch Renaissance Man because it had army men on the box cover and I thought it'd be a war movie (turns out, it was a silly comedy, which was exactly my speed).

Once I became a teenager, I was a little shocked when I saw young kids being allowed to watch violent movies -- again not gory ones, but just your standard PG-13 action flick. Is that okay? Are they going to be okay, seeing all that?

But now that I have a kid, and I think about kids' movies ... yeesh. They're so sad! They're all about watching your parents brutally die (Bambi, The Lion King), or desperately trying to find your missing child (Finding Nemo--after said child watches the other parent brutally die), or being abandoned by the one who you thought was your forever friend (Toy Story). Honestly, I'd rather see some baddies get popped in Mission Impossible.

Now, to be clear, I'm not saying these movies are inappropriate for children. I read research saying that these sorts of movies teach important lessons to young kids (about empathy, for instance), Nor am I saying I don't want or won't let me kid watch them (said lessons are important to learn, and in any event one of my parenting rules is that I don't want to pass on my neurosis to my child).

But boy howdy, I don't want to watch them myself, because I will be inconsolable and I can't imagine that's going to do Nathaniel any favors. We might have to create a household rule that mom is the one who takes Nathaniel to movies like that. She's made of sterner stuff than me.

Pictured: A movie I never have and never will see, no matter what