Law vs. Antisemitism Conference 2023: Call for Papers

 CALL FOR PAPERS: 2^nd Annual Law vs. Antisemitism Conference (2023)

Lewis & Clark Law School, in association with the Lewis & Clark Law Review and the Law vs. Antisemitism Project, are proud to sponsor the 2nd Annual Law vs. Antisemitism Conference, to be held March 26-27 at Lewis & Clark Law School in Portland, Oregon. Conveners are David Schraub (Lewis & Clark), Robert Katz (Indiana University), and Diane Kemker (Southern University). The keynote speakers will include Eric K. Ward, Executive Director of the Western States Center and one of the nation’s foremost experts on the connection between antisemitism and White supremacy, as well as Steven M. Freeman, Vice President of Civil Rights and Director of Legal Affairs for the Anti-Defamation League. The Conference will begin on the afternoon of Sunday, March 26, and run throughout the day Monday, March 27, 2023.

The conference is interdisciplinary, and we welcome submissions on the intersection of law and antisemitism from academics and practitioners of all backgrounds and all statuses. Selected articles presented at the conference will be published as a symposium issue in Volume 27, Issue 4 of the Lewis & Clark Law Review (forthcoming in 2023).

Possible topics for conference presentations and papers may include, but are not limited to:

• Contending definitions of antisemitism itself (International Holocaust Remembrance Alliance (IHRA), Nexus, Jerusalem Declaration on Antisemitism (JDA))
• Legal history as it relates to the regulation of Jewish immigrants and Jews in colonial and antebellum America
• Title VII and employment anti-discrimination law as a tool against antisemitism
• Antisemitism in the legal profession
• Intersections of antisemitism and anti-trans or homophobic movements
• Jewish involvement/antisemitism in civil rights movements, including BLM
• Holocaust reparations
• First Amendment speech issues (hate speech online and elsewhere, Holocaust denialism)
• First Amendment religious freedom issues as these relate to Jews and Judaism, including Establishment Clause and Free Exercise Clause controversies
• Implications of recent Supreme Court decisions on abortion, guns, education, religious liberty, or other matters as they relate to Jewish equality
• Jews and Whiteness, Jewish Anti-Black racism/Black antisemitism
• Antisemitism and White nationalism/White supremacy
• Antisemitism and antisemitic laws in American legal history
• Intersectional issues (Jews as a religious/ethnic group; LBGTQ Jews; Black Jews, Jewish women)
• The use of zoning and land-use law by and against Jewish communities, the regulation of physical space for Jews in America
• The history of Jewish lawyers and organizations involved in impact litigation in cases involving Jews and others
• The legal relationship between anti-Zionism and antisemitism
• BDS and Israel boycotts on campus and by state/local governments, international boycott law as applied to Israel

If you are interested in presenting, please submit a one-page Abstract to lawvsantisemitism2023@gmail.com. Any questions can be sent to the conference organizers at dschraub@lclark.edu, rokatz@iupui.edu, and/or diane.klein@sulc.edu. Abstracts will be reviewed on a rolling basis but are due by October 1, 2023. We hope to be able to offer some travel grant support to cover expenses associated with attendance at the conference (plane/train fare, hotel, childcare) for persons who lack institutional sources of funding.

If you are interested in having your paper considered for the Law Review symposium issue, please indicate this in the abstract. Authors seeking to have their paper included in the symposium issue should have a full draft completed by February, 2023.

Law vs. Antisemitism Project Workshop for Legal Educators: Sunday, March 26, 2023

The 2nd Annual Law vs. Antisemitism Conference is part of a larger project which includes the development of a law school course in law and antisemitism and the creation of a first-of-its-kind casebook to support the course. If you are a legal educator and would be interested in participating in any part of this project, including Syllabus and curriculum development, casebook chapter creation or review, please consider arriving early to join the Workshop. If you are interested in participating in the Workshop, please indicate this in the email accompanying your Abstract, or send a separate message to Diane Kemker (diane.klein@sulc.edu) no later than October 1, 2022.

Cannibalistic Precedent-Eating Leopards

There's a darkly amusing pattern that emerges during periods of Republican governance. As a general rule, Republicans support deregulating any arena to enable maximum exploitation and abuse of vulnerable people. In particular cases, though, individual Republicans might have personal reasons for opposing such exploitation and abuse. They have a niece who is diabetic, so they support limiting the price of insulin, or they have a sibling who is disabled, so they support expanding anti-discrimination protections for the disabled, or they have a parent with cancer, so they support enhanced government funding for cancer research, or they have a friend who died of gun violence, so they support reasonable gun control regulations.

The problem, though, is that while each Republicans has their personal exception, they don't have the same exceptions. So for each exception, the Republican is left alone with only Democrats backing his initiative, and is shocked and dismayed that his colleagues could be so heartless as to not even support insulin price limits/disability protections/cancer research/gun control. They then dutifully return back to the Republican mass and vote against their colleagues' exceptions, in accordance with the general rule, and so none of the exceptions ever pass. Rinse, wash, repeat forever.

One suspects we're about to see a similar dynamic on the Supreme Court, with a 6-3 conservative supermajority that is out to draw blood. For the most part, the six right-wing votes are aligned -- like all Republicans, they are eager to jump on any opportunity to hurt the vulnerable and historically marginalized. But on individual issues, there may be an exception for a particular Justice. And that Justice will make a plea for his or her colleagues to slow down, to respect precedent, to here make an exception to the general principle of "the Constitution means what the founding fathers Texas GOP platform committee says it means". And the colleagues will say "LOL no, get bent," and the typical 6-3 decision will just be a 5-4 decision instead.

Like with congressional Republicans, the "exceptional" justice will rotate depending on the issue. On abortion recently, it was Chief Justice Roberts, whose opinions in Dobbs and Jackson were summarily ignored by his colleagues. Today, it was Justice Gorsuch on Indian law, as the Supreme Court in Oklahoma v. Castro-Huerta, over a passionate Gorsuch dissent, radically undermined tribal sovereignty and cut off a signature Gorsuch opinion from just a few years back (McGirt v. Oklahoma) at the knees.

McGirt was a 5-4 opinion which held that much of Oklahoma remained tribal land, and that therefore under longstanding Court precedent the state of Oklahoma lacks criminal jurisdiction over crimes committed by Indians in those areas. Many of us, myself included, wondered whether McGirt would survive the new regime on the Court (nobody really knew Barrett's position on Indian Law issues). But boy were we thinking too small. The Court did not overrule McGirt, it overruled Worcester v. Georgia, the famous case that respected Cherokee tribal autonomy against attempts by Georgia (with a healthy assist from Andrew Jackson) to obliterate the tribe. Nixing Worcester was not to my knowledge on anyone's radar screen. But the YOLO Court must have asked itself why it should settle for overruling a case from 2020 when you can take down a seminal Indian Law case from 1830 and neuter the 2020 one in the process? Now states presumptively have criminal jurisdiction over crimes committed by Indians on tribal land, undoing nearly two centuries of law and precedent that respected tribal sovereignty in this area.

Justice Gorsuch's dissent is quite strong -- and, in fairness, this is an area where he's been consistently excellent on. But I can't help but feel like it is one big cry about precedent-eating leopards eating his precedent, when he himself is part of the same pack of precedent-eating leopards. Yes, they're cannibalistic precedent-eating leopards and they're coming for you too. You'll do the same to one of them shortly. What sympathy do you expect here?

This teeny, tiny bit of schadenfreude is the only bright spot in yet another grim day from the Supreme Court, which just is bestowing horror after horror upon the American people.

The "Plain Text" Threshold Requirement of Bruen

One aspect of the Supreme Court's recent Bruen decision I haven't heard a lot about is the apparent caveat that its "historical tradition" test only applies in circumstances where "the Second Amendment’s plain text covers an individual’s conduct." This, of course, suggests that there are other instances where the "plain text" does not cover the conduct, in which case a different, as-yet-unknown standard, applies. What sorts of gun regulations might skirt Bruen review because they are not covered by the "plain text"?

At one level, this inquiry is specious for at least two reasons. The first is that the Second Amendment's text is the furthest thing from "plain". It is notoriously one of the least well-written constitutional clauses, which perhaps is one reason why nobody "discovered" it covered an individual right to bear arms until over two centuries after its adoption, and why even following those decisions every lower court in the country adopted a method of interpretation that the Supreme Court summarily dismissed as incorrect in Bruen. Some plainness!

The second reason is that practically speaking the rule in Bruen will not be the rule in Bruen. Rather, the rule will be "strike down whatever gun regulations conservatives don't like", and no amount of lawyerly parsing of Bruen's language is going to change that. The Supreme Court or the Fifth Circuit, salivating at the prospect of pouring more guns onto the streets, is not going to even stutter just because it encounters a reading of Bruen that appears to stand in their way. Bruen is what they say it is, and what they'll say it is is a blank check to strike down gun regulations with wild abandon. So to that extent, this entire exercise is one of false hope.

But if we play make-believe for a moment, it seems to me that the majority of contentious gun regulations are not plainly covered by the Second Amendment, even under the Supreme Court's expansive view. "Plain", after all, is somewhat of a term of art in law. "Plain error" review doesn't cover all errors, only truly obvious, slap-you-in-the-face errors. The rule that tribal courts have, in the first instance, the right to determine whether they have jurisdiction over the case comes with an exception in cases where it is "plain" that they do not, but that exception is again does not cover all cases where tribal courts lack jurisdiction -- only the clear, indisputable cases.

The Court's recent gun cases -- Heller, McDonald, Bruen -- have all involved regulations that, more-or-less, effectuate a total bar on an individual's ability to keep and bear arms (where the former seems to cover one's home, and the latter the public sphere), or at least those arms which are common in the modern era such that they are effective as means of self-defense. Everyone in Chicago, and the average Manhattanite, cannot carry a gun at all. This, the Court says, plainly is covered by the Second Amendment's text. Laws which flatly prevent either a certain type of person or a person in a particular location from carrying any sort of (modern) armament can only be justified if they fit into historical categories where such absolute restrictions had been permitted.

The examples of gun regulations which the Court says should be assessed and may pass under Bruen also are of this sort. A ban on felons possessing guns is an absolute ban on that sort of person bearing arms. Can it be justified? Yes, the Court intimates, under the historical practice of limiting gun ownership by dangerous persons. A ban on carrying a gun into a courthouse is an absolute ban on bearing arms in that setting. Can it be justified? Yes again, the Court suggests, under the historical practice of limiting arms in "sensitive places". New York's "may issue" licensing regime means that large swaths of New Yorkers, based on largely discretionary bureaucratic judgment, cannot carrying a gun in public. Can that be justified? No, the Court says, one cannot call all of New York City a "sensitive place". All of these examples represent situations where one could say that the state is trying to create an absolute gun-free space for a particular class of person or location, an endeavor which the Court could say "plainly" implicates the Second Amendment's right to keep and bear arms.

But many important gun regulations are not of this sort. Consider California's assault weapons ban, which just was sent back to a district court to assess in the wake of Bruen. Most commentators, it seems, think the relevant inquiry after Bruen is whether an assault weapons ban represents the sort of gun regulation that has a historical parallel in the relevant constitutional time period (the typical claimed parallel is to rules governing "dangerous and unusual" weapons). I would argue, though, that there's a threshold question of whether Bruen applies at all based on whether the law plainly is covered by the Second Amendment. Unlike the rules at issue in Bruen, Heller, and McDonald, the assault weapons ban does not create or seek to create a "gun-free space". Individuals remain perfectly able to both keep and bear arms that can practically vindicate their personal right of self-defense outside the home. Being restricted from bearing the particular armament of their choice is not the same thing as being blocked from keeping or bearing arms in totality. So the "plain text" does not cover the California law, and accordingly the Bruen test is inapposite.

Again, it is important to stress that the position here is not that there is no argument that Second Amendment covers a right to possess assault weapons. There undoubtedly are such arguments, and I suspect such arguments are not at all frivolous. Perhaps they're even persuasive. But again, the issue is not whether the Second Amendment covers an assault weapons ban. The question is whether the plain text covers it. That can and should be viewed as a much narrower question, just as "plain error" is not remotely coterminous with "error".

Many other gun regulations are like this. Most licensing requirements (at least, those which aren't thinly veiled pretexts for banning guns altogether), magazine capacity limits, background checks, registration requirements -- none of these plainly are covered by the Second Amendment in the way that the laws at issue in Bruen and its predecessors are, and so none of them need to be justified by resort to Bruen's test.

I also don't think that the "plain text" language can be dismissed as a cavalier rhetorical flourish.  It is included at the top of Part II of Justice Thomas' majority opinion, where he announces the new text, the bottom of Part II, where he "reiterates" the test, and the top of Part III, where he applies the test. It also is notable that the portion of the opinion where Justice Thomas assesses whether the "the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct" (Part III.A) is quite brief, because he has "little difficulty concluding that it does [protect]" -- suggesting that the law at issue here is plainly under the Second Amendment's ambit in a way that other laws might not be. The vast majority of the Court's analysis applying the new test is not concentrating on whether the conduct is covered by the "plain text" (which it views as easy, in keeping with "plain" being "plain"), but on whether any of the historical examples of permissible gun regulations nonetheless warrant New York's statute. Again, this indicates that we are in the realm of a "plain" imposition on the Second Amendment; which in turn suggests that "plain text" is not superfluous verbiage.

I might even argue that treating "plain text" as a threshold requirement is necessary for Bruen's internal logic to make any sense at all. Bruen styles itself as a originalist/textualist opinion, but the "historical practices" test is embarrassingly atextual along two dimensions: (a) one could stare at the text of the Second Amendment indefinitely and never derive the test from it, and (b) looking at "historical understandings" is not the same thing as seeking to uncover the semantic meaning of the Second Amendment's words as they would have been understood at the time of ratification (which is what contemporary originalist textualism claims is its project). But if we view Bruen as doing what it says and only applying in cases where a gun regulation plainly is covered by the Second Amendment -- laws which seem to entirely prevent certain persons or places from being occupied by guns that practically can provide personal self-defense -- then the "historical practices" test makes a bit more sense from an originalist perspective. A pure textualist might struggle to justify even, say, the ex-felon ban on possessing weapons -- are they not "plainly" being deprived of the ability to keep and bear arms? Yes they are! But knowing that the framers did endorse at least some laws that incontestably limit certain persons' ability to keep and bear arms suggests limits on the original understanding of what the Second Amendment says that might otherwise be hard to square with the Amendment's "plain text". The utility of Bruen's test is considerably less apparent, however, in circumstances where there is not a "plain" imposition on the right to bear arms. In such cases, "historical practices" risks becoming a license for courts to cut bloody swaths through any law which happens to touch on the subject of guns whenever a suitably analogous regulation cannot be found (even when the reason it cannot be found is because the problem is novel and could not have had an obvious early-American analogue).

So I think there is good reason to view "plain text" as a threshold requirement before a court applies Bruen, and that many regulations which are categorized as "gun control" are not covered because they do not "plainly" impinge on the right to keep and bear arms. Indeed, if we take this seriously -- which, I again hasten to clarify, we almost certainly should not, because there is no way Bruen will serve as a license for gun regulation in any circumstance where conservatives don't want it -- Bruen could mark out a very interesting compromise: laws which "plainly" impinge on the Second Amendment (which is to say, seek to effectuate a total bar on possession of guns by certain people or in certain places) are subjected to the "historical tradition" inquiry. Laws which regulate guns but do not plainly fall under the Second Amendment's ambit (insofar as they leave space for significant practical ability to keep and bear arms) get rational basis review. That might actually be a compromise I could live with. 

But of course, this Court has not remotely signaled interest in compromise. Its maxim is that the strong take what they may, and the weak suffer what they must, and right now they are reveling in right-wing strength. So as much as I enjoyed this frolic into a fantasy where judges are constrained by law, in the real world I suspect the rule in Bruen will be whatever the far-right wants it to be.

Things People Blame the Jews For, Volume LX: Islam

Haven't done one of these in awhile, but then, sometimes the universe doesn't give you an option. Behold: 

I'm going to call it: "Islam is a Jewish conspiracy" might well be my favorite antisemitic conspiracy.

Top that if you dare.

Voting Isn't Enough. You Also Have To Vote Enthusiastically

For the past several years, a battle has raged within the progressive commentariat about the importance of voting. In 2016, quite a few influential left-of-center figures were very public about how they would sit the election out, or vote third party, because they just could not bring themselves to support Hillary Clinton. This approach is sometimes dubbed the "consumerist" theory of voting, where politicians are products you either like or don't like, and if you're not happy with the product, you don't buy it.

This approach seemingly was discredited by the 2016 election results (spoiler: it was also discredited before the 2016 election results), though a surprising number of people were insistent for years thereafter that they were entirely right and correct to sit out 2016. Voting is for suckers, voting doesn't change anything, voting is a distraction from something something grand proletariat revolution something. Incredibly, we're still seeing a permutation of this argument now, as people respond to Republicans reaping the fruit of their electoral success by literally arguing "I tried voting in 2020 and it didn't work". I barely know how to even respond to that level of narcissistic self-indulgence. Politics is hard. It's slow, and arduous, and often a game of inches, but it definitely won't be won by people who think that the failure to travel lightyears in a day means they're entitled to sit out in protest.

That said, over the past few days I have noticed a bit of a shift amongst people I'd broadly define as occupying these sectors of progressive politics. They no longer say they won't vote in 2022. Instead, they issue long screeds contemptuous of voting and decrying voting and insisting that voting won't bring any useful change or benefits whatsoever. Then, somewhere in the middle of the diatribe, they will, with all the enthusiasm of a petulant child, agree that they will vote in 2022, but they won't like it and you can't ask them to like it, but if it will finally make you shut up okay they'll agree to vote.

Progress, of a sort. But not good enough.

The consumerist theory of voting treats voting as a matter of individual expression. This new permutation still fits that mold, only now voting only matters as a sort of civic duty checkbox one individually marks off (albeit reluctantly).

But the reason voting matters isn't to express your deepest emotions nor is it to validate one as  having satisfied an individual civic duty. The reason everyone is saying voting matters is because we need to win these elections in order to secure the changes we want, or at the very least to prevent things from deteriorating even worse. Democrats retaining control of government in 2022 might not be sufficient to arrest the damage the Supreme Court is doing to our public life, but it sure as hell is necessary. So your obligation isn't just to vote for Democrats, it's to take the steps necessary so that Democrats win. And one such step is projecting a sense of excitement about the prospect of Democrats winning.

 ("Excitement", to be clear, is being used here as a somewhat imprecise catch-all term encompassing any number of affective dispositions towards Democrats winning that view that outcome as a substantial positive and the opposite outcome as a substantial negative. So I would count "excited at Democrats winning" and "terrified at Republicans winning" as both falling into the relevant category; either way, someone who affectively holds those views should be enthusiastic in pulling the lever for Democrats come November. Perhaps "motivated" is better than "excitement"; insofar as it captures the sense that you care, deeply, about the outcome of the election. In any event, I doubt it matters too much what exact form that affective disposition takes, so long as it is in this broad category of substantial positive, as opposed to the sulky "I'll do it but it won't matter").

It is a truism to say that one vote rarely makes a difference. Voting matters as a collective endeavor where we unite to exercise power and self-determination together. Our decision to vote, and whether we do so enthusiastically or view it as a grim chore, influences those around us, and so has a multiplier effect that extends will beyond our one vote. 

People are more likely to vote if their friends and neighbors vote, and they're even more likely to vote if their friends and neighbors are excited about voting. Anybody who is talking about voting on Twitter almost by definition is on the bleeding edge of heightened political engagement, which in turn means they are well-positioned to influence multiple others in their circle who are more likely to fall towards the fat part of the bell curve of political apathy and are highly responsive to cues from their social environs. Your vote matters, but your affective disposition towards voting as a means of effectuating change also matters and arguably matters even more. Every voter has one vote, but the publicly excited voter carries in their wake the votes of a dozen friends and acquaintances. The publicly downcast and reluctant voter sheds a similar number of votes.

"I'm sorry, but I can't fake enthusiasm." Yes, you can! You shouldn't need to, in many ways I'm blown away that anyone needs to "fake" feeling positively disposed to Republicans not gaining another hammerlock on power, but yes, you absolutely can fake enthusiasm. Indeed, I'd argue that in the present moment it's self-indulgent not to. You're willing to call for a general strike but you're not willing exaggerate a smile to win an election? Are you kidding me? Sulking is not a strategy.

Voting is a tactic, and our obligation now is to take the steps most likely to make that tactic successful. One of those steps is being publicly enthusiastic about voting, so that other people who are less politically engaged than you also find the prospect of voting to be something worth doing. My basic rule of thumb here is that if you're politically engaged enough to be publicly complaining about how unfair it is that people are asking you to vote again, after you already tried that two years ago, then you're politically influential enough to carry the responsibility of publicly orienting to voting in such a way so as to maximize its likelihood of success.

This doesn't mean one doesn't pressure Democrats to do more or do better when they have power. I have hardly been blown away by the immediate Democratic response to the fall of Roe, though in part I think that's because Dobbs was a huge defeat and huge defeats are rarely pretty. There is no elegant way to lose in crushing fashion (I view the chaos after the Afghanistan withdrawal in much the same way). Nonetheless, I do not at all dispute there are plenty of criticisms one can make at the Democratic leadership in their immediate response to Dobbs. But it is entirely possible to level these critiques while also maintaining an affective disposition of strong positivity towards Democrats winning elections. Every bit of frustration I have towards Democratic decisions while in office - and there are plenty -- has not dampened in the slightest my strong and unwavering view that Democrats winning elections is far, far better than Democrats losing elections, and that we should view any moment where Democrats win and Republicans lose with absolute elation.

And guess what? Enthusiastically voting doesn't stop you from enthusiastically going to protests, or enthusiastically supporting a mutual aid organization, or enthusiastically engaging in a union drive, or enthusiastically taking any number of other steps which might also be part of the collective endeavor of building power to effectuate positive change. It's not either/or, nobody is arguing that it is either/or, and using that false dichotomy to justify your sulky attitude towards participating in electoral politics isn't fooling anyone. So buck up, and get excited about winning in 2022. Fake it if you have to, or do what I do and find genuine enthusiasm for the prospect of fending off America's slide into fascism. Either way, you do what it takes to win.

On the Power of Sharing Stories

The personal should not have to be political.

But it is.

There are innumerable reasons why someone might terminate a pregnancy. Virtually none of them entail events one wishes to broadcast to the world. That's not a matter of shame. Someone who finds out that their very badly wanted pregnancy is non-viable, and that the safest way to forward is through an abortion proceeding, might not feel especially inclined to share a play-by-play on Facebook. Very often, abortions occur because something didn't go right -- the pregnancy was unplanned, or unwanted, or it was wanted but non-viable, or any number of other permutations -- and people are, or should be, allowed to grieve in private.

And yet. I have been inspired by the number of people in my circles who have shared their stories of having an abortion, or seriously considering having one, or having the immediately live prospect of needing one. As much as the Supreme Court just rolled back the constitutional clock, it cannot do so entirely, because these stories are out there and are publicly shared. The world is not as it was in 1973. Women who quite directly relied on Roe's promise for their own health know what would have been had Roe not been present for them. Women who tomorrow will not be able to access that care will know, in a very public way, what could have been.

Dobbs will bring about terrible things, but those terrible things (what an awful consolation prize this is) will be public in a way they would not have been in 1973. We have language to speak of them, and we know we could live in a world free of those terribles because we had lived in it. What had been countless discrete experiences in isolation, out of the public eye, out of the public discourse, now is a shared reality. Being able to name it, being able to organize around it, being able to know that one isn't alone and that it doesn't have to be this way is an irreplaceable resource. The stories matter, and the willingness to share them matters. It will make a difference. Every story, account, and tale, makes those who suffer these terribles feel a little less alone. Again, what an awful consolation prize. But it is the seed of how we fight back.

It shouldn't have to be like this. Each time I read one of these stories, typically someone sharing a wrenching, emotional, miserable moment at the most intimate core of their personal lives, my heart breaks twice -- first that it happened, second that the narrator now feels obligated to share something so personal with the world. They shouldn't have to. It is, in itself, a massive sacrifice they are making for us. But they are sacrifices that make a difference, and I am grateful for every story.

What Politics Has Done, Politics Can Undo

"The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them."

That's from the joint dissent in Dobbs. It's true. Nothing about the Constitution changed from the start of this week to the end of this week, or indeed (in relevant part) from 1973 to today. What changed was politics. The conservative right spent fifty years in a slow, grinding war of political attrition -- gaining power, entrenching itself in key institutions, pushing forward -- and Dobbs was the payoff. That's a political accomplishment, not a legal one.

It is difficult to tell my students that no legal argument that they will learn in my Con Law class will make the slightest difference in terms of potentially seeing Dobbs overturned, just as no legal argument actually played any role in seeing Roe overturned. Nonetheless, it is true. But that just means the relevant arena for fighting is different. What politics did, politics can undo.

There is a bruising fight coming. There is no weird trick by which Democrats can win it in a one-punch knockout tomorrow. It will likely take years. Overturning Roe took Republicans nearly fifty years. God willing, reviving Roe will not take that long. Indeed, my fondest dream is that the reversals happen while at least some of the current GOP justices are on the Court. I want them to be there as their work crumbles to dust, I want them to mewl helplessly as their precedents (and I don't just mean Dobbs here) are brushed aside as aberrant malignancies on the constitutional body politic. But it will take a sustained, disciplined political campaign, at all levels of government, that matches or even exceeds what anti-abortion advocates threw at the issue for the past fifty years.

And while no, "just vote" is not a sufficient part of that strategy, yes, voting is a necessary and indeed critical and central part of that strategy, and anybody is who is indulging in mocking voting or undermining voting or depressing voting is functionally abetting the anti-abortion cause no matter what else they claim to be doing on the issue. All the other components of fighting for abortions rights in 2022 -- from protests to strikes to mutual aid programs to deleting your period tracking apps -- are at most rear-guard actions without more Democrats in power. It doesn't matter who the Democrat is. Yes, even the supposed "pro-life" Democrats. Why? Because when Democrats, as a party, are in a stronger position, the gravitational pull of politics moves all Democrats in a pro-choice direction. It's no accident that Joe Manchin, who long has presented himself as "pro-life", is now talking about codifying Roe. It's also no accident that Susan Collins, who long has identified as "pro-choice", was a key player in ensuring that the anti-Roe majority was present on the Supreme Court. Republican power alters the center of gravity of politics in an anti-abortion direction even if individual Republicans claim to be pro-choice; Democratic power does the oppose even if individual Democrats claim to be pro-life. It's obviously better to have pro-choice Dems than pro-life Dems, but it's better to have any Dems than any Republicans in office. If nothing else, Susan Collins is testament to the strategy that if you keep control of the dice long enough, eventually the party apparatus will win out.

I won't claim to be especially impressed with the manner in which the Democratic leadership has responded to Roe's demise -- but then, crushing defeats are rarely pretty for the defeated party. Nonetheless, unless more Democrats are elected, there is no hope of reviving Roe. It's that simple. There's no substitute for having power.

The Eighth Circuit's Boycott Ruling Does a Lot More and a Lot Less Than You Think

Yesterday, the Eighth Circuit sitting en banc upheld Arkansas' law prohibiting government contractors from boycotting Israel during the tenure of their contract. The ruling makes for interesting reading, more because of what isn't said than what it is. At one level, the ruling seems to have dramatic implications extending far beyond the case of Israel. And on another level, the ruling (including the solo dissent from Judge Kelly) barely even discusses what I would consider to be many of the critical issues in play.

First thing's first. As many of you know, I clerked on the Eighth Circuit, and it is now as it was then a very conservative court. JTA's bland statement that "The Eighth Circuit is considered to have a conservative makeup" does not do it justice. There is a grand total of one Democratic appointee serving on the court, the inestimable Judge Jane Kelly. While it lacks the outright nihilist streak that has afflicted the Fifth Circuit of late, it is fair to characterize the Eighth Circuit as among the most right-wing courts in the country.

In any event. The Arkansas law requires that state contractors certify they will not "boycott Israel" for the duration of the contract. "Boycott Israel", in turn, is defined to encompass doing any of the following three things “in a discriminatory manner”:

(1) “engaging in refusals to deal”; 

(2) “terminating business activities”; or 

(3) taking “other actions that are intended to limit commercial relations with Israel, or persons or entities doing business in Israel or in Israeli-controlled territories.”

The court essentially divides its analysis in two. One question is whether things like "refusals to deal" or "terminating business activities" should be seen as potentially implicating First Amendment values (that is, are they expressive). The second question is whether the third clause, covering nebulous "other actions", includes activities that are unquestionably First Amendment protected (e.g., writing an editorial supporting BDS -- which presumably would be "intended to limit commercial relations with Israel"), or whether that clause should be read to only cover commercial conduct akin to that covered in the first and second clause.

The first question basically gets to the issue of whether "boycotts" are First Amendment protected. Citing Rumsfeld v. FAIR, the majority concludes they are not, because boycotts are non-expressive conduct that only garners an expressive meaning if accompanied by explanatory speech. The venerable NAACP v. Claiborne Hardware case does not control, the court says, because Claiborne only extends to the speech that accompanies the boycott (e.g., the signs and pickets around a store), not the "action" of the boycott itself.

This is a big ruling. The holding that the "action" of boycotting falls categorically outside First Amendment protections is a major decision, and one that deserves every bit of public scrutiny and inquiry that this decision is getting. In that respect, the Eighth Circuit decision is getting the proper amount of attention and concern.

This makes it all the more strange the fact that the court itself doesn't act as if its conclusion was a big deal. Its holding was delivered in conclusory fashion at scarcely three pages worth of analysis. While the Eighth Circuit does tend to prefer relatively terse opinions over the long, rambling, and often self-indulgent treatises that other circuit courts typically issue, there's little indication that it viewed the "are boycotts speech" question as a substantial issue. 

Likewise, most of the dissenting opinion also does not really question the majority's assumption that boycotts are not speech. Indeed, far more of the debate between the majority and dissent focuses on the second question -- whether or not the Arkansas law, in its third provision, captures activity that is unquestionably First Amendment protected. This is a matter of statutory interpretation -- what is the best way to read the statute under Arkansas law? -- and while that may be an interesting question to some, it is certainly not what is driving the interest over this case. Yet nearly all of Judge Kelly's solo dissent focuses on this second question, while arguably taking for granted the seemingly big sweep the court makes regarding the first question. The result is that the "boycotts are speech" position -- fervently held and believed in by substantial sectors of the American people -- neither gets a substantial challenge (from the majority) nor a substantial defense (from the dissent). This is a very, very odd omission.

Judge Kelly does not spend much, if any time, arguing that the "action" of boycotting is First Amendment protected. Rather, her position is that the law goes beyond regulating non-expressive economic activity and captures purely expressive speech (again, the proverbial pro-BDS editorial or flyer). On my quick read, both majority and dissent have plausible arguments for what the best read of the Arkansas statute is -- but again, that is not the issue anyone actually cares about. A ruling that says "Arkansas' law is unconstitutional because it does not just target the act of boycotting but also pure expression supporting a boycott" should be equally upsetting to critics as "Arkansas' law is constitutional because it only targets the act of boycotting and does not cover pure expression supporting a boycott." Yet that appears to be the locus of the dispute between majority and dissent.

Judge Kelly at most only alludes to the questions that many of us view as central to a case like this. For example, the very end of her dissent briefly suggests that the law does not just cover what the contractor does in the course of fulfilling his or her contract but also "prohibits the contractor from engaging in boycott activity outside the scope of the contractual relationship 'on its own time and dime.'" This is something I've long felt was important in distinguishing valid versus invalid state regulations in this field. Is Judge Kelly correct that Arkansas' law does limit the contractor's "own time" behavior? Does that make a difference? Neither majority nor dissent really say.

Likewise, the seemingly key question of whether boycotts are at all "expressive" is given scant attention. The majority cites FAIR to say they are not, because the conduct would not be understood as "expressive" absent additional speech explaining the intended meaning. In FAIR, the question was whether a law school could refuse to allow military recruiters on campus as a means of protesting Don't Ask Don't Tell; the Court said that was not expressive because an observer wouldn't know that the recruiters' non-presence was meant to be a message sent from the law school absent the law school saying "the recruiters are not here because we are sending the message that ...."

There is some purchase to applying FAIR to the case of boycotts. Imagine two people walk into a store. They both see a Hewlett-Packard computer on sale. They both then walk out without buying it. Have they "boycotted" HP? An observer would have no way of knowing absent the customer explaining their behavior as a boycott. After all, there are a myriad of other reasons why one wouldn't buy an HP computer; the average observer would not have any basis for assuming that the non-purchase was for boycott related reasons.

However, the logic of FAIR also cuts in the other direction. In FAIR, the Solomon Amendment required that law schools provide access to military recruiters. It didn't matter why a law school didn't want to provide such access (whether for "expressive" or "non-expressive" reasons); the schools had to provide the access regardless. In this way, the law didn't single out "expressive" objections for singular opprobrium; it treated the expressive and non-expressive objectors exactly the same (i.e., by bulldozing the objection).

Anti-boycott laws, though, are different. The Arkansas law here certainly does not say "every government contractor must buy Israeli goods". There are myriad reasons why a contractor might not purchase from an Israeli vendor, and for the most part they remain free to do so. The only time they are forbidden from doing so is when their action is a boycott. But that means that, unlike FAIR, the hitherto hidden expressive character of their conduct is what distinguishes licit and illicit behavior. Judge Kelly does allude to this in a footnote, pointing out that the ordinary meaning of  "boycott" (undefined in the Arkansas statute) "includes an inherent element of expression" -- it is a refusal to buy that is done as a means of protest or disapproval. Hence, the contractor's action is only illegal if it is expressing a particular (disfavored) message -- something that should spark obvious First Amendment concerns.

We should recognize we're treading on very precarious terrain here. While not defining "boycott" directly, the Arkansas statute frames what is prohibited as "discrimination" against Israel. The risk that First Amendment protections for "boycotts" could generate First Amendment protections for "discrimination" is by no means unfounded, particularly in the era of Masterpiece Cakeshop and First Amendment Lochner-ism. Applying the above analysis to anti-discrimination claims, one can imagine a restaurateur refusing to seat a Black patron, then defending himself by saying "there are all sorts of reasons why I might not seat a patron; yet what makes my conduct illegal is the message I intend to convey -- that I object to Black people." Courts have not (yet) accepted that logic, and there are some bases for making distinctions here. But ask yourself how much you want to prop that door open for Alito and company by going all in on "refusal to engage in business transactions with disfavored groups is your First Amendment right!"

Finally, one other nettlesome issue about the Arkansas law that comes to my mind is the potential viewpoint discrimination problem. Different states have written their anti-BDS laws in different ways, and I've noted before my strong preference for those which do not single out Israel for special treatment but instead craft a broader rule forbidding, e.g., discrimination on basis of nationality or national origin. Arkansas' law is not like that -- it provides enhanced protections for Israel and only Israel. Contractors are apparently free to boycott Palestine, or France, or Germany, or Russia or Ukraine or China or India or Zambia without consequence.

This to me generates a serious viewpoint discrimination problem. As Justice Scalia pointed out in R.A.V. v. City of St. Paul, even where a state has legitimate reasons for restricting certain types of speech -- and we can stipulate for sake of argument that nationality-based discrimination, even where styled as a "boycott", is one such case -- it "has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules." If Arkansas thinks this sort of behavior has to be restricted, it has to restrict on both sides of the ledger -- it cannot single out one side of the controversy for special restriction because that side represents the disfavored viewpoint. After all, we might not be aghast if a state required its contractors to certify that they do not discriminate on the basis of race; I think we'd be far more concerned if a state only required them to certify they do not discriminate against White people, while being a-okay with contractors who discriminate against other racial groups.

In any event, the Eighth Circuit decision devotes cursory, if any, attention, to all of these issues. That applies as much to Judge Kelly's dissent as Judge Kobes' majority opinion. Normally, I'm not upset by the Eighth Circuit's preference for shorter and more compact opinions, but here I think they made a very big move without fully thinking it through or potentially even realizing it. This case very well could end up before the Supreme Court, and with the court that we have who knows what hash will be made of both First Amendment and anti-discrimination legal guarantees?

The Ministerial Exception and Neutral Rules after Carson v. Makin

States like to give money to things. They like to fund schools, or recycling campaigns, or building repairs, or sports programs. And sometimes, religious entities are among organizations who conduct the program the state is funding -- they run the school, or the recycling campaign, or the the building, or the sports program. In such scenario, there are constitutionally-speaking three possibilities:

1. The state is prohibited from giving the money to the religious entity. Funding the religious organization is an Establishment Clause violation.
2. The state is required to give the money to the religious entity. Refusing to fund the religious organization, when other comparable organizations are funded, is a Free Exercise violation.
3. The state can choose whether to give the money to the religious entity. There is "play in the joints" between the Free Exercise and Establishment Clause issues, and states can choose how they want to resolve that tension.

Today, in Carson v. Makin, the Supreme Court took a big step towards Door #2. The Court struck down a Maine program which (for certain rural areas lacking public schools) funded private schools, but only if those schools are non-sectarian. If Maine is offering parents funds to send their kids to private schools generally, it cannot withhold those funds if the parents elect to send their children to a religious academy. Religious schools must be eligible for generally-available funding on the same basis as any other "comparable" private school.

In making this ruling, the Court distinguished (and significantly narrowed) an older case, Locke v. Davey, where the Court upheld a program which excluded ministerial training from an otherwise generally available scholarship program. The Carson Court said Locke was limited only to circumstances where the school was specifically training ministers; not "religious education" more broadly.

This got me thinking, however, about what options are still available to a state like Maine which is perhaps leery about sending its tax dollars to directly support religious education. Carson does not directly say "states must fund religious education" after all. It merely says that states must allow religious schools to obtain funding when they would otherwise be eligible based on the general criteria the state uses for assigning funds.

So imagine the following rule: "No school shall be funded unless each of its employees is fully subject to anti-discrimination rules." The state, it is fair to say, has a strong interest in ensuring that the subjects of its funding abide by and are protected by anti-discrimination rules. Still, anti-discrimination law contains certain exemptions, one of which is known as the "ministerial exemption" -- ministers are not subject to anti-discrimination protections. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Court expanded who counts as a minister beyond the proverbial priest or Rabbi to include many teachers at religious institutions -- these teachers now cannot sue if they are the victims of discriminatory conduct. Religious schools are relatively likely to have such "ministers" on the payroll, so they would run afoul of the neutral rule, and would not be eligible for state funding.

Whether this gambit will work depends a lot on how it is phrased and the degree to which courts are willing to accept it as a neutral rule (which, in turn, may relate to whether there are other schools whose eligibility for state funds would be limited by the rule for reasons having nothing to do with religion). But -- on about an hour's worth of thought -- it seems like a plausible argument.

The Two Halves of Linked Oppressions

Consider paired statements of the following form:

• "Freeing Palestine is a queer issue"/"Queer liberation is a Palestinian issue."

• "Fighting racism is a Jewish issue"/"Fighting antisemitism is a Black issue."

• "Opposing colonialism is a woman's issue"/"Opposing misogyny is an anti-colonial issue."

One can imagine plenty of other pairings. My question is to what extent the two components of the pair should be read as a making identical or at least inextricable points, such that affirming one half of the pair necessarily means affirming the other.

At one level, when I see statements of this form being made, while typically only one half of the "pair" is presented, the defense of the statement sounds in logic that implies that the other half is necessary as well.

Consider the antisemitism/racism pair as our example. Pressed to defend the claim "fighting racism is a Jewish issue", one most often hears either an argument about intersectionality or an argument about linked oppression. The former notes the existence of Black Jews to observe that advocating for "Jews" necessarily requires fighting the anti-Black racism that some Jews experience. The latter makes a broader contention that various forms of structural injustice are linked together such that a campaign against antisemitism will never be successful unless it tackles racism as well -- these oppressions nourish each other, reinforce each other, and so must be attacked together. Both of these arguments imply that the position could be as easily expressed by its inverse: the existence of Black Jews means that advocating for Black people must mean fighting the antisemitism some Black people experience; the interconnectedness of anti-Black racism with antisemitism means that a campaign that is "solely" against the former will be doomed to fail.

Yet it doesn't seem that it is random or trivial which half of the "pair" is trotted out, suggesting that there are practical differences between the two even if they are nominally express the same analytical point.*

One difference could be exhortative: which group is being encouraged to act in a particular way. "Palestine is a queer issue" encourages members of the LGBT community to relate in a particular way to Palestine. "Queer liberation is a Palestinian issue" encourages members of the Palestinian community to relate in a particular way to the LGBT community. Partial overlap notwithstanding, those exhortations are being directed to largely different audiences. There may different reasons for appealing to one audience over another, and likewise the relative success of the appeal might be appraised differently for one audience over another.

Another difference between the claims is descriptive: does community X view issue Y as "their" issue? If I'm a member of X, I can make the assertion that yes, it is (even if it is perhaps aspirational); but I can't necessarily make that claim about a community not my own -- so as a Jew, I can proffer that anti-racism is a Jewish issue, but it's harder for me, not being Black, to say authoritatively that antisemitism is a Black issue. Even if we accept that a non-member is entitled to make such an assertion about a group-not-their-own, again, practically speaking such a claim is less likely to be viewed as authoritative. And for the same reason, the different half of the dyad suggests different people who can validly contest the claim. Even if they are analytically wrong, it obviously matters if descriptively members of X seem to quite loudly deny that Y is in fact "their" issue.

I'm a bit of skeptic about too-easy claims about linking up all oppressions, which I think can paper over legitimate tensions and conflicts both across and within groups. So I don't think claims of the above pairings being necessarily tied to one another are self-evident as analytical propositions (even if they may still be valid moral imperatives). But I really just wanted to flag some fuzziness in how these pairings are used and the sometimes submerged implication of which half of the pair is forwarded; consequences which are elided insofar as the underlying normative argument presents the two halves of the pair as analytical equivalents.

*  Perhaps the most striking iteration of this asymmetry -- and I know I've made this point sometime in the past, but I cannot find the post -- comes in the assertion "Jews will not be free/safe/liberated until Palestine is free." True or not, I have never once heard this argument paired with its flip: "Palestine will not be free until Jews are free/safe/liberated", even though the analytical logic suggests both have to be true. The implicit justification for the omission is usually that Jews are already free/secure/liberated -- which betrays an internal contradiction off the bat (the first half of the pair stipulates that Jews are not free yet). A slightly better apologia is the assertion that the latter goes without saying, but to my ears that is far too cavalier. The reality is that it is perfectly possible to imagine the existence of an entity broadly recognized as a free Palestine in a universe where antisemitism still exists; the assertion that the absence of the latter is necessary for the former to obtain isn't actually accepted as anything but a debater's point. The far harder work is fighting against antisemitism even when it has nothing to do with whether there is a free Palestine or not; just as the harder work is fighting for a free Palestine even when it has nothing to do with furthering Jewish freedom.

Rate that Apology, Part 11: Lizzo

I will confess: I don't know much about Lizzo. But my wife is a fan -- she actually saw Lizzo in concert years ago before she was even the headlining act (she was opening for Haim at a show in Berkeley). So I have a cool wife, even if I remain a very nerdy husband.

Anyway. One of the songs in Lizzo's recently released album uses the word "spaz" in a somewhat unfriendly fashion, a slang for from being freaked out or uncontrollable ("I’m a spaz/ I’m about to knock somebody out/ Yo, where my best friend?/ She the only one I know to talk me off the deep end."). She was criticized by members of the disability community, who contended that "spaz" was an ableist slur. Here's her apology:

It’s been brought to my attention that there is a harmful word in my new song “GRRRLS”. Let me make one thing clear: I never want to promote derogatory language. As a fat Black woman in America, I’ve had many hurtful words used against me so I understand the power words can have (whether intentionally or in my case, unintentionally). I’m proud to say there’s a new version of GRRRLS with a lyric change. This is the result of me listening and taking action. As an influential artist I’m dedicated to being part of the change I’ve been waiting to see in the world. Xoxo, Lizzo.

This is, I think, superb. Seriously, it's a model. It is contrite in a way that is proportionate to the harm caused. While it gives some mitigating context (e.g., that the harm was unintentional), it is not primarily framed as an apologia, nor does it suggest that good intentions are the be-all-end-all of the relevant analysis. It takes responsibility and commits to a tangible action item that will ameliorate the wrong caused. It's hard to imagine what more one could ask for. Great work, Lizzo!

And on that note: one nice thing to observe here is that, as the linked article notes, Lizzo's apology seems to have been well-received.  She has not been "canceled"; it seems that most of her critics are satisfied with the response she made. Certainly, it helps that Lizzo has a broad base of goodwill she can draw upon -- most of her fans are not looking for an excuse to exile her from polite society. Nonetheless, it is notable that the histrionic cries that cancel culture is naught but a bloodthirsty mob out to destroy lives without possibility of redemption doesn't seem to be borne out. If you actually take the complaints seriously and respond in a way that shows you're taking responsibility, people will appreciate that.

Grade: 10/10

Why Is Democratic Support Amongst Latinos Crumbling?

Republican Mayra Flores won a special election for a heavily Latino Texas House seat on Tuesday, turning a historically blue seat red for the first time in over a century. While redistricting means that the seat will likely elect a Democrat in the fall, Flores' victory is the apex of a trend where Democratic performance has crumbled in the historically-blue Rio Grande Valley.

What is causing this trend? I'll dispense with one no doubt popular hot take -- the whole "Latinx" thing. No, it's not popular amongst the broader Latino community. But also, no, it's almost certainly not driving a major vote shift given how few Latino Americans have even heard of the term.

That said, something is clearly in the air. It seems evident that many Democrats just assumed that Trumpist rabble-rousing about immigration would permanently turn off the Latino community and send them (further) into the arms of the Democratic Party. That maybe led to some coasting, which is now coming back to bite Team Blue. But that still doesn't offer a positive explanation about what issue areas are driving the Latino vote today -- especially when it seems that the Republican Party's political extremism, and ties to White nationalism, is growing more pronounced.

Of course, one can fairly observe that "the Latino vote" is an amalgamation of several different political collectives who hardly share identical interests or perspectives. Mexican-Americans in the Rio Grande Valley have many differences from Puerto Rican voters in New York or Cuban-Americans in Miami. But even if we cast a more focused lens, concentrating on places like the Rio Grande Valley, I think the puzzle remains (and I'd also ask whether there is, right now, a substantial subsector of the Latino population which is currently moving in a more Democratic direction? If not, then it seems there is a problem here that is occurring across cohorts).

Likewise, it has long been known that many Latino Americans are socially more conservative than the median American Democrat. But that's always been true, raising a "why now" question. Is this a backlash against (perceived or real) excesses amongst progressives in socially liberal policy? I know everyone likes to blame "the Squad" for everything, and I think that's a temptation to be resisted, but at least it's a hypothesis that needs to be explored. Nonetheless, I doubt that's the only valid explanation on offer, and I'm interested in hearing others.

The Debate Link Reaches Legal Adulthood

Happy eighteenth birthday to The Debate Link! I started this endeavor in 2004, just after graduating high school. Now it's 18, and I'm 36 -- meaning that I've been blogging for half of my entire life.

There's a sobering thought. Anyway, happy birthday! To many more!

Why Hasn't AIPAC Endorsed Marjorie Taylor Greene?

AIPAC's much-criticized decision to endorse a slew of Republican insurrectionists has been the talk of the pro-Israel town over the past few months. AIPAC's tweet today praising top Trumpist leader Elise Stefanik -- just a few days after one of Stefanik's prize House recruits came under fire for (checks notes) praising Hitler -- is par for the course. AIPAC's defense has always been straightforward: we do not care what any politician says or does on any issue but Israel. Insurrection, antisemitism, bigotry, corruption -- it all takes a back seat. AIPAC is laser-focused on one thing only, and that's Israel policy.

But here's my question: If that's true, why hasn't AIPAC endorsed Marjorie Taylor Greene?

Greene is a fanatic, a bigot, an antisemite, and a certified loon. But I would be surprised if her policy on Israel is meaningfully distinct from that of any other far-right House Republican. So what explains AIPAC's hesitance?

It's obviously not a sudden bout of scruples. It's a calculation -- Greene is someone they don't want to associate with because of her extreme views on issues other than Israel. Which is correct -- they shouldn't associate with her. But having made that judgment, it is entirely reasonable to note that the implied corollary -- that other bigots, extremists, and haters are people they are willing to associate with. It's not a single-minded focus on Israel. They making broader judgments. And they can be justly criticized for them.

Be Careful If Anyone Symbolizes You

Chesa Boudin, San Francisco's reform-minded chief prosecutor, was recalled by a wide margin on Tuesday. The media has been quick to hail it as a huge repudiation of the progressive approach to policing and prosecution. Those in the know, know it's hardly that simple. Boudin's position was precarious from the start, and the structure of a recall disadvantaged him greatly. Other progressive prosecutor sorts had great success in contests across California. San Francisco isn't even the largest population unit in its region. Boudin was unfairly blamed for an "increase" in crime that wasn't actually even real and for failures of policy around homelessness that were not in his portfolio.

These are fair points, and I think the accurate political commentator should take note of them. That said, I can't quite follow the notion that it is unfair of the media to treat this as a symbolic repudiation. After all, Boudin's victory was a symbolic victory. He got attention in a way that Contra Costa County's lead attorney never will. Certainly, the cheerleaders for a new approach to public safety had no interest on tamping down the meaning of Boudin's symbolism when he was winning -- "accuracy" be damned. So they can hardly complain when that symbolic weight also attaches to his defeat. That's the risk of propping up symbols. Symbolic victories become symbolic targets. It's the way of the political world.

For my part, just like with the last San Francisco recall my lukewarm take is that any take that promises a tidal change is probably wrong. The ideology behind progressive prosecution is not a slumbering giant of electoral politics, thirsted after by a silent majority crushed under the jackboot of the state. Many of the communities that are supposedly most victimized by overpolicing were the ones that turned against Boudin most sharply in the recall. Yet it was also absurd to ever imagine that the ideology behind progressive prosecution was ever going to finally and decisively sweep the field in one masterstroke. Like all political movements, its progress will be slow, incremental, prone to reversal, and prone to adjustment and compromise. It won't look the same at the end as it did at the start, and it almost certainly won't have in its victories the pristine purity its activist core imagined of it when they first started organizing. That's okay. That's the way it works. That's the way it always works. Win some, lose some. Push the ball forward more than you get pushed back. The Boudin recall is a datapoint -- but it's only one.

"Economically Liberal, Socially Conservative" Will Always Decay into Fascism

It's one of the great paradoxes of modern politics. The "economically liberal, socially conservative" quadrant of the political map, which most polls say is quite well-populated amongst voting-aged Americans, also has the least obvious political representation. Many pundits have long suggested that Democrats should try to move into this space -- retreat on "cultural war" issues while talking up bread-and-butter economic interventions that will help working Americans.

I'm skeptical this strategy will work, for one simple reason: the "economically liberal, socially conservative" quadrant is an inherently unstable position that will inevitably decay into fascism.

Terms like "economically liberal" are always kind of fuzzy, but I tend to think of it as meaning tolerance for government spending and intervention in the economic realm; as compared to the more hands-off, laissez-faire approach of economic conservativism. If you're socially liberal and committed to norms of equality and aid for the disadvantaged, that spending and intervention naturally is going to be directed towards either the public, broadly, or the least well off, specifically.

But shorn of those social liberal commitments, economic "liberalism" need not be tied to either a Rawlsian aid for the disadvantaged nor an egalitarian conception of the common good. A socially conservative economic "liberal" is perfectly happy to see government intervene to direct resources into his own pocket while leaving members of outgroups and the underclass to rot. Remember Paul Ryan's famous Obamacare replacement plan?

Yeah, it's like that. The right-wing "hur hur hur 'Nazi' stands for national socialist guess it's a left-wing ideology" was always exceptionally dumb, but the tiniest grain of truth there is that if you take "socialist" ideas of public support but violently demand they be provided solely to the favored and dominant in-groups, well, yeah, then you have a fusion of "nationalism" and "socialism". The problem is that the creeping fascism of the GOP is at best already adjacent to that position (what do you all think "America first" means?). 

The GOP does not now have, if it ever did, any commitment to free markets. That was already well known from such Republican-favored boondoggles as infinite subsidies to fossil fuel manufacturers or favored treatment for capital gains. Nowadays, Ron DeSantis more or less openly favors distributing government boons and penalties on the basis of political loyalty. The "economic liberal/social conservative" voter is probably delighted. So long as he gets his, what does he care that the distribution of government cheese is governed by corrupt criteria? If anything, that's a benefit! Democrats can't occupy this quadrant because the whole point of being economically liberal and socially conservative is that it matters to you that the economic distributions support a social hierarchy where your group is at the top and outsiders are punished for their foreign race, religion, nationality, or values, and that's a political space where Republicans will always carry an insurmountable advantage.

A Rare, Coveted Debate Link Endorsement: Andy Levin

I don't like member-on-member Democratic primaries. That's because, for the most part, I like Democratic incumbents. I rarely bear them ill-will, and so I don't wish for them to lose elections. A member-on-member primary forces me to choose, and I resent that.

So it is in the Haley Stevens/Andy Levin match over in Michigan. I like both representatives just fine. I have no desire to see either out of Congress. And yet I've come to the conclusion that it's important to back Rep. Levin, because the message that would be sent by his defeat would be exceptionally toxic in Democratic Party circles. Rep. Levin is one of Congress' leading proponents of a two-state solution for Israel/Palestine -- an actual proponent, not a rhetorical one; someone who is actually willing to put money next to mouth and invest the resources necessary to induce both sides to take the steps necessary to make a just peace happen. It would be sad to lose his voice, but it would be catastrophic to lose his voice in a manner that suggests this very advocacy is what doomed his career.

Perhaps counter-intuitively, my logic is similar to that which prompted support for Shontel Brown over Nina Turner in their Ohio race. I noted there that Turner's formal position papers on Israel were not actually anything too objectionable. However, the coalition surrounding Turner seemed eager, even gleeful, at the prospect of sticking it to the Jews Zionists in a way that really couldn't be rewarded. Similarly, when they spoke to Michigan Jews, Stevens and Levin didn't seem that far apart on key issues -- there was a difference in how they talked about Israel, but it wasn't some gaping chasm. But the atmosphere around Stevens' campaign is very much "we need to punish Levin for his heresies about Israel", and that rhetoric hit a fever pitch early. On this, I agree entirely with Abe Silberstein's assessment:

The reason Andy Levin has drawn such vocal opposition from pro-Israel groups is not because he supports the two-state solution. It's because he doesn't accept the dogma on why a two-state solution has not materialized (Israeli flexibility/Palestinian rejectionism binary).

That's absolutely correct. One hears often from many Jewish and/or pro-Israel groups that they don't object to "criticism of Israel", what they object to is one-sided criticism of Israel; criticism that treats the entire conflict as wholly a matter of Israeli wrongdoing and malfeasance. The reality is, though, that many of those groups love "one-sided" criticism -- so long as it's Palestinians that are the only side being criticized. The last thing they want is an account of the Israel/Palestine status quo that takes seriously the reality that Israel bears a considerable portion of the responsibility for getting us here. 

Levin's support for a two-state solution isn't rhetorical, it's actual; and being actual it entails Israel changing portions of its conduct just as Palestinians must. That's good, healthy, necessary, what many if not most Jewish organizations say they want to hear -- and is apparently absolutely, positively intolerable in practice. The amount of energy and resources being devoted to taking out Levin, not just from groups like AIPAC but from organizations that really should know better, like the JDCA, is suggestive that these groups cannot and will not tolerate actual action supporting a two-state solution, and that'd be a devastating lesson to internalize.

It's no knock against Stevens herself. Again, I bear her no ill-will. I wish both Democrats could stay in Congress next year. But the atmosphere that surrounds this race makes it very important that Andy Levin win it. And so for that reason, the rare and highly coveted Debate Link endorsement has to go to Rep. Levin.

UPDATE: Andy Levin liked this post. I'm so tickled.

Schoolchildren Shouldn't Have To Live Like Jews

In the wake of the Uvalde massacre, the internet is replete with proposals on how to avoid or at least mitigate the risks of yet another school shooting. Some in the Jewish community have suggested adopting some of the measures we have taken to keep our schools, centers, and synagogues safe -- things like controlled entry, on-site security, and other forms of "hardening the target".

Some of these suggestions might be good ideas, and most are being made with the best of intentions. But I feel like they overlooking something very important.

Growing up Jewish, these sorts of security interventions are so normal one can almost forget how abnormal they are. Of course there is a noticeable police presence during high holiday services. Of course someone has to check you in at the door before you're allowed to even enter the synagogue. Of course there is onerous keycard entry requirements if you want to access the building for a evening Torah study session. It is jarring to encounter the freedom of places that don't have that sort of security because they don't operate with the background presupposition that someone could be trying to kill their patrons at any moment.

Because these interventions are so normalized, we forget that having to impose these sorts of security measures is bad. These measures make Jewish life worse -- less open and more stressful, less accessible and more cloistered. Does anybody think that the ideal synagogue experience is like this? They may nonetheless be necessary because of the dangers Jews face -- but that's just it: they are reflective of Jews being a persecuted minority who are regularly targeted with violent threats and assaults. What does it mean to cross-apply them to the context of public elementary schools? It's saying that every 5 - 11 year old in America is as vulnerable as a member of the minority group that is, per capita, the most common target of hate crimes in the country! That's terrible! That should be seen as a catastrophe! If that is indeed the state of being a student in America, that is an appalling failure!

The title of this post is deliberately provocative. Jews should not have to live like this either. We should be able to live our communal life open and without fear, not looking over our shoulders for the next active shooter. But we've resigned ourselves to an inability to eliminate the root cause of our problem, antisemitism. We can't do it on our own, and broader society is not interested in investing the effort to make the project a success. So stuck with the reality of persistent violent antisemitism, at least over the medium term, these measures are suboptimal ameliorations of the consequences of our continued marginalization.

If schoolchildren are in the same boat, that must mean we've reached the same conclusion for them: as a polity, we just have given up on our ability to actually eliminate the threat to schoolchildren. We cannot be bothered to make the social and political investments necessary so that the status of schoolchildren is not analogous to that of a persecuted minority regularly targeted by violent threats. We have resigned ourselves to that level of vulnerability for our children, and now just seek to ameliorate the effects. That is appalling. It is appalling that Jews are forced to accept this; and it is a perverse form of justice that this quiescence be extended to every family with minor children.

I do not claim that the experiences of the Jewish community cannot be helpful in building out better security for public schools, in this decidedly suboptimal world where we have apparently decided to just accept this terrible vulnerability as a baseline. But we should not lose sight of the fact that if our experiences are even analogous -- what a striking indictment that is of our society. People should not have to live like this.

Well-Trained, Courageous Police Won't Stop Another Uvalde

There's a lot of chatter right now about reports that police waited quite a long time before police entered in force the Texas elementary school where a shooter had murdered nearly two dozen people. Much of that chatter is of a very typical brand of Twitter discourse of the "what good are cops, what were they waiting for, they're cowards, even in a situation like this they won't risk they're lives" variety.

I think that at least some of this criticism, though not all of it, is probably unfair. But more to the point: it is because I think that some of this criticism is probably unfair that I am very confident police responses are not going to stop another Uvalde. 

Here's the blunt truth: a school shooter, who does not care about his own life and hopes to kill as many other people as possible, has (to put it extremely bloodlessly) flexibility that those trying to stop him do not. To take one example: the gunman can, whenever he wants, enter any room he wants firing entirely indiscriminately. The police, by contrast, cannot simply enter any room they want firing indiscriminately; nor would we want them to. It's not a matter of courage, or numbers; it is a structural imbalance that favors the gunman over those trying to stop him.

But that's exactly why all this talk of "hardening the target" or bringing even more cops with more guns is so clearly not a viable response. Putting aside (though we shouldn't) the problem that this "solution" is basically to convert our schools into fire traps or prisons. Once a shooter is on site with a gun and a disregard for human life, they have a built-in advantage that no amount of police presence can fully reverse. Sometimes their rampage will be stopped earlier, other times later, but it's all mostly a matter of luck. Short of turning schools into bunkers, the idea that the "right" security measures can stop a man who doesn't care about his own life and can freely and easily access high-powered weaponry without breaking a sweat is nonsense. 

I have no idea whether the Texas police who were on site during the Uvalde shooting responded with ideal tactics. And, as awful as it is to say, if a shooting is ongoing, there really isn't much replacement for bringing it to an end other than armed officers. But if a shooting is ongoing, we've already failed in the most relevant respects. If the goal is to prevent these shootings from occurring outright, not to shrug our shoulders and say "it could have been worse", armed police are not going to do much good -- and it has nothing to do with courage, or armament, or tactics, or temperament.

Uvalde Parents Are About To Learn Just How Little the American People Care About Them

A shooting at an elementary school in Uvalde, Texas has killed nearly two dozen people, including nineteen children.

I grieve for the parents and families of those who were killed. They are going through a tragedy I cannot even begin to fathom. But as awful as things are right now, I cannot imagine what the survivors will have to endure starting about a week or a month from now.

Because that is when it will be hammered home just how little the American people care about them.

I want us to really understand this point. We love to talk about tragedies bringing out the best in the American people. We love heartwarming stories about blood being donated and volunteers flooding hospitals and homes being opened up. I don't want to discount any of those things. But we never talk about, and we should talk about, how tragedies like this bring out the absolute worst in the American people -- and here I'm not talking about the shooter. I'm talking about us, all of us, as a collective polity, who in a democratic society is tasked with making a collective response to catastrophes like these and has consistently collectively decided to shrug and carry on as if nothing happened.

It is human nature to shout, holler, cry out when we are hurt or scared. The more grievous the injury, the louder the scream. Why? To attract attention. Deeply rooted in our psyche is a fundamental belief that if others become aware of our hurt, they will help us.

The level of grief and pain the Uvalde parents are going through is unimaginable to me. Experiencing it, and knowing that others know you're experiencing it, naturally breeds the assumption that others will try to help you. How could they not? How could they be impervious to such raw, acute anguish? How could they just ignore the cries?

Imagine if you were shot on a public street. You cry out; people see your distress. Imagine if they do nothing. They just keep going about their business. Perhaps a few shoot you a sympathetic glance as they carry on with their errands. You beg for help -- maybe your leg can be saved if you get to a hospital quick enough. Nobody does anything. You are left alone to fester in agony -- seeing with your very eyes people who you know know how hurt you are and are consciously electing to do nothing about it.

And yet -- we know from far too much experience that ignoring is exactly what will happen to the Uvalde parents. We all are witnesses to their anguish, we all hear their cries for help. They know we hear them, and we know they know we hear them. Even still, there will be no serious efforts to respond to this catastrophe or ensure it does not happen again; same as there were no such efforts for the catastrophe before this, or the one before that. In a few days, the American people will have moved on. In a few months, they will make choices at the ballot box that could be responsive to the pain of the Uvalde parents, but most likely will not be. We could choose to elect politicians who would enact policies that might stop tragedies like this, but we won't -- stopping CRT in schools or maximizing our tax breaks will be far higher priorities. And so our politicians will continue to not pass meaningful gun control measures, and our judicial overlords will continue to pick away at the few that are enacted in slavish fealty to a maximalist interpretation of the Second Amendment. Nothing will change. The Uvalde parents will have been utterly abandoned to their grief. They will know, in their bones, that Americans simply do not care.

I've been struck, when reading about the "anti-CRT" panic, how often the complaint of the activist-rabble rousers sounds in the register of avoiding "guilt". "I don't want my kid to feel guilty!" I absolutely do not believe anyone should feel guilty for who they are. But we absolutely can justly be made to feel guilty for the choices we make, or fail to make. Our collective decision to turn away from scores of grieving parents, to not take any meaningful action to try to ameliorate their pain or at the very least change course so the next tragedy does not occur, is indeed a choice, and one we should feel very guilty about.

Maybe that's the right approach. Fear that our children might be next doesn't motivate us; nor does justice and retribution for the last batch of victims. Perhaps being forced to sit with the guilt that our choices represent abandoning our fellows in their moments of greatest need, to really stew in our own callousness and confront our abject indifference to the searing pain around us -- maybe that will be enough to motivate a change in behavior. I'm doubtful. But maybe.

Inventing "Fraud" Isn't Necessary for the GOP's 2024 Robbery Plans

In 2020, Republican politicians made bogus claims of fraud in order to justify attempting to steal an election they lost. But why bother with the "fraud" allegation at all? Why not just attempt the robbery? The answer, presumably, is that claiming fraud -- however spuriously -- was necessary to justify overturning the will of the voters and assigning electoral college voters to a candidate who got fewer votes.

The problem with this strategy was, of course, that the fraud claims were obvious nonsense and every sane observer -- including virtually all judges -- knew it. Insofar as the strategy was based on a flagrant lie, it was vulnerable to rejection once it actually hit the judiciary.

Fast forward a few years, though, and Republicans are coming to a realization: They don't need to claim fraud. They can cut out the middleman entirely and just assert the right to ignore the voters entirely. The claim being developed is a version of the "independent state legislature" doctrine that just asserts that state political officials (themselves often in highly gerrymandered seats that bear no relationship to the popular will) have free reign to decide who gets their state's electoral votes. Their decision need not be in any way constrained by such piddling trivialities like "who the voters of their state actually voted for" -- even in the funhouse mirror sense of "well if you discount the votes that we assert are fraudulent because *mumble mumble brown people*, then the voters actually chose our guy." The new version of the steal is a straight line argument that if the state legislature wants to assign their EVs to Trump, Trump gets them. The people can pound sand.

Unlike the concocted fraud allegations, this is fundamentally a legal assertion -- an extreme, terrifying legal assertion, but a legal assertion all the same. Getting the GOP judiciary to accept it does not depend on forcing judges to deny reality, it just depends on getting the right mix of reactionary nihilists who can issue a chin-stroking pontification about how slave states in 1810 organized their elections with a straight face -- and recent history suggests that a welter of federal court judges will be eager to accommodate them. 

Nonsense fraud claims might gild the lily of this endeavor, but they aren't necessary to the strategy. And for that reason, this strategy for stealing the election is far more likely to succeed than the last one. The 2020 steal attempt was a largely ad hoc, on-the-fly paint splatter thrown together by the least competent attorneys Trump's money could buy in a context where it still was mostly taken for granted that the vote tallies ought determine the winner. In 2024, the GOP establishment will have had time to prepare itself logistically, but also mentally -- it will have come to terms with making the argument that in our allegedly constitutional democracy votes don't have to matter at all (See the Senate! See the electoral college itself! We're a republic, not a democracy!).

Republicans swung as hard as they could in 2020, but they just weren't strong enough to ring the bell. This time around, they'll be trained, toned, and ready. I hope we are too.