Reading Lists Right in a Pandemic: A Comment on Alabama Association of Realtors and the Eviction Moratorium

Earlier this week, a district court in Alabama Association of Realtors v. Dept. of Health and Human Services invalidated the federal eviction moratorium as exceeding the power delegated to the Secretary of Health and Human Services. Lower courts have split on this question -- some upholding the moratorium, others striking it down -- and unlike some I don't view the argument that the moratorium exceeds the statutorily delegated power to be wholly frivolous (at least one judge said the moratorium exceeds the federal government's constitutional authority under the commerce clause, and that argument I absolutely find wholly frivolous).

Reading the AAR opinion, though, it seemed like at least part of the court's analysis was predicated on a basic misunderstanding of the statutory text.  Warning: this is a pretty deep dive into some relatively boring grammar points. But that's a lot of what statutory interpretation is, and I think doing these dives can be helpful (I did something like this in analyzing what the Israel Anti-Boycott Act actually did, and folks seemed to find it useful).

Here's the relevant passage, from the Public Health Service Act (42 U.S.C. § 264(a)):

The [CDC], with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the [Secretary] may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

One source of controversy is the degree to which the second sentence limits the first -- that is, whether the regulations which "in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases," mentioned in the first section, are only things like "inspection, fumigation, disinfection [etc.]" listed in the second sentence. But accepting that they are, the eviction moratorium may still fall under the unenumerated "other measures" mentioned at the end of the sentence. On that point, the key question is what sorts of regulations can be justified as "other measures". Here's what the district court said on that question:

These enumerated measures are not exhaustive. The Secretary may provide for “other measures, as in his judgment may be necessary.”  But any such “other measures” are “controlled and defined by reference to the enumerated categories before it.” These “other measures” must therefore be similar in nature to those listed in § 264(a). And consequently, like the enumerated measures, these “other measures” are limited in two significant respects: first, they must be directed toward “animals or articles,” and second, those “animals or articles” must be “found to be so infected or contaminated as to be sources of dangerous infection to human beings.” 

The court is correct that the contours of a catch-all clause at the end of a list, like "other measures", must be interpreted by the enumerated categories actually listed (this is known as the ejusdem generis canon). But in saying that the "other measures" must be directed towards "animals or articles", the court seems to misinterpret the basic grammar of the statute.

Let's look at the text again.

For purposes of carrying out and enforcing such regulations, the [Secretary] may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

One way of reading this list is to say the secretary is empowered to do seven separate things: (1) inspection, (2) fumigation, (3) disinfection, (4) sanitation, (5) pest extermination, (6) destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and  (7) other measures. Each of these are separate entries in the list of items which "in his judgment may be necessary" and don't otherwise modify one another. Broken down, the statute would be read like this:

For purposes of carrying out and enforcing such regulations, the [Secretary] may provide for such 

(1) inspection, 

(2) fumigation, 

(3) disinfection,

(4) sanitation, 

(5) pest extermination,

(6) destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and

(7) other measures,

 as in his judgment may be necessary.

(Notice that I didn't change the word order of the statute at all -- I just added numbering, indents, and line breaks).

But the district court seems to read this passage differently. It thinks that all the entries on the list are actually modifiers of "animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings". So the Secretary can provide for "inspection ... of animals or articles found to be so infected...", "fumigation ... of animals or articles found to be so infected...", "disinfection ... of animals or articles found to be so infected ..." and so on -- and consequently the "other measures" must also be things done to "animals or articles found to be so infected." Understood this way, the statute would be organized like this:

For purposes of carrying out and enforcing such regulations, the [Secretary] may provide for such 

(1) inspection, 

(2) fumigation, 

(3) disinfection,

(4) sanitation, 

(5) pest extermination,

(6) destruction

of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

But this is a very awkward and I think obviously incorrect reading, for several reasons.

First, not all the elements of the list naturally modify "animals or articles found to be so infected ...". Certainly it makes sense to engage in "inspection of animals or articles found to be so infected or contaminated as to be sources of dangerous infection", or "destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection." But it's quite awkward to speak of engaging in "pest extermination of animals or articles ...." or "fumigation of animals or articles" (can you fumigate an animal?). That's a hint that these terms are meant to stand alone and not be attached to "animals or articles."

Second, if "destruction" is the last element of the list of things modifying "of animals found to be so infected ...", then it should be preceded by an "and" or an "or" -- something like this:

For purposes of carrying out and enforcing such regulations, the [Secretary] may provide for such 

(1) inspection, 

(2) fumigation, 

(3) disinfection,

(4) sanitation, 

(5) pest extermination, or

(6) destruction

of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, 

and other measures,

as in his judgment may be necessary.

That "or" may be small, but it is crucial -- it's what makes all of the preceding list elements relate to "animals or articles" and so generate the implication that "other measures" must connect to "animals or articles" as well. Consider the following sentence:

You can walk, swim, run for a mile, and engage in other forms of exercise to stay fit.

The most natural way of breaking that down is: 

You can

(1) walk,

(2) swim,

(3) run for a mile, and

(4) engage in other forms of exercise

to stay fit.   

"Other forms of exercise" would be interpreted to be things akin to walking, or swimming, or running for a mile -- so rowing I'd say is probably in, while "brain teasers" probably isn't.

But let's say I intended "for a mile" to modify not just "run" but all the preceding elements of the list ("walk for a mile", "swim for a mile", and "run for a mile"). At the very least, I'd need an "and" or "or" before "run": 

You can

walk, 

swim, or 

run

for a mile, 

and engage in other forms of exercise

to stay fit. 

Without that "or", the sentence is grammatically improper if it's meant to be structured this way (it'd be like if I said "You can walk, swim, run for a mile to stay fit." There the missing "or" really stands out).

That tees up the third problem -- if "and other measures" is meant to be the last item in the list of measures that are directed at "animals or articles", then the text is out of order. You can already spot that  in our exercise sentence with our awkward extra indent for "and engage in other forms of exercise". In that sentence, if we wanted "engage in other forms of exercise" to be the last element of the list of activities one can do "for a mile to stay fit," the sentence would more naturally be drafted like this:

You can

walk, 

swim, 

run,

and engage in other forms of exercise 

for a mile to stay fit. 

Written this way, then it would be sensible to say that these other forms of exercise must also be done "for a mile" (and perhaps, further limits the exercises to the sorts of exercises which can be done for a mile -- so rowing still works, but weighlifting does not). 

Likewise, if we wanted "and other measures" to be the last part of the list, all of whose components which are meant to be tied to "animals or articles", then it is in the wrong order. The text should read:

For purposes of carrying out and enforcing such regulations, the [Secretary] may provide for such 

(1) inspection, 

(2) fumigation, 

(3) disinfection,

(4) sanitation, 

(5) pest extermination,

(6) destruction,

(7) and other measures 

of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

But the text doesn't say that (partially because the grammar doesn't work, because one can't really have "other measures of animals or articles found to be...", which is yet another reason why this reading is suspect -- really, the better way to go about it would have been to just put the "and" or "or" before "destruction"). 

Put that all together, and the district court's view that "other measures" must be "directed toward 'animals or articles ... found to be so infected or contaminated as to be sources of dangerous infection to human beings'" seems difficult to square with the text at hand.

What difference does this make? Well, recall the key question is whether an eviction moratorium is sufficiently similar to the enumerated items in the list so that it can be reasonably included under "other measures". If all elements of the list must be "directed toward 'animals or articles ... found to be so infected or contaminated as to be sources of dangerous infection to human beings'", then it's fair to conclude, as the district court did, that an eviction moratorium is rather far afield from the enumerated contents. An eviction is not an animal or an article, after all.

But if "animals or articles found to be so infected ..." is tied to only one entry in the list ("destruction", as in "destruction of animals or articles ..."), then the the overall content of the list is much broader. The relevant question becomes whether an eviction moratorium is sufficiently similar to things like inspection, fumigation, disinfection, sanitation ... etc. etc.

So: is it? I'm not sure, honestly (as I said at the top -- I don't think the argument that the eviction moratorium is not authorized by Section 264 is utterly frivolous). Clearly, there are differences between things like inspections or sanitation versus an eviction moratorium. On the other hand, if they were the same, then we wouldn't need the "other measures" catch-all to expand the Secretary's authority. The point of having an "other measures" clause is to permit the Secretary to do things that aren't included in the explicitly enumerated list. And ensuring people have the ability to stay in place during a highly contagious pandemic doesn't strike me as being so utterly disconnected from things like "sanitation" or "inspection" that it fails the ejusdem generis canon (if the "other measures" the Secretary proposed was, say, changing the lyrics of our national anthem to "Please spare us from the dreaded 'rona!", that would be an example of such a disconnect).

Ultimately, I think the better argument is that the Secretary should get deference here. At the very least, I think the district court was wrong in claiming the text is "plain" in demonstrating the impermissibility of the eviction moratorium, and it's worrisome that the court's reasoning to the contrary seems to rely on a basic misreading of the text itself. I worry that there may be, unfortunately, a wave of judges who think of themselves as hard-nosed textualists but who don't always do a good job reading texts, and the result often is the smuggling in of ideological or partisan biases under the guise of austere, legalistic decision-making.

The Linfield Aggression (and What It Tells Us About Vulgar Anti-Academic Discourse)

Some of you might have come across the wild-and-getting-wilder fiasco that is currently embroiling Oregon's Linfield University. The quick and dirty summary:

• (Jewish) tenured professor and faculty trustee accuses the university board of turning a blind eye to sexual assault by high-level collegiate officials, and the university's (Black) President of making antisemitic remarks.
• University board of trustees dismisses complaints and tries to sweep them under the rug.
• Professor goes public with complaints; faculty votes no-confidence in the administration; ADL and other local Jewish organizations rally behind professor.
• University fires the (again, tenured) professor with no notice and no process -- he finds out when he tries to log in to his email and is locked out.
• Outcry grows larger, university president refuses to resign and commissions a report from the local NAACP saying he's the victim of anti-Black bias.

That's pretty rough, but it gives you the basic idea.

From what I've seen, the Linfield administration has gone on a truly drunken power trip here (it's explanation for why it can summarily terminate a tenured professor without any of the procedural protections guaranteed in the faculty handbook is beyond absurd), and for the most part that's how it's being covered in the academic community -- university administrators abusing power, almost universal rallying in defense of the Jewish professor who was terminated as a whistle-blower.

I'd just note that there is a vulgar understanding of the state of academic and/or "anti-oppression" discourse that I think would not predict this response. That is, given that the terminated academic is Jewish and claiming antisemitism, and the terminating university president is African-American, those who hold the vulgar view would assume that the academic world would either ignore or outright support the injustice done to the Jewish professor because, after all, automatic hierarchy of oppression and Jews-are-White etc etc. That this has not been the reaction, and that there has again been near-universal support for the Jewish faculty member, perhaps might be thought to falsify some of the more uncompromising presumptions of the vulgar discourse.

It won't -- these presuppositions are no doubt unfalsifiable -- but it should.

The Reverse (Full) Livingstone (aka "The Hannity"?)

The Jerusalem Post wrote an article covering allegations of antisemitism against Sean Hannity after he referred to Bernie Sanders as "Bolshevik Bernie". The Post noted the long history of "Bolshevik" being used to tar Jewish public figures with left-of-center views as dangerous threats to the integrity of the nation, even (or especially) when those figures' positions have little in common with Soviet Bolshevism but rather appear to be social democratic.

Hannity is furious (I suppose when is Hannity not furious?), and is demanding a "retraction" from the Post -- despite the fact that the Post's article was a news story simply reporting on the controversy, not making any judgment of its own.

The basis for Hannity's demand?

“I demand an immediate retraction & apology from the @Jerusalem_Post,” Hannity tweeted Friday evening. “Israel has no greater friend, ally and supporter in the U.S. than me. I have a record of unwavering and passionate support for the state of Israel for 33 years on radio and 25 years on TV.”

Hannity mentioned what he described as friendly relations with Israeli Prime Ministers Benjamin Netanyahu, Ehud Barak, and the late Shimon Peres, which he misspelled Perez.

I've noted before the frequent usage of pro-Israel attitudes as an attempted "get-out-of-antisemitism-free card", but it seems time we give it a more formal name. 

A related practice, it seems, is "the Livingstone Formulation", where one dismisses accusations of antisemitism on the grounds that those accusations actually stem from naught but a desire to silence "criticism of Israel". I've dubbed "the full Livingstone" as those cases where this dismissal is made even when the conduct that is accused of being antisemitic has nothing to do with Israel (as it was not in Livingstone's original case).

So, from that, I'd suggest that where someone dismisses an allegation of antisemitism by noting they are a "strong supporter of Israel", we dub that a "reverse Livingstone." And when, as here, the allegation of antisemitism has nothing to do with one's views on Israel, then that would be a "reverse full Livingstone", or, perhaps, the "Hannity".

Being "Asked to Recount an Experience" is Nazism, McCarthyism, and Communism All Rolled Into One!

Robert Steinbuch, a law professor at Arkansas-Little Rock, has some thoughts on an academic event on anti-racism he recently attended featuring Ibram X. Kendi. The event itself he found interesting -- "I found some of the dialogue valuable. We scratched the surface of a real substantive debate. It was an important beginning. More real discussion is needed." But problems emerged once the conversation shifted to Zoom breakout rooms, where Kendi encouraged participants to share instances where they had made "affirmative efforts at being Anti-Racist."

This, apparently, is one of the greatest affronts to human dignity and academic integrity that has ever shadowed a university campus. It is, we're told, reminiscent of Nazism, and McCarthyism, and Stalinism. No, I'm not exaggerating -- all of those analogies are made, even as Steinbuch admits that there was absolutely no statements that participation was compelled nor any penalty for noncompliance. This is, believe it or not, just a taste of how Steinbuch describes what he was asked to, er, endure:

Sadly, academics across the country engaging in such activities often don't recognize the meaningful similarity between socially coerced statements of Anti-Racist activities and the anti-communist oaths of the McCarthy era—evincing the failure, regularly repeated, to appreciate tragic histories so often justified by good intentions. Indeed, the McCarthyites were actually right that Communism is evil—its adherents having directly killed tens of millions of people—notwithstanding that such proclamations might not be de rigueur today.

The McCarthyites were wrong, however, in forcing the public adoption of that view through sworn allegiance, as is well recognized today. Being allowed to be wrong, particularly in the political context, ironically leads to improved democracy and enlightenment. Learning good citizenship is not like memorizing multiplication tables. It must actually be done to be mastered.

Such community shaming exercises surely weren't restricted to conservatives during the Red scare, but conservatives have been branded—perhaps not exclusively but certainly disproportionately—with that ignominy, nonetheless. While McCarthyites well deserve to share that label, in reality those actions were emblematic of the archetypal totalitarianism of both the far left and the far right during the last century that resulted in the most homicides in human history.

Indeed, Soviets and Nazis readily adopted mandatory oath taking and social shaming as methods of forced conformity in addition to imprisonment, torture, and murder. My father lived under the former during World War II; many other relatives died under the latter.

During that instance in which I was caught in Zoom's version of Gene Roddenberry's transporter buffer, I was afforded a fleeting moment to reflect on my options regarding what I perceived as a social conformity exercise: I feared that not responding would garner the now seemingly acceptable label of White Fragility, much like those who refused to chant the mantra of having never been a member of the communist party were effectively tattooed with a scarlet "R."

Again, there's even more in that vein. 

My first thought on reading the account of Kendi's event was that Kendi frames the question in such a way that presupposes all participants, many if not most of whom are White, have done something actively anti-racist that they can share -- with the purpose of elucidating  those experiences presumably to encourage and validate them. I flag that because of how it flies in the face of how the popular discourse attacking such events presents their treatment of White people. In contemporary anti-racist discourse, White Americans, we are told, are viewed as little better than maggots, whose only contribution to anti-racism discourse is to loudly announce their status as human garbage and plead for forgiveness and grace. Kendi's event does exactly the opposite of this -- it is predicated on the presumption that everyone is trying and we should encourage them in their efforts. Alas, some folks are impossible to please, I guess.

But my main observation on reading Steinbuch's lament was that he perhaps can be asked to grow a slightly thicker skin here. McCarthyism? Nazism, totalitarianism? Because one was asked -- not even compelled, but asked -- to share a life experience? If ever there was a moment for "our grandfathers stormed the beaches at Normandy ..." generational shaming, this is it.

Let's be clear: I have been part of educational spaces, as either a student or a teacher, for most of my life. Exercises of the form "recount a time when you ..." are not exactly unheard of, nor are they typically perceived as an exercised in authoritarian compelled speech and mandatory ideological rituals. "Recount a time when you were proud of your community." "Recount a time when you were treated unfairly." "Recount a time when you stood up for others." Using such recollections as a starting point for further discussion strikes me as perfectly normal, and I fail to see how "recount a time when you were actively anti-racist" is any different. And if one honestly, genuinely, cannot think of any moment in one's life where one has done anything anti-racist, I'm not convinced that isn't a valid subject for further thought and discussion either.

But that tees up Steinbuch's other problem, which is that he does not think the actions he most associates with "anti-racism" will be accepted as such in this milieu. Steinbuch's self-identified "most significant Anti-Racist academic endeavor.... has been my effort to reduce racial disparities by recognizing the harm caused by mismatch resulting from highly race conscious admissions programs in higher education." His findings represent an "unpopular and inconvenient truth" that "is not generally welcomed discourse in our overwhelmingly leftist academia across the country."

I've written quite a bit on mismatch theory myself -- see here, here, here, here, and here -- and I'm not going to rehash all my points again. What I will say is that, if Steinbuch thinks it is impossible to present the relevant data in such a way that it could be included in an anti-racist discussion (even in "overwhelmingly leftist academia"), he's not trying hard enough. Observing that even after implementing race-based affirmative action programs in law schools we continue to see disparities in success rates for racial minority lawyers compared to Whites -- a finding which suggests that such programs are at the very least not a sufficient condition for eliminating racial disparities and at most need to be substantially retooled or even replaced with something different -- could easily fit into these conversations.

After all, "anti-racist" discourse rarely is accused of being too pollyannaish about the ability of This One Weird Trick to end racism, whether that trick is affirmative action or anything else. The stereotype is if anything the opposite -- being very concerned about the resilience of racial disparities in spite of concerted efforts to contest them. There's no reason why this resilience should evaporate in the face of affirmative action programs, any more than it does in the face of any other proposed intervention. So I'll say that as data, the findings of the mismatch theorists are important factoids that should be considered; which is not the same thing as saying that their normative implications are self-evident or one-sided (there are all manner of reasons why one could accept the raw data behind the mismatch hypothesis and still think race-based affirmative action programs are justifiable and/or desirable -- I go into some in the above-linked posts).

Of course, saying that Steinbuch's data should be considered is not the same thing as saying it (to say nothing of whatever normative upshots he draws from it) must be accepted on faith or without criticism. Allowing for critique is an important part of open discussion too. And perhaps these criticisms will sometimes be challenging or harsh (as, no doubt, proponents of affirmative action -- who hear Steinbuch as saying that they are in fact contributors to the harm of generating racist disparities in higher education -- perceive his critiques to be in relation to themselves).

But that returns us to the matter of growing thicker skin. Simply put, if this is the contribution Steinbuch wants to make to the anti-racism discourse, it isn't unfair -- or McCarthyist, or Nazi-like, or totalitarianism of any stripe -- to ask him to actually make it, and stand behind it, and participate in the conversation about it, even if that conversation isn't one where all participants fall over themselves to agree with every conclusion he's made.

Things People Blame the Jews For, Volume LIX: The European Super League

Recently, there was an announcement that several major European soccer teams were going to form a "super league". Now, I'm just going to tear off this band-aid -- I'm not European, and I don't really follow soccer. So I'm probably going to butcher what this means, and I don't care enough to do real research to find out. But as far as I can tell, the super league would diverge from the general promotion/relegation system common in European leagues. Instead, most of the participating teams would be permanent members of the league regardless of how they perform -- akin to the how professional sports leagues operate in the U.S. (where, no matter how woeful the Pirates are, we're stuck with them in the MLB indefinitely).

Anyway, the Super League announcement was controversial with, well, everyone, and it looks like the league is pretty much dead in the water. But its very short life still left time for people to assign blame to the proper parties:

In several posts, the writers blamed Jews for the situation. One user wrote: “Notably, most of the owners of these ‘big' football clubs pushing for a Super League are Jews, including Roman Abramovic [sic] and the Glazers…..Jews are ruining football, they don’t give a f**** about the Gentile fans..”

Roman Abramovich is the owner of Chelsea FC, one of the clubs due to take part in the new league, while the Glazers are the American family who owns Manchester United. Joel Glazer is said to be the vice-chairman of the new Super League. Tottenham Hotspur, chaired by Daniel Levy, is also one of the founding clubs.

Another Twitter user wrote: “All this talk of the European Super League. It’s jew rats behind it. All money grabbing c***s. It’s no wonder that people hate them as much as the muslims.”  This post was illustrated with a vicious and common antisemitic cartoon.

In another post, a user wrote: “Them 3 fat AMERICAN C***S YOU F***ING BASTARDS. And as for that Jew levy your family should have been gassed”. Someone else declared: “Hey Zionists it’s not all about money you suckers“.

Last one is a fun example of clearly using "Zionists" to mean Jews! 

Tablet Mag Needs To Learn How To Link to a Source

Tablet Magazine has another article up about ethnic studies, titled "Getting Rich in the Diversity Market." The title, I assume, is tongue-in-cheek, since given the number of articles they pump out on the subject I can't imagine there's anyone this side of Bari Weiss making more money on "the diversity market" than Tablet Magazine.

Last time we checked in on Tablet's reporting on this beat, they published an article that nakedly fabricated evidence in order to portray the latest draft of the California Model Ethnic Studies curriculum on as antisemitic. An interesting fact about that article was that it didn't actually link to the curriculum documents it was nominally criticizing, forcing readers to go on a winding solo journey to actually pull up the material in question and discover for ourselves just how blatantly the article mislead us.

Alas, all that's old is new again in the latest article. One of the article's targets is a "Racial Literacy Curriculum" by an organization called Pollyanna, which they seek to argue is antisemitic. Here's what Tablet says about the curriculum:

This curriculum includes a unique view of nearly every educational discipline, such as in sixth grade history where children discover that the essence of Nazism was not the destruction of European Jewry but the rise of “whiteness.” Pollyanna’s main coverage of the Jewish experience is reduced to an odd and passing reference to the “Eastern European Hebrew” race.

They provide no link, but the relevant document appears to be this. So, what's the context? Here's the actual quote:

In the late 1800s and early 1900s, as large groups, or a “wave,” of low-income immigrants entered the U.S. from other parts of Europe, new racial classifications emerged, such as the “Northern Italian” race, the “Southern Italian” race, and the “Eastern European Hebrew” race. Through pseudoscientific assessments, including the measurements of people’s cranial features and “intelligence” tests, these groups were erroneously deemed inferior, as the Celts had been. 

Wow! The curriculum is talking about racist immigration restrictions that targeted Jews (among others), and, in not-so-odd fashion, these restrictions used pretty blatant racist language! What, exactly, is objectionable here (maybe Tablet wants a trigger warning first)?

Can anyone say that, reading the Tablet article, the impression they'd have gotten regarding the "odd and passing reference to the 'Eastern European Hebrew' race" would be within 500 miles of what the curriculum actually said? No, of course not. Earlier in the article the author states that the curriculum he's citing (but not linking to) was "reviewed by Tablet", which suggests that an editor signed off on this blatant misrepresentation. Disgraceful.

The curriculum also does not appear to really say anything about "the essence of Nazism", because the curriculum is self-consciously focused on the American development of race and racism, not European -- hence why the only passing mention of Nazism relates to shifts in speaking of a "Saxon" race to a "Nordic" race. But there's no claim I can see that suggests that this is the most important thing to learn about Nazism -- it's just that the curriculum focuses on the American context, which is entirely appropriate. Again, the Tablet article's presentation is just wildly out of sync with the content.

At this point, one has to wonder if the failure to link to primary source documents in circumstances where it's obvious that doing so would undermine the author's ideological ax is intentional. It happened in the California ESMC article, and it's happening again here. 

It is bad enough to read an article and not feel confident that the author's summary of another source is accurate; it's absolutely infuriating to have to set off on a lonely trek to find the source for oneself because Tablet can't hold itself to basic standards of internet professionalism.

It Is Not "Shocking" To Ask Judges to Obey Governing Precedent: On Jones v. Mississippi (and Miller and Montgomery)

Earlier this week, the Supreme Court in Jones v. Mississippi ruled 6-3 that states can sentence juveniles to life without parole so long as the underlying state statute does not mandate such a sentence. While prior decisions (Miller v. Alabama and Montgomery v. Louisiana) suggested that juvenile offenders could only be sentenced to life without parole if they are "incorrigible", the Jones Court held that these precedents do not require the sentencing court to actually make any findings on that point. So long as the court had the discretion to consider the mitigating factors associated with youth, the constitutional mandates set out in Miller and Montgomery are satisfied. In Jones, the result of this holding is that an inmate who committed his crime at the age of 15 and whose conduct since incarceration has seemingly decisively proven that he is not incorrigible but in fact can and has reformed, will -- absent executive clemency -- spend the rest of his life in prison.

Justice Kavanaugh wrote the majority opinion -- the irony of him declaring it permissible to permanently expel a man from society for youthful wrongdoings was not lost -- and at the conclusion seemed to acknowledge that the rule he declared was harsh and perhaps even unjust to Jones. This made me think of my recent article "Sadomasochistic Judging", where I explored how judges acknowledge and lament the pain their rulings cause as a means of securing legitimacy for those rulings. Josh Blackman, though, was very unhappy to see Justice Kavanaugh make these allusions at all. "The Supreme Court should focus on its own business, and let the other branches of state government do their jobs. Stay in your lane."

I am on the record as being strongly in favor of judges making statements of this form, and I won't rehash all my arguments on the subject here. But I will make one point that might be an important clarification regarding my thesis in "Sadomasochistic Judging". One could mistakenly read my article and think I am criticizing judges for a form of hypocrisy or bad faith when they wring their hands about the seeming cruelties they impose. I'm not. The problem I articulate is that judges confuse the pain they wrought for proof of legitimacy, and so come to seek out painful rulings even when they're not legally compelled. Given how badly the Court butchers its legal reasoning in Jones (see below), I don't think its unfair to hypothesize that's part of what's happening here.

That said, assuming that we don't think judges will never have to mete out injustices in order to stay within the law -- and I don't think that -- then judges have to either acknowledge the injustices they enforce or ignore them. Choosing the latter may well replace "sadomasochistic judging" for plain old sadistic judging: judging where it is believed that the judges actively desire the pain they cause for its own sake, or are at least indifferent to it. That, I think, would be disastrous for the legitimacy of the courts. If Justice Kavanaugh (or any other justice) believes that his servitude to the law requires him in a given case to be a dealer of cruelty, the absolute least we can ask out of him is that he acknowledge what he's doing. This is not "virtue signaling" not "checking one's privilege" nor any of the other tired buzzwords Blackman attributes to Justice Kavanaugh. It is having his eyes open to reality.

But Justice Kavanaugh's nod to the human costs of his decision is not Blackman's only bone to pick. In a separate post he also takes aim at a particular line in Justice Sotomayor's dissent, one that he claims to have "shock[ed]" him when he read it. Here's the offending passage:

For present purposes, sentencers should hold this Court to its word: Miller and Montgomery are still good law. See ante, at 19 ("Today's decision does not overrule Miller or Montgomery"). Sentencers are thus bound to continue applying those decisions faithfully. Thankfully, many States have already implemented robust procedures to give effect to Miller and Montgomery. In other States, the responsibility falls squarely on individual sentencers to use their discretion to "separate those juveniles who may be sentenced to life without parole from those who may not." Montgomery, 577 U. S., at 210. Failing to do so violates the Eighth Amendment. 

Huh? What is shocking about this? As Sotomayor observes, the Court explicitly upheld Miller and Montgomery. These cases are still good law. So yes, obviously lower courts are "bound to continue applying these decisions faithfully." That's vertical stare decisis 101.

Blackman explains his shock as follows:

Justice Sotomayor has opened an entirely new front in the battle over stare decisis: if the Roberts Court is unwilling to formally overrule a precedent, then lower courts should still follow those decisions "faithfully." Truly, this proposition is remarkable. Justice Sotomayor is inviting trial courts to engage in a judicial resistance of Jones. Yes, I used the phrase judicial resistance. Unless the Court is willing to bite the bullet and formally overrule the precedent, judges should still follow a rejected-reading of Montgomery and Miller. The antidote to stealth overruling is stealth underruling: lower courts should quietly fail to give a new Supreme Court precedent its fairest reading, in order to preserve a now-rejected reading of an older precedent.

Respectfully, I think this is the sort of passage a faithful exponent of constitutional interpretation can be legitimately shocked by. If the Supreme Court says flatly "we are not overruling, but rather applying, a precedent", lower courts absolutely should still follow those precedents "faithfully". It would be remarkable to suggest anything otherwise. To be clear, I don't deny that sometimes courts overrule cases sub silentio, or that long evolutions in law can make a prior precedent so anomalous that it seems to drop out of the doctrine and eventually ceases to be followed. But that's not what happened here. Jones did not ignore Montgomery and Miller, it did not even criticize them. It claimed to be faithfully applying them. The fairest reading of Jones is that it means what it says: Montgomery and Miller remain fully binding on lower courts.

In Blackman's defense, part of the problem here is that while Jones claims to be following Montgomery and Miller, it really makes hash out of both. In this, Justice Sotomayor (and Justice Thomas, I suppose), are correct -- the rule in Jones is ludicrous as a purportedly faithful application of these prior precedents. But nonetheless, the case says what it says, and lower courts are bound to take it at its word, which means they have to figure out how to harmonize Montgomery and Miller with Jones -- applying them all faithfully.

What does that mean? Montgomery told us that while "Miller did not impose a formal factfinding requirement", this "does not leave States free to sentence a child whose crime reflects transient immaturity to life without parole. To the contrary, Miller established that this punishment is disproportionate under the Eighth Amendment." Justice Kavanaugh, in a show of tremendous bad faith, quotes the former part of the passage ad nauseum while ignoring the latter entirely save for a buried footnote. But again, lower courts have the holdings they have. There still is a distinction between "those juveniles who may be sentenced to life without parole [and] those who may not" -- language from Montgomery that Justice Kavanaugh says he is applying and enforcing in Jones.

The best -- possibly only -- way to harmonize Jones, Miller, and Montgomery is that sentencing courts are not permitted to "sentence a child whose crime reflects transient immaturity to life without parole" (Miller and Montgomery -- these are the juveniles in the "who may not" category), but that so long as the sentencing court is given discretionary authority to consider the constitutionally-mandatory mitigating factors (such as incorrigibility), it will be (irrebuttably?) presumed that they did consider such factors and determined they do not apply to the child if they decide to impose such a life-without-parole sentence -- even if the sentencing court makes no explicit or implicit findings on the question (Jones). This is no doubt why Justice Kavanaugh keeps stressing that what he's rejecting is a demand that sentencing courts make a "separate" factual finding of incorrigibility (in his opinion "separate", in relation to "factual finding", appears close to twenty times). The relevant "finding" is permitted to be and assumed to have been merged entirely into the court's declaration of the sentence -- no "separate" analysis, whether implicit or explicit, is required.

To be sure, the effect of Jones even read this way is to make Miller and Montgomery effectively unenforceable. But an unenforceable rule is still a rule, it just relies on the relevant actors to police themselves in adherence of it -- or put differently, .it requires that such actors behave "faithfully". 

Again, as a claim of being a mere application of Miller and Montgomery, Jones makes a mockery of legal reasoning. It does not apply the prior precedents, it hollows them out. So any attempt to harmonize these precedents is going to generate tension, because in terms of its legal reasoning Jones is barely better than gibberish. If there are portions of Jones which seem to suggest that lower courts are permitted to simply ignore the mandates in Miller and Montgomery, all that demonstrates is that Jones is at war with itself, and in particular the parts that swear up and down that Miller and Montgomery remain perfectly intact. Shoddy reasoning by SCOTUS leads to unclear guidance for lower courts.

Still, the Supreme Court in Jones could have overturned Miller and Montgomery. It didn't -- not just "formally", but explicitly. It was very emphatic that it didn't. Blackman's opening statement -- that "Going forward, Justice Kennedy's 5-4 progressive decisions should no longer be treated as precedential," even where they are not overturned, is not an option lower courts are permitted to indulge themselves in. Justice Kennedy's decisions, progressive or otherwise, 5-4 or otherwise, are precedential up to and until the Supreme Court says otherwise. 

Lower courts are not empowered to do the Supreme Court's wetwork for it. The lower courts' obligation is to follow all the active, binding precedents faithfully. What that means in this context, in practice, is that lower courts, when given the discretion to decide whether to sentence a juvenile to life without parole, are obligated to mete out such a decision only when it is compatible with the holdings set out in Miller and Montgomery, even if they know that thanks to Jones nobody will be looking over their shoulder to check on their work.

One final note. Blackman raises the following hypothetical, which he says is "invit[ed]" by Sotomayor's dissent:

Let's say a sentencer declines to sentence a juvenile defendant to LWOP because the defendant is not incorrigible. That decision can be baked into the broader element of "discretion." Could an appeals court reverse a sentence, because the Supreme Court held that incorrigibility was not required? Of course not. A factor may not be required, but a judge, in his discretion, can still consider that factor. In other words, sentencers can get away with ignoring Jones, and probably will.

This I think gets Jones entirely backwards. Miller and Montgomery set out some constitutionally-mandatory limits on when LWOP can be imposed on a juvenile offender. Jones says that the only constitutional enforcement-mechanism for these rules that the sentencing judge must be given discretion to consider the issue. If a sentencing judge, in using that discretion, determines that a juvenile defendant is not incorrigible and so declines to impose the LWOP sentence, that's doing exactly what Jones (and Miller and Montgomery) say she should be doing. If the judge believes the defendant is not incorrigible but acted with "transient immaturity" yet sentences him to life without parole anyway, defying Miller and Montgomery secure in the knowledge that Jones will insulate her decision from review, that's thwarting the logic of Jones (not to mention Miller and Montgomery). Ironically, such a judge would not even be reading Jones faithfully, to say nothing of Miller or Montgomery. 

Jones is predicated on the belief that, so long as the sentencing judge is given discretion to consider the constitutionally-mandatory factors "necessary to separate those juveniles who may be sentenced to life without parole from those who may not," the judge will consider these factors -- whether they make any "separate" findings or not. A judge who simply refuses to engage in that consideration, knowing that there's no possibility their exercise of "discretion" can be reviewed, is behaving in bad faith. And Justice Kavanaugh alludes to that very point in footnote seven, where he raises the possibility that "if a sentencer considering life without parole for a murderer who was under 18 expressly refuses as a matter of law to consider the defendant’s youth ... then the defendant might be able to raise an Eighth Amendment claim under the Court’s precedents." Of course, any judge who is not an idiot will quickly learn that if he wants to completely ignore the nominally mandatory requirement that they consider the factors related to the offender's youth before imposing LWOP, all he needs to do is say nothing -- an option the Court expressly endorses in Jones. This is why Jones renders Miller and Montgomery a practical nullity. But we could and should still say that a judge who did that -- who exploits the option the Supreme Court gives him to defy without consequence the rules set out in the Supreme Court's binding precedent -- is not acting "faithfully."

It is doubtful that such a faithless judge will be paused by Justice Sotomayor's dissent either, of course. And I can't even claim to be "shocked" that they won't be. But I perhaps still can be shocked to see a legal professional openly object to a judge's straightforward admonition that lower courts should apply precedents faithfully. Miller and Montgomery and now Jones are all binding law, and lower courts now are tasked to make something edible out of the hash that is Kavanaugh's majority opinion.

Reflections on Being Victim of a Scam

Earlier this week, I bought a bunch of Lego sets that appeared to be on sale -- four "Star Wars" sets, and one "Harry Potter" set.

Yesterday, I realized that what I had actually done is fall for an internet scam. The website I bought from has already disappeared. I will not be receiving any Legos.

I've already disputed the charge and canceled the credit card I used. But it was an interesting experience, being a scam victim -- I think for the first time? -- and I wanted to share some of the thoughts I've been having.

To begin, I feel like falling for an internet scam is my decisive induction into being old. Even more than sore knees or a cantankerous attitude towards kids these days, there's no coming back from this. You get duped by an online sale, you're officially old. My only consolation is that, if I'm going to be the sort of old man who falls for online scams, at least those scams will involve Lego sets.

I found the (scam) site via a Facebook ad. I honestly don't know what to make of that fact. I admit that, perhaps naively, I assumed that ads on Facebook were from at least credible businesses, which is why I didn't initially harbor much suspicion about the sale. Was my assumption reasonable?  Did Facebook fail in its duties to me by putting that ad on its site? Or is it impossible for Facebook to effectively screen out the grifters and scam artists from its official, sponsored ads? I genuinely don't know. My instinct is that this reflects poorly on Facebook. I knew better than to click some banner ad on a random site that says "Lego sale!" For whatever reason, I believed that official, sponsored, promoted Facebook ads were more legitimate.

The site itself looked professional enough. The prices were pretty deeply discounted, but it looked like the sort of one day flash sale one often sees from normal online retailers -- that didn't actually raise any flags. If anything, I was more suspicious of the "base" price -- I figured that it was set artificially high so that the "sale" looked like a deeper cut than it was. In any event, it seemed like a good opportunity to buy a bunch of Lego sets which otherwise would be pretty expensive on the cheap, so I splurged. Type in my credit card number; give them my mailing address, and soon bathe in Lego.

I did get a receipt from the site, albeit a pretty vague one that didn't include any indication about when my items would ship or even what they were. It did tell me not to worry that the seller was listed as a person's name rather than the name of the website. These were my first red flags. Last night, I decided to log on to the website to check the status of my order, and wouldn't you know it but the website has disappeared without a trace.

That was the first point I thought "oh, I've been scammed." But that thought immediately pressed up against reflexive denial -- "no, this must be a mistake." What generated that thought? Partially, it was probably humiliation -- I didn't want to admit I'd been so easily duped. But the larger instigator, I realized, was something else: I really was excited about those Lego sets. If it was a scam, I wouldn't be getting the Legos. If I denied it was a scam, I could still think I would be receiving the Legos. Admitting I'd been scammed meant resigning myself to the fact that this thing I was happy and excited about would not come to be. And that was really, surprisingly hard. It felt like an affirmative choice to give up on happiness.

The power of that sentiment -- and the fact that it did have a hold on me even though the evidence that this was a grift job was overwhelming -- surprised me and made me pause to reflect. I suspect that something like this is true of anyone who's taken in by a con artist or a grifter, including a political con artist. One gets hooked initially because one likes what they're (claiming to be) selling. Bring back American jobs, laying low big business elites, draining the swamp -- take your pick. These goods get sold but are never shipped. And when they don't arrive, there is a strong instinct that it must be coming, it must be coming soon, it must be around the corner, because if you admit it's never coming -- oof. That's terrible, to cut the strings on hope. All the more so when what you're hoping for is something a lot more vital than a Lego set.

So yes, I can very much imagine people denying the evidence before their eyes; indulging in denial because it allows them to hold onto the happy, hopeful feeling that drew them to the grifter in the first place. It takes discipline and, in some ways, courage, to cut the cord and acknowledge "I was scammed. The goods are never going to arrive."

"There comes a point in every plot where the victim starts to suspect; and looks back, and sees a trail of events all pointing in a single direction. And when that point comes, Father had explained, the prospect of the loss may seem so unbearable, and admitting themselves tricked may seem so humiliating, that the victim will yet deny the plot, and the game may continue long after."