The Flight 93 Court

"The Flight 93 election" was a term used by conservatives in 2016 to justify voting for Donald Trump. The basic idea was that, even though Donald Trump was essentially everything we, well, knew he was -- a racist, an idiot, a wrecker -- the absolute, desperate need to stop Hillary Clinton from being elected required action that may well be suicidal. "Charge the cockpit or you die. You may die anyway. [But] if you don’t try, death is certain."

Of course, to state the thesis is to underscore the absurdity-cum-perniciousness: the tier one emergency requiring conservatives to abandon all prudence and storm the cabin, was .... the possibility that a bog-standard Democratic politician might win the presidency. It is the prospect of ordinary democratic governance that was the emergency, and that shouldn't be forgotten. As Jamelle Bouie has noted, a running theme of contemporary conservative ideology is the belief that democratic outcomes are fundamentally illegitimate if they result in traditional White men losing. This is what unifies everything from birtherism to January 6 to the attack on mail-in ballots to great replacement theory.

In that vein, I think we might do well to start thinking of the current Supreme Court as a "Flight 93 Court". Over the past several months, it has interceded again and again -- with increasing levels of recklessness -- to sow chaos into the democratic system to the advantage of the Republican Party and the detriment of Democrats. First (well, not "first", but we'll start here) we had Callais, gutting the Voting Rights Act to enable Republican gerrymanders throughout the south and hopefully net the GOP a few more crucial House seats. Callais was followed by Milligan, and then today the Supreme Court's decision to intercede and (for now -- it's a wonky procedural posture) block a challenge to Donald Trump's efforts to sabotage mail-in voting in advance of November's election.

Aside from their obvious partisan tilt, what stands out about these decisions is their perversion of normal legal rules and processes -- blasting past the Court's own nominal guardrails to reach the preferred political result. The most obvious specific is the so-called Purcell principle, which supposedly forbids courts from issuing late-breaking alterations to the rules governing elections in close proximity to said election, but has very quickly developed the implicit caveat of "...unless doing so would benefit Republicans." But there are others. The Court's slaughtering of Humphrey's Executor -- and not just that they did it, but the way they did it; clearing the path for Trump's firings on an emergency basis notwithstanding the clear then-operative precedents that made them obviously unlawful -- spoke to a Court that is positively scrambling to let Trump consolidate as much power as possible, as fast as possible.

It is no revelation to anyone -- even someone as ideologically cocooned as John Roberts -- that these cases are obliterating the Court's legitimacy. Reforms like Court-packing, once viewed as fringe complaints from sore losers, are rapidly becoming litmus tests for any serious Democrat seeking higher office. It is almost impossible to imagine the Supreme Court surviving in its current form in the next Democratic trifecta. Last year, Justice Barrett lectured critics that "agree or disagree with the decisions that the court reaches ... we are engaged in a legal enterprise." The prevailing sentiment among liberal legal observers is to reject precisely this: that we are well past simply disagreeing with the decision the Court reaches, and into the terrain where the Supreme Court should no longer be viewed as engaging in a legal enterprise at all.

Given this cascading, calamitous drop in the Court's public esteem, what is prompting the Roberts Six to press forward? It's not commitment to legal principle -- again these cases stand out for their lack of consistent principle and their deviation from established precedential and doctrinal pathways. Rather, these cases give the unmistakable sense of a Supreme Court that is ready to do anything and everything -- no matter how reckless or lawless -- to stop the Democratic Party from taking power in 2026 and 2028. Nobody seriously thinks that the Court is announcing "law" in any meaningful sense, if by that we mean principles that will govern Democratic and Republican administrations in equal measure. The Court's rush to intercede to maximize Donald Trump's personal authority will not carry over to a Democratic administration. The Court is throwing caution to the wind because it views a Democratic political triumph as an existential threat. It is the charging the cockpit, knowing it might die.

Much like the original "Flight 93" justification, we shouldn't lose sight of the fact that, for the most part, the existential emergency prompting the Court's charge is little more than the prospect of Democrats winning. I'll concede there is a slight difference in this context because of the aforementioned emergent Democratic consensus that the Supreme Court needs to be utterly transformed at the nearest possible opportunity -- but again, that is a tide of revolutionary sentiment that is entirely of their own making. A regular, modest conservative Court would not have prompted this sort of backlash (precisely because, to crib from Justice Barrett, legal professionals do know how to distinguish between outcomes they disagree with and outright judicial lawlessness).

So the Court is locked in on its path. It will endorse all of Trump's lawlessness, it will imperil democracy itself. It may kill us all in the process. But standing in the ruins of a shattered electoral system, they'll at least be able to tell themselves that they did everything they could to stop Democrats from winning.

More Catholic than the Bishops

When I wrote Liberal Jews and Religious Liberty, my goal was to demonstrate how conservative proponents of expansive religious liberty exemptions would prevent liberal religious claimants from accessing those same protections. For example, I predicted that conservatives would challenge the authenticity of Jewish religious commitments insofar as they were liberal (and thus presumptively non-religious in a universe where true religion = conservative Christianity).

With that in mind, this is a great story about brewing contretemps between the Attorney General of Florida, James Uthmeier, and the Florida Conference of Catholic Bishops over the subject of vaccine mandates in schools. Florida law requires that private schools in the state's voucher program to allow parents to religiously exempt their children from school vaccine mandates. As an expression of their own religious commitments, however, Florida's Catholic schools do not want to permit such an exemption, as part of its pursuit of the "common good" and ensuring that its schools are safe havens for the elderly and children who cannot be vaccinated for medical reasons.

In a fit of extraordinary arrogance, Uthmeier (who is himself Catholic) simply asserted that the bishops had "no legitimate religious reason" for denying vaccine exemptions. When the bishops replied that it was not for a state official to tell the Catholic Church what its religious commitments are, Uthmeier whined that vaccine mandates would represent a "completely new teaching." There were a lot of theological/antisemitic reasons why I felt Jews would be especially vulnerable to this sort of authenticity-policing, but it is striking to see that even the Catholic Church can have the authenticity of its religious views questioned when it speaks in a more liberal voice.

Uthmeier also questioned "whether a private school that doesn’t follow state laws protecting parental rights and deeply held beliefs should still be permitted to participate in state programs and receive state funding." This is, indeed, the million-dollar question that will arise again and again now that the Supreme Court has detonated historical barriers between church and state in allowing (and in many cases compelling) state funding of religious schools (and this very controversy illuminates why government "entanglement" with religion was historically seen as such a threat to religious liberty). 

Of course, the question Uthmeier raises is not intrinsically partisan -- in other cases, the variant will be a religious school that wants to discriminate against LGBTQ kids in defiance of state laws requiring equal treatment. But this situation represents a particularly weak case for denying a religious exemption to the church, since the entire premise of the Florida law is about protecting rights of conscience. It can't hold that out as a paramount interest and then withdraw it for religious claimants who express the "wrong" view.

Nonetheless, resolving these cases will be inherently messy, which leaves a lot of room for bias, which leaves ample opportunity for religious and political favoritism. So my baseline prediction remains that conservative adjudicators will grant the exemptions when it favors conservative beliefs (you can discriminate against the gay kids), and will not when it doesn't (you can't have a vaccine mandate). Either the Supreme Court didn't intend for that sort of religious preferentialism to be the consequence of its new free exercise jurisprudence -- or it did.

What's in the Polling Water in the Midwest?

When Abdul El-Sayed won the Democratic nomination for Michigan Senate in a nail-biter, there was some talk about this actually being a disappointing outcome for the insurgent left given late polling that suggested El-Sayed running away with the race. This struck me as basically centrist cope -- one doesn't get to claim a moral victory of losing more narrowly than expected when you outspent your appointment by approximately seven trillion dollars -- but it did race significant questions about what went wrong for the pollsters.

Tonight, David Crowley narrowly upset Democratic Socialist Francisca Hong to win the nomination for Governor of Wisconsin in another race where late polling had given the progressive a commanding lead. In contrast to the Michigan race, I think this really does reflect poorly on Hong, as for an "outsider" candidate she couldn't have asked for more a glide path to the nomination watching her field of competitors implode around her (Crowley actually dropped out of the race a month ago before jumping back in, which is wild).

(Meanwhile, in Minnesota, Lt. Gov. Peggy Flanagan easily won the Senate nomination over Rep. Angie Craig in another progressive/moderate showdown, though this felt more expected.)

So we now have two major midwestern Democratic primary races that were defined by huge polling misses, both in the form of vast overstatements of the strength of the lefty candidate. The big question is what does this mean for November? Does this suggest an electorate that is more conservative than polls are letting on? Or is it actually just showing that there are more "normie libs" whose voices are being drowned out? More than the results, that's the question that's going to keep me up at night.

Moral Luck Sucks

Every once in awhile, I fall into a deep, existential panic over the concept of moral luck.

Moral luck, per the Stanford Encyclopedia of Philosophy, "occurs when an agent can be correctly treated as an object of moral judgment despite the fact that a significant aspect of what she is assessed for depends on factors beyond her control." It presses against a very common intuition, which is that we should not be held accountable for things that we did not choose or which are out of our control (i.e., the products of "bad luck").

For example, suppose two drivers each strike and kill a pedestrian. One did so after carelessly running a stop sign. The other was driving perfectly carefully, but a pedestrian happened to jump out on the street and was struck. The first driver we generally agree can be held liable, often even criminally liable; the second driver we do not, because the former made a bad choice (driving carelessly) while the latter did not.

But here's the thing -- all of us, even those of us who are generally good drivers, have probably run a stop sign at some point in our lives. I have, and I've gotten a grand total of one traffic ticket in my entire life.* 

Do you know what happened the time I ran a stop sign?

Nothing. Nobody was killed or hurt or frankly even noticed. Which is the case 99% of the time people run stop signs. It is a very unlucky 1% who run a stop sign exactly when a car or pedestrian is crossing as well and seriously hurt someone. Again, unlucky.  It is not in the driver's control whether someone jumps out into the street or not. Yes, the more often one runs a stop sign the more one plays the odds. But ultimately, it is purely a matter of luck that I was in the 99% that hurt nobody, versus someone else who hurt someone. Yet that pure luck distinguishes someone whom, at best, we might say deserves a $100 ticket from someone we'd say deservedly should spend decades in jail for vehicular manslaughter.

And that thought makes me dizzy. I'm very much a rule follower. Other than that one traffic ticket, I've never been involved with the law in any way, shape, or form. And yet, it is just a matter of good fortune that I -- living the exact life I've lived and making the exact choices I, the consummate rule-follower, made -- could have been sent to prison for decades with nobody thinking it at all unjust.

No moral to the story. Just sharing a thought that's responsible for this month's bout of insomnia.

* It was for an illegal right turn while driving to school. The route from my house to school included a right turn on a street with a "no right turn" sign operative from 7 AM - 9:30 AM. That didn't affect me, though, because I drove to school at 6 AM. But one day there was a two-hour snow delay, so instead of driving at 6 AM, I was driving an 8 AM. A cop posted up on the corner and probably bagged half the senior class. Yes, I'm still salty about this.

It's Not ALWAYS a Conspiracy

In a rematch of their 2024 contest, Democratic Rep. Wesley Bell prevailed over former Rep. Cori Bush, whom Bell ousted in his own primary challenge last cycle. While Bell won the 2024 race by approximately 5 points, he's expanded his lead to over 20 this time around.

But I actually want to flag a tertiary point. When looking for a news report on the race and its outcome, I happened to click on the NBC article (for no other reason than it was near the top of the Google results). The story interviews two voters, both of whom supported Bush. Which I found a bit odd, given that Bush, you know, lost (and lost by a wide margin). The broader copy, to my ears, also seemed to center Bush's "theory of the case" (if you will) regarding Bell being "bought" and Israel being the critical issue.

If I were a different sort of person, I'd spin out quite the tale about this -- of media bias and journalistic narratives and a clear ideological agenda keyed against politicians like Bell and in favor of those like Bush. But my actual point is the exact opposite: there is no conspiracy here. Is it probably better practice for NBC to interview voters who support the winning candidate when reporting on said candidate winning their race? Yeah, I think so. But these things happen, and they happen to candidates from all across the political spectrum, and so plucking out one discrete instance of it and saying "See! See! They really are all out to get us!" is not actually a valid move -- whether it's on behalf of a Bell-sort or on behalf of a Bush-sort.

In any event, congratulations to Wesley Bell, Abdul El-Sayed, Marie Gluesenkamp Perez, William Lawrence, Jeremy Moss, and all the Democrats who secured their nominations tonight. Let's get out there and win some seats!

Racist Idiots Continue To Be Mad That Caitlin Clark Is Not Racist, Part II

A few years ago, I flagged a fun phenomenon afflicting WNBA superstar Caitlin Clark. You see, as a White superstar in a league with many Black players, racist idiots really wanted Caitlin Clark to be racist. And when she declined, they got very mad at her.

This week, as teammate Sophie Cunningham more explicitly positioned herself as the darling of the right-wing grievance crowd, the knives are back out for Caitlin Clark.

It's hilarious how Walsh doesn't even consider the possibility that Clark doesn't think she's been subjected to "anti-white racism." The only explanation for her reticence to name it is that she's a coward. Likewise, it does not strike me as out of character that a fierce competitor like Clark is uninterested in bawling about how hypothetical trans competitors will be just too good for her to handle. But of course Walsh can't comprehend that a woman might actually have a bit of pride in her basketball abilities such that she doesn't fear open competition. Surely Clark must know she's an inferior, right? Right?

What this reminds me of, incidentally, is a story I've told a few times about how certain "allies" react to my account being Jewish at Berkeley. They start with the assumption that Berkeley is an antisemitic hellhole and come ready to lend aid and comfort to a Jew like me who must have suffered terribly during my time there. But to their surprise, I tell them that this wasn't my experience, and while it certainly wasn't an idyllic paradise and I won't speak for anyone else at a huge campus like UC-Berkeley, I generally was quite comfortable as a Jew there. And this response is infuriating, and my would-be "ally" turns on me with a vengeance, convinced that only a spineless, self-hating Jew would refuse to confirm their narrative about pervasive Berkeley antisemitism.

And then they wonder why folks like me don't recognize them as the true allies of the Jews.

Clark is going through the same thing. A bunch of right-wing white knights ride out on her behalf to defend against the terrible mistreatment and oppression she labors under. Clark demurs, indicating that this is not her experience and not a description she identifies with. And then her would-be saviors savage her for her impertinence -- she's a coward, she's spineless, she's a race traitor. No doubt, they will continue to wonder why Clark doesn't view them as her buddies.

Things People Blame the Jews For, Volume LXXXI: Migrants from Morocco

On Thursday, a large influx of migrants (reportedly 60,000) crossed from Morocco into Ceuta, a Spanish exclave on the mainland African coast. This has led to a lot of far-right chirping and no small number of conspiracy theories. And where there are conspiracy theories, well, you know what's going to follow -- it's a Zionist plot, done to "punish" Spain for its pro-Palestine advocacy.

At first it was just the usual assortment of Twitter randos, notable only for giving us the never-before-uttered phrase "Zionist-occupied Morocco". But it has definitely broken containment. Al-Jazeera has a "just raising questions" column that doesn't allow a complete lack of evidence to interfere with a "[w]hether Israel is indeed involved ... remains to be seen" conclusion. Then Javier Bardem got in on the action, with a profoundly weird Instagram post implying that actually Morocco is a European power invading African Spain (with the same "we don't know who engineered this crisis", but we sure feel confident suggesting it's Israel!).

One thing this particular incident inspired me to do is reflect on how I deal with statements blaming "Zionists" or "Israel" in this series. It's called Things People Blame the Jews For, and as approximately three million BlueSky users are quick to remind us, "Jew" is not a synonym of "Israel" or "Zionist". And of course, I do not contest that Israel does any number of things for which it can be "blamed" for (and which it would never occur to me to put into this series). So what does make a "blame the Zionists" post TPBTJF-qualified?

The basic answer is that I'll include an incident if it's clear that "Israel" or "Zionist" is standing in for the role Jews have historically occupied in conspiracy theories -- as a ready-available source of blame for generic bad things that have no significant connection to Israel or Jews at all (beyond the normal connections that can always be found between one significant social group and another). People race to that explanation not because it's objectively all that plausible, but because it will always feel plausible to those for whom "it's the Jews fault" always has an above-baseline ring of truth to it.

If one buys into the "punishment" argument, one could basically say that any bad thing that happens to any country which is critical of Israel can be plausibly suggested to trace back to Israeli malfeasance (see also: Egypt suffered from some controversial World Cup calls because Israel). This is very convenient for the leaders of said country, but not very convenient for people actually interested in the true sources of said bad thing.