Even The Conservative Richard Posner…

…thinks Roberts’ voting rights decision sucked [redacted; this is a family blog].  In the Tammy Duckworth Smash thread below, Soonergrunt sends us to conservative jurist Richard Posner’s post at Slate that basically eviscerates the VRA opinion in terms that I’m pretty sure appelate judges do not often direct at the Chief Justice of the United States.

William_Hogarth_031

Seriously, from the very beginning of the piece, it’s no-prisoners-time:

Shelby County v. Holder, decided Tuesday, struck down a key part of the Voting Rights Act (the part requiring certain states with a history of racial discrimination in voting to obtain federal permission in advance to change their voting procedures—called “preclearance”) as violating the “fundamental principle of equal sovereignty” of the states. This is a principle of constitutional law of which I had never heard—for the excellent reason that, as Eric points out and I will elaborate upon briefly, there is no such principle.

Begin as you mean to go on, your honor:

… Justice Ruth Bader Ginsburg’s very impressive opinion (in part because of its even tone), at a length (37 pages) that, remarkably, one would not like to see shortened—marshals convincing evidence that the reasons Congress has for treating some states differently for purposes of the Voting Rights Act are not arbitrary, though they are less needful than they were in 1965, when the law was first enacted.

That evidence—the record before Congress—should have been the end of this case.

It was not.  Why?  Because, says Judge Posner — a Reagan appointee to the 7th Circuit Court of Appeals — Chief Justice Roberts is a “crafty” incrementalist, which, translated out of collegial speech, I think means that Roberts is a slick ratf**ker:

….the real key to “stealth” jurisprudence is patient, crafty incrementalism (no conservative monopoly on that strategy, of course). It’s a strategy illustrated by Shelby’s predecessor, the 2009 decision in Northwest Austin Municipal Utility District No. 1 v. Holder, heavily cited in Shelby. That was a case in which Chief Justice Roberts, again writing for the majority, criticized the same part of the Voting Rights Act, and invoked the same imaginary doctrine of “equal sovereignty,” yet without actually invalidating anything, and so avoiding a dissent by the liberal justices. So now in Shelby he could quote extensively from his opinion in Northwest Austin as if to imply that really there was nothing new here—just a small and logical next step.

Posner saves the last, best bit of rhetorical disdain for his closing:

Was that a disreputable tactic, or merely a clever one?

As intended by its writer (I’m sure), that question answers itself.

Image:  William Hogarth, The Polling, from The Humours of an Election series, 1754-1755.






74 replies
  1. 1
    A Ghost To Most says:

    [redacted; this is a family blog]

    huh? fuck that shit

  2. 2

    Even The Conservative Richard Posner…

    Richard Posner is what a genuine conservative intellectual looks like. He starts with facts and conservative views, and then follows logic to its logical conclusion Alleged conservative intellectual Justice Scalia is a Conservative sophist, who starts with Conservative conclusions and argues backward to the facts.

  3. 3
    danimal says:

    How will this impact the 2014 elections? Before weeping and gnashing our teeth, we should ask a simple question: Will the number of disenfranchised minorities be greater than the number of fully engaged and newly motivated ones?

    Also: When trying to predict turnout, demographics and history can be important, but so is the answer to the following question: Who is the most pissed off?

    (Yes–the tea party is plenty pissed off, but much of that anger is of the circular firing squad variety…a dynamic that should be easy to exploit.)

  4. 4
    srv says:

    Unitary Executive, Enhanced Interrogation, Torture is not cruel or unusual punishment because it isn’t punishment, Equal Sovereignty…

    Those Federalist Society boys are dotting their i’s and crossing their t’s.

  5. 5
    JGabriel says:

    @A Ghost To Most: I think Tom might have been referring to his science/political/personal blog, Inverse Square, when he wrote that sentence.

  6. 6
    Citizen_X says:

    You think that’s something? Even crazy Republican Rep. Sensenbrenner criticizes the VRA decision. Sensenbrenner!

    He also calls on Congress to pass a legal fix, like the Court allowed. Good luck with that, Congressman.

  7. 7
    dedc79 says:

    Posner may have some conservative inclinations as part of his “Law and Economics” theorizing, but he doesn’t fit neatly into the “conservative” box.

  8. 8
    feebog says:

    They are trying to turn back the demographic tide that is inevitably going to wash over them. It is going to have some effect, for a short time. But they cannot overcome the fact that this nation is changing, and changing at a rather rapid pace. All these voter suppression schemes are going to fail in the end; voter ID laws can be overcome with grassroots pushback, and Gerrymandering can only do so much.

  9. 9
    Tom Levenson says:

    @JGabriel: Actually — it’s mostly that I don’t do richly profane invective as well as most here, so I thought I’d provoke the crowd and see what might come up. Though it’s true that I try to keep my language under control at Inverse Square and in public (which this is) generally.

  10. 10
    Poopyman says:

    [redacted; this is a family blog]

    When did that happen?

    (Man, I gotta stop sleeping to keep up around here.)

  11. 11
    Corner Stone says:

    @Roger Moore: You mean this genuine Richard Posner?
    Not a Suicide Pact
    “Posner stresses the limits of law in regulating national security measures and underscores the paradoxical need to recognize a category of government conduct that is at once illegal and morally obligatory.”

  12. 12
  13. 13
    Mnemosyne says:

    @danimal:

    Also: When trying to predict turnout, demographics and history can be important, but so is the answer to the following question: Who is the most pissed off?

    Yep. 2010 was a wave election because the Republicans scared the crap out of elderly voters and convinced them that Obamacare meant the death of Medicare, so they voted in even higher numbers than usual. Add in the disgruntled Republican “Tea Party” voters and the Republicans swept into office.

    So the question becomes, how do the Democrats harness that anger for 2014? I think this is one case where exploiting voter anger is fully justified.

  14. 14
    BGinCHI says:

    @Poopyman: Turns out DougJ is only 15.

  15. 15

    @BGinCHI: We’ll have to call him DougJ Howser

  16. 16
    Another Halocene Human says:

    Okay, so good news: Battleground Texas has a donor who is matching contributions until the end of June so you can go there and contribute now. Despite the Texas talk they do allow out of state contributions. They are also hiring activists and they have volunteers getting voters registered RIGHT NOW. They capitalized on the last few days pretty well. And Eva Longoria did a fundraising letter.

    I’ve heard about about voter registration orgs starting up in MS, AL–can anybody give me some info? They are closer to me so I’m highly interested in assisting in any way that I can. Also, taking Amtrak named trains CRESCENT and CITY OF NEW ORLEANS through AL and MS recently also provided a great deal of motivation for me.

    I think (DougJ? Mistermix? Anne Laurie?) we need a VRA post identifying all the great progressive groups forming to register people to vote. I’m sure there are some groups in AZ (I have a friend who is involved in #StopArpaio) and we have some groups like Fight Back Florida, Florida New Majority, and Jobs With Justice, as well as Coalition of Immokalee Workers doing great work in Florida right now although in terms of straight up registering people the law makes it hard for all but political parties to do it. And let’s not forget the work of SDS.

  17. 17
    Jack the Second says:

    Man, I was already pissed off before reading Posner’s thoughts on the matter.

  18. 18
    BGinCHI says:

    @SatanicPanic: Perfect.

  19. 19
    Turgidson says:

    Posner has been key in providing legal intellectual cover for neoliberal plunder over the last 30 years, and he’ll never live that down. But he isn’t a stooge for the conservative movement by any stretch, and is much more interesting than those who are.

  20. 20
    Corner Stone says:

    The Boston Bomber charged with using WMD?
    This prosecutor is just fucking nuts.

  21. 21
    Rob in CT says:

    edited…

    Wait, both an Eric and a Richard Posner are part of that roundtable? Grrr, confusing!

  22. 22
    Turgidson says:

    @Citizen_X:

    Primary challenge from Batshit McKnuckledragger coming soon to his district.

  23. 23
    Tone in DC says:

    @Roger Moore:

    Richard Posner is what a genuine conservative intellectual looks like. He starts with facts and conservative views, and then follows logic to its logical conclusion Alleged conservative intellectual Justice Scalia is a Conservative sophist, who starts with Conservative conclusions and argues backward to the facts.

    When a Reagan appointee sez these idjits are full of it, I have to smile.

  24. 24
    burnspbesq says:

    @danimal:

    Will the number of disenfranchised minorities be greater than the number of fully engaged and newly motivated ones?

    Don’t say that like it’s something we have no control over.

    Bigger picture, there’s a valuable lesson for the left and leftish to learn from Shelby County.

    For far too long, our side has been overly reliant on the courts to secure and protect the rights of minorities, women, LBGT, non-mainstream religions, the diadvantaged, etc. In part, that was because it was easy. Litigators are like washing machines: you load them up, turn them on, and you can go away and do something else while they do what they’re designed to do with minimal supervision or intervention. In part, it was because from the early 1950s until around 1995, it (mostly) worked.

    Well, it doesn’t work nearly as well as it used to. Beginning in the 1980s, the right wing deliberately set out on a long-term, multi-faceted strategy to turn the tide. It started with the Reagan and Bush I administrations (a) applying ideological litmus tests in selecting judicial appointees and (b) consciously selecting younger appointees. At the same time, the Federalist Society set out to remake legal academia in its own image. When I was in law school, nobody took originalism seriously; now, it’s the prevailing mode of Constitutional interpretation, and in its more virulent mutations (e.g., Justice Thomas) has convinced itself that nothing of Constitutional significance took place between 1861 and 1870. Finally, the right took advantage of the Bork confirmation fiasco to do away with the idea that consideration of judicial nominees should be a non-partisan process.

    And we slept through the whole thing.

    The bottom line is that our side can no longer rely on the judiciary to do what it used to do. Litigation will still have a part in protecting rights, but it can’t be the whole strategy. We have to become as focused and result-oriented as they are, we can’t be complacent about any election, anywhere, and we have to take back the legal academy. None of that will be easy, but it has to be done.

  25. 25
    Redshift says:

    It’d be interesting to go back through Roberts’ confirmation hearing and see if there’s anything substantive he said that wasn’t a bald-faced lie.

    Billmon points us to his post from that period explaining how Roberts was part of the gang in the Reagan DoJ trying to figure out how to kill the VRA. So really, it’s unsurprising that once on the Supreme Court, he ruled that it violated the Constitution without naming any constitutional principle. The only surprising thing is that Beltway pundits continue to try to convince themselves that there’s any legal justification behind most of his decisions other than “this is another Federalist Society wet dream.”

  26. 26
    burnspbesq says:

    @Corner Stone:

    What else would you call a bomb?

  27. 27
    MikeJ says:

    @Corner Stone: Moronic yes, but it actually does fit what the poorly written law says:
    18 USC § 2332a

    (2) the term “weapon of mass destruction” means—
    (A) any destructive device as defined in section 921 of this title;
    (B) any weapon that is designed or intended to cause death or serious bodily injury through the release, dissemination, or impact of toxic or poisonous chemicals, or their precursors;
    (C) any weapon involving a biological agent, toxin, or vector (as those terms are defined in section 178 of this title); or
    (D) any weapon that is designed to release radiation or radioactivity at a level dangerous to human life; and

    B, C, and D are what humans would call WMDs. The relevant part of section 921:

    (4) The term “destructive device” means—
    (A) any explosive, incendiary, or poison gas—
    (i) bomb,
    (ii) grenade,
    (iii) rocket having a propellant charge of more than four ounces,
    (iv) missile having an explosive or incendiary charge of more than one-quarter ounce,
    (v) mine, or
    (vi) device similar to any of the devices described in the preceding clauses;

  28. 28
    patroclus says:

    Thanks for the link – that was an excellent read. Posner is not really a conservative – he used to be, but now he’s a judge and he genuinely tries to apply facts and dispense justice. His takedown of Bush v. Gore was just as excellent. I honestly wish he, rather than Scalia or Thomas or Roberts or Alito had been a Republican nominee for the SCOTUS – I think he would have been at least as good as Souter and possible better.

    Of course, now that Roberts has enunciated the nonsensical principle of “equal sovereignty,” one can’t really say that it doesn’t exist anymore. It does because Roberts had a majority and he said it does. Unfortunately, that’s the way law works.

    Posner’s criticism, though, means that it seems likely that Shelby is going to be very poorly regarded by the legal community – perhaps in the Plessy/Dred Scott mode. What this reminds me of is a case in the 1980’s that struck down the Adarand compromise on employer discrimination rules – then, we had Ted Kennedy who moved heaven and earth to pass the Civil Rights Restoration Act which the first Bush actually signed. Now, I’m not so confident about Congressional action any time soon.

  29. 29
    Trollhattan says:

    @Corner Stone:

    From what I’ve read the devices used actually fit the legal definition. Oddly, I don’t think a Bushmaster with 30-round clip does.

    In other misadministration of justice news, holy shit do banks ever have pull.

    Jeff Olson, the 40-year-old man who is being prosecuted for scrawling anti-megabank messages on sidewalks in water-soluble chalk last year now faces a 13-year jail sentence. A judge has barred his attorney from mentioning freedom of speech during trial.

    According to the San Diego Reader, which reported on Tuesday that a judge had opted to prevent Olson’s attorney from “mentioning the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial,” Olson must now stand trial for on 13 counts of vandalism.

    In addition to possibly spending years in jail, Olson will also be held liable for fines of up to $13,000 over the anti-big-bank slogans that were left using washable children’s chalk on a sidewalk outside of three San Diego, California branches of Bank of America, the massive conglomerate that received $45 billion in interest-free loans from the US government in 2008-2009 in a bid to keep it solvent after bad bets went south.

    The Reader reports that Olson’s hearing had gone as poorly as his attorney might have expected, with Judge Howard Shore, who is presiding over the case, granting Deputy City Attorney Paige Hazard’s motion to prohibit attorney Tom Tosdal from mentioning the United States’ fundamental First Amendment rights.

    “The State’s Vandalism Statute does not mention First Amendment rights,” ruled Judge Shore on Tuesday.

    (H/T LGM) http://rt.com/usa/california-m.....banks-237/

    Chalk. Washable chalk. On the sidewalk. Thirteen years. Do we have a gulag for him?

  30. 30
    Mnemosyne says:

    @Trollhattan:

    IIRC, there’s a weird thing in California property law that says that the sidewalk in front of a building belongs to the building’s owner and is not actually public property like it is in other states.

  31. 31
    Redshift says:

    @burnspbesq:

    When I was in law school, nobody took originalism seriously; now, it’s the prevailing mode of Constitutional interpretation

    Really? That’s pretty terrifying. Is there anyone you can point to who makes an actual intellectual case for originalism? Based on the rhetoric of very person I’ve heard about who claims to be an originalist (especially including Supreme Court justices), “originalism” seems to be an argument from authority that equates to “here’s what I think and I say the Founders agree with me so I win.”

  32. 32
    burnspbesq says:

    @Trollhattan:

    San Diego County Superior Court is made up primarily of wingnut former prosecutors. Nobody who understands how that court works can possibly be surprised by this.

  33. 33
    Trollhattan says:

    @Mnemosyne:
    Could be, as I and not the city am responsible for sidewalk repair in front of my house. But can I have the neighbor kids arrested for vandalism when chalking a hopscotch game on it?

  34. 34
    PeakVT says:

    I suppose it’s nice that someone generally considered conservative is denouncing the Shelby decision, but the piece isn’t particularly interesting on it’s own.

  35. 35
    GxB says:

    @Citizen_X: I followed that link sure that it went to the Onion or Daily Currant but alas – my gasted has been flabbered. When that bitter old goat says the SC went too far, and on a voting issue of all things, I really have to wonder what he’s trying to pull. I suppose he thinks it will make him hep to that all important 45-55 year old “up and coming” demographic of the old boys club.

  36. 36
    Redshift says:

    @Trollhattan:

    “The State’s Vandalism Statute does not mention First Amendment rights,” ruled Judge Shore on Tuesday.

    That seems like a procedural error begging for an appeal. It’s hard to imagine any law that restricts speech mentioning the First Amendment. Free speech a fundamental right; the whole point is that laws can’t go against it just by pretending it doesn’t exist. (Which is not to say that it necessarily applies — free speech isn’t completely unconstrained — but not being allowed to raise the argument?)

  37. 37
    Redshift says:

    @PeakVT:

    I suppose it’s nice that someone generally considered conservative is denouncing the Shelby decision, but the piece isn’t particularly interesting on it’s own.

    I think it’s useful in adding to the emperor-has-no-clothes pile-on pointing out that they declared it unconstitutional without pointing out any part of the Constitution it violated.

  38. 38
    MattW says:

    @Redshift:

    “originalism” seems to be an argument from authority that equates to “here’s what I think and I say the Founders agree with me so I win.”

    Sounds like they’ve been learning from the religious right: “I think abortion is evil and so does The Creator of the Universe!

  39. 39
    gene108 says:

    @burnspbesq:

    Whose going to pay for this multipronged approach?

    The Right, as a movement, has sustained itself for so long because folks with deep pockets don’t mind paying for The Heritage Foundation or The Federalist Society.

    After the grass roots movements of the 1950’s, 1970’s and 1960’s lost momentum, there isn’t anyone with deep pockets to fund a continued movement, unlike on the Right.

    The big money on the Right keeps pushing for their agenda despite setbacks, like the popular disinterest in privatizing Social Security from 2005.

    There isn’t the same singleminded focus on the Left, especially regarding economic issues.

  40. 40
    burnspbesq says:

    @Redshift:

    You can actually find the roots or originalism in Ely and Bickel. Bork and Scalia, in their law-prof days, were important figures in the rise of originalism. Today, Randy Barnett is probably the foremost originalist scholar.

    It’s easy to be overly inclusive in a critique of originalism. It is useful, when thinking about a new problem (like, for example, drooooonnnez), to think by analogy to a similar problem of the late 18th century that would have informed the Framers’ (or the drafters of the Reconstuction amendments’) view of what they were doing. That’s why we still treat the Federalist Papers as an important source of information.

    But you’re not far from correct when you say that originalism is often used as a shibboleth to protect all sorts of wingnut outrage from careful analysis. And a lot of originalists are shitty historians.

  41. 41
    burnspbesq says:

    @gene108:

    $20 x 20,000,000 donors = $400 million. That’s the way it’s going to have to be done, and the Internet provides the tools to do it.

    The public radio fundraising model: give us your credit card number, we’ll hit you for ten bucks a month that you won’t even notice. And we’ll send DougJ a totebag.

  42. 42
    scav says:

    Ooooo, wouldn’t I like to get 13 years in the slammer for those people evangelizing (or saying “Merry Christmas”) on my sidewalk without my express permission. Or does Reeee-ligious speach got those secret sauce special rights kind of “More Free than Thee” protections? Cause Evangelizing and Spreading the Gosss-pulll sure somehow isn’t Lifestyle Recruitment.

  43. 43
    A Ghost To Most says:

    @Tom Levenson:

    Happy to help. Every movement needs intellectuals who can debate at length and with accuracy, and bomb throwers.

    I try to live by something I learned 30 years ago at GE; “If you can’t write your idea on the back of a business card, you don’t have a clear idea yet”.

  44. 44
    MikeJ says:

    @scav:

    Ooooo, wouldn’t I like to get 13 years in the slammer for those people evangelizing (or saying “Merry Christmas”) on my sidewalk without my express permission

    If you use your hose they wash right off.

  45. 45
    gene108 says:

    @burnspbesq:

    It could work. I hope it does work.

    Though you’d need to make sure you limit the number of institutions tripping over each other to grab donor dollars and for that you’d need some top-down coordination.

    You don’t need 2,000 (liberal equivalent) of Tea Party Groups tripping over each other to get $20 from their neighbors, because some folks playing cards one night decided it’d be a good idea to start their own group, after a few beers.

  46. 46
    cvstoner says:

    I think Posner knows that the Republicans are tickling the dragon’s tail here, and are about to get very, very burned. Their meddling with voting rights is soon to become very center stage.

    Personally, I think Roberts is one of the most insidiously dangerous and sustained threats to our democracy this country has ever seen.

  47. 47
    scav says:

    @MikeJ: They melt like witches? That’s unexpected. Their Flying Monkeys do wear unusually tidy suits and ties though.

  48. 48
    Jack the Second says:

    @Trollhattan:

    Chalk. Washable chalk. On the sidewalk. Thirteen years. Do we have a gulag for him?

    Every time something like this happens and there isn’t a literal riot in protest of it, I get a little sad inside.

  49. 49
    Trollhattan says:

    @MikeJ:
    Just make sure it’s a garden hose and not the metaphorical one.

  50. 50
    MomSense says:

    @Another Halocene Human:

    Yes, we do need info on voting groups that are starting up. I would be very interested in mobilizing my church and political contacts to travel and help.

    I also think it will be important to have people document what is going on. We need citizen journalists on the ground there cuz FSM knows our media don’t care one whit.

  51. 51

    Immigration reform passes the senate 68-32. Good luck with that Boehner…

  52. 52
    burnspbesq says:

    @Trollhattan:

    For such a heinous crime, life in Pelican Bay Supermax is obvs and totes the only appropriate punishment.

    Jeez, it’s a good thing we have appellate courts.

  53. 53
    MomSense says:

    @👽 Martin:

    Agent Orange is in a bit of a pickle. I read earlier that the Republican House members are threatening to oust him if he breaks the Hastert Rule on this.

  54. 54

    @👽 Martin: How soon before we have Speaker Eric Cantor?

  55. 55
    Chris says:

    @feebog:

    They are trying to turn back the demographic tide that is inevitably going to wash over them. It is going to have some effect, for a short time. But they cannot overcome the fact that this nation is changing, and changing at a rather rapid pace

    I don’t know. Much of the nineteenth century was spent suppressing the rights of non-WASPs even when, as was often the case, they were the numerical majority, in order to ensure that The Right People would stay in office. (Like many here pointed out the other week – black people were actually a majority in a bunch of the places Jim Crow applied). I think at this point that’s pretty much what the Republicans have settled on as their method of maintaining control. Don’t know if it’ll work or not, but I wouldn’t underestimate their chances; it took massive popular mobilization and decades of work to overcome.

  56. 56
    What Have the Romans Ever Done for Us? says:

    So the States with a nearly 200 year history of treating people unequally, and violating their fundamental rights, are nevertheless entitled to a “fundamental principle of equal sovereignty?” It doesn’t exactly take a magnifying glass to spot the injustice in that argument.

  57. 57
    gene108 says:

    @SatanicPanic:

    How soon before we have Speaker Eric Cantor?

    I wonder how many Republicans, who feel America is a Christian nation, will be happy with a Speaker Cantor?

  58. 58
    Trollhattan says:

    @👽 Martin:

    How many gazillion bucks did the Rs shoehorn in there for border securitysterilization?

    I swear, the Party of Fiscal Discipline sure throws that baby out with the Mexican bathwater.

  59. 59
    dslak says:

    @gene108: Minorities are okay, so long as they know their place and are sufficiently devoted to the cause. And Cantor’s not one o’ them big city Jews, after all.

  60. 60

    @gene108: They’ll like that they can call every Democrat who disagrees with him an anti-semite.

  61. 61
    handy says:

    @gene108:

    He’s a Joodayochrishun (he believes in Free Market Jesus too), so…he’ll be fine.

  62. 62
    IowaOldLady says:

    The VRA decision sickened me so much that I had a hard time taking pleasure in the fall of DOMA. I was impressed, as always, by John Lewis, who was there rejoicing with LGBT community, despite the VRA loss and how sad he seemed over it. He’s a far, far better person than I am.

  63. 63
    catclub says:

    I just read Ginsburgs demolition of the majority opinion. Thoroughgoing and extremely depressing.
    The 5 were acting as lawless thugs. Ignoring whatever record needs to be ignored.

  64. 64
    Tokyokie says:

    It strikes me that, in general terms, apartheid was a political system in which the dominant socioeconomic class narrowed the electorate so that it was more congruent with that dominant socioeconomic class, thus allowing the dominant socioeconomic class to wield more power. So how is what the Republican Party is now doing in Shelby County v. Holder and the promulgation of voter ID laws (as well as the enabling decision in Crawford v. Marion County Election Board) any different?

    So let’s start calling the supporters of the movement what they are: Apartheid Republicans.

    Sure, it’s a virulent term. But it’s also pithy and spot on. It calls them on their tactics and puts them on the defensive. If they want to reinstitute Jim Crow, which was the American version of apartheid, we need to saddle them with all the baggage that goes with it.

  65. 65
    Villago Delenda Est says:

    @srv:

    Those Federalist Society boys are dotting their i’s and crossing their t’s.

    They’re cribbing from the notes of the lawyers of the NSDAP.

  66. 66
    Villago Delenda Est says:

    @Corner Stone:

    Apparently now a hand grenade is a weapon of mass destruction.

    WMD had become a rhetorical football, and its meaning degraded in the process.

  67. 67
    Suffern ACE says:

    @burnspbesq: Darell Freeman, the Vice President of Bank of America’s Global Corporate Security, is perhaps a bit uptight. Imagine what the banks to protesters in places more beholden to them than the us. Like let’s say…oh forget it. There aren’t any.

  68. 68
    Another Halocene Human says:

    @Mnemosyne: I thought the public had an easement. Otherwise how could we trespass and maintain sidewalks and utility lines there?

  69. 69
    Another Halocene Human says:

    @gene108: I disagree. I think the top-down approach (DNC, state Democratic parties) has been an Epic Fail and letting 1000 flowers bloom, such as individual donors on ActBlue and independent groups like MoveOn has worked brilliantly to get more and better Democrats in office.

    It also has the advantage that the GOP keeps looking for the hydra’s head (ACORN) without catching on that one hundred new activists have sprung up for every one they cut down.

  70. 70
    Another Halocene Human says:

    @SatanicPanic: If Cantor can’t get a majority of votes in his chamber then he isn’t a speaker, he’s a joke.

    Last time he threatened he didn’t have anywhere near the numbers to out Boehner but even if he does get the spot he will immediately look like even more of a fool than his predecessor. That Farm Bill was like the appetizer.

  71. 71
    Mnemosyne says:

    @Another Halocene Human:

    As I understand it, not in California. The property owner is responsible for sidewalk maintenance, not the city. You’re allowed to walk on the sidewalk, but not linger. This is why nobody walks in LA. :-)

  72. 72
    SiubhanDuinne says:

    @IowaOldLady: He is a good man and a good Representative. I wish he were mine.

  73. 73
    sherparick says:

    Another article, written before Shelby County decision but predicting it, discusses the real origin of the doctrine of “equal state sovereignty” comes from, “Ol’ Dixie hereself.” http://www.yalelawjournal.org/.....the-south/

    …Reconstruction was a powerful indignity to Southern whites, one that piled an inversion of the racial political order on top of humiliating military defeat and economic desolation. In opposition to Reconstruction, Southerners began to forge a combination of themes into a powerful ideology: Southern honor and virtue, the perfidious and dishonorable character of the federal occupation, principles of state sovereignty and the equal treatment of the states, and opposition to racial equality.26 Benjamin H. Hill, a former Confederate senator from Georgia, argued in 1868 that the Northern occupiers aimed to “dishonor” the South, and that the presidential election of that year turned “upon the glorious ancestral doctrine that the States are equal and that white blood is superior.”27 (This glorious doctrine did not carry the day; Ulysses S. Grant and the Republicans won, leading to the passage of the Fifteenth Amendment.)

    One of the great scenes in Blight’s book is an event that turned out to be a preview of reunion on the South’s terms: the unveiling, in 1875, of a statue of Confederate General Stonewall Jackson in Richmond. The recently elected Democratic Governor of Virginia, James Kemper, declared the event a reminder of the “respect” due the South, and a harbinger of “actual reconciliation,” which would mean the “equal honor and equal liberties of each section.”28 There would be decorations by the Ku Klux Klan along the parade route, but there was a dispute about whether to allow black marchers in the parade. Some argued that this would be “an indignity to the memory of Jackson and an insult to the Confederates.”29 In the end, the black marchers did not march.30 The moment encapsulates Blight’s story: it illustrates the disastrous implications of reconciliation for black civil rights. For Northern and Southern whites to “clasp hands across the bloody chasm”31 with equal dignity and equal moral standing, it was necessary to submerge or forget much of what the War was about—specifically, that one side fought to keep black people enslaved, and the other side, by the end of the War, fought for their freedom. In a nation that has repudiated slavery, this means the Civil War has a right side and a wrong side. Forgetting that took effort and determination….”

    That last sentence should be in the present tense. Imagine the immense effort of will and determination for Clarence Thomas to write the stuff he does. He seems to channel Anthony Johnson. See http://en.wikipedia/wiki/Antho.....olonial%29, just as Scalia, Alioto, and Roberts channel Roger Taney (a justice who also like to use the term “original intent” in his most famous opinion. http://en.wikipedia.org/wiki/Roger_B._Taney

  74. 74
    patrick II says:

    @Redshift:

    Thank you Redshift. Finding Billmon again is a nice bonus to Posner’s and the commentariot’s insight into Roberts. It is not surprising Billmon could see right through him six years ago. He is every bit as radical as Alito or Scalia, but he is smart enough to icepick the constitution instead of bludgeoning it. People don’t notice the bleeding and the seriousness of the wounds until it is too late.

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