PrawfsBlawg

I can understand many reasons why one would focus specifically on the racial aspects of Friday’s Obama video, one of the more recent episodes of visible Trumpian unfitness to serve as president, as most of the media coverage and informal discussion, critical or defensive, has. 1) Race and racism are at the heart of American history and American life. 2) The video was obviously disgusting on that level. 3) Race and racism were what moved the needle in this case, leading fellow Republican elected officials to a relatively rare moment of public disagreement with and condemnation of the president, both out of principle and because the public reaction and political calculus made it safer and/or more urgent for them to speak.

I wonder, though, if it is the only or even the best thing to focus on here. Here’s another: The president’s gross, flagrant, and constant vulgarity and immaturity.

Trump’s defense of his post was that he had not known specifically about the portion of the video depicting the Obamas as apes, but had merely been innocently passing along–as one does, I suppose–a stupid and vulgar cartoon peddling election conspiracy theories. Trump lies unceasingly and thus may be lying about the first part of that excuse. But assume he wasn’t.

Trump treats the latter part of the explanation as if it is a defense. It’s not. It’s a confession of unworthy, undignified, juvenile behavior. To treat it as if it explains everything–nothing to see here, I was just spreading conspiracy theory cartoons meant for the entertainment of morons–gives off roughly the same casually vulgar and vandalizing spirit as would a tourist who urinates on a tombstone at Arlington and then looks at those around him with a shrug, as if to say, “What’s the big deal?” To say the president should not amplify racist trash is true, of course. But then, the president should not be posting trashy but non-racist videos showing him bombing his own fellow citizens with waste either. Indeed, here’s a radical idea: The President of the United States should not be posting or reposting nasty AI slop, conspiracy theories, intemperate rants, and other trash at all.

I thought the Joe Biden All-Ivy Tweeting Squad’s cutesy “We’re reclaiming ‘Dark Brandon'” bit was embarrassing crap; but at least it was merely cutesy embarrassing crap. I have no interest in the book recommendations that Barack Obama broadcasts; one can get better recommendations elsewhere, and Americans, who remain hopeless frustrated monarchists, should reject presidential cults of personality and celebrity root and branch. But they’re merely a bit annoying; they’re not unspeakably vulgar, degrading, and juvenile. What Trump broadcasts and rebroadcasts routinely, twenty times a day and twenty-five on Sunday, is all that and then some.

From a somewhat conservative perspective, it seems to me both obvious that this needs to be said–more often, more firmly, and more publicly–and astonishing that it apparently does need to be said. A culture should not steep itself in infantile vulgarity and illiteracy. Maybe that’s a steep ask, for me as for others. But God knows it’s both easy and an extreme bare minimum to expect that a president not do so. One needn’t have the faintest trace of monarchical sentiment to believe that elected leaders should act with a modicum of basic dignity rather than its exact opposite, any more than one need be an aristocratic snob to expect someone not to vomit at the dinner table. I mean, we are really talking bare minimums here.

I would have thought the appropriate conservative position about this matter would have been to say–and not just think, or say only behind closed doors and among friends, which is evidence not of conservatism but of cowardice–that the racism of the video was clearly objectionable, but so was the rest of the video, and so is most of what Trump writes and passes along on social media and much of how he speaks and behaves in public. I would have thought the basic and overarching conservative message to Trump would be: “Grow up. You’re not a baby; you’re not a pimply teenage boy with a TikTok account. You’re almost 80 years old and you’re the President of the United States. Act like it, for God’s sake.”

One knows he probably would not listen. But one knows also that certain things demand to be said, out of simple self-respect, regardless of whether they will persuade. And when a culture badly needs shoring up, you begin by naming and insisting on basic norms of behavior rather than surrendering them, let alone sitting idly by as a civic leader encourages the rot from the very top. You model better behavior, condemn bad behavior regardless of whence it comes, and hope thereby at least to slow the rate of decay.

At least I rather assume this is the conservative position. I dare say, in fact, that these kinds of moments offer a basic litmus test that helps distinguish actual conservatives–people who actually think some values and norms are worth conserving–from people who call themselves conservatives, but have in reality long since passed on to something altogether different.

A question for the Civ Pro profs in the audience: How do you teach students to do the “relatively unguided Erie analysis under the RDA? (The

In theory, this has four pieces: Two York (substantial variance in outcome and inducing forum shopping) and two Byrd (whether the state rule is bound up with substantive social policy and whether there are countervailing federal interests in not applying state law).

So:

• Do you just include York and ignore everything else? A lot of lower courts do this?

• Do you include one or both of Byrd?

• If you include some Byrd, in what order? Is it York then Byrd? Is it better to start with Byrd‘s “bound up with substantive policy” element, then proceed to York, then consider countervailing federal interests as a federal veto? Something else?

My approach has always been York then Byrd, which I think is the best way to reconcile the doctrine? But I get the sense that lower courts do not do it this way and so i should be approaching it differently. In particular, I don’t have a good way to get at pure substantive law.

Thoughts welcome.

Update: I received some great emails on this. I want to highlight one response from a professor (who I will keep anonymous, unless they tell me otherwise), which adds two pieces to how I have taught it.

First, it reaches Byrd only if York points to state law. This makes sense. Byrd‘s “bound up” prong likely pushes in the same direction as York–if the state rule affects outcomes and induces forum shopping, it probably is bound up with substantive policies. Byrd‘s “countervailing federal interest” prong thus acts as something of a veto–state law applies (because the other 3 prongs say so) unless the federal rule reflects some overwhelming federal interest (e.g., deferential appellate review in Gasperini).

Second, it adds a threshold question in the unguided Erie analysis before York–is the state rule “arguably procedural?” This, of course, is the first step in the REA analysis–whether an FRCP is a proper rule of practice and procedure under § 2072(a). But this approach applies it to unguided Erie: If the state rule is not arguably procedural, it is “obviously substantive;” the federal court must apply it under the “command of Erie.” If the rule is arguably procedural (whether purely procedural or a mixed rule), the analysis proceeds to York and Byrd (if necessary). I think this captures the analysis both as it should be and as lower courts do it, without relying on labels of substance or procedure.

Another prof offered a practical conclusion, which I think I also may steal: In practice, federal courts will apply state law unless a written provision (FRCP, FRE, statute, local rule) controls. Even if the procedure is in no way outcome-determinative (the old “blue brief cover” example), federal courts just apply it, unless something else is lurking in the case.

I hinted at these ideas in prior posts on the Anne Frank/Nazi analogy to ICE. But I could not say it better than Joel Swanson (Jewish Studies, Sarah Lawrence) does in Religion Dispatches.

This is from his 1965 hearings on proposals to modify the “one-person, one-vote” standard.

[W]hile we are on gerrymandering problems. I am not too certain I ever explained my question properly. If we provide for other factors, and we are trying to arrive at this here, is that going to change human nature of both political parties? Both political parties have been equally guilty of this. Our legislators are pretty ingenious, and whether you permit other factors or whether you permit population, I think, we are not going to remove this factor from our legislative systems. We are just going to have to hope in the longrun that it balances off. Where you have a disparity one place this will be compensated in another. Maybe your experience has been different in this. I am afraid other factors permit gerrymandering just as much as population .

I have a basic thesis going about this regime. Notwithstanding all the Christian nationalism, integralism-in-waiting, and so on, the current Trump regime is the first non-Christian administration in American history. (Indeed, if anything, given the actual views, cultural influences, and revealed preferences of these individuals, it would be more accurate to say because of rather than “notwithstanding.”) More remarkably than that, we are actually experiencing the first genuinely pagan administration in American history.

That point doubtless deserves development elsewhere, although I encourage you to look for the many signs. In the meantime, today’s story doesn’t exactly shake my confidence in the general thesis: Here is El Salvadorean strongman and torture-site innovator Nayib Bukele, accepting an invitation to address the National Prayer Breakfast. And here is the transcript of Donald J. Trump’s speech. In fairness, I would not call the latter especially pagan; J.D. Vance, Stephen Miller, their mentors outside the government, and their Claremont-vetted epigones throughout the executive branch are far more pagan than Trump. But as speeches go, let alone speeches at a religious event, it is unmistakably profane. You will not be shocked to learn that over the course of the interminable length of the speech, “God” and “prayer” make a few cameo appearances but are dwarfed by the hundreds and hundreds of uses of variants on “me,” “myself,” and “I.”

That New York Times “critic at large” A.O. Scott chooses to write an annotated, or annotating, commentary on Judge Biery’s recent, widely-shared order in the case of young Liam Conejo Ramos both is and is not telling. Writers pick newsworthy topics and the Conejo Ramos case was newsworthy. Critics need texts, and the order qualifies. Of course it’s both unsurprising and significant that Scott selected this text, with these politics, for praise rather than some other text. It wouldn’t be crazy to say, as a conservative or right-wing observer might (noting, as always, the widening distinction between the two), that this is indicative of the Times’s worldview. And it wouldn’t be crazy for the drafting chambers to feel pleased about having the opinion receive the plaudits. (I say “chambers” to honor the traditional convention of treating judges as not doing their own writing, although this judge has a long history of issuing non-staid opinions and thus may well be the primary drafter.)

But it would be too easy for both–the critics finding confirmation of their views, and the chambers feeling that the acclaim confirms the value of the opinion–to exaggerate the point. In an attention economy, everything is fodder. Judicial opinions with little pictures attached to them, presidential AI slop depicting that president (in a military aircraft, of all things) bombing his own fellow citizens, random acts of kindness, SNL skits, murders, and dog shows–they’re all ultimately just disposable fuel. The modern version of the Warholian dictum should state that every news item is someone‘s “BREAKING: EMERGENCY PODCAST.”

That said, with a couple of important caveats, I must say this opinion is pretty darn poor. It asserts too much, too casually, in too little space. Like a graduating student’s high school yearbook page, it ends up cramming a bunch of quotations and references together all hugger-mugger, which diminishes rather than enhances the effect of each one. Pace Scott, it’s not especially erudite. Nor is it especially eloquent. Eloquence doesn’t require fancy talk, but even the attempt at more demotic prose is a bit stumbly. Beginning a paragraph with the kind of sentence fragment you might use orally or, God help us, on Twitter (“Civics lesson to the government:…) is plain talk, but also kind of junky. I happen to think many officers in this regime do in fact have a “perfidious lust for unbridled power,” although that’s perhaps a little shortsighted; some of them also want to betray their own country for money. But, even if that’s so, this case is not an especially apt illustration of that point. Viewed favorably to the petitioner, the case is not so much about the lust for unbridled power as it is about cruelty and lawlessness in the unbridled exercise of power. And the fragmentary sentence “With a judicial finger in the constitutional dike”–well, that’s just bad writing.

Above all, notwithstanding the photo (adorned, not objectionably but unnecessarily, with a couple of Bible citations), as a rhetorical and persuasive document it reflects the bizarre writerly strategy of omitting its best resource: the facts. A recounting of the attempted use of the boy to affect entry and the detention of a pregnant woman, the paramilitary garb of the forces, the alternatives to detaining him, any conflicting factual statements by the regime and its representatives (there are always conflicting statements in this regime), and any conflicting or inconsistent legal positions taken by that regime (ditto) would have been more powerful and could have been accomplished with equal economy. As this drop-in-the-ocean example from the District Court of Minnesota illustrates in its first two paragraphs, simply recounting the facts can be much more powerful than more sweeping language. And even opinions that offer more general observations about lawlessness are made more effective when the opinion does most of its work through the facts. Judge Biery’s order–quotes, photographs, and all–is much more forgettable and less significant than this opinion setting forth in unsparing factual and procedural detail this regime’s eagerness to imprison people who are victims of or have helped stop human trafficking, as well as its fundamental incompetence and malice.

I appreciate–this is my first caveat–that Judge Biery, like many federal judges across the country, has had to wade through thousands of individual cases, involving actually existing human beings, in which they are confronted again and again with this regime’s lack of seriousness about law enforcement, law enforcement training, immigration law and policy, human decency, and the well-being of the Justice Department, the Constitution, and the rule of law. That doesn’t transform a poorly written opinion into a well-written one. But I ought to acknowledge that Judge Biery’s evident frustration and anger are far more rooted in consequential daily experience than mine.

My other reservation is that many readers obviously have praised the quality of the writing in Judge Biery’s order. Obviously, they’re wrong and I’m right. (And not everyone who has praised the order was praising its writing; some were merely praising the fact of the order and its outcome, and for others it came down almost entirely to the photo.) But it’s still worth noting, because it raises the question of the audience for judicial opinions.

Biery’s history of opinion-writing suggests that he didn’t suddenly adopt a new writing style for the age of social media. But the notion that a judge might, or even ought to, seek the attention of that audience seems much more taken for granted today and has given rise to any number of judicial horrors in prose. Regardless of his intent, Biery’s yearbook-page-style order is chock full of strung-together bits that are just the right length and mentality for snipping and sharing. But going after the social media audience is a bad idea that invites cheap eloquence, violence to the English language, or both. Given that most people are not social-media addicts, it’s not even an especially democratic or populist approach.

Questions of social media aside, the momentary popularity of the opinion on the left side of the ledger might suggest that the opinion’s style was most likely to gain the approval of people who already disapprove of the regime. I am happy to assume that Biery wasn’t specifically seeking the approval of that audience, but was merely giving vent to what I’ve already said is understandable outrage. Far be it from me to blame anyone, let alone any lawyer and decent citizen, for giving voice to outrage over lawlessness, thuggishness, corruption, dishonesty, incompetence, hatred of Christian values, treason, anti-conservatism, illiberalism, conspiracism, cowardice, vanity, vulgarity, and a stew of antisemitism, racism, more-than-vaguely-white nationalism, and other creepy neopagan bigotries, all of which, for this regime, are basically just another day. But surely, if one even ought to seek a particular audience, that’s not especially the right one to go after. If you are outraged by these things, surely you would benefit more from convincing one additional person to feel disturbed or angry than you would from convincing ten people who already feel that way to become more disturbed and angry, which is also basically just another day.

I posted this elsewhere a year ago, but it’s worth posting again:

From a speech he gave on October 8, 1867:

[T]hey framed your matchless Constitution of Government at Philadelphia, known as the Constitution of the United States.— The word white is not there. The words “natural-born citizen” are there, and the man is a natural-born fool who does not understand that the term “natural-born citizen” implies that citizenship is a birthright. It comes with a man into the world. He has a right to citizenship, no matter what his complexion, upon the spot in which he had his origin; and the man who denies it to him, or attempts to withhold it from him, is simply a monster. When he comes to you with his nostrums you ought to herald his approach with the cry of the old cheating peddler: “This is the genuine old Doctor Jacob Townsend’s sarsaparilla.” – [Laughter.] 

Dr. Jacob Townsend’s sarsaparilla was a popular “medicine” with many imitators.

Imagine that there was a proposal for an Article V amendment and a sitting U.S. Supreme Court testified to either support or oppose the proposal. Most people would probably think that inappropriate.

How about a state Supreme Court Justice? I note this because at least one state Supreme Court Justice testified before the Senate in the 1960s to support an amendment modifying the “one-person, one-vote” cases. No objection was raised during the testimony. I’m unsure what people would think now though.

The first episode (covering 1492-just before WW II) aired on Tuesday evening, following an introductory webinar. Worth watching. I already learned some things I did not know.

This mantra first emerged in the 1960s when proposals were introduced to modify or overrule some of the Warren Court’s decisions (on school prayer, for example.) Why then? Many constitutional amendments do not touch the Bill of Rights, of course. But even those that did or proposals that did not pass never drew this sort of reaction until around 1965.

One answer, as I discussed in my Bill of Rights book, is that the first ten amendments held a much higher status in our constitutional culture by the 1960s for various reasons (incorporation among them). But another one that I’d not thought of before was that Barnette was quoted for the proposition that the Bill of Rights should not be the subject of politics, including Article V.

Now I don’t think that’s what Justice Jackson meant. To say that fundamental rights depend on no elections refers to their restriction by ordinary statutes. If supermajorities over an extended period of time want to modify a provision in the First Amendment (say, by banning flag burning) that strikes me as valid, if mistaken. But the broader interpretation of Barnette carried the day. The Bill of Rights has not been formally amended since the case came down.

Utah recently expanded the membership of its Supreme Court from 5 to 7 Justices. My understanding is that this was done because the Legislature was unhappy about that Court’s recent decisions on gerrymandering.

It’s an interesting experiment. If it turns out fine, that would undercut the criticism of Court-packing at the federal level. (I’m not sure what fine means, but anyway.) Will the Court’s decisions with respect to gerrymandering change? Probably, if only because there is the possibility that if they don’t, Utah could go to 9 Justices or 11.

As long as the Religious Liberty Commission’s charge includes both “[r]ecommending programs to increase awareness of and celebrate America’s peaceful religious pluralism” and advancing the religious freedom rights of public employees, may I offer another educational project for its consideration? That project is Emory Law graduate Mike Howell, currently a fellow at the Heritage Foundation–not working on religious liberty issues, if one may offer sincere thanks to Providence for its small and tender mercies. He is also currently advocating–on social media, because of course–a ban on “head coverings and hoods” on the floor of the House of Representatives, for “decorum.” (No word on the status of decorum and head coverings in the Senate.) The discussion makes clear that Howell would offer a gerrymandered exception for kippahs. I say gerrymandered for two reasons: Like the 28-sided district in Gomillion v. Lightfoot, the distinction patently lacks a sound explanation. And also like that district, the actual explanation is obvious. Lest there be any doubt, one may turn to Howell’s comment that he’s “not even getting into whether Islam is a legitimate religion.” Jefferson would have wept. (Incidentally, it’s not clear how he would treat a woman wearing a sheitel. Or how he would deal with Sikhs. Maybe he would be better off avoiding all the messy details and just recommending that Congress discriminate against Muslims.)

Let me say in fairness that the rabbi arguing back against Howell in the excerpt linked to above, Yaakov Menken, is actually on the Commission’s advisory board of religious leaders. He is quite right in arguing that “religious garb in no way harms decorum,” and that certainly includes Islamic religious garb; and he’s right to acknowledge and celebrate America’s religious diversity. As a fellow tolerated person of these United States, I’m glad to see it. In daily discourse, the phrase “strange new respect” has become the lead-in to a joke. Still, the Heritage Foundation is not exactly the place I expected to find strange new respect for the idea of turning the United States into Quebec. (As an aside: Howell has spent much more time as a Swamp denizen than I did. But even a little time there taught me one thing: the way to tell the difference between the serious people, and the unserious people who like to look serious, is that the unserious people are the ones using phrases like “We will handle it at the principal level.”)