confusion abounds in the case of the same-sex wedding baker

One of the most publicized cases of the 2017-2018 Supreme Court term was Masterpiece Cakeshop, Ltd. v Colorado Civil Rights Commission. At issue was the petition by the owner of Masterpiece Cakeshop that his First Amendment rights had been violated when he was sanctioned by the Colorado Civil Rights Commission for refusing to bake a wedding cake for a gay couple’s reception. This petition was rejected by every court until the Supreme one, which in a 7-2 decision agreed with a small part of the petitioner’s Free Exercise claim and set aside the sanction of the Commission.

In a term beset with split decisions, this result seems at first like a resounding endorsement of the primacy of religious freedom above civil rights. The press about the decision overwhelming framed it as the Court siding with the baker, and the reaction to that formulation caused a lot of concern.

But that formulation was very misleading. The Court didn’t so much rule for the baker as it ruled against the Commission, essentially declaring a mistrial because of what it perceived as anti-religious animus in the record. Justice Kennedy, writing for the majority, explicitly punted on addressing the underlying tension between religious liberty and civil rights that formed the core of the baker’s suit.

What’s also interesting is how disunited the Court was in reaching a 7-2 decision. In all, five opinions were written for this case, only one a dissent. All the opinions attack each other from footnotes, and often the targets of those attacks were themselves written in footnotes. It looks like a lot of the deliberation was done through correspondence, and the contorted opinions suffer from the confusion. But a careful reading of them reveals a clumsily evolving jurisprudence around the Free Speech and Free Exercise clauses, as well as possible fault lines in the Court that could fracture in subsequent decisions where more is at stake. A future case that forces a direct confrontation of the tension between First Amendment and civil rights could be much tighter and more explosive.

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income tax apologists’ own analysis shows the rich don’t pay their fair share

No one’s much surprised, but the Democrats are losing opportunities in the messaging war on tax reform. In a gleefully titled “reality check” oped, Fox News and Townhall contributor Guy Benson recently referenced an old USA Today fact check which called the Democrats’ rhetoric ahead of the Trump tax cuts “misleading.” It’s news now because of a Bloomberg piece analyzing 2016 tax data made available by the IRS in August. While that piece is not as hostile to progressive taxation as it might be, it is itself misleading in several ways and clearly seeks to emphasize to the same startling result from Benson’s piece: just over half of federal individual income taxes are paid by the top 3% of taxpayers when ranked by gross adjusted income (AGI).

Benson seizes on this to assert that the “Left’s political stories about ‘fair shares’ and ‘millionaires and billionaires’… [are] not grounded in facts and omit crucial perspective.” But it is Benson and his tax cut apologists — making claims like “we have a federal spending problem, not a revenue problem” — who lack crucial perspective. A careful reading of the very Bloomberg analysis that motivated Benson’s opinion shows just how bad a revenue problem our nation has.

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recent decision shows Brett Kavanaugh should not join Supreme Court

President Tump’s pick of Brett Kavanaugh to replace retiring Supreme Court Justice Anthony Kennedy has ruffled some feathers. For example, my Senator Patty Murray is on record opposing his nomination on two grounds: first, that by association with Trump he would overturn Roe v Wade if occasion permitted; and second, due to rebukes he made against the Roberts Court which decided it, he opposes constitutional sanction of ObamaCare. Another complaint in wide circulation is how it is well understood (though somewhat debated) that he would support Congressional action to shield sitting Presidents from civil lawsuits.

While those concerns are valid as far as they go, I’m worried that focusing on them is unlikely to prevail in derailing his appointment since, quite frankly, it isn’t clear that they concern a plurality of Senators. I believe that Kavanaugh’s long record of jurisprudence is independently disqualifying outside those narrow political parameters and more attention should be paid to his overall legal philosophy. Luckily efforts are being made to obtain the fullness of his public record, though powerful Senators are also trying — in some cases hypocritically — to block an open review.

Thanks to reporting from the Intercept, I was made aware of a fairly shocking decision that Kavanaugh handed down — on the very day Trump announced him as his pick — from the three-judge Appeals Court on which he sat. I think that decision is a telling vignette into Kavanaugh’s current judicial philosophy and temperament. It casts serious doubt on his candidacy for the highest court to say nothing of the risk it reveals to government transparency law. I think emphasizing this style of failing will be more salient in openly evaluating Kavanaugh. My analysis follows.

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2017 Music Review: top 10 albums, 20-track playlist

I’ve made a tradition of reviewing my take on the new music scene each year since 2012, and the format seems to be working pretty well. I like it because it keeps me honest as a forcing function to remember what I heard over the course of the year and thoughtfully consider what I liked and didn’t like; and it’s useful as a reference for posterity. As usual, I missed some things and am already aware of them now, but I try to stay mostly in the confines of what I discovered during the year 2017 itself even though I’m now so late. So here now is the sixth annual edition of that effort — enjoy!

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debate isn’t trash, but “identity politics” might be

So-called “identity politics” have been on the rise for some years. Growing scholarship and discussion of systemic disadvantages against demographic groups has led to a rising and justified righteous anger against those forces. But especially in recent years this has resulted in a tendency for every social issue to be framed with a racist or sexist lens. The most outspoken purveyors of this framing are so sure of their analysis that their righteous anger has turned into self-righteous anger. Their quest to unite the disadvantaged through aggressive inclusion has actually backfired in division, an idea explored by the Guardian just last week.

My own sense of the perilousness of this approach has been growing slowly, but it crystallized in part while I was recently reading Tracy Kidder’s now-15-year-old book Mountains Beyond Mountains. While debating whether to write a full review of that work in the style of my previous book reviews, several editorials emerged which highlighted for me the most important takeaway: “identity politics” — which militantly reject debate and elevate tribalist and personal “truth” at the expense of individual liberty — at best waste time and at worst threaten the foundational principle of open debate in a free and progressive society.

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Book Review: “Command and Control” by Eric Schlosser

The subtitle of Eric Schlosser’s latest work of investigative journalism, “Nuclear Weapons, the Damascus Accident, and the Illusion of Safety,” well captures the increasingly editorial arc of the book. Its centerpoint is a thriller-like recounting of the run-up to a non-nuclear 1980 explosion in Damascus, Arkansas; but the retelling of that event is interleaved with a long-form historical review of the design and implementation of America’s nuclear arsenal in the middle of the twentieth century. By degrees over its half-thousand pages the prose becomes increasingly critical of that history, culminating with the dramatic explosion at Damascus and the state of nuclear weapons in the United States after the end of the Cold War.

Based heavily on primary source documents and original interviews Schlosser himself conducted with weapons scientists and some of those involved in the Damascus accident, I find the actual text to be overlong and meandering. I would have preferred a more condensed and linear exposition, but reasonable people can disagree: Louis Menand wrote in his colorfully titled New Yorker review “Nukes of Hazard” that this suspenseful, achronological, and deeply personal narrative style is “how nonfiction should be written.” What we can agree on is that Schlosser convincingly argues that given the stunning degree of cognitive dissonance, bureaucratic impenetrability, and sheer number of nearly catastrophic nuclear accidents that have happened over the years, it’s truly a wonder that the last large-casualty nuclear event was deliberate, during wartime, and more than 70 years ago.

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for center-left, big data more useful for finding racists than understanding elections

Vox is center-left opinion with well-documented conflicts of interest masquerading as objective analysis, but every now and again they have something resembling reporting. Such was actually the case — despite the explosive headline “Persuasive proof that America is full of racist and selfish people” — when they interviewed Seth Stephens-Davidowitz, a former Google data scientist and occasional New York Times contributor. In addition to backing up the assertion that anonymity fosters both nastiness and honesty, that article established an apparently strong correlation between the frequency of certain internet searches and broader trends in our polarized voter population around election day. I found the interesting big data analysis lurking behind the volatile headline to be most fascinating for supporting what I believe to be a general dysfunction of the mainstream progressive dialogue today and a major liability for Democrats.


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2016 Music Review: Top 10 Albums, 20-song Playlist

I haven’t usually gotten these things out before the springtime, and for a number of reasons 2016 is more delayed than ever. But since ‘better late than never’ is usually well-applied — especially when this kind of analysis will serve future me with a (near-)real-time document of the day — and since 2016 was no 2015 but was also no slouch as far as new music goes, here again is my personal take on the best of the best of the last calendar year: general notes, the top ten albums, and a 20-track playlist of highlights. At least I beat the Summer Solstice on this one!

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digital privacy at risk under modern self-incrimination jurisprudence

Late last year I read some interesting reporting from BBC about privacy in the digital age. The case at issue involved the state of Florida compelling an alleged voyeur to reveal the lock code of his iPhone which had been seized with probable cause. The defendant refused, citing his Fifth Amendment privilege not to incriminate himself, but a Florida appeals court has ruled that the privilege could not have been invoked to block surrender of the code.

bbc stock footage never looked so corporate and scary.

That’s an interesting result by itself; though, as a state-level appeal, that decision only has controlling precedent (for now) in Florida. But the BBC reporting really caught my attention for revealing some of the rationale of the appeals court’s decision, authored by Judge Anthony Black, in the story’s second half:

Judge Black referred to a famous Supreme Court case, Doe v US 1988, in which Justice John Paul Stevens wrote that a defendant could be made to surrender a key to a strongbox containing incriminating documents but they could not “be compelled to reveal the combination to his wall safe”.

“We question whether identifying the key which will open the strongbox – such that the key is surrendered – is, in fact, distinct from telling an officer the combination,” wrote Judge Black. “More importantly, we question the continuing viability of any distinction as technology advances.”

It happens that Justice Stevens was a favourite of mine before his retirement from the bench in 2010, and in fact this blog reviewed his 2014 book detailing his proposed constitutional amendments. I understood him to be a left-leaning civil libertarian, so it was surprising to hear an opinion of his cited to diminish the reach of one of the pillars of the Bill of Rights. I found the Doe opinion to be a quite interesting exercise in linguistic gymnastics, particularly, as Judge Black noted, amid the rapid advance of technology and the numerous and contentious questions about privacy that it has created. But beyond that, the case history led me down a 60-year-long rabbit hole of jurisprudence that I believe serves as a cautionary tale of how the Court can get it very wrong and the dramatic effects it can have on basic rights. With great care taken to exclude superfluous detail, I summarize that epic journey for you here.

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Clinton apologists and the popular vote

A lot of people have been trying to make sense of Clinton’s loss to Trump last week. Conservative pundits not necessarily pleased with the rise of Trump have blamed an aggressive backlash to “weaponized” political correctness. On the left are continued complaints about Russian interference, even motivating calls that the Electoral College deny Trump the office when they vote next month. And extremist elements to both the far-right and far-left have responded with vandalism and violence.

The situation is frantic and there doesn’t seem to be consensus on what got us here. Many blame racism at a high level, but that charge lacks specificity and therefore explanatory power. All meaningful approaches rightly address the Electoral College, but the underyling forces seem yet to be clearly articulated. A careful study of two pro-Clinton apologetic flavours of voting analysis is instructive in understanding just how Trump won in 2016.


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