Thoughts & Prayers

Bear with me.

One of the early lessons learned in law school related to the issue of causation and intent. We were introduced to this question through Scott v Shepard, an English decision from 1773. Yes, 1773. The decision known as the Famous Squib [firecracker]. Flying Squib, or Lighted Squib case was the subject of extended discussion and debate. Among its many lessons is the principle that intentionally doing an act with known or predictable consequences means that you intended those consequences, caused those consequences and are legally accountable for them.

Here, for your edification, is a published summary of the case:

Facts

The defendant threw a squib, which is a small, lit firework, into a busy marketplace with lots of people and stalls. In order to protect themselves and avoid damage, the squib was thrown on by two other people. When it landed near to the complainant, it exploded and caused injury to his face. He later lost the use of one of his eyes. The original thrower, the defendant, was charged with assault and trespass.

Issues

The defendant was found liable for trespass and he appealed this decision. The defendant argued that the injury to the complainant was not caused by his actions; it was not a direct act, as others threw the squib on. The issue in the appeal was whether the defendant throwing the squib caused the injury or whether other people broke this chain of causation and the injury was caused by novus actus interveniens.

Decision/Outcome

The court dismissed the appeal; the injury to the complainant was the direct and unlawful act of the defendant who originally threw and intended to throw the squib. The other people were not ‘free agents’ in this situation and threw on the squib for their own safety and this was justifiable. The throwing on was classed as a continuation of the defendant’s action, which was intended. Whatever followed this was part of the defendant’s original act. [https://bit.ly/3xfYZJL]

The class discussion of this case was a shock, an early admission to the inner sanctum of legal reasoning. This simple case introduced us to the complexity of the seemingly obvious, the intricacies of causation, intent and other themes that run through the law.

One principle we took away was this: if you take an action knowing the likely consequences, you will be presumed to have intended those consequences. It’s the same principle that underlies the limit on freedom of speech with which most rational people are familiar: you can’t shout “fire” in a darkened theater and disclaim responsibility for injuries resulting from the panic that ensues. It’s ultimately why you can’t drink yourself into a stupor, drive a car, have an accident, and deny responsibility for the results. The principle is fundamental.

So what? This. Republicans in Congress have consistently refused to consider any gun regulations, no matter how limited, claiming Second Amendment privileges. The result is the massacre of school children in Uvalde, TX and all the others that preceded it and that will inevitably follow it. The refusal to change the law, knowing what will result, means that the legislators who refuse to act must intend the resulting carnage. It means they are content with the hundreds and thousands of deaths and injuries that could be prevented or at least reduced. There are no excuses.

There was a hearing in the House on gun regulation a few days ago. The following is the entire testimony of Dr. Roy Guerrero. It is not easy to read but it is important. If you know someone who believes gun regulation is unnecessary, consider sending this to them:

“My name is Dr. Roy Guerrero. I am a board-certified pediatrician, and I was present at Uvalde Memorial Hospital the day of the massacre on May 24th, 2022, at Robb Elementary School. I was called here today as a witness. But I showed up because I am a doctor.

Because how many years ago I swore an oath — An oath to do no harm.

After witnessing first-hand the carnage in my hometown of Uvalde, to stay silent would have betrayed that oath. Inaction is harm. Passivity is harm. Delay is harm. So here I am.

Not to plead, not to beg or to convince you of anything. But to do my job. And hope that by doing so it inspires the members of this House to do theirs.

I have lived in Uvalde my whole life. In fact, I attended Robb Elementary School myself as a kid. As often is the case with us grownups, we remember a lot of the good and not so much of the bad. So, I don’t recall homework or spelling bees, I remember how much I loved going to school and what a joyful time it was. Back then we were able to run between classrooms with ease to visit our friends. And I remember the way the cafeteria smelled lunchtime on Hamburger Thursdays.

It was right around lunchtime on a Tuesday that a gunman entered the school through the main door without restriction, massacred 19 students and two teachers and changed the way every student at Robb and their families will remember that school, forever.

I doubt they’ll remember the smell of the cafeteria or the laughter ringing in the hallways. Instead, they’ll be haunted by the memory of screams and bloodshed, panic, and chaos. Police shouting, parents wailing. I know I will never forget what I saw that day.

For me, that day started like any typical Tuesday at our Pediatric clinic – moms calling for coughs, boogers, sports physicals – right before the summer rush. School was out in two days then summer camps would guarantee some grazes and ankle sprains. Injuries that could be patched up and fixed with a Mickey Mouse sticker as a reward.

Then at 12:30 business as usual stopped and with it my heart. A colleague from a San Antonio trauma center texted me a message: ‘Why are the pediatric surgeons and anesthesiologists on call for a mass shooting in Uvalde?’

I raced to the hospital to find parents outside yelling children’s names in desperation and sobbing as they begged for any news related to their child. Those mother’s cries I will never get out of my head.

As I entered the chaos of the ER, the first casualty I came across was Miah Cerrillo. She was sitting in the hallway. Her face was still, still clearly in shock, but her whole body was shaking from the adrenaline coursing through it. The white Lilo and Stitch shirt she wore was covered in blood and her shoulder was bleeding from a shrapnel injury.

Sweet Miah. I’ve known her my whole life. As a baby she survived major liver surgeries against all odds. And once again she’s here. As a survivor.

Inspiring us with her story today and her bravery.

When I saw Miah sitting there, I remembered having seen her parents outside. So, after quickly examining two other patients of mine in the hallway with minor injuries, I raced outside to let them know Miah was alive.

I wasn’t ready for their next urgent and desperate question: ‘Where’s Elena?’

Elena, is Miah’s 8-year-old sister who was also at Robb at the time of the shooting. I had heard from some nurses that there were “two dead children” who had been moved to the surgical area of the hospital. As I made my way there, I prayed that I wouldn’t find her.

I didn’t find Elena, but what I did find was something no prayer will ever relieve.

Two children, whose bodies had been so pulverized by the bullets fired at them, decapitated, whose flesh had been so ripped apart, that the only clue as to their identities was the blood-spattered cartoon clothes still clinging to them. Clinging for life and finding none.

I could only hope these two bodies were a tragic exception to the list of survivors.

But as I waited there with my fellow Uvalde doctors, nurses, first responders and hospital staff for other casualties we hoped to save, they never arrived. All that remained was the bodies of 17 more children and the two teachers who cared for them, who dedicated their careers to nurturing and respecting the awesome potential of every single one. Just as we doctors do.

I’ll tell you why I became a pediatrician. Because I knew that children were the best patients. They accept the situation as it’s explained to them. You don’t have to coax them into changing their lifestyles in order to get better or plead them to modify their behavior as you do with adults.

No matter how hard you try to help an adult, their path to healing is always determined by how willing they are to take action. Adults are stubborn. We’re resistant to change even when the change will make things better for ourselves. But especially when we think we’re immune to the fallout.

Why else would there have been such little progress made in Congress to stop gun violence? Innocent children all over the country today are dead because laws and policy allows people to buy weapons before they’re legally even old enough to buy a pack of beer. They are dead because restrictions have been allowed to lapse. They’re dead because there are no rules about where guns are kept. Because no one is paying attention to who is buying them.

The thing I can’t figure out is whether our politicians are failing us out of stubbornness, passivity, or both.

I said before that as grown-ups we have a convenient habit of remembering the good and forgetting the bad. Never more so than when it comes to our guns. Once the blood is rinsed away from the bodies of our loved ones and scrubbed off the floors or the schools and supermarkets and churches, the carnage from each scene is erased from our collective conscience and we return once again to nostalgia.

To the rose-tinted view of our second amendment as a perfect instrument of American life, no matter how many lives are lost.

I chose to be a pediatrician. I chose to take care of children. Keeping them safe from preventable diseases I can do. Keeping them safe from bacteria and brittle bones I can do. But making sure our children are safe from guns, that’s the job of our politicians and leaders.

In this case, you are the doctors, and our country is the patient. We are lying on the operating table, riddled with bullets like the children of Robb Elementary and so many other schools. We are bleeding out and you are not there.

My oath as a doctor means that I signed up to save lives. I do my job. And I guess it turns out that I am here to plead. To beg. To please, please do yours.”

– Dr. Roy Guerrero, Pediatrician, Uvalde, TX

Nothing left to say.

Trump Crimes Report

Apologies for the late arrival of this but it couldn’t be helped. I just wanted to call to everyone’s attention a new report released a few days ago from the Brookings Institution entitled, Trump on Trial: A Guide to the January 6 Hearings and the Question of Criminality. https://brook.gs/3Q91S7U

The Guide is like a study aid for the hearings that begin tonight at 8 pm on multiple channels (but, of course, not on Fox News) to present the findings thus far of the House Select Committee to Investigate the January 6th Attack on the United States Capitol. I was working as fast as possible to highlight key passages, of which there are many. But time has run out, so I’m sharing the link to the original report. In a later post I will provide a method to receive the marked-up report for those interested.

Cowards

I just saw a statement posted on Facebook — a Republican aspirant for Congress who said that “instead of sending $40B to Ukraine maybe we should invest it in protecting American children at school.”

Nice sentiment. Total deflection. No proposals. Nothing.

I’ve seen many “suggestions.” Harden the schools with electronic surveillance and metal detectors. Post armed police at the doors. Have only one door. Build a moat around schools. Surround schools with barbed wire. Use bullet proof glass. Arm the teachers. Spend more on mental health but no red flag laws.

All share a common theme. No matter how many children and teachers are slaughtered in schools and no matter how many religious believers are murdered while studying and praying, we must not ever do anything, not the slightest thing, that might infringe on the “God-given” right to buy automatic weapons and unlimited ammunition because … because the Second Amendment to the US Constitution says … nothing of the kind.

But I’m not writing now to debate the meaning of the Second Amendment. Rather I want to say that the people who are so obsessed with their “God-given” right to buy automatic weapons are cowards. Chicken-livered cowards.

Why? Because they are afraid. They are afraid of their own government. Even the Republicans in the overwhelmingly Red States are afraid of their government. Probably more the federal than the state but the government. They live in fear that someday the government is going to come for them. They maintain this profound fear even though there is no evidence that the federal government has entertained such an idea. Ever. Nor can they rationally explain why the federal government would “come for them.” Or what “it” would do with them when it came for them.

These cowards know little history but they’re certain that the apocalypse is coming during their lifetimes. They are equally certain that when the First Marine Battalion, or such other military that is selected for the task, comes for them, they will be able to use their AR-15s and other weapons to defeat them. The same people who quake in fear at the thought of the federal government coming for them think they’re going to have the courage to stand up to the withering firepower of a division of Marines or U.S. Army.

These people cannot explain what motivation the government would have to undertake the slaughter and/or imprisonment of the civilian population. They apparently haven’t considered what foreign adversaries might do while the U.S. military was busy rounding up Americans in this massive country. Do they really think our adversaries will just stand back and watch, tsk tsking about the sad state of affairs in the United States?  Do they think those countries will not be concerned about the collapse of the largest economy in the world? Do they think at all? Or do they just cringe at night in fear, cleaning and oiling their weapons in preparation for the great conflict ahead? Stockpiling rations and water and fuel and the other things they’ll need to defend themselves.

Have they hardened their homes, or do they think their ranch-styles can stand up to a miliary assault? Are they all fully practiced in warfare by going out in the country in their camo gear and shooting at targets that don’t shoot back? What do they really think is going to happen when the federal government decides to “come for them?”

Republicans who resist any form of gun regulation are among those rarest of people who can keep two totally contradictory ideas in their heads at the same time. Normally trying to do this would create overwhelming cognitive dissonance, but apparently if you listen to the repetitive lying and dissembling on Fox News long enough, you can hold those self-contradictory ideas in your mind and believe both are true.

You go to work, pay taxes (they’re withheld from your pay) to fund the government that’s preparing to come for you. If you lose your job, you may get government assistance but that’s OK because … well, you need the money, and the government has systems in place to help you. Even as it secretly prepares to come for you. Still, you give them the money willingly. If you live in a place that is hit by, say, a hurricane, you will get help from the government, and you’ll take it. You will still be afraid. Not of the possibility of no help, but afraid that the government that’s helping you is going to come for you at some point and therefore you must have a stash of automatic weapons and ammo with which to defend yourself and family and property against … Army tanks, Air Force bombs, all of it. Maybe you should watch some old war movies so you can see what you’re going to be up against when they come for you.

Meanwhile, back at the local school, someone’s son – it’s always a male – will find your neighbor’s stash and assassinate school children. The shooter will usually die in the effort, but not before mass slaughter is accomplished. You’ll join the mourners with thoughts and prayers, but you will still be afraid, not of the neighbor’s sullen and obviously disturbed son, but afraid that the government is going to come for you.

And so, you continue to vote for politicians who tell you that the government in which they serve as elected leaders is so untrustworthy that any day now it’s going to come for you. So, rather than support reasonable protections against the neighbor’s son, who may well kill your own children, you will continue to resist any and all reasonable efforts to contain the cancer that afflicts the United States, alone among advanced nations. No matter how many children are massacred. All because you’re afraid.

Memes Again — Devoted to Guns

WARNING: many of the images here are disturbing to anyone who is not enamored of guns. DO NOT LOOK further if you think you may be emotionally damaged by these images. They tell a story but it is the saddest story I know. PLEASE be careful.

This first set of images was selected from the suddenly archived website of Daniel Defense, the company that made/sold the weapon used by the Uvalde, Texas school shooter.

The caption on this one read: “He is Risen.” Followed by a hands-in-prayer emoji:

Caption: Don’t miss the chance to spoil mom this Mother’s Day! Take 25% off all ladies’ tees and save on gifts that will have mom feeling like #1. Valid through May 9, 2022. Shop for mom today at danieldefensestore.com.
This one advocates using sound suppressors:

Finally, and most remarkable, with this caption: “Train up a child in the way he should go, and when he is old, he will not depart from it. 🙏”

The remaining images are from Twitter & Facebook posts.

You likely know that we lead the world in gun deaths. You also know that every effort to address the issues has been stymied by Republican politicians. You know what to do.

Acceptable Losses – How Many?

Acceptable Losses — a military euphemism for casualties or destruction inflicted by the enemy that are considered minor or tolerable.

That is where we are. Supported by the money from the National Rifle Association, the Republican Party has decided that the losses of hundreds of children at the hands of gun-wielding men with grievances is acceptable. It has happened again – this time in Texas. So far, 19 dead children and two dead teachers. So far.

This year – 27 school shootings. https://n.pr/3MPgqaS But it’s only May. Plenty of time to slaughter more kids. Thoughts and prayers. The NRA/Republican Party mantra – thoughts and prayers – but our guns, come and take ‘em. Just try. Nineteen dead children – acceptable losses.

The Gun Violence Archive, an independent data collection organization, has counted 212 mass shootings that have occurred so far this year…. It defines a mass shooting as an incident in which four or more people were shot or killed, excluding the shooter.

Data on the mass shootings that have occurred so far this year can be found here.

The U.S. ended 2021 with 693 mass shootings, per the Gun Violence Archive. The year before saw 611. And 2019 had 417.

That’s the trend. A few weeks ago, another shooter killed ten people in a supermarket. The most “civilized/advanced country in the world,” we like to say, has more mass shootings, more children slaughtered by guns than any other country in the entire world.

How many would be enough? One hundred? A thousand? Think of it. A thousand dead children at the hands of angry men with guns. Would that be enough to move Republicans to moral action? How many? When do acceptable losses become unacceptable? Five thousand?

The ritualistic political reactions have, of course, already begun. Republican politicians holding press conferences, tweeting “thoughts and prayers.” I wonder what those “thoughts” actually are. And “prayers?  They comfort some people, I suppose. I wonder, though, if politicians’ prayers will comfort a parent or sibling devastated by yet another preventable massacre. It all seems just like ritual at this point.

Angry kid buys guns and slaughters helpless children in school. Police and others rush to the scene, usually killing the gunman. It’s always a gun man. But it’s always too late. The dead kids pile up and the Republican politicians head for the microphones to repeat the ritual. Thoughts and prayers. But no action.

I read now that Democratic political leaders are going to try yet again to negotiate some gun law improvements, anything at all that Republicans might accept. https://wapo.st/3NEE3CH But the past is almost certainly prologue. There is no reason at all to think Republican politicians will agree to anything meaningful. And if that’s true, the only point is to show the public, yet again, who the politicians are that resist all efforts to stop the massacres. Will it matter?

Consider that Republicans in Georgia have renominated Marjorie Taylor Greene to occupy a seat in the House of Representatives. The same one who embraced QAnon conspiracy theories and now said about the Texas massacre that the solution is to “embrace God.” Ritual. She really means, do nothing. Pray for help that will not come.

Consider that Republican voters in Georgia nominated Herschel Walker, a former football player, to occupy one of the 100 Senate seats. Walker seems to have trouble stringing two coherent sentences together. Republicans want him to represent them in the Senate, where he will be expected to think about and vote on complex budget and international policy issues, among many other subjects about which he has zero experience and likely even less knowledge.

Walker is running to displace the sitting Senator Raphael Warnock. Reverend Warnock grew up in public housing in Savannah. His mother grew up in Waycross where she spent summers picking tobacco and cotton. The Senator graduated from Morehouse College, earned a PhD, and was ordained in the ministry. For over 15 years, Senator Warnock has served as Senior Pastor at Ebenezer Baptist Church in Atlanta, the former pulpit of Reverend Dr. Martin Luther King, Jr. He is an exceptional orator and the youngest pastor selected to serve in that leadership role at the historic church.

Consider that multiple leading Republican politicians are going to attend the National Rifle Association conference in Houston this weekend. There they will engage in the ritual obeisance to the God of Guns and Ammo that funnels campaign contributions to willing recipients completely ready to do vote for the NRA’s agenda: keep the guns and to Hell with the children.

Yes, the ritual will go on. And on. Until the American public finally says: ENOUGH! There is no reason to think we’re there now. I would, of course, love to be wrong about that, but the rational part of my mind says, don’t be a fool. Republican politicians across the country have continued to embrace Donald Trump’s Big Lie about the 2020 election. Republican voters for the most part are fine with the fantasy. Is there any reason to think such people are going to care about a bunch of children they don’t know? Not very likely.

So, what to do? Complaining isn’t going to change anything. Only voting will. Along with many others, I have continued to note that “we” outnumber “them” by a substantial margin. Yet the future of the country literally depends on an issue on which the nation’s record is far from reassuring. It’s all about turnout. Will enough people who understand what is at stake actually vote in the next elections? Or will the Republicans regain control of one or both Houses of Congress and end, once and for all, any chance of protecting and advancing democracy in America? That is literally what is at stake. Because as sure as you are reading this, nothing is going to change until the supporters of violence against children are removed from office. Nothing.

Democrats could, of course, accomplish a lot by removing the filibuster. But they won’t. They’re apparently concerned about what would happen if Republicans get control of Congress. But if Republicans get control (more than they already have now), they will exercise their power mercilessly. It’s time to act while action is possible.

Be afraid. Be very afraid. Democracy is under challenge around the globe. It will not save itself. Imagine what your life and the lives of your children and grandchildren will be like under a Republican managed government. Imagine.

One-Time Commercial Announcement

My readers/followers are aware that this blog has no commercial component — no ads or commercial promotions of any kind – and I intend to keep it that way. I did not undertake this work to make money.

I am, however, taking this one-time only opportunity to announce that I am today standing up Ruden Editing Service at https://www.rudeneditingservice.com If you have a need for the services available there, I will be pleased to provide them. If not, but you know someone who might benefit, feel free to forward the information.

You will not receive this promotion again unless you also in my personal Contacts list. If so, you may get it one more time, or you may see it once on LinkedIn or Facebook, but that’s it. No need to unsubscribe.

The themes of Ruden Editing Service are “where clarity rules” and “say what you mean.” I have chosen this line of work because I have long experience with it and believe I can do it well. The service covers virtually any work of written expression with a few noted exceptions. For example, I will not write papers for original student assignments. There are people who will do that, but I am not one of them. My goal is simply to help people express their written thoughts clearly.

While I am indulging in promotion, I want to put in a plug for my web developer. Deborah Newman at https://www.petitetaway.com This is the review I posted:

Deborah Newman took me from nowhere to a beautiful functional website in record time. She was always ready to address to my questions (including the really dumb ones) & responsive to everything I wanted to do. Took charge and walked me through the steps on related sites that I could never have managed on my own. Great experience in every way. Highly recommended.

 

Now, back to the blog. The next post will be entitled The Root of All Evil, but it’s not what you might think. Stay tuned.

Justice Alito’s Masquerade

A not-so-hypothetical state law of the near future:

“It is the policy and law of the state of [Gilead aka Any Republican-Controlled State] that the purpose of females in society is to serve the interests of males in all matters. Therefore, the legislature hereby declares:

    • The crime of rape in which a male forces a female, by violence, intimidation or otherwise, to engage in sexual intercourse is abolished;
    • Any female forced to engage in sexual intercourse as stated in section (1), must, if impregnated, take every measure to assure to the maximum extent medically possible that the child thus created be born alive, regardless of the circumstances of its conception or any medical issues involving its birth, survival, or future existence;
    • Any female who fails to comply with section (2) hereof shall be guilty of the felony of murder in the first degree and shall be punished by death.
    • Any female convicted under section (3) hereof shall submit to such medical tests as are necessary to determine paternity and shall forfeit all her property rights to the male who impregnated her.”

Seems insane, I know, but given the theocratic posturing of Republicans and their insistence on a society in which women’s rights are subordinated to those of men, it is not beyond imagining that the removal of constitutional protections for abortions will lead to state statutes similar in substance to the one set out above. In fact, multiple Republican-controlled states have already enacted severe restrictions on abortions with no exceptions for rape and incest.

In a recent post I raised some serious ethical concerns about the relationship between Supreme Court Justice Clarence Thomas and his wife’s involvement in efforts to overturn the 2020 election. I mentioned some issues related to Justice Alito’s November 12, 2020, speech before the Federalist Society, the far-right organization whose vetting and approval is essential for appointment of judges that Republicans in the Senate support. A rough transcript of the Alito speech can be seen at https://otter.ai/u/ezh-387rQb7p7Yq87udbMb4Eovk if you have the stomach for it.

In light of Alito’s remarks, just over a year ago, it was no surprise that he had authored the majority Supreme Court opinion that was leaked to and reported by Politico. https://politi.co/3s96yA6

Alito opened his Federalist Society speech with an homage to the role of the Society as a bastion of free speech, open dialogue with, he claimed, no political or other agenda, ignoring, among other things, the role it plays in vetting conservative candidates for judgeships, including on the Supreme Court. Keeping with his theme of what he was not speaking about, Alito noted the “previously unimaginable restrictions on individual liberty” that arose during the pandemic but insisted,

I am not saying or even implying, I am not diminishing the severity of the viruses threat to public health. And putting aside what I will say shortly about a few Supreme Court cases, I’m not saying anything about the legality of COVID restrictions. Nor am I saying anything about whether any of these restrictions represent good public policy. I’m a judge, not a policymaker.

Then,

All that i’m saying is this. And I think it is an indisputable statement of fact, we have never before seen restrictions as severe, extensive and prolonged as those experienced, for most of 2020. Think of all the live events that would otherwise be protected by the right to freedom of speech, live speeches, conferences, lectures, meetings, think of worship services, churches closed on Easter Sunday, synagogues closed for Passover on Yom Kippur War. Think about access to the courts, or the constitutional right to a speedy trial. trials in federal courts have virtually disappeared in many places who could have imagined that

Alito continued –

the COVID crisis … has highlighted disturbing trends that were already present before the virus struck. One of these is the dominance of lawmaking by executive Fiat rather than legislation. The vision of early 20th century progressives and the new dealers of the 1930s was the policymaking would shift from narrow minded elected legislators, to an elite group of appointed experts in a word, the policymaking would become more scientific. That dream has been realized to a large extent. Every year administrative agencies acting under broad delegations of authority churn out huge volumes of regulations that dwarfs the statutes enacted by the people’s elected representatives. And what have we seen in the pandemic sweeping restrictions imposed for the most part, under statutes that confer enormous executive discretion?

We had a covid related case from Nevada. So I will take the Nevada law as an example. Under that law, if the governor finds that there is, quote, a natural technological or manmade emergency, or disaster of major proportions, the governor can perform and exercise such functions, powers and duties as are necessary to promote and secure the safety and protection of the civilian population. To say that this provision confers broad discretion would be an understatement.

Now, again, let me be clear, I’m not disputing that broad wording may be appropriate in statutes designed to address a wide range of emergencies, the nature of which may be hard to anticipate, and I’m not passing judgment on this particular issue. statute,

I want to make two different points. First, what we see in this statute, and what was done under it is a particularly developed example of where the law in general has been going for some time, in the direction of government by executive officials, who were thought to implement policies based on expertise. And in the purest form, scientific expertise.

Second, laws giving an official so much discretion can of course, be abused. And whatever one may think about the COVID restrictions, we surely don’t want them to become a recurring feature after the pandemic has passed. All sorts of things can be called an emergency or disaster of major proportions. Simply slapping on that label cannot provide the ground for abrogating our most fundamental rights. And whenever fundamental rights are restricted, the Supreme Court and other courts cannot close their eyes.

When I read that, my first reaction was that a politician like Ted Cruz was speaking, making a classic right-wing anti-deep state conspiracy claim. The speech reads like a game of “which cup is the pea under,” with Alito repeatedly disclaiming the intention to make the very points he was making.

Alito next attacked the leading precedent for the constitutionality of public health measures, Jacobson v Massachusetts, 197 U.S. 11, decided in 1905. He started with a judge joke that would appeal to the ultra-conservative audience:

The case concerned an outbreak of smallpox in Cambridge, and the Court upheld the constitutionality of an ordinance that required vaccinations to prevent the disease from spreading. Now I’m all in favor of preventing dangerous things from issuing out of Cambridge and infecting the rest of the country and the world. It would be good if what originates in Cambridge stayed in Cambridge.

Almost as if signaling the lawyers waiting to challenge the national health policy regarding COVID, Justice Alito offered up multiple grounds for limiting and distinguishing Jacobson in the future and segued into a discussion of “religious liberty” with the observation that,

It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right. And that marks a surprising turn of events.

Noting that a Supreme Court decision in 1990 (Employment Division v. Smith, 494 U.S. 872) had “cut back sharply on the protection provided by the Free Exercise Clause of the First Amendment,” Alito noted that Congress promptly passed, and President Clinton signed, the Religious Freedom Restoration Act with nearly unanimous support.  But, according to Alito,

today that widespread support has vanished. When states have considered or gone ahead and adopted their own versions … [t]hey have been threatened with punishing economic boycotts.

Some of our cases illustrate this same trend.

Note that the majority opinion in Employment Division was authored by none other than Antonin Scalia, the leading icon of the conservative judiciary and originalist thinking on the Supreme Court (the Constitution must be interpreted according to its “public meaning” in the late 18th century). Scalia wrote:

We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition….

Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now.

This precedent, apparently, was a bridge too far for Alito who appears to believe that the assertion of any religious grounds for conduct exempts that conduct from state regulation. The mind boggles.

His speech then launched into a protracted series of complaints about the Supreme Court’s treatment of religiously motivated “good works,” even if, and perhaps especially if, they lead to discriminatory treatment of people outside the penumbra of a particular religious belief. Such belief, Alito appears to believe, despite all the denials, is by itself a sufficient basis to permit denial of services to others not committed to the same ideas.

For many today, religious liberty is not a cherished freedom. It’s often just an excuse for bigotry, and it can’t be tolerated, even when there is no evidence that anybody has been harmed….

The question we face is whether our society will be inclusive enough to tolerate people with unpopular religious beliefs.

Alito likened the trend he perceived to the treatment of Germany and Japan after 1945: “It’s not dark yet, but it’s getting there.”

Alito reviewed with disdain the Supreme Court’s treatment of the COVID pandemic, arguing that deferring to state governors on public health grounds led, in Nevada, to opening the casinos and,

“So if you go to Nevada, you can gamble, drink and attend all sorts of shows…. But here’s what you can’t do. If you want to worship and you’re the 51st person in line, sorry, you are out of luck. houses of worship are limited to 50 attendees.”

And on and on.

Since I am now at risk of writing a critique as long as the original speech (almost 5,000 words), I will cut this short. Suffice to say that the tone of Alito’s remarks was consistent with the tenor of the draft opinion released by Politico. And while Alito initially focused on religious freedom, he also complained that “Support for freedom of speech is also in danger.” His main reference there was to “things you can’t say if you’re a student or professor at a college or university or an employee of many big corporations.”

He also specifically complained that the Supreme Court’s decision on same-sex marriage had led to claims of bigotry against people who continued to assert that marriage was the union between, and only between, one man and one woman. Repeating “old beliefs” in public was predicted to lead to accusations of bigotry, just as Alito and other dissenters had expected.

Alito was clearly playing to the prejudices and fears of the arch-conservatives in the Federalist Society. He complained about attempts of individual senators to influence the Court’s decision-making, labeling a brief a group of them filed as an attempt to influence it by means other than legal argument and referencing another country where tanks were brought to bear against a high court in another country.

Following a likely-obligatory shout out to Scalia again, Alito ended his tirade with this signal [corrected for obvious transcription issues]:

… in the end, there is only so much that the judiciary can do to preserve our Constitution, and the Liberty it was adopted to protect. As Learned Hand famously wrote, Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can do much to help it. For all Americans, standing up for our constitution and our freedom is work that lies ahead. It will not be easy work.

Taken as a whole, this, speech resembles the work of politics, not law.  It is an ultra-conservative judge speaking to an ultra-conservative political body and, in words more elegant than those typically used by Donald Trump, warning them that their religious liberty and other “rights” are at risk from liberals bent on helping “others” and placing their needs ahead of those of “true Americans.” It appears now that with Alito’s draft opinion in circulation, the ultra-right is on their chosen path to having the state control the lives of females who comprise about half of all Americans. Welcome to Gilead.

I will have more to say about the irreconcilable paradox of Republican conservative politics in the next post. For now, it is sufficient to observe that the idea of lifetime appointments has been fatally undermined. No country, certainly not this one, can withstand the theocratic authoritarianism that has infected the Supreme Court under the phony guise of “religious liberty.”

Is Twitter the Next Republican Echo Chamber?

Social media are awash in problematic and near hysterical responses to the announcement that Elon Musk is cleared to buy Twitter. Having paid little attention to Musk, I have nothing useful to say about the acquisition as such.

I am, however, interested in the assertion that Musk is a “free speech absolutist” and that he will, therefore, apply that principle to his management of Twitter with dire consequences. Many observers believe this means Trump’s Twitter account will be restored, with predictable results. Trump himself reportedly says he won’t rejoin Twitter but anyone who has been mentally functioning for the past five years knows Trump’s word is meaningless. Meanwhile, people like Trump’s children have remained on Twitter all along, promoting their schemes, lying and all the rest. Is the furor just about Trump?

In any case what does “free speech absolutist” mean? Yesterday, Musk tweeted this:

By “free speech”, I simply mean that which matches the law. I am against censorship that goes far beyond the law. If people want less free speech, they will ask government to pass laws to that effect. Therefore, going beyond the law is contrary to the will of the people.

Putting aside the logical issues with those sentences, if Musk really means that free speech must “match the law,” there would be little to worry about. Summarized, the law is that speech that is, for example, in furtherance of a criminal conspiracy or that is demonstrably false and harmful may be regulated, not only by private entities but by the government itself. The classic example is shouting fire in a crowded and darkened theater. Such “speech” is dangerous, and the speaker may be held to account for it. Similarly, solicitation of a crime combined with actual steps toward executing the crime may be prosecuted. Speech that is normally covered by, for example, attorney-client privilege that prevents compulsory disclosure loses its privileged status if, for example, the attorney-client communication is part of a criminal enterprise.

If, on the other hand, Musk means that going forward Twitter will not discipline participants and will depend entirely on the government to do so, we will have an example of the most cynical form of disinformation in history. Why? Because Musk knows that the government is not going to undertake direct regulation of social media platforms like Twitter and claiming to depend on “the law” to do so is the height of cynical misdirection.

Mr. Musk may, on the other hand, actually believe that speech is absolute in its “freedom,” so that, for example, Donald Trump should be free to claim in Future Twitter that the 2020 election was stolen and that no consequences should attach to such false claims. Maybe.

I don’t know for sure what Musk actually thinks. Twitter participants appear to be dropping out in large numbers over fear that Musk will turn Twitter into a platform for free-form lying by right-wing lunatics. Others argue that they will “stay and fight.” Many right-wing conspiracists are rejoicing at what they believe will be the New Twitter where anything goes, including blatantly false statements about important matters like elections. Such statements are already appearing in a multitude of tweets.

Staying and fighting may not be a viable strategy if indeed Twitter is going to adopt the policy that anything goes. If it does, it will almost certainly and very quickly attract the Flat Earth and other crazies who have nothing useful to say and are not open to reason. In that case, Twitter may well die, and Musk will lose a lot of money.

I say that because I am confident that a social media platform of Twitter’s scope will not long endure as a home for lunatic fringe participants. There are, of course, plenty of them already participating. Usually, the best approach is to just block them.

Maybe Twitter really is worth $44 billion but the investment could easily be squandered by turning the platform into what Trump’s Truth Social was supposed to be but never achieved. The good news is that it won’t take too long to see which way the mendacity is blowing.

Twitter as a free-to-lie/cheat/steal platform, Twitter as the new home for Fox News and the like, can be replaced by a platform that respects truth, rejects disinformation and honors the true meaning of the idea of “free speech.” Call me naïve, if you like, but $44 billion for a platform that promotes false information is probably a bad investment. We’ll see.

What a Picture is Worth ….

Island Paradise

We returned recently from our twice-postponed [COVID] celebration of my wife’s birthday and our wedding anniversary. We have generally visited one or the other Hawaiian islands at least every other year. My wife lived there for eight years, and I have traveled there for business and pleasure many times. Hawaii remains one of the great travel experiences in the world.

The pandemic disrupted the rhythm of our visits and at a bad time. The second postponement was necessary because the Governor and health chief publicly announced that the islands could not handle a wave of COVID cases in visitors and, therefore, no one should come for a while. Extraordinary and sad for everyone.

Then the situation improved and off we went. The actual going and coming had some issues but we’ll just leave them unsaid. We want to share a few of the reasons Hawaii is special – photos of the birds, the flowers, the extraordinary trees and the “scenes.” These are a very small sample so, by all means, book yourself a dream trip. And while you’re there, book a birding tour with Oahu Nature Tours. It’s run by Michael Walther who is extremely knowledgeable about the wildlife and t geography/geology/history of the islands. He and his delightful partner Cecilia took on a great ride around the island in a Mercedes sedan. We went places you would never know about on your own and had a great day’s unique experience.