Not Tired of Winning

Trump said in 2016 that we’d get tired of all the winning, but I don’t think I can ever get tired of the clean sweep coming from the Supreme Court lately (with a nod toward an excellent decision also out today from New York’s appellate courts).

The biggest win today is Kennedy v. Bremerton School Districtin which the Court ruled by a 6 – 3 margin (familiar number by now) that a high school football coach who prays on the field after games does not violate the First Amendment’s “establishment clause.” It overturns explicitly what has been eroding for 25 years—the three-part “Lemon Test” from the 1971 case of Lemon v. Kurtzman, made back in the hey-day of the Supreme Court fashioning “balancing tests” out of thin air. That test was a lemon indeed. One of the refreshing things of the new Court is that it is abandoning the unprincipled “balance test” jurisprudence. Long overdue.

This moves us one step close to implementing the Handmaid’s Tale, which is of course the object of constitutional originalism. (Memo to the humor-deprived: this is sarcasm.)

But that wasn’t the only good news out of the Court today. They also ruled in a comparatively minor case, Xiulu Ruan v. United States, that the burden of proof in cases of doctors charged with overprescribing opioid pain killer belongs on the government rather than the doctor. This reverses the current burden of proof. As the executive summary puts it:

The jury in Ruan was not instructed to consider Dr. Xiulu Ruan’s “good‐​faith defense,” i.e., that he was indeed prescribing the drug “legitimately” to treat pain based upon his good‐​faith assessments of his patients’ medical contexts and requirements. The Supreme Court held “the Government must prove beyond a reasonable doubt that the defendant knowingly or intentionally acted in an unauthorized manner.”

The overreaction to the promiscuous abuse of opioids over the last 20 years has deterred even the most scrupulous doctors from writing prescriptions for opioid pain killers, and this is cruel to the many people who legitimately need them. It has probably made the opioid problem worse in fact, as corrupt doctors run pill mills and work through elaborate schemes to avoid detection. And more generally, any time the burden of proof is shifted from citizens to the government is a good day in court.

We’re still awaiting West Virginia v. EPA, which ought to drop in the next couple days. If West Virginia wins, watch for the climatistas to freak out.

Finally, this out of the New York state courts today:

A law that would have allowed noncitizens to vote in local elections in New York City was struck down on Monday by a State Supreme Court justice on Staten Island who said it violated the State Constitution.

The measure, which was passed by the City Council in December, would have allowed more than 800,000 permanent legal residents and people with authorization to work in the United States to vote for offices such as mayor and City Council.

But Justice Ralph J. Porzio ruled that the new law conflicted with constitutional guidelines and state law stating that only eligible citizens can vote. To give noncitizens a right to vote would require a referendum, the judge wrote.

This reasoning sounds a bit muddled, but a win is a win, and I’ll take it. Still not tired of all the winning.

Distant Thunder On the Supreme Court

We are coming off one of the greatest weeks in the history of the U.S. Supreme Court. And yet, a largely unreported dissent by Justice Clarence Thomas may be the harbinger of something important that is still to come.

The case is Coral Ridge Ministries v. Southern Poverty Law Center, and the opinion by Justice Thomas, dissenting from a denial of a writ of certiorari, is the kind of thing that normally would disappear into the historical ether.

But this time, perhaps not. Start with the fact that Thomas is now the undisputed intellectual leader of the Court. Then take into account that many observers, including President Trump, have argued that our current standards for defamation cases have been tilted way too far in favor of defendants who libel or slander prominent people. Mix in the reality that the Southern Poverty Law Center is one of the great grifter organizations of our time, reeling in countless millions in donations–the SPLC has literally no idea what to do with the money it has raised, so it stashes it in offshore shelters–and making its living by contemptibly smearing conservative organizations.

Justice Thomas thought that the case by Coral Ridge Ministries against the SPLC should have been heard by the Court:

Coral Ridge Ministries Media, Inc., is a Christian non-profit dedicated to spreading the “Gospel of Jesus Christ” and “a biblically informed view of the world, using all available media.” 406 F. Supp. 3d 1258, 1268 (MD Ala. 2019) (internal quotation marks omitted). In 2017, Coral Ridge applied to receive donations through AmazonSmile, a program that allows Amazon customers to contribute to approved nonprofits. To its dismay, Coral Ridge learned it was ineligible for the program. The Southern Poverty Law Center (SPLC) had designated Coral Ridge an “Anti-LGBT hate group” because of its biblical views concerning human sexuality and marriage. Id., at 1270 (internal quotation marks omitted). AmazonSmile excluded Coral Ridge based on SPLC’s “hate group” designation.

This is a familiar story. Amazon has outsourced approval of nonprofits eligible to participate in its “Smile” program to the SPLC. The SPLC always approves left-wing groups, no matter how hateful they may be, but it considers many conservative groups to be “hateful” per se because it disagrees with them. Based on the SPLC’s political categories, Amazon obligingly supports liberal groups, but, often, not conservative ones.

Justice Thomas thinks that the SPLC should be required to defend the truth of its smears against Coral Ridge Ministries, which protests that, while it “opposes homosexual conduct” based on its religious beliefs, it is in no sense a “hate group.” … To the contrary, it “has nothing but love for people who engage in homosexual conduct” and “has never attacked or maligned anyone on the basis of engaging in homosexual conduct.”

The culprit here is twofold: 1) the requirement that to be actionable, a statement must be one of fact, not opinion; and 2) the “actual malice” standard–the standard that a public figure plaintiff must prove not only that the defendant (here, SPLC) was careless in libeling him or her, but rather that the defendant knew that what it said was false, or knew that it was likely false, and said it anyway. For obvious reasons, this subjective standard has proved impossible to meet in nearly all cases involving public figures.

Justice Thomas continued:

I would grant certiorari in this case to revisit the “actual malice” standard. This case is one of many showing how New York Times and its progeny have allowed media organizations and interest groups “to cast false aspersions on public figures with near impunity.” Tah, 991 F. 3d, at 254 (opinion of Silberman, J.). SPLC’s “hate group” designation lumped Coral Ridge’s Christian ministry with groups like the Ku Klux Klan and Neo-Nazis. It placed Coral Ridge on an interactive, online “Hate Map” and caused Coral Ridge concrete financial injury by excluding it from the AmazonSmile donation program. Nonetheless, unable to satisfy the “almost impossible” actual-malice standard this Court has imposed, Coral Ridge could not hold SPLC to account for what it maintains is a blatant falsehood. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 771 (1985) (White, J., concurring in judgment).

This is an issue that will return to the forefront many times in the years to come, until the Supreme Court adopts a reasonable standard to reconcile traditional libel law with the First Amendment.

Paid to Keep the Lights Off

Rolling blackouts are coming to the U.S., either this Summer or some time soon hereafter. But the United Kingdom is a little ahead of us on the downhill energy spiral, so it is useful to see what is going on there. The London Times headlines: “Hard-up families will be paid to use less electricity and avoid blackouts.”

Millions of households could be paid to use less electricity at peak times this winter under plans from the National Grid to reduce the risk of blackouts.

The company responsible for keeping the lights on is working urgently to establish a scheme to pay consumers with smart meters to ration their usage voluntarily when supplies are scarce.

It believes that this could be a cheaper and greener option than paying fossil fuel power plants to generate more electricity….

This is called demand-side management. Historically, the role of utilities and governments has been to figure out how to meet citizens’ needs for energy. But that is changing: now the question is, how do we drive down the demand for electricity to align with the limited supply of wind and solar energy that we have intermittently available?

The answer is, in the same way we drove down demand for gasoline by pushing the price up to $5.50 a gallon (which I paid over the weekend). That is, make electricity so expensive that lots of people can’t afford to buy it. Hey, we’re managing demand!

Of course, it won’t be limousine liberals who can’t afford electricity and who therefore agree to be “paid” in the form of lower rates for not watching television and for doing their wash in the middle of the night. The Times headline says it all: “Hard-up families will be paid to use less electricity.” For the rich, it will be life as usual. For the non-rich, it will be like living in a third-world country–electricity available only at certain hours of the day.

Around the world, liberals have been making war on the working class for some time now. This isn’t just a U.K. issue, the same future is careening toward us here in the U.S., as long as our politicians are bought and paid for by the “green” energy industry.

Is Leftism a Mental Disorder?

I know, this is not an original question, but the evidence continues to accumulate that there’s something deeply amiss with the psychology of many leftists.

Such as the people who think this is an effective look for protesting the Dobbs decision:


But maybe my favorite are the folks who thought, after Dobbs leaked, that the Court could be influenced by . . . Tik-Tok dances. I wish I was making this up.

By the way, I’ve never heard of either. Here’s one of their other cutting-edge commentaries (with my favorite excerpted):

12 Reasons White Women Were a Mistake

#5. White women are fat and shapeless

White women are often obese, but more important than that is the way the fat is distributed on their bodies. It just sort of goes all over, and even drips out in monstrous teardrop shaped globules like they’re some kind of fetid monster from a fantasy game.

I thought the word of the day now is “body positivity”?

The missing statesmanship

Chief Justice Roberts is a practitioner judicial statesmanship that is occasionally difficult for an outsider to understand. Most famously, Roberts switched his vote on the constitutionality of Obamacare in the face of President Obama’s intimidation. It was a sorry performance that invited more of the same from those for whom it’s all politics.

In Dobbs, Roberts’s statesmanship resulted in an eccentric concurring opinion that none of his colleagues on either side of the case found persuasive. University of St. Thomas Distinguished University Chair & Professor of Law Michael Paulsen puts it this way in a Public Discourse column declaring the magnificence of the Court’s opinion by Justice Alito (I have split one long paragraph in two):

Chief Justice Roberts concurred in the judgment only, making six votes to uphold Mississippi’s ban on abortion after fifteen weeks. But the rest of his opinion is bizarre. Obsessed with a desire to rule as narrowly as possible, Roberts would have overruled Roe and Casey insofar as they invented a plenary right to abortion up the point of viability—that much is all to the good, and important. But, on the ground that it was not necessary to decide anything more, Roberts would have preserved Roe’s “right to choose” abortion so long as there was some “reasonable” opportunity to have exercised that choice at some (unspecified) earlier point in pregnancy—or at least left that question open for now.

This is contrived. It is the fetish of restraint, without common sense. Taken seriously, it would invent (or preserve) a judicial abortion right and draw a brand new, arbitrary, ad hoc, unspecified line—exactly what Roberts condemned Roe and Casey for doing—on the ground that “judicial restraint” requires it. It is as if an Olympic sprinter determined that he should always run races taking only two-inch strides, as a matter of his own practice. Little wonder that he was left behind in the dust and that no one followed him. I have long resisted the common criticism of Roberts as not being fully principled. He has done some great work. But not here. This opinion is out to lunch.

It seems to me that the statesmanship that is called to protect the Court as an institution is the kind that would let the Democrats know that intimidation, bullying, and threats of assassination are not going to deter the Court from doing its duty. Roberts should have exercised his discretion to join the majority without further ado. He is cutting the salami too damn thin.

Alito alights on Bruen dissent

The day before the Supreme Court turned the world upside down and overruled Roe last week, it it held that the Second Amendment protects the right of law-abiding people to carry a gun outside the home for self-defense and that New York’s Sullivan law, which makes that virtually impossible for anyone but VIPs, was therefore unconstitutional. Justice Thomas wrote the opinion for the Court in New York State Rifle & Pistol Association v. Bruen. Justice Breyer dissented in an opinion joined by Justices Sotomayor and Kagan.

Justice Alito filed a separate concurring opinion to deconstruct the fog of hysteria emitted in the dissent. I recommend Justice Alito’s concurrence for its entertainment value, which is considerable. Below are a few paragraphs that give a sense of the rest (internal citations and footnotes omitted).

* * * * *

In light of what we have actually held, it is hard to see what legitimate purpose can possibly be served by most of the dissent’s lengthy introductory section. Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years? Does the dissent think that laws like New York’s prevent or deter such atrocities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home? And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.

What is the relevance of statistics about the use of guns to commit suicide? Does the dissent think that a lot of people who possess guns in their homes will be stopped or deterred from shooting themselves if they cannot lawfully take them outside?

The dissent cites statistics about the use of guns in domestic disputes, but it does not explain why these statistics are relevant to the question presented in this case. How many of the cases involving the use of a gun in a domestic dispute occur outside the home, and how many are prevented by laws like New York’s?…

The dissent cites the large number of guns in private hands—nearly 400 million—but it does not explain what this statistic has to do with the question whether a person who already has the right to keep a gun in the home for self-defense is likely to be deterred from acquiring a gun by the knowledge that the gun cannot be carried outside the home. And while the dissent seemingly thinks that the ubiquity of guns and our country’s high level of gun violence provide reasons for sustaining the New York law, the dissent appears not to understand that it is these very facts that cause law-abiding citizens to feel the need to carry a gun for self-defense.

Andrew Lee, RIP

I spent three hours with Drew Lee on Friday morning together with my friend Howard Root. We were Drew’s guests on KTLK AM 1130’s Justice & Drew news show. Unbelievably, it proved to be Drew’s last show. He passed away Saturday afternoon, way before his time. I am heartbroken.

Recovering from open-heart surgery at the University of Minnesota Hospital, Jon Justice just made the devastating announcement on the air from his hospital room at the top of this morning’s show. When a proper obituary is available, I will post it here.

Drew was a talk radio veteran — conservative, funny, talented, kind, decent, and irreplaceable. I loved his work on the show. I loved being with him in the studio. I always left with the feeling that I was walking on a cloud. My prayers are with his family.

On Friday Drew was ready to wind up the show with a story about artificial intelligence. Before launching into it, he turned to Howard and me. He asked if there there was anything we wanted to discuss before we got to it. I told him I wanted to say I thought Justice & Drew was the most important news show in the Twin Cities (I meant Minnesota). Howard added his own thoughts along the same lines. When I specified an important story that I knew about only because of the show, Drew responded, “Funny you should say that” — and expanded on the point. We never did get to that AI story.

Below is the third hour of Friday’s show with Howard and me. Our discussion of Justice & Drew is at the end of the closing segment.