here’s the tree i’m barking up

Dear Rusty

I’m not quite the skeptic Rosenburg is (AND AM ALSO NOT A LAWYER NO LAW NOT ONE NOPE), if only because I’m not confident we have a model of How Social Change Happens. Whatever that proccess is, courts can play various roles: generators, catalyts, obstructions. Also I wouldn’t underestimate the impact a fair and independant adjudication process (haha) can have in permitting a robust and healthily self-critical society. Finally I think there are pretty discreet examples of courts compelling significant progressive social change: the substantive due process revolution, the simple idea that state governments could be accountable for civil rights violations, Roe (does it count as social change if it changes back 40-50 years later?), but also Griswald and the line of privacy cases more generally. Miranda strikes me as a b.f.d. as well, but I am big on the nexus of criminal justice and like, the rest of life in a way no one else is, so it seems like a kind of “niche” ruling to a lot of people.

I don’t know what to think of the it’s-hard-to-get-progressive-legislation-passed and all conservatives have to do is get that legislation batted out? I guess it depends whether we are talking about “courts” or you know, The Court to Rule Them All. But that seems like, at best, a contemporary narrative…

So you notice I left Brown v. Board off the list of cases up there. I mentioned Amazing Critical Race Theory earlier on. Derek Bell, a CRT kind of guy basically argued that Brown wasn’t a good decision for several reasons including being based on bad social science (a man after my own heart). More critically (haha) he explained that it ended up diverting resources away from black students, and let the nice white folk be like ok racism’s over now! (Maybe I made that up?) But basically once the ruling was handed down, districts either sucked at implementing innovative solutions or they created solutions, were countersued, and lost. And so public education is totally awesome in America today. (I went to public school and had a fine time but I was in a big city). Anyway. This is not my position. But the essay is good you should google it.

That’s kind of an aside. My point is that whatever you think courts can or can’t do generally, we HAVE THE DATA about the current judicial climate. It’s not amenable to you know, increasing inclusion and equality, at least as we understand those terms. (I am not quite sure why this is. I assume that there aren’t secret court meetings where the conservative justice ACTUALLY sit there and twirl fake moustaches and tie damsels to train tracks, but I am really at a loss to explain their behavior .) Furthermore, we can get that it’s kind of a problem for a court to say, ok, policy/law X is fucked, change it, and then leave whoever’s on the ground to cobble together a BARELY LEGAL solution in that wake. So that’s two strikes against social change via the courts in re., say, gay marriage (I have a great many awesome things to say about that). I mean gay marriage isn’t school integration in terms of administrative complexity so maybe only the first part of the comparison stands.

A case like Sherrod’s though has, if it’s litigated correctly, the potential to really influence the behavior of non-news news media. So, you know, social change. But it would be by a simple adjustment in incentives, not because of a demand for high-level change. If it were expensive/risky to post fake-ass videos of folks, which it would be if they could sue you for it, there would be a lot less fake-ass video posted. It would change the tenor and you know, outcome, of political campaigns. Etc. etc. etc. I am not so sure where a case like this would go at SCOTUS level, Kennedy, who as you know is the swing vote is… well, I won’t say what I think is going on there on the Jeff Rosen Internet Never Forgets, but he has a uniquely unsubtle reading of the first amendment. And if the existence of a private right of action rather than the substance of that action were at issue, we’d lose the Fashion Club right out. (PS I know I like the Fashion Club on Daria but I think the name is funnier than Mean Girls. I will explain, or not, why this is not misogynistic some other time.)

So the Fashion Club are also why I think the ACA is gonna get overturned. This is, please remember a more conservative and petty court than the one that decided Bush v. Gore. Thomas dissents or concurs in EVERY SINGLE OPINION WITH something like “while the majority offers the correct interpretation of the novelty dildo tariff act, there is no indication that the founding fathers owned novelty dildos or intended our authority to extend over them and so we do not have jurisdiction over this matter.” Scalia and Alito, bish plz. I think Kennedy likes international law and other fancy things, and the fancy of fancy healthcare executives is going to win out here. I ALMOST wonder if it’s not possible Roberts would be the swing vote legislative deference and all and also because he seems a bit mercenary, but really that whole gang is itching to restrict interpretations of the interstate commerce clause and this is their chance to do it with a bang. It’s like 1937 all over again, but without the willingness to threaten to pack the courts which was a little tacky, admitted. I would love so hard to be proven wrong because I totally want to send a whole bunch of folks in front of the Death Panels.


Ps wow that sounded ominous. Was really just me thinking how funny slash not funny it would be to call death panels like you call ghostbusters.

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  • […] Interesting take you have on ACA and the Court-to-end-all-courts. But I’m not sure I follow you on Justice Kennedy. I don’t mean that I disagree, necessarily, but maybe I’m a little dim and am not quite following what you mean. And if Roberts is also kind of a wild card, then I think the prospects for overturning ACA are pretty slim – after all, Ginsburg, Breyer, Sotomayor & (Kagan) aren’t really up in the air anymore than the Snidely Whiplashes on the right side of the see-saw. But you know better than I do. […]

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