My old buddy and fellow curmudgeon, Mark Herrmann, still writes for Above the Law once a week, as he has since it was readable and credible. Why is a mystery to me, as he’sf smart and funny, thus unrelatable to ATL’s readership these days. My best guess is that he’s still in the groove and, to the extent he’s able to offer any serious thoughts to a young lawyer, he wants to help. Mark’s that kind of guy.
So he wrote a post that was somewhat satirical, but with a point. Continue reading
Japanese Admiral Isoroku Yamamoto, who planned and executed the attack on Pearl Harbor, is famously reputed to have written in his diary, “I fear all we have done is to awaken a sleeping giant and fill him with a terrible resolve.” While the views of Americans vary about abortion, there is no doubt that only a significant minority want to ban abortion. The majority of Americans believe it is, and should be, a constitutional right.
But abortion is only the beginning of the conflagration caused by the leak of the draft opinion. It was obvious that this would strike a significant blow to the integrity of the Supreme Court, not because of the content of the draft but because it proved, in the minds of many, that the catastrophizers were right and the Court is now nothing but a machine honed to do the bidding of the radical right wing. Continue reading
Some prawfs noted that there was a leaked decision in 1919 by a Supreme Court clerk given to some Wall Street speculators so they could use the advance information to make a killing in the market. But the idea of someone within the Supreme Court leaking a draft decision is shocking. This doesn’t happen. This is an exceptional violation of trust. This would have been unthinkable a few years ago, but that was before people assumed the duty to save humanity by violating rules and norms and becoming a hero.
Was the leaker a hero, or was the leaker a villain? Continue reading
Some, most notably those who are either law nerds or untroubled by the substance, will raise the shock that a draft opinion of the Supreme Court of the United States was leaked to Politico. And it is, without a doubt, shocking. Because it violated the trust of chambers. Because it likely reflects someone’s view that leaking this draft was more important than the sanctity of confidence. Maybe a law clerk. Maybe staff. We may never know who did it, which is worthy of discussion.
But it was done, and now the draft has been made public. This changes everything. Continue reading
In anticipation of Elon Musk’s takeover of Twitter, and his somewhat confusing, often simplistic, and generally unhelpful twitting about his plans to make it more amenable to free speech as that’s understood in the constitutional sense, some people have announced their intention to leave twitter in protest. Chances are, the people claiming to leave won’t be missed by many outside their tribe, as they offer their celebrity in general support of the orthodoxy and bring little of thought or interest to the mix.
This was true when fleeing Twitter was the right wingers’ reaction to their darlings being silenced. This is true now as left wingers protest the potential of free speech. Granted, few actually leave, but many make bold proclamations to let their fans know how virtuous they are. Continue reading
The confluence of two things, related yet separate, are producing dangerous beliefs that are likely to get worse before they get better. On the one hand, there is the “believe women” trope. In order to counter generations of women being ignored and disbelieved, the current trend is to presume women, as a sex, are accurate and truthful about their claims of assault, abuse and offense until proven otherwise.
Simultaneously, there is the “men are predators” trope, which metastasized in various directions such as “toxic masculinity,” which contends that all men are dangerous until proven otherwise. Continue reading
Some people don’t get parody. Others don’t think it’s funny. When Anthony Novak decided to create a parody site for the Parma Police Department, he thought it was funny. But as Sixth Circuit Judge Amul Thapar wrote, “The Department was not amused.”
According to Anthony Novak, he created “The City of Parma Police Department” Facebook account—a knockoff of the Department’s real page—to exercise his “fundamental American right” of “[m]ocking our government officials.” And mock them he did. In less than a day, he published half-a-dozen posts “advertising” the Department’s efforts, including free abortions in a police van and a “Pedophile Reform event” featuring a “No means no” learning station. The page spread around Facebook. Some readers praised its comedy. Others criticized the page or called out that it was fake. (He deleted their comments.) And still others (nearly a dozen, in total) felt it necessary to call the police station. A few asked if the page was real. The rest expressed confusion or alerted the police to the fake page.
Mx. Roberta Finklestein (pronouns they/them, MA in Gender Studies, Oberlin 2010) was perplexed. For the life of them they couldn’t figure out why they’d been pulled over that day by a nice but rather imposing Latinx gentleman working for the Sheriff’s Department, cited, and told to appear at the station for questioning.
They initially thought it had something to do with their allyship work and social justice initiatives they brought with them on starting as a substitute teacher for the Eighth Grade classes at Nicholas Saban Intermediate School in Driftwood County, Alabama. Continue reading
I often wonder how many of the unduly passionate progressives have sacrificed for their cause. Sure, they want others to sacrifice, but did they give up their job or college admittance to someone marginalized? Did they hand over the house keys, car keys, IRA password, to a historically oppressed person? Or do they just emote about it on social media, demanding that others sacrifice for a cause when they won’t. Muttering a land acknowledgement before a meeting isn’t the same as giving the land back, and if you’re unwilling to do the latter, the former is performative crap.
Then someone does something that isn’t merely sacrifice, but a sacrifice so extreme that it makes you question their sanity. During the Vietnam war, one of the iconic images was of a Buddhist monk, Thích Quảng Đức, who self-immolated in Saigon. Whether it changed anything is hard to say, but it made its point about the persecution of Buddhists by Diem’s regime. Continue reading
Whether it’s a commentary on the importance of Twitter as the “digital town square” or people just really hate Elon Musk, his purchase of Jack’s baby has hit a lot of people hard. It’s not as if they know what will happen, or that if they really hate Musk’s version of twitter, they can’t log off. But they don’t want to. What they want is for Twitter to be run the way they want it to be run, and that means no speech that hurts their feelings.
“Free speech is the bedrock of a functioning democracy, and Twitter is the digital town square where matters vital to the future of humanity are debated,” Mr. Musk said in his announcement of the deal. He professes to have a healthy tolerance of criticism. “I hope that even my worst critics remain on Twitter, because that is what free speech means,” he tweeted. Continue reading