In her very first New York Times column, Michelle Goldberg digs deep into her Slate-level thoughts to come up with a way to circumvent the electoral college and save the Union (from the apocalypse).

Since Donald Trump’s cataclysmic election, the unthinkable has become ordinary. We’ve grown used to naked profiteering off the presidency, an administration that calls for the firing of private citizens for political dissent and nuclear diplomacy conducted via Twitter taunts. Here, in my debut as a New York Times columnist, I want to discuss a structural problem that both underlies and transcends our current political nightmare: We have entered a period of minority rule.

I don’t just mean the fact that Trump became president despite his decisive loss in the popular vote, though that shouldn’t be forgotten. Worse, the majority of voters who disapprove of Trump have little power to force Congress to curb him.

On the one hand, Goldberg may be misreading the way in which elections happen in America. If presidents were elected by popular vote, the dynamic across the nation would change. People who might have voted but stayed home because they figured they were in the minority in their state, and their vote wouldn’t have mattered anyway, might have voted. Continue reading →

Judge Denise Cote sentenced former United States Representative and New York City mayoral candidate Anthony Weiner to 21 months in prison. The government asked for a sentence between 21 and 27 months*. The defense sought probation.

Cote, an appointee of President Bill Clinton, seemed to struggle with the decision she was about to make. One the one hand, she acknowledged she was dealing with a defendant who is unwell: “He has a disease that involved sexual compulsivity. Some call it a sex addiction,” she said, as she credited the treatment he’d been receiving, which she considered “effective.” For a moment, it seemed as though she was leaning toward probation — especially when she suggested that Weiner could “make an enormous contribution to society” and provide a “true public service” if he somehow became an advocate for people suffering from his same disease.

But on the other hand, she recognized Weiner committed “a serious crime that deserves serious punishment.” And that the “strong compulsion” that had already led to two very public downfalls had reared its head once again. Treatment and probation alone may not suffice to cure him this time around. Something more was needed.

Much is wrapped up in Weiner’s crime, his downfall, those whose lives were implicated as a result, and his sentence. His inability to control his behavior was manifest; he refused to stop engaging in his “dalliances.” It’s not as if the price wasn’t enormous, for him, his former wife and, possibly, others. Not that any of this seemed to make any difference to Carlos Danger. Continue reading →

The reporter was Davis Winborne, a Mizzou photojournalism student. The lesson he was about to learn covering the demonstrations following the Jason Stockley acquittal for the 2011 killing of Anthony Lamar Smith couldn’t be taught in any classroom.

The SWAT truck stopped, and heavily armored officers carrying assault rifles poured out, screaming at us. Thinking that they would likely ignore the journalists and go after the demonstrators, we stopped and put our hands and cameras in the air. Most of the demonstrators were wearing black, their faces covered with bandanas, and some had weapons. The journalists, on the other hand, were dressed the way we often are — in button-down shirts, with press credentials and cameras plain to see. The difference was obvious.

The peaceful demonstrators of the day had turned into violent protesters of the night, “using broken cement planters to destroy windows, cars and storefronts.” Certainly the windows. cars and storefronts were at fault for the Stockley acquittal and deserved to be broken. And why was Winborn there?

It is important that journalists be allowed to do their job. It is our responsibility to bear witness to newsworthy events. When police ignore the people who are smashing windows and destroying property in order to focus on handcuffing and berating journalists, it impedes our ability to show the world what is happening.

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Ed. Note: Following the District of Columbia Court of Appeals decision in Jones v. United States, holding that the use of a “Stingray” cellsite simulator required a warrant under the Fourth Amendment, Andrew King and Chris Seaton were challenged to debate whether the Third-Party Doctrine or the Supreme Court’s Riley v. California decision should control. This is Andrew’s argument.

In the good old days, you traveled on a horse, read by candlelight, and communicated face-to-face. That was how your dad, your grandfather, your great-grandfather, and so on did it. Things changed, sure, but not nearly at the pace they do now, as we rely so much on digital technology. In the dark days before the Starbucks app, no one knew what the new coffee flavor was, or even that they could get a star for buying a coffee.

The young tend to readily adopt the technology, while the old might ignore or resist the technology until it becomes impossible. Beside the horror of not being notified of the moment Pumpkin Spice Lattes become available, this means that the old tend to have a poor idea of even the basics of the technology around them. It’s kinda cute that my mom signs her name to Facebook posts. But when the best way a U.S. Senator can explain the internet is by declaring it isn’t a truck, technological ignorance is a more significant problem.

Likewise, judges trying to apply legal doctrines to cutting edge technology can be a hit or miss activity. Unfortunately for all of us, judicial opinions are more durable than the taste of the gross penny candy your grandma gave you that was all the rage before the Hindenburg became artwork for a Led Zeppelin album. Continue reading →

Ed. Note: Following the District of Columbia Court of Appeals decision in Jones v. United States, holding that the use of a “Stingray” cellsite simulator required a warrant under the Fourth Amendment, Chris Seaton and Andrew King were challenged to debate whether the Third-Party Doctrine or the Supreme Court’s Riley v. California decision should control. This is Chris’ argument.

On June 25, 2014, the United States Supreme Court issued a ruling that made every red-blooded, patriotic American heart swell with pride. Chief Justice Roberts’ words screamed the very essence of “rock flag eagle”:

Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant.

This emphatic affirmation of our Fourth Amendment rights caused a certain Admiral to channel his inner Jesse Pinkman* on reading Riley v. California. Unfortunately the ink wasn’t even dry on the opinion before cops and legislators started to try and figure out ways around Riley. Continue reading →

Among the great many issues that are “literally horrifying” about the changes to Title IX campus sex tribunal guidance, one of the most unseemly is that the accused may be given the right to cross-examine the accuser. Confrontation. It’s exhausting.

DeVos has said that the former Title IX guidance unfairly denied rights to students who are accused of sexual assault, a claim activists strongly deny. “The Obama-era guidelines reflect bipartisan consensus that campus investigations into sexual assault had to be prompt, equitable, and fair to both sides,” Singh said. “There’s a conservative media narrative that the Obama guidelines required campuses to be procedurally unfair to accused students, but nothing could be further from the truth.” (Emphasis added.)

Nothing? That might be a bit hyperbolic, but if Sejal Singh, a policy coordinator with the advocacy group Know Your IX says so, shouldn’t we just believe? And as Skadden Fellow(?), Alexandra Brodsky, went on a twitter tear over the prospect of “survivors” being forced to subject themselves to “direct cross” by their “assailant.”

That means that a survivor could be directly questioned by her assailant. Not through an intermediary or representative. Directly. Continue reading →

There’s a new columnist at the New York Times. The Jewish name begins with a “G.” The “G” is a color. It ends with a typical Jewish name suffix. Is it…is it…Goldberg? Yes, it’s Michelle Goldberg. My mother’s maiden name was Goldberg. What are the chances? Slim. It’s a very common name, but getting the opportunity to write as a columnist on the Times’ soapbox is uncommon.

Gail Collins does a question and answer column to introduce Goldberg, which isn’t the sort of thing normally done or, to be frank, necessary. If someone hasn’t sufficiently established their bona fides to stand on their soapbox, why would they get the nod? And it’s not as if Goldberg hasn’t done her share of writing. Heck, her name has even appeared in the august pages of SJ. But what niche will she fill at the Times?

Gail: Well, you’ve picked quite a moment. What’s your take on Donald Trump? I don’t mean “Are you happy he’s president?” How do you see your role as a columnist — articulating a national cry of pain? Re-evaluating him on the basis of what happens each week?

The only unacceptable answer is “Crawling under the bed and assuming a fetal position.” It won’t fill 850 words — trust me, I know.

Michelle: Remember a few weeks before the election, when Hillary Clinton said, “I’m the last thing standing between you and the apocalypse?” I think she was basically right. Part of the job of a columnist, as I see it, is to bear witness to a nearly inconceivable civic disaster, and part of it is to grope toward an understanding of how it happened and how to move forward.

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Remember the good old days when the purpose of higher education was higher education? Good times.

The class is called symplectic geometry, a high-level course in mathematics that provides elite graduate students at the University of California, Berkeley, a better understanding of, among other things, planetary motion.

This seems as good a time as any for a Maria Muldaur song,* right? But what does that have to do with free speech and tuition refunds? It’s taught by a prof who feels strongly that it’s wrong for Berkeley to host speakers who are wrong.

But whether symplectic geometry will meet for its scheduled session on Tuesday is still up in the air because the professor, Katrin Wehrheim, is one of dozens of faculty members who announced they would boycott classes ahead of appearances by right-wing speakers this week.

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I confess, I am not very politically correct. It’s not that I choose to be provocative for the sake of shocking those who are, but I find it intellectually barren and socially untenable. Knowing full well that there is nothing I can do to avoid evoking the ire of the woke, I don’t try. But like many others, this means that random SJWs feel compelled to thrust themselves into my sphere to inform me I’m horrible and irredeemable.

Big deal. Usually, I ignore them. Being goaded into a discussion of social justice with the unduly passionate is a thankless endeavor. More to the point, it’s boring. But I indulged a silly girl yesterday.

Who is this person? Beats me. Not a  follower. Not a person with whom I’ve interacted. Just some random nutjob on the twitters. But what does she mean by “so telling”? And why does a random woman feel empowered to make such a statement? Having a few minutes, I decided to play. It ultimately came to this twit: Continue reading →

Howard Wasserman channels Alexis de Tocqueville at PrawfsBlawg in taking the ever-breathless Dahlia Lithwick to task.

Dahlia Lithwick wrote about the litigation of the Joe Arpaio pardon, with the district judge hearing from numerous amici about the constitutional validity and effect of the pardon. The article ends by quoting one amicus, Ian Bassin of Project Democracy: “Thankfully, in America it’s the courts who get the last say on what the Constitution allows.”

As I have been arguing again and again in defense of judicial departmentalism, this is not  true as a normative matter, at least not in the absolute sense in which it is presented here, as simply the way it works in America.

The new name for this is lawfare, challenging every decision with which one disagrees in court in the hope that a judge, some judge, any judge, will disagree and use his fiat to supersede the decisions of Congress or the Executive. While the basic notion of judicial review, established by no less dubious a character than John Marshall in Marbury v. Madison, is accepted despite its having been created by judicial fiat, Marshall pulled it off, despite President Jackson’s snippy retort, “John Marshall has made his decision; now let him enforce it.” Continue reading →