Haaretz live commentary: "Israel's Supreme Court Hears Petitions Against First Netanyahu Law Attacking Judiciary"

The chairman of the Knesset Constitution, Law and Justice Committee, Simcha Rothman slammed the Supreme Court saying that the very existence of the hearing is a failure of the court. "Why is a judicial process or ruling which will harm the core values of democracy needed? What is the justification for taking away from the State of Israel its basic characteristic as a democratic state?" Rothman asked.

Addressing what the judicial overhaul supporters consider a gradual encroachment on the Knesset's authority, Rothman said: "For many years, through a gradual process of legally sound arguments, the Israeli Supreme Court has taken upon itself powers unparalleled anywhere in the world." He further claimed that "the public's trust in the court has eroded due to the court's extensive involvement in social, economic and political matters." 

Rothman stated that the Knesset is authorized to legislate on any Basic Law, subject to the will of the people.

Justice Anat Baron responded, 'What if there were a law that denied Arabs the right to vote or postpones elections by ten years, then what?' Rothman replied, 'If the elected parliament fails in its role, a remedy won't be found in the hands of a group of individuals authorized to annul the elected representatives without being accountable to the public through elections.'

tagged: Judicial Review, for Americans who don't get the joke.

Miyazaki hates Otaku.

updated a few time, this time at the top. It's all so fucking stupid.

The Idiot Tushnet, and co., restating his old argument.

The Supreme Court has unanimously held that Jackson Pollock’s paintings, Arnold Schöenberg’s music, and Lewis Carroll’s poem “Jabberwocky” are “unquestionably shielded” by the First Amendment. Nonrepresentational art, instrumental music, and nonsense: all receive constitutional coverage under an amendment protecting “the freedom of speech,” even though none involves what we typically think of as speech—the use of words to convey meaning. 

Jackson Pollock from 1952, 

Jackson Pollock, Blue Poles (Number 11)

Daniel Bell 20 years later. "Behind the chiliasm of modern man, is the megalomania of self-infinitization." 

Atomization, isolation and the illusion of absolute community. The low buzz and hum—the violence and warmth—of neurological overload. 

Lewis Carroll's conservative mathematical fictions.

I've said it all before 

[Weber] imagines an impersonal relation to the world. It’s a common trope of the literature of the period, but the impersonal in art and technocracy, though the product of the same events are very different things....  

By the time anything becomes known as an idea, it’s been around for awhile 

From rationalism to positivism to a world of shit.

---

Two from the NYRB

“There is a big secret about sex,” wrote Leo Bersani in 1987. “Most people don’t like it.” The same might be said of translation, which many readers secretly consider a necessary evil.

Translation is transliteration. It's a necessary evil. Utilitarianism turns practical necessity into the ideal, so its weaknesses are now "secrets". And another name for the file of women getting their model of sexuality from homosexual men. Post-feminism is pre-feminism on crank, and rationalism makes you stupid. Or the other way around. An asshole doesn't have a clitoris.  Call it female circumcision by category error.

In his films for children, Hayao Miyazaki has used the labor-intensive art of animation to study the major problem of adult life.

That was the subhead, but still. No fucking shit.

The director sticks to a deliberately vague line, one that could be applied to the most anodyne Disney venture, that all his films are about “how to live.” Few scholars or critics have done the work to penetrate this author’s statement. “What’s it about?” asked Nigel Andrews of Spirited Away. “Simple answer: Everything.” Ligaya Mishan writes that Miyazaki’s films seem to “thwart the Western mind.”

A world of idiots.

Miyazaki is the benign ruler of his domain. He's a master and treated as one by his employee/servants. He's a filmmaker and an artist. His wife "hasn't forgiven him" he says, for making her stop working as an animator. Nothing about any of this"thwarts the Western mind". There are many things in his work that are foreign to the Western mind, but French art is foreign to the English. You can't translate Rimbaud, Mallarmé, or Lady Murasaki, but there's nothing to translate in a painting—a material thing—or an image; the difference is in the perception by individuals and members of various groups. Japanese people understand Miyazaki in ways Europeans will not, but the thing absent perception is the same. 

Spirited Away is a film about children and the adults who care for them. Miyazaki's closest equivalent in the US is Maruice Sendak. In Europe it's Tove Jansson.

You will never understand the inner workings of another mind; all you have to work with is your perception of their actions, or the record or description of those actions by others, rendered in form. Proust is untranslatable; he could never be an English novelist; the past is another county. Acknowledging these things is the beginning of adulthood and intellectual life. We're ruled by big children in university chairs and editorial offices, and it makes me want to puke. 

---

in re: the "Western mind". A commenter, Zina Hitz, on Leiter's post reporting the death of Harry Frankfurt

When I met him at Princeton I was already trained as a scholar in Greek philosophy. But I had not fully realized that I could use philosophy to think about my life or what t means to be a human being.

Princeton philosophy in the 80's

"My students were all obsessed with sex. Not the idea of sex, or the meaning of sex, but sex!"

Rakesh Bhandari comments about Frankfurt's discussion of 1st and 2nd order desires. Maybe Frankfurt will be remembered for teaching geeks that there's more to life than being geeks, the same transition Derrida played a part in. One of them would be amused. I still think I coined the phrase second-order curiosity, meaning the ironic awareness of an interest, as a way of explaining the problems of analytic philosophy. Autism is the model of first order curiosity: subtext, and other people, are irrelevant. "I'm a liberal"; "I'm a nice guy!" "Some of my best friends..." "I have an extended mind!"

Mathematics can't tell you why you wanted to be a mathematician. "Science can't even justify science." Steven Weinberg, whose philosophy justifies Zionism, as Leiter's does.

Bhandari, in the past, and recently.

---

Two by Tushnet: one pushing his version of the "unitary executive" and another, on free speech and art, again. He belongs with the idiots above.

A few weeks ago, my family went on vacation in Copenhagen, where we ate at several top-of-the-line restaurants. My reaction to the meals? “How incredibly creative of the chef.”

A few weeks ago, my family went to DC, where we met with several top-of-the-line law firms. My reaction to the briefs? “How incredibly creative of the partners.”

Briefs are referred to as well crafted. "Lawyers are tradespeople!"

None of these cases are about speech; they're about the relation of speech to commerce. 

The idiot

A different example, with the same analytic structure, clarifies the problem. Switch from discrimination on the basis of religion to discrimination on the basis of race. Now the chef makes dishes to preserve white culture. An African-American comes to the restaurant, but the chef says, “Sorry, I won’t serve you because my message that these foods are preserving white culture would be diluted if people saw Black people eating at the restaurant.” We might say that the restaurant owner’s choice of a business model is his way of expressing himself: His expressive conduct is his expressive activity.

White Trash Cooking is a cookbook, and anyone can buy it. The KKK can open a restaurant, but it has to serve niggers, gooks, spics, and kikes. Equal access to the market, in a commercial culture: from Wickard vs Filburn to civil rights, the market takes precedence over social and private life. 

After Tushnet's open letter: 

—NBC, Alabama Republicans refuse to draw a second Black congressional district in defiance of Supreme Court.

—National Review[!], Harvard’s Mark Tushnet Wants Joe Biden to Become a Dictator

Tushnet is a famous opponent of judicial review, and now Alabama Republicans and supporters of the independent state legislature theory have heeded his call. On executive supremacy, Posner and Vermeule at least are consistent. And all of this and everything above, with the same paper-thin idea of language, and politics.

as expected, the court has inverted the 14th. an amendment written explicitly to directly ameliorate the conditions of race hierarchy becomes in conservative hands an amendment that says it’s illegal to try to directly ameliorate the conditions of race hierarchy https://t.co/CeklyHtyBr

— b-boy bouiebaisse (@jbouie) June 29, 2023

NYT: Supreme Court Strikes Down Race-Based Admissions at Harvard and U.N.C.

In disavowing race as a factor in achieving educational diversity, the court all but ensured that the student population at the campuses of elite institutions will become whiter and more Asian and less Black and Latino.

Again and again. 

[I]n 1867 Congress passed a law providing relief for “freedmen or destitute colored people in the District of Columbia,” to be distributed under the auspices of the Freedmen’s Bureau. Of particular importance in the late 1860s was the Bureau’s operation of schools for blacks, to the point that black children in the South were often better educated than their white counterparts. 

The great critical race scholar Derrick Bell, for example, argued that African Americans can advance on issues of race only when whites also benefit. One way to secure this “interest convergence,” he observed, is to ally with lower-class whites "who, except for the disadvantages imposed on blacks because of color, are in the same economic and political boat."  

NYT today: 

College admissions experts anticipate there will be increased pressure on elite schools to end preferential treatment for children of alumni, who are more frequently white and affluent, as a result of the Supreme Court’s decision.

And in his concurring opinion, Justice Neil M. Gorsuch criticized Harvard for resisting proposals to eliminate legacy admissions, saying the university’s “preferences for the children of donors alumni, and faculty are no help to applicants who cannot boast of their parents’ good fortune or trip to the alumni tent all their lives,” he wrote.

The Court on Tuesday in Moore v. Harper emphatically rejected the independent state legislature theory. Chief Justice Roberts wrote for the Court in a 6-3 decision, and held that state courts have the power to enforce state law, including with regard to elections. He invoked Marbury v. Madison, the 1803 decision that famously recognized the power of courts to review the constitutionality of executive and legislative actions. The Court declared: “We are asked to decide whether the Elections Clause carves out an exception to this basic principle. We hold that it does not. The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”

Win for judicial review. I wonder if Ryan Cooper was forced to work on the piece. 

Stop what you're doing and read the extraordinary amici curiae brief Akhil Amar, Vik Amar and Steve Calabresi have just filed in Moore v. Harper. That's the case involving a claim by North Carolina legislators that under the Constitution only the legislature of a state has the power to regulate federal elections--without any interference from state courts or any constraints from state constitutions. The brief from Akhil, Vik and Steve is an intellectual battering ram that demolishes the independent state legislature theory. It is also the punchiest brief filed in a very long time. In its substance and by its candor, the brief sets a new standard for friend of the court. The brief is available at this link.

repeat: Judicial Review vs The Independent State Legislature Theory. 

Because I'm hearing this shit again.

The court is a political institution. The pretense that it isn't is why we're here now, and who should we blame for that?

The experts have spoken

The critic of the PMC defends designers, even if she doesn't "love" them. The critic of expertise defends experts. Rt'd by Jäger, who also rt's an Israeli sociologist hawking a symposium in Jerusalem. East or West? Fucking genius. New tags for Mirowski and Agnotology, because I've said it all before.

I don't love the term "designer economy" but the article gets right to the heart of what Philip Mirowski called "the agnotology" - post industrial economics just throwing up its hands and saying we don't know and can't know how to plan economically.https://t.co/8N1xkkoYYo

— catherine liu (@bureaucatliu) February 21, 2023

📣Is neoliberalism dead or have the reports of its death been exaggerated?

If you have thoughts on this Question, please consider answering our CfP!

The amazing @IsabellaMWeber will keynote!!

Apply here: https://t.co/5Por63tlCo pic.twitter.com/Hu8eQ89Ok3

— Erez Maggor (@ErezMaggor) February 22, 2023

The last modernist utopias: Israel, North Korea, Saudi Arabia and the UAE.

Noēma from The Berggruen Institute, and Neom: Salafist Star Trek. Star Trek was never a democracy, but they're the good guys. 

Noēma's art. I should add it to my collection of illustration, political fantasies and architectural kitsch. I'll add Daston and Galison, and Eric Heller.

Some fun I delayed having. "The Designer Economy" by Nils Gilman and Yakov Feygin, both previously here: making the case against small business (Feygin), and citizenship (Gilman).

Gilman and Feygin

In a design framework, economic policy focuses on constructing and reaching a specifically envisioned future. This is different from traditional industrial strategy: It doesn’t “pick winners,” but rather pushes government agencies to have a broad awareness of technological and economic trends in order to promote specific potentialities. In contrast to planned economies or developmental states, a Designer Economy’s primary focus is on a dynamically changing future, and it aims to produce tools to enable various actors in the economy to adapt to these changes in a matter that preserves the public’s preferences through iterative experimentation.

From the first link: to a planning paper put of by the Joint Chiefs of Staff. Seriously.

The Joint Staff J7 supports the CICS and the Joint Warfighter through joint force development to advance the operational effectiveness of the current and future joint force.

This paper, written by the Deployable Training Division (DTD), helps inform both the joint warfighters and key functions within theJ7, notably lessons learned, doctrine, education, and future joint force development. In addition to this paper, the DTD has also developed an overarching Joint Operations Insights and Best Practices Paper and numerous other focus papers that share insights and best practices for various challenges observed at joint headquarters. All of these papers are unclassified for broad accessibility. I commend these papers for your reading. 

From the second link:  Charles F. Sabel, "Beyond Principal-Agent Governance: Experimentalist Organizations, Learning and Accountability" 

Introduction

The success of LPF, like the success of similar populist movements that preceded it in Austria, France, Switzerland and elsewhere, raises grave questions about the legitimacy of democratic inputs to public decision making and the efficacy of public action however decided. At the very least these successes signal an impaired responsiveness of the democratic state to its electorate: a democratic deficit. Coming at a time of economic well being, shifts in party allegiance of a magnitude not seen since the 1920s are thus widely and rightly seen as extending beyond democratic criticism of this or that incumbent government into a protest against the way contemporary representative democracy works....

My central claim is that current debate over bottom-up and top- down governance reform—in disregard of the lessons of contemporary, practical success in collective problem solving—ignores important organizational innovations, without which the reallocation of control rights to civil society actors is unlikely to result in the social learning about the effective pursuit of the broad, imprecise goals—‘effective’ or ‘adequate’ education— implied by the turn to service-oriented solidarity. I argue further that these innovative, problem solving institutions, though not intrinsically democratic, can be configured in ways that address familiar problems in representative, deliberative, direct and associational democracy; and that, so configured, they are compatible with the Dutch tradition of sharing democratic sovereignty between parliament and extra parliamentary bodies. The core of the paper discusses the principles informing these new organizations; illustrates their operation as regulatory rule makes and providers of a new kind of public service; and speculatively defends their democratic aptitude in general and in the setting of consensual democracy characteristic of the Netherlands.

The third link is to John Dewey, The Public and its Problems

Gilman and Feygin, further in

Rejecting anti-government rhetoric and instead celebrating competent operators is thus a crucial first step. Managing a successful Designer Economy requires a cadre of experienced, entrepreneurial and independent government officials. Today, however, government service is difficult to enter due to a labyrinth of byzantine rules and processes. Moreover, public servants lack social prestige and are often underpaid relative to what they can earn in the private sector; a McKinsey partner earns much more than a congressional staffer or a Commerce Department GS-15. Many staffers are overworked, underpaid and can’t make ends meet in long-term government service. 

As a recent report by New America found, congressional staffers with specialist knowledge had virtually disappeared; most saw their posts as stepping stones to consulting and lobbying work. This prevents the government from benefiting from institutional knowledge, experimentation and “learning by doing,” which marks out the most successful industrial policy experiences. Increasing government pay in order to recruit and retain talent, therefore, must be central to the project of enabling the Designer Economy.

Government agencies also need explicit, legislated authority to do economic design work. The role of government in the era of the Design Economy is to coordinate between agencies, business and labor to find a consensus on specific futures and agreements on how to get to these goals. In an insightful interview with Ezra Klein, the Roosevelt Institute’s Felica Wong called these “coordination” problems. The federal government must be empowered to override blocking factions, particularly at the state and local levels. For example, the Department of Energy needs more authority to designate new, interstate transmission corridors and, if necessary, build and operate high-voltage inter-regional transmission lines. 

Government analysts need to be trained and empowered to collect and systematize new, granular micro-data on real production processes. Not only has the U.S. government become worse at monitoring and understanding what the real economy looks like and does at the detailed level required for effective design work to take place, it has also lost the ability to flexibly and rapidly make decisions. Streamlining decision-making will allow the government to do more than build or enable the private sector. Instead, it can become a bottleneck detective, finding ways to solve potential problems before they derail efforts to achieve desired goals. This means gathering and sharing information with interested parties — another coordination problem.

Twice they link to Ezra Klein.

A problem of our era is there’s too little utopian thinking, but one worthy exception is Aaron Bastani’s “Fully Automated Luxury Communism,” a leftist tract that puts the technologies in development right now — artificial intelligence, renewable energy, asteroid mining, plant-and cell-based meats, and genetic editing — at the center of a postwork, postscarcity vision.

“What if everything could change?” he asks. “What if, more than simply meeting the great challenges of our time — from climate change to inequality and aging — we went far beyond them, putting today’s problems behind us like we did before with large predators and, for the most part, illness? What if, rather than having no sense of a different future, we decided history hadn’t actually begun?”

Happy talk ordoliberalism? Mr Blandings build his dream state, and his dream body. Even Hollywood has a better understanding of dystopia. And the whole thing is described as a nationalist project, competing with foreign adversaries. Without citizenship? Make up your fucking minds.

Sabel and Joshua Cohen, the political philosopher from "Apple University"

"Global Democracy"

Abstract

In this Article, we describe an emerging arena of global administration. We claim that this arena, not bounded by a state, raises accountability problems of a kind different from those addressed by conventional administrative law. And we argue that measures designed to address these problems will have potentially large implications for democratic theory and practice.

Our argument starts from the premise – stated here without nuance – that something new is happening politically beyond the borders of individual states and irreducible to their voluntary interactions. To distinguish these developments from what is commonly called "international law and politics," we use the term "global politics." The emergence of global politics is marked by a proliferation of political settings beyond domestic boundaries. This proliferation expands the range of relevant political actors, while shifting our understanding of political units and of relations among them: the emergence of human rights as limits on Westphalian sovereignty was a first step in this shift, but not the last.

"the emergence of human rights as limits on Westphalian sovereignty".  Human rights against democracy. And liberals complain about judicial review. 

Gilman was once a regular reader of this blog, and he followed me on twitter. Until he blocked me.

Ian Milheiser, Jan 25, 2023  

Trump’s worst judge is now a dangerous threat to press freedom

It’s not immediately clear how much money is at stake in this case, but the amount is likely to be quite high. The plaintiffs claim that the media defendants conspired to shut down or severely harm anti-vaxxer websites and similar content that collectively brought in millions of readers and viewers. Federal antitrust law permits antitrust plaintiffs to recover “threefold the damages” they suffered because of a defendant’s unlawful actions.

And they’re seeking those damages from members of a group known as the Trusted News Initiative (TNI), a partnership made up of some of the most important tech and media companies around the globe. According to the TNI’s website, this group seeks to bring “together organisations across media and technology to tackle harmful disinformation in real time.”

The TNI also identifies a long list of media and tech institutions as its “core partners”:

AP, AFP, BBC, CBC/Radio-Canada, European Broadcasting Union (EBU), Financial Times, Information Futures Lab, Google/YouTube, The Hindu, The Nation Media Group, Meta, Microsoft, Reuters, Reuters Institute for the Study of Journalism, Twitter, The Washington Post, Kompass – Indonesia, Dawn – Pakistan, Indian Express – India, NDTV – India, ABC – Australia, SBS – Australia, NHK – Japan.

The Children’s Health Fund plaintiffs draw many of their allegations against this media partnership from publicly available information — such as a 2020 speech by BBC executive Jamie Angus, where he said that the TNI “has developed a shared early-warning system to alert partners about disinformation that has the potential to become viral and cause significant harm to the integrity of elections.”

Similarly, a December 2020 announcement published on the BBC’s website revealed that the TNI also seeks to “combat spread of harmful vaccine disinformation.”

...The crux of their legal argument is that the TNI engaged in a “group boycott,” a forbidden practice under federal antitrust law, where multiple competitors within an industry collude to deny essential goods or services to other competitors. Specifically, the Children’s Health Fund plaintiffs suggest that news organizations within the TNI colluded with tech companies within TNI to deny anti-vaxxer sites access to platforms like YouTube, Facebook, or Twitter.

At least some of these plaintiffs’ factual claims appear to be true. TNI does exist. It does include both major news companies and major tech platforms. And it did seek to “combat spread of harmful vaccine disinformation.”

But even if these plaintiffs eventually prove that top news and tech executives got together in a smoke-filled room and plotted to suppress plaintiffs’ anti-vaxxer content, there is a big, glaring problem with their legal arguments. Antitrust law does prohibit group boycotts that seek to suppress competition within an industry, but it does not prevent competitors from working together toward shared social or political goals.

Federal law prohibits competitors from banding together in a conspiracy “in restraint of trade.” The purpose of this ban is to prevent companies from engaging in anti-competitive practices that distort the market and leave consumers worse off. It’s not to prevent companies from working together toward shared political or social goals.

Indeed, if antitrust law did forbid competitors from working together on such goals, then advocacy groups such as the US Chamber of Commerce or the National Association of Manufacturers would be unlawful because these organizations pool resources from multiple competing businesses to lobby policymakers.

The Supreme Court drew the line separating economically motivated boycotts (which ordinarily are not allowed under federal antitrust law) and politically or socially motivated ones (which are often protected by the First Amendment) in two decisions: NAACP v. Claiborne Hardware (1982) and FTC v. Superior Court Trial Lawyers Association (1990).

In the former case, the NAACP led a boycott where Black consumers refused to patronize white merchants in Claiborne County, Mississippi. The purpose of this boycott was to advance various civil rights-related demands, including desegregation of all public facilities, integration of bus stations, and the hiring of more Black police officers.

In ruling that the boycotters’ nonviolent actions were permissible, the Supreme Court focused on the fact that their goals were political and not economic. Yes, the Court explained, the boycotters must have known that the boycotted merchants “would sustain economic injury,” but that did not change the fact that “the purpose of [the boycotters’] campaign was not to destroy legitimate competition.”

Indeed, the Court held that suppressing this boycott would give “insufficient weight to the First Amendment’s protection of political speech and association.”

The Trial Lawyers case, meanwhile, involved a group of lawyers who had historically been paid by the District of Columbia to represent indigent criminal defendants, but who collectively refused to take on additional cases until the District raised the rates it paid these lawyers.

Although this boycott, which successfully convinced DC to raise these rates, did have clear political implications — higher rates for indigent defense lawyers meant that more and better attorneys would agree to represent such clients — the Court deemed it to be an impermissible economic boycott. “The agreement among the CJA lawyers was designed to obtain higher prices for their services and was implemented by a concerted refusal to serve an important customer in the market for legal services,” the Court explained. Such a “constriction of supply” the Court determined, “is the essence of ‘price-fixing.’”

American Bar Association, April, 2020 

Nationwide, union membership numbers have been on the decline for decades. In public defense, however, an opposite trend seems to be taking hold. More and more public defender offices across the country have moved to form collective bargaining units.

Milheiser, Jan 9, 2023

The Supreme Court hears a case this week that endangers workers’ ability to strike

The Supreme Court hears a labor dispute on Tuesday involving striking truck drivers who walked off the job to try to secure a better contract from their employer, a company that provides premixed concrete for construction projects. Yet, while Glacier Northwest v. International Brotherhood of Teamsters is a fairly unremarkable case, the stakes for unionized workers could be enormous.

Glacier Northwest, the employer behind this case, seeks to upend a more than 60-year-old rule protecting unions from lawsuits when workers exercise their federally protected right to strike.

"the Trusted News Initiative (TNI), a partnership made up of some of the most important tech and media companies around the globe." The sentence makes me want to puke.

The Intercept

Elon Musk Caves to Pressure From India to Remove BBC Doc Critical of Modi 

...Pushing back against censorship of the BBC documentary, members of Parliament from the opposition All India Trinamool Congress party Mahua Moitra and Derek O’Brien defiantly posted links to it online.

“Sorry, Haven’t been elected to represent world’s largest democracy to accept censorship,” Moitra posted. “Here’s the link. Watch it while you can.” Moitra’s post is still up, but the link to the documentary no longer works. Moitra had posted a link to the Internet Archive, presumably hoping to get around the block of the BBC, but the Internet Archive subsequently took the link down. She has since posted the audio version on Telegram. 

repeats

Twitter said 100 accounts with Russian ties were removed for amplifying narratives that undermined faith in NATO and targeted the United States and the European Union. 

Sheryl Sandberg and Top Facebook Execs Silenced an Enemy of Turkey to Prevent a Hit to the Company’s Business

There's a lot more

Facebook makes money by feeding people's biases, whatever they are, but it's better to shut down the speech of the paranoid than to break up the monopolists that feed them, or neuter them and make them liable.

Milheiser, Jan 11, 2023, responding to a question to anyone on twitter:

 "What's 100% a total scam but we still accept it in society?" 

"Judicial review"

Milheiser Dec 4 2022 [my highlighting]

The deranged Supreme Court case that threatens US democracy, explained
Moore v. Harper is a test of whether this Supreme Court can ever be trusted with power. 

...Any state constitutional provisions that protect the right to vote, that limit gerrymandering, or that otherwise constrain lawmakers’ ability to skew elections would cease to function. State governors would lose their ability to veto laws impacting federal elections. And state courts would lose their authority to strike down these laws.

repeats: "Stop what you're doing and read the extraordinary amici curiae brief Akhil Amar, Vik Amar and Steve Calabresi have just filed in Moore v. Harper." [my highlighting (again)]

The adoption of new republican state constitutions across the American continent was a transcendent achievement in the late 1770s, acclaimed by Americans everywhere. These new state constitutions were the beating heart of the American Revolution. In a now-famous letter to his wife Abigail on May 17, 1776, John Adams explained, with pride and awe, the monumental import of the Confederation Congress’s decisive vote to encourage each state to adopt is own new constitution: A “whole [state] Government of our own Choice, managed by Persons who We love, revere, and can confide in, has charms for which Men will fight.”

So of course state constitutions were understood as supreme over state legislatures at the Founding! And of course state courts could—and did—enforce these state higher laws against state legislatures. Prominent state judicial review under state constitutions predated the Philadelphia Convention, The Federalist No. 78, and Marbury v. Madison. Indeed, state constitutions formed the basic template for the federal Constitution.

Milheiser is a fucking idiot. 

tagged  Freedom of Speech and Academic Freedom and Judicial Review, etc. etc.

Solum at Balkinization. I added the links. I have to laugh

A third wave of progressive originalism is now well underway.  Justice Jackson is already the de facto leader of a group of scholars, lawyers, and judges who understand the dangers that judicial supremacy and living constitutionalism pose to democracy and equality—given the reality that conservative justices will dominate the Supreme Court for at least a decade or two.  Justice Jackson’s originalism is a direct and forceful response to the conservative justices’ increasing reliance on a selective mix of history, tradition, and precedent to undermine the original meaning of the Constitution’s text, while claiming to be “originalists.”

Ironically, the fiercest critics of progressive originalism are not conservatives.  Instead, it is progressives themselves who have gone on the warpath.  Prominent examples include “Originalism is Bunk,” by Ruth Marcus of The Washington Post, “Worse than Nothing,” a slender monograph by Erwin Chemerinsky, and “Resisting Originalism, Even When ‘Done Well,’” a post on the Yale Journal of Regulation’s Notice and Comment Blog by Lisa Heinzerling.  What these critics and their many supporters share is an opposition to Justice Jackson’s embrace of originalism’s progressive potential, both as a counter to conservative living constitutionalism and as the key to unlocking the emancipatory power of the Fourteenth Amendment.

Solum, in 2003.

[T]he distinction between high politics and low politics .... [is a] conjuring trick. If the universe consists of decisions that are either high politics or low politics, then it's all politics. But it isn't all politics. The crucial distinction is not between political decisions that favor your ideology and those that favor your party. It isn't even between political decisions that are based on general principles you believe in and those which adopt principles you abhor to get to the results that you like. The crucial distinction is between decisions that are based on the law--on things like texts, history, and precedent--and decisions that are based on politics.

Solum, 2022

Douglass’s devastating criticism of Dred Scott was simple: it is the public meaning of the constitutional text and not the racist intentions of some of its authors that must be treated as the binding source of constitutional law. 

What's the public meaning of the 14th Amendment?

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

"[I]n 1867 Congress passed a law providing relief for “freedmen or destitute colored people in the District of Columbia,” to be distributed under the auspices of the Freedmen’s Bureau. Of particular importance in the late 1860s was the Bureau’s operation of schools for blacks, to the point that black children in the South were often better educated than their white counterparts."

[See the link for Justice Jackson, below.]

repeats 

I think this is when I emailed Balkin telling him he was always far too polite, and he replied defending honey over vinegar.  11 years later we got "Why are Americans Originalist?" and Kill'em with Kindness, all too coy by half.

And of course the new originalists are now defending Judicial review!

Originalism is a rhetorical device. That liberals now embrace it while conservatives oppose it is just more proof. Supreme court justices are political appointees, and Jackson is another lightweight, mediocre mind. Solum's not much better.

Old reference, with a new link this time. 

"The Persons Case and the living tree theory of constitutional interpretation."

On 18 October 1929, the Judicial Committee of the Privy Council ruled that women were legally eligible for appointment to the Senate of Canada. The judgment was written by Lord Sankey, the reform-minded Lord Chancellor appointed by Labour Prime Minister Ramsay MacDonald. Lord Sankey departed from a long line of cases and proclaimed an organic and progressive theory of constitutional interpretation. The British North America Act, 1867 (2) had, according to Lord Sankey, planted in Canada "a living tree capable of growth and expansion within its natural limits." This allowed him to rule that "the exclusion of women from all public offices is a relic of days more barbarous than ours."

The Privy Council's decision, popularly known in Canada as the "Person's Case", was a bold legal step that reverberates to this day as a proclamation of equality and universal personhood, and as a guiding principle of constitutional interpretation.

Koppelman is still struggling to find ways to back away from previous commitments

And one more rom Balkin. A symposium on Tanya K. Hernández, Racial Innocence: Unmasking Latino Anti-Black Bias and the Struggle for Equality. 

The only "racial innocence" is the innocence of white narcissists, and wannabes, and every author at Balkinization who claims rights to land in the Middle East. Many Latinos are racist. They'll tell you that themselves.

  

Back and forth, again and again.

Koppelman, "How Charles Koch Successfully Peddled the Snake Oil of Climate Change Denial"  

Koch, one of the world’s richest men, is often depicted as merely a greedy plutocrat hoping only to line his own pockets. This is wrong. Koch is—or, at least, he once was—an idealist. We live in a world that was shaped by his ideals—ideals that have real attractions, but which have taken on a malign form.

A lot has been written about him. But until now, his political philosophy has never been carefully examined. When we do that, we learn both the power and the limitations of the libertarianism that so many have found attractive. We also discover that Koch has not even been faithful to his own unworthy aspirations.

Any account of Koch’s philosophy must begin with the story he tells about himself.

No.  Any account of his philosophy begins with the history of his actions.

I emailed Koppelman: "Social darwinism is idealist. Let the weak suffer and die off."

He replied, agreeing, in a sentence I'd love to quote in public. I replied saying maybe he should have been more direct: the KKK is idealist. Fascism is idealist. I haven't heard back.

I'm remembering Moyn's "liberal perfectionism." 

Koppelman has a tag.

Jason Mazzone, at Balkin

Stop what you're doing and read the extraordinary amici curiae brief Akhil Amar, Vik Amar and Steve Calabresi have just filed in Moore v. Harper. That's the case involving a claim by North Carolina legislators that under the Constitution only the legislature of a state has the power to regulate federal elections--without any interference from state courts or any constraints from state constitutions. The brief from Akhil, Vik and Steve is an intellectual battering ram that demolishes the independent state legislature theory. It is also the punchiest brief filed in a very long time. In its substance and by its candor, the brief sets a new standard for friend of the court. The brief is available at this link.

Judicial Review!!!  

The adoption of new republican state constitutions across the American continent was a transcendent achievement in the late 1770s, acclaimed by Americans everywhere. These new state constitutions were the beating heart of the American Revolution. In a now-famous letter to his wife Abigail on May 17, 1776, John Adams explained, with pride and awe, the monumental import of the Confederation Congress’s decisive vote to encourage each state to adopt is own new constitution: A “whole [state] Government of our own Choice, managed by Persons who We love, revere, and can confide in, has charms for which Men will fight.”

So of course state constitutions were understood as supreme over state legislatures at the Founding! And of course state courts could—and did—enforce these state higher laws against state legislatures. Prominent state judicial review under state constitutions predated the Philadelphia Convention, The Federalist No. 78, and Marbury v. Madison. Indeed, state constitutions formed the basic template for the federal Constitution.

my highlighting. Judicial review has a tag

"Fascism is utopian." Googling it—in english—you get almost nothing, and absent "the struggle against fascism is...", even less. But you get a pirate site download of a book on Jameson, citing him.  Googling "Enlightenment anti-humanism", is still the same. I'm reminded every day, language and psychology are funny things.

Jameson, The Political Unconscious, p.289.

On the contrary, it is increasingly clear in today's world (if it had ever been in doubt) that a Left which cannot grasp the immense Utopian appeal of nationalism (any more than it can grasp that of religion or of fascism) can scarcely hope to "reappropriate" such collective energies and must effectively doom itself to political impotence.

We have a winner.

---

… But now we have another problem.
What is that?
What if we find out what makes each of us internally consistent? What if I find your true name, that thing which describes exactly what you are?
Then I will always be honest, or predictable at least. And you will be able to interpret everything I say and never be wrong. And of course I’ll know your name as well.
No dishonesty, no subterfuge, no Freud, no art… Then we can all be logical positivists.
But it doesn’t matter. That dream’s irrelevant.
I want unification.
It’s an illusion.
I want the illusion.
Do you want the illusion or do you want the illusion to be real? 
What’s the difference?
One means that you have an appreciation of the arts. The other means that you’re a fascist.

updated

I've said it all before. 

Arguments could be made that the original intent of the reconstruction amendments was "unconstitutional", inconsistent with previous understandings, or that the framers wrote amendments in race neutral terms but then while they could promoted discrimination based on race. A brilliant decision, to set their own policies on auto-destruct, only after they'd begun to do their work.

[I]n 1867 Congress passed a law providing relief for “freedmen or destitute colored people in the District of Columbia,” to be distributed under the auspices of the Freedmen’s Bureau. Of particular importance in the late 1860s was the Bureau’s operation of schools for blacks, to the point that black children in the South were often better educated than their white counterparts.

"to the point that black children in the South were often better educated than their white counterparts." How's that for a brilliant way to sow anger and mistrust among the poor white trash? Divide the poor, and conquer. The policy was blatantly unconstitutional, but it was the only call the white liberal elite were capable of making.

Equality before the law is a simple phrase, but not a simple fact.

[Jackson's] argument stood out from those employed by her liberal peers: Justice Elena Kagan focused on real-world effects, tracking the demise of the VRA and grilling Alabama’s solicitor general about whether his theory could create a map with zero majority-minority districts. Justice Sonia Sotomayor pointed out that while the Black belt, a Black-majority region of the state, has been cracked over and over again into multiple districts, predominantly white counties were repeatedly left intact. 

Follow the bouncing ball...

Black Lives Matter sentiment is essentially a militant expression of racial liberalism....Black Lives Matter is a cry for full recognition within the established terms of liberal democratic capitalism.

The 1619 Project is bad history in the model of the New York Times bad history of Zionism. 

I watched Jackson cry listening to Cory Booker kiss her ass; it was like watching two annoying children.

And after writing the above I go to google and find this at the top.

Booker began his remarks by thanking AIPAC president Mort Fridman for his “leadership and his friendship,” telling the crowd that he and Fridman “talk often” and “text message back and forth like teenagers.” 

Again and again. I'm not complaining: "Whichever book you open, you will find precisely the passage you need." 

Liberals who've criticized judicial review are praising Jackson—they're ecstatic—but the pendulum has moved away from elite decision-making to politics from below. 

The woman on the left in the photograph, from 2011, ran for congress this year

James L. Moses, "William O. Douglas and the Vietnam War: Civil Liberties, Presidential Authority, and the "Political Question" Presidential Studies Quarterly , Fall, 1996, Vol. 26, No. 4, Intricacies of U.S. Foreign Policy (Fall, 1996), pp. 1019-1033 

https://www.jstor.org/stable/27551668

Douglas and Conscientious Objection 

...In addition to those who sought status as conscientious objectors because of their religious or moral objection to war in any form, there were many who saw the Vietnam War as a particularly immoral and unjust conflict. In 1970 Douglas tackled the prickly problem of "selective conscientious objection," or the refusal on religious or moral grounds of people to participate in certain wars or conflicts. Did there exist a right to refuse induction into "unjust" conflicts as opposed to "just" wars? In Gillette v. United States, the Court answered strongly in the negative, stating that "persons who object solely to participation in a particular war are not within the purview of the exempting section" of the draft statutes, even though the objection be "'religious' in character." Thurgood Marshall, for the eight to one majority, wrote that Congress intended to exempt from service only those who objected to "war in any form."

William O. Douglas, strongly disagreed as the lone dissenter. He saw the forced induction of "selective" objectors as violative of First Amendment free exercise guarantees. Though he conceded the question involved "freedom of conscience" more than religion, he argued "conscience and belief are the main ingredients of First Amendment rights." Douglas believed the religion clauses in the First Amendment were broader than "religion" in the conventional sense, and any narrower reading represented an "invidious discrimination in favor of religious persons and against others with like scruples." For Douglas, Marshall's majority opinion in Gillette struck a blow against the "right of conscience" implicit in the First Amendment and therefore represented an unconstitutional violation of Vietnam opponents' rights.

Justice Douglas himself had foreshadowed the arrival of the "selective conscientious objection" cases. The Supreme Court refused to hear arguments in the 1969 case Jones v. Lemond concerning an enlistee who, after five months in the service, claimed to have "acquired" CO status. As in hundreds of other instances, Douglas insisted that his dissent from the Court's denial o?certiorari be printed in the official record so that the public would be aware of his stance on the issues raised. He argued that a substantial issue had been raised in the case; that is, the First Amendment dimensions of conscientious objection "whether based on religion, philosophy, or one's view of a particular 'war' or armed conflict." It was precisely this "selective" component championed by Douglas in this earlier dissenting opinion that the Court as a whole again rejected in the 1970 cases....

Douglas and Cambodian "Incursion" 

In 1973, New York Representative Elizabeth Holtzman and several U.S. Air Force officers sought to halt the bombing of Cambodia, instituted by Richard Nixon in a effort to "clean out major enemy sanctuaries on the Cambodian-Vietnam border," on the grounds that the United States had not declared war against that country. They approached Justice Thurgood Marshall, who denied their petition to vacate the lower court stay on the bombing halt injunction. Marshall refused to act unilaterally, instead stating that this action "must follow the regular appellate procedures." Nonetheless, two days later, Holtzman asked Justice Douglas to vacate the lower court stay. Dressed in blue jeans and boots, Douglas met on the steps of his Goose Prairie, Washington, retreat with the ACLU attorneys seeking the order. Not at all hesitant to act unilaterally, Justice Douglas told them he would indeed hear them at the Yakima courthouse, some fifty miles south of Goose Prairie, the following morning. He said that he would issue a ruling, but "wanted to hear the other side of the case."

Dean Smith of the U.S. Attorney's Office and Burt Neuborne of the ACLU made their arguments to Douglas on August 4, 1973, at Yakima. Smith told Douglas that this was not a judicial but a political question, and that the August 15 bombing cutoff date already mandated by Congress represented a political compromise previously made on the issue. This avoided what he called a "constitutional confrontation." Douglas replied, "we live in a world of confrontations. That's what the whole system is about." Neuborne told Douglas that "the effect of the stay is to get judicial authority to continue to do something the judiciary said in the first place the President has no right to do." After hearing arguments, Justice Douglas stated that he would not let the question become moot, August 15 cutoff date or not. "I will make a ruling."

In perhaps his most extraordinary exertion of judicial activism, Douglas vacated the lower court's stay against a bombing halt, in effect personally ordering the United States government to cease its bombing of Cambodia. By approaching Douglas to vacate the stay, Holtzman had given the Justice a legal means finally to do what he had been unable thus far to accomplish: meaningfully intervene in American Vietnam policy and put an end to at least a portion of the war. Douglas's decision is also a classic example of Jerome Frank's definition, under the tenets of legal realism, of the judicial function as the expression of judgments "worked out backward from conclusions tentatively formulated." There could be little doubt, given Douglas's history on the Vietnam issue and his judicial temperament, that he would grant the petitioners' request. 

repeat

In Griswold, the justices wholesale *made up a constitutional right* to achieve a political outcome. I am opposed to judges making law. It’s the job of the legislative branch to create laws, not the courts. This is separation of powers 101.

— Blake Masters (@bgmasters) May 7, 2022

the court has nothing to do with laws, it is a council of clerics that rules by decree and is discussed as such https://t.co/94xU4wwH4I

— ryan cooper (@ryanlcooper) May 3, 2022

this was pretty good.

'This thing that has happened in my country done by people from my country who have been saying they will do this thing for decades feels like a strange thing that happens in a foreign country' - Americans

— Karl Sharro (@KarlreMarks) May 3, 2022

---

I grew up around lawyers; they're my favorite bureaucrats. As far as legal philosophy is concerned, as a NY Biglaw partner put it, "Lawyers don't read that stuff. Lawyers are tradespeople!" Her tone was contemptuous. I laughed. 

The justices of Supreme Court are political appointees, almost always mediocre minds.

If we get hacks it's a failure of politics.

"It is the common fate of the indolent to see their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt."

and one last time because the tweets by Masters and Cooper make a great pair. And it's become clear since that Cooper doesn't just hate the constitution; he lates law itself. He wants outcomes without process. His justice is ad hoc, like Posner: "the rule of reason". Nothing new but Cooper makes it easy.

I was asked by a journalist from another country—from my twitter days—what I made of this, on Thiel, his followers, pets and servants. Maybe I'll write something later, but the writer's passivity is as much a symptom as the rest. He's  unwilling to ask what Christian fundamentalists and homosexual nihilists have in common. He can't ask himself and us, and more important for his job, he can't ask them. Again: journalism modeled on academia, on courtesy and respect, not interrogation. Sitting in a diner with J.D. Vance and all he's good for is sad stenography, recording a thousand contradictions, passionate hypocrisy, the black heart of fascism.  

--- 

In Griswold, the justices wholesale *made up a constitutional right* to achieve a political outcome. I am opposed to judges making law. It’s the job of the legislative branch to create laws, not the courts. This is separation of powers 101.

— Blake Masters (@bgmasters) May 7, 2022

the court has nothing to do with laws, it is a council of clerics that rules by decree and is discussed as such https://t.co/94xU4wwH4I

— ryan cooper (@ryanlcooper) May 3, 2022

this was pretty good.

'This thing that has happened in my country done by people from my country who have been saying they will do this thing for decades feels like a strange thing that happens in a foreign country' - Americans

— Karl Sharro (@KarlreMarks) May 3, 2022

---

We've been here before but not on the same day. The idiot Cooper

the court has nothing to do with laws, it is a council of clerics that rules by decree and is discussed as such

Jäger in The Guardian: The Tories’ biggest trick is making their opponents fight post-Brexit policies in the courts

It seems like every few months brings news of another defeat for the UK government in the courts. And there may well be more to come – the latest policy in the sights of lawyers and activists is the plan to process certain asylum seekers who’ve arrived on Britain’s shores in Rwanda in east Africa.

The policy was met with justified outrage from progressives and the left. Specialists also predicted that it would run afoul of international law and human rights legislation. But what if this was part of the plan all along? The Times columnist Clare Foges, writing under the headline “Rwanda won’t work: but it will for Boris Johnson”, wondered if the real purpose of the plan was not to actually reduce perilous journeys across the Channel, as the government claimed, but to draw progressives into extended court battles and lawsuits. This would force them to act as an explicit blockade on post-Brexit migration policies, frustrating the “people’s will” ratified by the 2019 election, and thereby galvanising Tory activists and potential voters.

American liberals haven't complained about judicial review in state courts, which have largely played the same role as in the UK. And I still have never heard opponents cite Derrick Bell's argument against Brown. Why I have a tag for Judicial review.

---

A couple of years ago I searched for articles on Arendt and Bell. I found only one, from 2011. Maribel Morey, in "Reassessing Hannah Arendt's 'Reflections on Little Rock' 1959", refers to Bell in a footnote.

I've removed other footnote markers in the passage.

To late 1950s’ Dissent readers who assumed that the school integration movement required black schoolchildren to become stoic, heroic, and sacrificial civil rights actors for the benefit of future generations, a concern with children’s childhoods seemed immaterial.* However, the Supreme Court’s opinion in Brown v. Board of Education (1954) reveals that even for the nine justices of the Brown Court (who, presumably, represented the antithesis of Arendt’s position in “Reflections”), the entire point of integrating public schools was to improve black children’s lives. Taking the Brown opinion at face value, one of the main reasons for integrating schools was to correct black schoolchildren’s “feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” When in 1959 Arendt prescribed keeping black schoolchildren like Elizabeth Eckford far away from political and public concerns as a means of improving their childhoods, she clearly differed from Brown’s position, but both Arendt and the Brown Court were concerned with the same question. 

Put simply, this article argues that Arendt’s “Reflections,” like the Supreme Court’s Brown opinion, was largely concerned with improving black children’s childhoods and that this point brought to light a broader concern for children’s childhoods that preoccu- pied Arendt deeply in the late 1950s. Rather than being dismissed by Arendtian and civil rights scholars alike, “Reflections” should be read alongside Arendt’s two other contem- porary works and appreciated for bringing up a topic that was central to Brown.

* The constitutional scholar, Derrick Bell, made this observation two decades later. In ‘‘Serving Two Masters,’’ Bell explained that school integration in racially isolated neighborhoods had required the transportation of students, often black students over long distances to white schools. He argued: “The busing issue has served to make concrete what many parents long have sensed and what new research has suggested: court orders mandating racial balance may be (depending on the circumstances) educationally advantageous, irrelevant, or even disadvantageous. Nevertheless, civil rights lawyers continue to argue that black children are entitled to integrated schools without regard to the educational effect of such assignments.” Derrick Bell, ‘‘Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation,’’ Yale Law Journal 85 (1976), p. 480. 

I wanted to write something but I was too lazy to do the work of trying to separate Arendt's sympathetic observations from her racism. Now I've found someone who makes the effort, from last year. 

Ainsley LeSure, "The White Mob, (In) Equality Before the Law, and Racial Common Sense: A Critical Race Reading of the Negro Question in "Reflections on Little Rock'"

“Reflections” reveals Arendt’s concern that the second life of equality would become further entrenched, so that the United States would find white mobs challenging the principle of equality altogether, threatening the solvency of the republic in the process. On this reading, Arendt’s analysis of America’s race problem resonates with the racial realist and pessimistic accounts of the tragic continuities of old and new forms of racial domination after moments of supposed racial progress, offered by scholars like Derrick Bell and Saidiya Hartman. Though these scholars conclude that such tragic continuity reflects the inherent racism built into equality as an essential liberal, democratic principle, Arendt’s analysis of the double life of equality offers an alternative explanation—it is not the aspiration toward equality that is the problem but rather the inadequacy of the political institutions tasked with realizing equality. Political institutions cannot just be static entities that simply grant and protect rights. This model is too susceptible to racial common sense.

Yet, Arendt’s work on racism is caught in a political paradox; despite her depiction of liberal political institutions as on the verge of catastrophic failure in the face of racial common sense, she still suggests that the maintenance of these liberal political institutions is the only way to check its rule. In THC, however, Arendt breaks out of this paradox when she implicates the liberal political order in the maintenance of the pernicious modern conditions that bring about the rise of the social and proposes a more expansive model of politics that promises to attune citizens to the complexity of phenomena unfolding in a shared space devoted to witnessing and deliberating about collective matters. Especially important for configuring these political spaces to enact equality anew are the ideas about new forms of government that the new admits to the citizenry bring with them. Practicing politics in this localized, deliberative way opens up the possibility that a collective good, a stable worldly reality, will be produced, disrupting the rule-like fashion in which predetermined racial common sense relates and determines reality in a racist polity.

I haven't read all of LeSure's paper yet—there's a lot more on Bell— but I'm not here to quibble; the relation itself is the point.  And my definition of Liberal is different that anyone above; and it sure as fuck doesn't come from Locke.

WaPo: "Biden administration asserts 'no constitutional right is safe’ if Texas abortion law allowed to stand" 

Justice Brett M. Kavanaugh characterized the Justice Department’s lawsuit as “irregular” and “unusual,” and asked what authority the federal government has to sue over a state law.

Prelogar acknowledged the unusual nature of the government’s lawsuit and said the Justice Department does not “lightly invoke” its authority to sue Texas to block enforcement of the abortion law.

“The reason we’ve done it here,” she said, is because the law is “so unprecedented, extraordinary and extraordinarily dangerous for our constitutional structure.”

Texas, she said, should not be allowed to evade the Supreme Court’s past rulings by crafting a law to evade judicial review.

 tag: Judicial Review (and Comedians)

Times Change

Leiter 

 When the current US Supreme Court strikes down race-conscious admissions procedures...

...which they will almost certainly do in the next couple of years, the Court will, oddly enough, in this instance have majority sentiment on its side, if not elite opinion:   opposition to using race and ethnicity as factors in admissions decisions for colleges is quite widespread.  More than 60% of Blacks, Hispanics, and Democrats say race or ethnicity should not be a factor at all in admissions.  (Philosopher Thomas Mulligan [Georgetown] has called attention to this striking fact previously.)

Leiter links to Leiter, quoting Mulligan 

Whites oppose affirmative action because they believe it violates merit-based hiring. Blacks support affirmative action because they believe it enables merit-based hiring, by nullifying racial bias and other forms of disadvantage.

Despite appearances, when it comes to affirmative action, there is no moral disagreement. Both Blacks and whites believe that the best-qualified applicant should be hired. What we disagree about is a factual question: Does real-world affirmative action enable, or detract from, our shared moral goal?

"More than 60% of Blacks, Hispanics, and Democrats say race or ethnicity should not be a factor" 

They say that now. What did they say in the past?

1983

The black respondents strongly endorsed all eight of the items. The average endorsement of the positive response was 78.7 percent. The range was from 59.6 percent to 91.3 percent (see Table 1). Item five, which elicited the weakest response, asked the respondents if they thought there would be "reverse discrimination against white men." This ia a perceptual item that elicits other reactions than just support for affirmative action. Nevertheless, it still contributed to the overall scale. Items three, seven, and eight, which simply asked how strongly they supported affirmative action programs, received the strongest responses. Roughly 90 percent of the respondents supported these items and only about four percent opposed them. Clearly there is strong support in the black community for affirmative action programs.

"Elite Opinion" gave us Brown v Board. Decades later, Derrick Bell dissented. Leiter would never agree with Bell's reasoning.

A 1963 Nation Opinion Research Center survey of black opinion as to priorities had voting rights and desegregation both at 13%.  Jobs came out at 58%

Mildred A Schwartz, Trends in White Attitudes toward Negroes, National Opinion Research Center, University of Chicago, 1967 https://www.norc.org/PDFs/publications/NORCRpt_119.pdf

The 1956 Roper question was as follows: "Now there have been a number of different viewpoints about the Supreme Court decision against separate schools for Negro students. Which of these comes closest to expressing your own personal opinion? (1) Negroes should go to the same schools that white children do and separate schools should be done away with immediately in all parts of the country. (b) Every attempt should be made to do away with separate schools for Negro students, but a reasonable time should be given to work out the problem. (c) The time may come when Negro and white children should go to the same schools, but it will take years in some places and it shouldn't be pushed. (d) The Supreme Court decision was a mistake and white and Negro students should never be forced to go to the same schools"

The largest proportion, 31 per cent, felt that the Court decision had been a mistake. Twenty-three per cent were of the opinion that school integration, while desirable, would take many years and should not be pushed. Another 22 per cent wanted separate schools done away with, but agreed that "reasonable time" should be allowed for this. Altogether, then, 45 per cent opted for a gradual approach to school integration. Only 12 per cent were in favor of immediate integration. [The remainder had no opinion.]

 Leiter has no sense of history. He imagines a timeless world. 

Arguments could be made that the original intent of the reconstruction amendments was "unconstitutional", inconsistent with previous understandings, or that the framers wrote amendments in race neutral terms but then while they could promoted discrimination based on race. A brilliant decision, to set their own policies on auto-destruct, only after they'd begun to do their work.

[I]n 1867 Congress passed a law providing relief for “freedmen or destitute colored people in the District of Columbia,” to be distributed under the auspices of the Freedmen’s Bureau. Of particular importance in the late 1860s was the Bureau’s operation of schools for blacks, to the point that black children in the South were often better educated than their white counterparts.

"Divide and conquer" Radical reconstruction wasn't radical. If it were, black and white poor would have been treated as equals and the wealth of the rich would have been seized.  But however it was done, affirmative action was always strictly speaking, both unconstitutional and necessary. It's still a white man's world, but not for much longer. 

"Whites oppose affirmative action because they believe it violates merit-based hiring." They have a point, but that's not the only reason they oppose it.

Politics is argument in time; it's low and high, vulgar and fine. It's force and logic, reason and interests. Leiter, like all philosophers, fantasizes a world of one without the other, where their own interests play no role.

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More on Bell and Arendt a few months later, 5/22.