Economist Glenn Loury on Biden's "craven pandering"

Glenn Loury, an African-American Economist who teaches at Harvard, was asked recently what he thought about President Biden's preannouncement of the race and gender of his first Supreme Court pick. Excerpt:

You could call this craven pandering. I’m bemused by it because it unnecessarily raises questions about the fitness of whomever he might appoint, when he might have simply chosen a black woman as his nominee, and crowed about it after the fact. To avoid casting any doubt over the choice that he would have made, he could have said this is the best, most qualified person that I could find. But in any case, as he’s done it now, he’s limited his range of options to a very small percentage of the total population of people who might have been selected, and, you could say, has put an asterisk by the name of whomever it is that he might ultimately select.

This is, by the way, the Supreme Court of the United States of America, this is the final stopping point for any legal dispute. There are nine justices serving there, the quality of an appointment is not a small matter. We’re not now admitting a marginal student to an elite college campus, we’re selecting the people who are going to govern the country. The President might have engaged in a kind of subtle and tacit preference, rather than crowing about it and making it overt and explicit. It sows a kind of contempt for the standards that we ought to be employing.

Loury sort of pegs the act of preannouncing and limiting himself as having an effect which is opposite to the presumed intention. It is like affirmative action on steroids, or perhaps a better analogy would be "quotas with more cowbell." The presumed intention is to tout the idea that a black woman can be just as brilliant a legal scholar as a white man, or white woman, or black man. But then suddenly you tacitly say "And to prove this, we will eliminate anyone else from the running!".

The only response to something this illogical that I can think of is "OK, boomer."

A question that interests me in the wake of Obergefell

Rather than hang another comment on Pik's post where it would be diversionary anyway, I'm just going to start a new thread to focus on it. I picked this excerpt from Chief Justice Roberts' dissent from Ann Althouse's blog (she favors SSM). The empasis is mine.

The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.

This is obviously 10th Amendment territory. But my specific question is this. Let's say a state - Alabama might be the likeliest candidate - just says, yeah, we agree with Roberts. We're just going to keep our historic definition. Not sue, mind you, simply ignore Obergefell entirely. Terrible precedent, to be sure, and Roy Moore could expect some absolutely devastating Tweets.

But, really, what happens next? Paratroopers? Hardly. Economic sanctions? What? Against whom or what?

In short, what could a state actually suffer for simply ignoring Obergefell and not recognizing SSM?

It's worse than you think

Keith invited my comments on the Obergefell decision today over at his fine post on King v. Burwell (RTWT, as they say).  Because my take on this SSM decision will be too long to comfortably fit in a comment, tho -- it'll have to be in this new post.  But as I said, read Keith's post too.

As indicated in the title, my take on the Supreme Court decision regarding SSM is that it is worse, far worse, than you might be lead to believe from the media reports.  All you need to know about the majority holding is contained in its first sentence:

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity*.

The holding then invokes the previously-tried much-reviled doctrine of "substantive due process", by which those fundamental rights as identified by the "reasoned judgment" of the courts as "so fundamental that the State must accord them its respect" are protected by the Fourteenth Amendment -- i.e., protected by the imposition of state laws that impinge on those rights. This approach of "substantive due process" was used in Dred Scott (which C.J. Roberts reminds us was "overruled on the battlefields of the Civil War"), and in the reviled, overruled, and now (by this case) resurrected Lochner case.  But history doesn't slow down Justice Kennedy --- not when his "reasoned judgment" can rewrite it by claiming that the Framers intended this result:

The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.

Like Hell they did.

Anyhoo, then the obvious bootstrapping of same-sex marriage into such a fundamental right then occurs, and voila: same-sex marriage is a fundamental right that must be granted by each state, and honored across state lines.  End of analysis.

All of the four dissents are strong, and do not shy from pointing out the damage that is done by the majority opinion.  All citizens should read all four of them.  Roberts points out Dred Scott and Lochner, and the evils those cases inflicted, as noted above.  Scalia rightfully rails against the "naked judicial claim to ... super-legislative power, a claim fundamentally at odds with our system of government".  Justice Thomas gives a lesson on the meaning of liberty, with this lead-in:

[T]he majority invokes our Constitution in the name of a "liberty" that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea -- captured in our Declaration of Independence -- that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constituion not only ignores the text, it inverts the relationship between the individual and the state in our Republic.

And Justice Alito wraps up the larger effect at the end of his dissent:

If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate.... 

... I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own.  But this sincerity is cause for concern, not comfort.  What it evidences is the deep and perhaps irremediable corruption of our legal culture's conception of constitutional interpretation.

Yeah, it's that bad.

Keith makes the point that the states make "cohabitation licenses" available to all comers, without discrimination, and that whatever the rest of us want to call it is up to us.  That might have been a response had the Supreme Court applied "equal protection" analysis -- but it most certainly is not a valid response given this decision.  We now have Supreme Court law that says that marriage is a fundamental right that must be granted by the state to any pair (for now) of humans (for now) who want it.  Discrimination has nothing to do with it -- marriage itself, as defined by the Court today and by courts in the future, is itself a fundamental right because of the dignity that it allegedly confers. So sorry, Keith, that ship has sailed.

And contrary to Flambeaux's point (while granting that this die may have been cast long ago -- but not as long ago as Justice Kennedy says), this case will in fact cause incalculable damage beyond its specific holding today.  Just like Roe v. Wade, much of the populace will interpret this "right" to same-sex marriage as a public good -- "gee, if the state can't prevent me from getting (an abortion; married to another guy), it must be a good thing for me to do."  This case is worse than Roe, though, because at least in Roe the Court allowed room for some limitations, regulations, etc. in its out-of-the-blue trimester analysis.  There's no such room here -- this one is carved in stone totally, and completely.

Of course, this was the goal of the gay political agenda all along -- to require the Nation to agree that gay is just as good as hetero, and that it is immoral to think, much less say, otherwise.  You especially can't say otherwise in this current age of bigotry witch hunts, in which one evil racist nut acts out his own bigotry, meaning of course  good-bye to Lake Calhoun.

Legally, we'll now be in the realm of clashing rights:  same-sex marriage vs. religious freedom.  One would think that the judge-invented SSM right would lose to the express First Amendment free exercise right, but all you have to do is look at the abortion counseling cases to see how that often doesn't matter.

Courage and action (not BOp "strategic retreat") will be required in this new age. A price will be exacted for one's convictions.  Parochial schools and universities may well have to do without federal and state funding. Murray Option actions will be required.  And states and communities that want to resist may well have to suffer the inevitable corporate embargos.

Freedom is not free.

* Any in the class have any ideas as to what current hot topic might fall within "defining and expressing their identity"? Bueller?  Bruce (I mean) Kaitlyn?

Some questions as the Supreme Court hears arguments on gay marriage this morning

What is the State - and here I'm including state governments as well as the federal government - actually doing by claiming any dominion over any sort of marriage, and what right does it have to make any such sort of claim? Is it actually addressing what marriage is or is not, or is it only really addressing marriage to the extent that marriage occupies a place as a gateway to a number of political rights and financial benefits? In other words, should the State actually be addressing the rights and benefits that attach to marriage directly rather than using marriage as a convenient catch-all means of doing so and thus, in doing so, leave the kernel "marriage" at the center of these various rights and responsibilities alone entirely?

For just one example of this, could the State forbid medical institutions from granting or forbidding visitation rights based on marital status, thus addressing visitation rights while stepping over and leaving marriage untouched as a point of action entirely? It certainly does so on race already: medical visitation can't be granted or forbidden on the basis of race, and the State doesn't enumerate which races are valid visitors and which are not. It simply commands hands off race as a deciding factor.

Can the State establish a definition of marriage - any definition - without running afoul of the Establishment Clause in the First Amendment? How, or how not? For example, to establish a Catholic (or Methodist or Muslim) definition of marriage as a law of the land, federal or state, would seem to be a clear violation of the EC. But if so, what are we really left with talking about if the State claims a right to establish a secular, non-religious alternative: how can the State even realistically describe the boundaries of that definition without implicitly invoking a prior, religious definition? Or, again, is it the case that, rather than dealing with any sort of marriage, the State is instead merely expediently seizing upon a collective placeholder for a radiating series of rights and benefits it should more properly be compelled to address individually and directly?

In other words, ever since the pluralistic secular constitutional republic American State necessarily let go of a religious definition of marriage it has really only been gliding in free fall, holding on to a now-empty husk of the past. Constitutionally, it cannot return to any religious standard, but, at least logically, it seems to me, it can ultimately be forced to release its grip even on the husk it's still grasping by forcing it to define exactly what the remnant it's asserting a claim to is. Anything it attempts, it seems to me, can immediately be argued as constitutionally discriminatory from one standpoint or another.

This seems to be the ultimate terminal logic of marriage within a secular constitutional republic to me as groups other than heterosexual couples rise to claim benefits radiating from it: if any one standard for State-sanctioned marriage proves to be unconstitutional, then all - that is, State-sanctioned marriage itself - must ultimately prove to be unconstitutional, thus jettisoning the kernel junction "marriage" itself from the grip of the State entirely and back into its myriad private niches. Rights and benefits previously coupled to marriage must necessarily and subsequently be de-coupled: medical visitation, adoption, financial benefits, etc., etc, and addressed individually, separately, and discretely on their individual, separate, and discrete constitutional and legal merits.

Could some practical collective State property-inheritance-child harboring license subsequently re-evolve? It almost certainly would, but when it does it would (if conservatives insisted upon it) no longer have any connection with now entirely private marriage.

Thus, for conservatives and Christians, life will probably change, but not at all necessarily in the ways envisioned, and almost certainly not in the ways exploitative doomsaying parasites would want it to.

The implications of this to me are that, should conservatives assert themselves on these matters, and contra the completely bizarre cult of personal weakness and submission Rod Dreher is desperately attempting to inculcate in and cultivate among others solely in order to promote his book sales, the whole gay marriage issue might very well prove to be that turning point at which the modern pluralistic constitutional republic American State, at least, was ultimately forced to abandon any direct claims upon marriage entirely.

Even short of this, though, to what extent does whatever the State claim with respect to any version of what it chooses to recognize as marriage bind or even implicate conservatives? I can see one consequence: even threading the needle between accommodation laws (can't discriminate against gays as gays) and compelled speech (conservatives can't be compelled to celebrate SSM), the percentage of conservatives involved in wedding commerce might decline, primarily voluntarily at the hands of conservative vendors themselves. Beyond that, though, what actual compulsions could the State possibly level against conservatives? I've already argued extensively that the idiosyncratic personal and moral cowardice of Rod Dreher should be recognized as the worst touchstone possible for engagement in the public square. For just one example, the State can no more compel conservatives to call gay marriage marriage than it can compel pro-life advocates to call unborn babies fetuses. And whether conservatives refer to gay marriages as marriages remains entirely up to them. The only question becomes the courage of one's convictions. Rod Dreher is God's loud and public gift to us all of an example of what having none looks like.

In short, when I try to look at this whole thing closer up a whole host of crevices seem to open up to me through which conservatives can pursue action immediately serving our interests, at least so long as we don't allow ourselves to be seduced by self-appointed gurus of doom.

I'm sure other questions would come to me, but that's enough from me. Maybe some of you have some others of your own.

BTW, the SCOTUSblog coverage of this morning's arguments can be followed here.

For Me, Not For Thee

I am registered at The Daily Kos blog under the name of Gary. So I get all their blast emails about how we all need to support Obama, kiss Elizabeth Warren's butt, throw the Koch brothers in jail for something, etc. I do this because I think it's good to know what the enemy is yammering on about. Here's the latest one I got, with my emphasis in italics:

Gary, almost 90,000 people signed our pledge to boycott Hobby Lobby after an ultra-conservative Supreme Court ruled that for-profit corporations are not only people can have religion, but people who can impose that religion on their employees.

Your signature is missing. Please add your name: Boycott Hobby Lobby.

We can vote with our dollars to register our dissent.

Keep fighting,
Chris Bowers, Daily Kos

I would be the last person to disagree with the statement "We can vote with our dollars to register our dissent." But ironically that is what this entire case is about! The people who own Hobby Lobby are willing to pay for 16 different types of birth control but believe that 4 types are morally reprehensible and they don't want to be forced spend their dollars on those. They don't tell their employees not to go and pay for these themselves any more that they force them to attend mandatory Bible study meetings.

Minor point: the notion that the Supreme Court is ultra-conservative is almost as silly as Harry Reid's suggestion that Justice Clarence Thomas is white.

Too Many Catholics!!

From the Catholic League. Note the familiar chorus of "JFK was our kind of Catholic!" from the secular left.

Bill Donohue notes the reaction of bigots to the Hobby Lobby case:

“Once again an all-Catholic, all-male, all-ultra-conservative majority of five has voted en bloc to eviscerate fundamental rights,” said Annie Laurie Gaylor of the atheist Freedom From Religion Foundation. Yup. Catholics always conspire to do things “en bloc” (save for Sonia).

It's so laughable; we're continually told that the majority of American Catholics support so-called SSM and use birth-control, so the Catholic Church should merely give in on those things. Then some highly intelligent Catholic public servants who practice their faith—or at least defend the right of others to do so—cast a pro-freedom vote and it's all the fault of Catholics that “fundamental rights” have been “eviscerated”. Note that it is the secularists who have been employing the language of wild-eyed lunatics lately.

“Court’s Catholic Justices Attack Women’s Rights” is the headline of Margery Eagan’s Boston Herald article (it’s those Catholics again). The American Humanist Association issued a statement with a picture of a rosary next to birth control pills. Cute.

In the Huffington Post, Ryan Grim noted that “these men [the five judges who voted for religious liberty] are Christians.” He also said, “The Supreme Court ruled Monday that Christian business owners are special.” I guess the ruling does not apply to Mormons.

Some Muslims are against at least certain forms of contraception, especially ones which cause sterility (e.g., tubal ligation, etc.) Some Orthodox Jews are as well. I'm not sure a Muslim-owned business would care, though, since they like the idea of subjugation by all means possible, including out-breeding the infidels. (I like that idea, too, but I like the idea of people not damaging their souls even more.)

Also in the Huffington Post, Ronald A. Lindsay, a militant atheist, asks, “Is it appropriate to have six Catholic justices on the Supreme Court?” His hero is JFK, who famously threw his religion overboard to win votes. “Unfortunately,” he writes, “a majority of the Supreme Court may now be resurrecting concerns about the compatibility between being a Catholic and being a good citizen....” He’s not resurrecting the old canard—the Justices are.

Another unspoken canard in this whole Philip F. Cardarella, writing in the Kansas City Star, says that when JFK ran, the question was, “How could someone who owed his religious obedience to the Pope in Rome and the doctrines of the Catholic Church truly be trusted?” Now, he opines, “Five men on the Supreme Court—all Catholics—may well just have proven him [JFK] wrong.” Got it.

Catholics are 25 percent of the population and comprise two-thirds of the high court. Jews are 1.8 percent of the population and comprise one-third of the high court. Note: only the former is a problem.

There might have been another Jew on the court. His name was Robert Bork. Ironically, he got shot down by JFK's brother in 1987. Then even more ironically, he converted to Catholicism in 2003. He died a year and a half ago, but since the Kennedy-led assault most likely took 10 years off his life, he'd probably still be around but for that. Just an interesting tidbit.