"Well, you know, he's a bland, older white guy."

Says Adam Liptak about Justice Stephen Breyer. Liptak was asked, on the NYT "Daily" podcast — at 8:48 — why it is that Breyer is the Supreme Court Justice people have the least opinion about (according to a poll).

Breyer, we're told, took into account — in deciding when to leave the Court — a desire not to have his "legacy" undone by the person who replaces him, and that raised the question what is his legacy? Maybe the podcast listeners don't know. In an effort to enlighten them, Liptak began with the notion that Breyer is "a bland, older white guy."

Now, let's be clear. Liptak didn't say that because a person is male, old, and white he's bland. He piled "bland" onto the list of things that supposedly cause people not to have an idea of what Justice Breyer is about. But the suggestion is there: to be white is to be bland. Of course, Liptak isn't saying that white people are bland, only that people, seeing a white person, may get no further than to perceive him as bland.

I can see the argument that this perception is good. Let's begin, when we see a person, with a presumption of blandness. Nothing special about this person. A blank. We'll see if he does anything to distinguish himself. Until then: bland. And don't let that be white privilege. Give everyone this privilege. Until you know something about this individual, leave an open space. If they never put anything in that space — that space in your head — let them remain an enigma, nothing but potential. You do not know them, and maybe you never will.

"What the Trump Documents Might Tell the Jan. 6 Committee/Following last week’s Supreme Court ruling, the House panel has received material that it hopes could flesh out how the attack on the Capitol came about."

This is an article in the NYT, which I'm reading because what I hope is that the material will show that Trump wasn't involved in planning or promoting breaking into the Capitol or committing any illegal acts. And isn't that what everyone should hope? 

So I'm reading this article and setting to the side everything that is about Trump's belief that he really did win the election, his search for a legal path to victory, and his desire for a big, exciting rally showing strong support for this cause. 

So, what does the NYT list? I've copied and pasted the whole text into my compose window, and I will now cut out everything I just said I was setting to the side:

 

 

 

Okay. Now that I've done that... feel free to check my work. Maybe you'll say that the talk of seizing voting machines indicated a willingness to pursue a path that wasn't clearly legal, but it was only considered and then not done. Wasn't it part of brainstorming about what could be done if an election actually were being stolen? 

Let's consider the question hypothetically: What if an American presidential election were stolen? What could be done? What if it looked about like the 2020 election, but it really was a fraud? 

One answer might be: In the event of such a calamity, it would be best to go forward and treat the ostensible winner as the winner in order to maintain confidence in the system and to avoid the trauma of revealing and delving into the chaos beneath the surface. The true winner of the election should see the profound national interest in moving forward with a new President in office and fully in power — free of any cloud of uncertainty. The true winner should do nothing more than to offer strong support to his erstwhile opponent and to celebrate the beauty of democracy.

"When the court considers the Harvard and UNC cases, it would do well to reject the 'diversity' rationale entirely, or at least subject it to much tougher standards of review...."

"As one expert in an amicus brief supporting the plaintiffs pointed out, the 'Hispanic' or 'Latino' category lumps together such varied groups as Argentinians, Cubans, Mexicans and immigrants from Spain. 'Asian Americans'' include racial and ethnic groups that cover more than half the world’s population, such as Chinese people, Indians and Filipinos, among others. Such distinct groups as Arab Americans, native-born white Protestants and recent immigrants from Bulgaria are all classified as 'white.' 'African American' combines native-born Black Americans with immigrants from Africa and the Caribbean. Needless to say, these groups have vastly different histories. Lumping them into a few crudely defined categories makes a mockery of the idea that universities are genuinely pursuing diversity as opposed to engaging in gross stereotyping. Perhaps even worse, the diversity rationale could be used to justify all kinds of racial and ethnic preferences.... For many schools, however, the diversity rationale for racial preferences is likely a smokescreen for the real purpose: compensating minority groups that are victims of long-standing discrimination, particularly African Americans. This justification, which has largely been rejected by the Supreme Court, is much more logically compelling than the diversity theory."

Writes Ilya Somin at "Supreme Court affirmative action cases challenging Harvard, UNC policies are overdue/The Harvard suit features extensive evidence that the school’s admissions system discriminates against Asian American applicants" (NBC News). 

Somin says he has has "considerable sympathy" for the alternative rationale, but it's hard to imagine the Supreme Court switching from diversity to compensation for past discrimination, which it rejected as a basis for affirmative action long ago (in the 1970s). 

[T]o my knowledge I was the only Russian Jewish immigrant in my class at Yale Law School. Would 'diversity' justify Yale using ethnic preferences to make sure there was another the following year?

The words "make sure" load that question, but I think — as someone who has served on my law school's admissions committee many times — that it would be perfectly fine to read an applicant's file, find yourself on the line between yes and no, see that this person is a Russian Jewish immigrant, and go with yes. And that yes would be based on what the current doctrine requires — a prediction that this person's contributions will be beneficial to the class as a whole. It would not be based on the idea that Russian Jewish immigrants have been discriminated against in the past. 

How could I possibly assess all the various harms of the past and funnel the urge to compensate into this one applicant? There's no expertise to defer to. With diversity, there is a notion, however hazy, that the school's file-readers have some special intuition about putting together a good student body and making the classroom lively and full of challenging viewpoints. There's a mystique, a magic, a black box that the Court can decide to leave closed. I know many of you are scoffing at that box. But the easiest answer is to leave it closed, not to move to another rationale for affirmative action.

"The Supreme Court agreed Monday to hear challenges to the admissions process at Harvard and the University of North Carolina..."

"... presenting the most serious threat in decades to the use of affirmative action by the nation's public and private colleges and universities.... In the latest case, groups backed by a longtime opponent of affirmative action, Edward Blum of Maine, sued Harvard and UNC in federal court, claiming that Harvard's undergraduate admissions system discriminated against Asian American students and that UNC's discriminated against both Asian American and white students.... The challengers in both cases, Students for Fair Admissions, urged the justices to overrule the court’s 2003 decision on affirmative action, which upheld the University of Michigan's use of race as a plus factor and served as a model for similar admissions programs nationwide...."

NBC News reports.

"Curriculum transparency bills are just thinly veiled attempts at chilling teachers and students from learning and talking about race and gender in schools."

The ACLU tweets, quoted in "The ACLU Suddenly Reverses Its Support For Transparency/The long-time civil liberties organization continues its partisan transformation" (Inquire).

The ACLU tweet links to this NBC News article, "They fought critical race theory. Now they’re focusing on ‘curriculum transparency.' Conservative activists want schools to post lesson plans online, but free speech advocates warn such policies could lead to more censorship in K-12 schools." From that article: 

[T]eachers, their unions and free speech advocates say the proposals would excessively scrutinize daily classwork and would lead teachers to pre-emptively pull potentially contentious materials to avoid drawing criticism....

“It’s important we call this out,” said Jon Friedman, the director of free expression and education at PEN America, a nonprofit group that promotes free speech. “It’s a shift toward more neutral-sounding language, but it’s something that is potentially just as censorious.”

"The indictment [for seditious conspiracy] describes some Oath Keepers’ belief that 'the federal government has been coopted by a cabal of elites actively trying to strip American citizens of their rights.'"

"That [Stewart Rhodes, the leader and founder of the Oath Keepers], the leading defendant, graduated from one of the country’s most élite law schools, Yale, is more than just a fun fact. He developed his views on the Constitution as a law student eighteen years ago, and won a school prize for the best paper on the Bill of Rights. His paper argued that the Bush Administration’s treatment of 'enemy-combatants' in the war on terror was unconstitutional. Rhodes wrote that 'terrorism is a vague concept,' and that 'we need to follow our Constitution’s narrow definition of war and the enemy.' The argument would have found much support in liberal legal-élite and civil-liberties circles.... [I]n order to convict the defendants of seditious conspiracy, the government will have to prove that they planned their storming of the Capitol with the purpose of opposing the lawful transfer of Presidential power.... Rhodes’s seeming belief that his plan for January 6th was resistance to an unconstitutional process may seem wholly unreasonable.... But, if the case goes to trial... [s]ome jurors may find it difficult to convict Rhodes and others of seditious conspiracy if they find that sincere views about reality informed the defendants’ purpose.... Such an outcome might have the effect of adding legal legitimacy to the big lie.... Now that talk of potential 'civil war' occurs not only among extremist groups but in the mainstream press, a public trial of alleged seditionists will showcase the central fissure that could lead us there."

Writes Jeannie Suk Gersen in "The Case Against the Oath Keepers/Members of the group face seditious-conspiracy charges for their roles in the January 6th insurrection. Can a sincere belief that the election was stolen protect them?" (The New Yorker).

Gersen highlights the risk the government is taking, forcing public attention onto the seditious conspiracy charge: Americans will put effort into understanding the defendants' arguments, some unknown segment of us will agree with them, and many more will think the government has overreached because it cannot prove that they were insincere.

"How can the Washington Post say the court decisions on his vaccine or testing mandates were 'out of his control'?"

"Biden and his legal team are supposed to figure out a way to implement his policies that *won’t* get blocked by courts! Those court decisions didn’t happen at random; they happened because judges looked at what the administration did and decided that it didn’t comply with the law."

Writes my son John, at Facebook, commenting on "A year ago, Biden unveiled a 200-page plan to defeat covid. He has struggled to deliver on some key promises" (WaPo).

"Biden and his legal team are supposed to figure out a way to implement his policies that *won’t* get blocked by courts!" — We are all expected to pursue our goals and desires within the limits of the law. But we still can complain about the law that stands in our way and excuse our failure to achieve by pointing at this pesky law.

Sometimes you push the limits of the law and hope to convince judges. With a slightly different configuration of the Supreme Court, the vaccine mandate would have succeeded. Blaming the Court is worth doing to set up judicial appointments as a campaign issue.

And would the implementation of the vaccine mandate have served Biden's interests? Isn't he better off with it failing? He can point to it and say that he tried so hard and not be burdened with the realities of driving so many people out of employment, leaving businesses inadequately staffed, and imposing on the intimate personal bodily autonomy that his Party ordinarily celebrates. 

By the way: "Activists look ahead to what could be the 'last anniversary' for Roe" (NPR).

Speaking of the pending abortion case... did the Texas legislators "figure out a way to implement [their] policies that won’t get blocked by courts"? I'd say they deliberately overreached well-known law because they wanted to convince the Court to change it and, failing that, they wanted political credit for trying.

"Because the Court of Appeals concluded that President Trump’s claims [of executive privilege] would have failed even if he were the incumbent, his status as a former President necessarily made no difference to the court’s decision."

Said the Supreme Court, disposing of Trump v. Thompson with sublime efficiency. 

Justice Thomas would have granted what was an application for stay of mandate and injunction pending review.

Justice Kavanaugh wrote a statement that began:

The Court of Appeals suggested that a former President may not successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, at least if the current President does not support the privilege claim. As this Court’s order today makes clear, those portions of the Court of Appeals’ opinion were dicta and should not be considered binding precedent going forward....

It's clear... but he chooses to write about it anyway:

Without sufficient assurances of continuing confidentiality, Presidents and their advisers would be chilled from engaging in the full and frank deliberations upon which effective discharge of the President’s duties depends.

ADDED: Now that this decision has come out, I find myself very interested in finding out the specifics of what Trump said and did while the siege of the Capitol was under way. I could have accepted executive privilege for the reason Kavanaugh stated, but that isn't what's happening and I like the opportunity to find out this important information — after all we've been through, including the second impeachment. I hope it's a big letdown for Trump haters, but if it's not, it will be good to know.

"Puberty blockers and hormone therapy, the two treatments primarily given to minors, are most effective around the ages of 8 to 14, as they can prevent the need for future surgeries in adulthood..."

"... for example, a transgender boy who took puberty blockers might not need a mastectomy later. There are risks to the drug therapies, including slowed bone growth and fertility loss, but evidence suggests that denying the care to adolescents who need it raises the risk of depression and suicide. The push to outlaw such care altogether gained momentum last year as Republicans across the country adopted the issue.... A week before the [Arkansas] law was to go into effect, however, it was temporarily blocked by a federal judge in response to the A.C.L.U.’s legal challenge. The trial is set for July. Transgender adolescents and their families are now living with uncertainty. 'It’s pretty excruciating as a parent to be told by the state that it will become illegal to give your child what she needs to exist,' Jasmine Banks said. Zara added, 'It’s not, like, other people’s decision who I am and what I’m not.'" 

 From "In Arkansas, Trans Teens Await an Uncertain Future/Even as the medical community grapples with how best to provide care to transgender adolescents, some states seek to ban it outright" (NYT).

 

ADDED: Here's a London Times article from 2020: "Giving puberty blocker to ‘trans’ children is a leap into the unknown/A landmark legal review will examine claims that confused young people are being subjected to a giant medical experiment, says Janice Turner." 

An 11-year-old child is probably years from his or her first kiss. Yet the drug they are about to take will almost certainly lead to a medical pathway which will leave them sterile. Since their gametes will never be allowed to mature, doctors will not even be able to harvest their sperm or eggs. Can any 11-year-old understand the gravity of ruling out ever having children? 

Moreover can this child, for whom sex is an unimaginable, probably rather revolting adult business, consent to a treatment which will depress their future libido to the extent they may never have an orgasm? (Imagine trying to explain the concept, let alone the desirability, of an orgasm to an 11-year-old.) These are the ethical issues which make puberty blockers the most controversial of medications.... 

Triptorelin is presented by gender clinics as a “pause button” which need not stop puberty for ever but can give a “breathing space” while a young person decides whether they wished to proceed to transition.... The problem is that almost everyone who takes puberty blockers goes on to transition. Frozen Peter Pan-like, they see classmates develop into adults. Many have already “socially transitioned”, assuming opposite sex names and clothing. Going back is scary, so inevitably they press forward into cross-sex hormones. But would they have transitioned anyway? Most likely not.... 

Doubts about puberty blockers have come from senior clinicians, from LGBT campaigners worried that gender clinics are performing “gay conversion therapy” on future homosexual kids, and from feminists appalled that girls who do not conform to sexist gender stereotypes feel they cannot be girls....

"My sense is that a law or regulation is at best an opening bid. Is it binding, legally or morally? Maybe..."

"... but the presumption should be neutral at best, or, realistically, highly skeptical. After all, laws and regulations are the products of legislators and bureaucrats, who are presumptively corrupt and dishonest. And everybody know that, really."

Writes Glenn Reynolds, commenting on Ilya Somin's "Martin Luther King on the Ethics of Resistance to State Authority/Georgetown philosopher Jason Brennan offers a valuable summary of King's thought on these issues." 

Somin's piece is at Reason. Excerpt:

The obvious criticism of views like King's is that many people may have poor judgment about which laws are unjust. For example, those who stormed the Capitol on January 6, 2021 likely believed that enforcement of the laws against doing so would be unjust, because (in their view) Donald Trump had a right to stay in power. Similarly, both left and right-wing terrorists often believe they are justified in violating laws against murder and assault.

But the risk that individual citizens may be mistaken about matters of justice has to be balanced against the danger that government can be wrong about such things, as well. Even in democratic societies, there is a long and awful history of the latter. Throughout American history, many more people have been killed and oppressed by unjust exercises of government power than by individuals acting on mistaken assumptions about which laws are morally defensible. The toll of slavery and segregation (both imposed by law) alone easily outweighs that of all morally motivated private disobedience to law combined. The extent to which people should defer to the government's judgment on questions of justice depends heavily on how good that judgment is. All too often, the answer is that it is, at best, highly unreliable.

I'm not agreeing with everything I'm quoting. I'm offering it as worthy of contemplation and debate. 

"At oral argument, Justice Elena Kagan, one of the court's best questioners, sometimes... just shuts down... Still, her anger is often palpable, the color literally draining from her face. "

"And Justice Stephen Breyer on occasion just holds his head.... There isn't a lot of love lost among the court's six conservatives either.... If you watch carefully, you can see conservative eyes rolling from time to time.... [M]any of the conservatives are vying for the position of intellectual leader of the conservative majority, while the chief justice privately worries about going too far too fast. There are, in addition, some long and perhaps not so buried resentments among the conservatives. Alito on occasion barely conceals his disdain for Roberts.... In recent decades, the court has built its legitimacy on a certain degree of moderation — giving the left some of what it wanted and the right some of what it wanted. The left got gay rights and gay marriage, and some limits on presidential power exercised in the name of national security. And the right got expanded religious liberty and expanded free speech, which brought with it expanded corporate spending in elections.... But... the court's conservatives detest each other in the same way that the justices did in the 1940s. Back then, they couldn't agree on anything because, as [Noah] Feldman notes, 'they hated each other.' and even though they might have been able to to reach a consensus, they didn't 'because the hatred was so deep.' To cite just one example of how bad it was, Justice Felix Frankfurter called Justice William O. Douglas 'one of the completely evil men I have ever met.' And Douglas referred to the Austrian-born Frankfurter, who was Jewish, as 'Der Führer' and that was during World War ll."

Writes Nina Totenberg in "Supreme Court justices aren't 'scorpions,' but not happy campers either" (NPR). 

The "scorpion" quote refers to "9 scorpions in a bottle," a famous phrase that Totenberg doesn't give a source, perhaps because it's so famous, but perhaps because the usual attribution — to Oliver Wendell Holmes Jr. — seems incorrect. Noah Feldman's book "Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices Paperback" begins with the quote "The Supreme Court is nine scorpions in a bottle," attributed to Alexander Bickel, law clerk to Justice Felix Frankfurter, 1952–53, and drops this footnote:

"Stewart Rhodes, the leader and founder of the far-right Oath Keepers militia, was arrested on Thursday and charged with seditious conspiracy for organizing a wide-ranging plot to storm the Capitol..."

"... last Jan. 6 and disrupt the certification of Joseph R. Biden Jr.’s electoral victory, federal law enforcement officials said.... Mr. Rhodes, a former Army paratrooper who went on to earn a law degree at Yale, has been under investigation for his role in the riot since at least last spring when, against the advice of his lawyer, he sat down with F.B.I. agents for an interview in Texas. He was at the Capitol on Jan. 6, communicating by cellphone and a chat app with members of his team, many of whom went into the building. But there is no evidence that he entered the Capitol.... In an interview with The New York Times this summer, Mr. Rhodes expressed frustration that several members of his group had 'gone off mission' by entering the Capitol on Jan. 6, quickly adding, 'There were zero instructions from me or leadership to do so.' But at least four Oath Keepers who were at the Capitol that day and are cooperating with the government have sworn in court papers that the group intended to breach the building with the goal of obstructing the final certification of the Electoral College vote...."

The NYT reports.

"The Supreme Court on Thursday blocked the Biden administration from enforcing a vaccine-or-testing mandate for large employers..."

"... dealing a blow to a key element of the White House’s plan to address the pandemic as cases resulting from the Omicron variant are on the rise. But the court allowed a more modest mandate requiring health care workers at facilities receiving federal money to be vaccinated. The vote in the employer mandate case was 6 to 3, with liberal justices in dissent. The vote in the health care case was 5 to 4, with Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh joining the liberal justices to form a majority...."

The NYT reports.

Here are the opinions — NFIB v. OSHA and Biden v. Missouri.

From the OSHA case:

This is no “everyday exercise of federal power.” In re MCP No. 165, 20 F. 4th, at 272 (Sutton, C. J., dissenting). It is instead a significant encroachment into the lives—and health—of a vast number of employees. “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 6) (internal quotation marks omitted). There can be little doubt that OSHA’s mandate qualifies as an exercise of such authority. 

The question, then, is whether the Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures. See 29 U. S. C. §655(b) (directing the Secretary to set “occupational safety and health standards” (emphasis added)); §655(c)(1) (authorizing the Secretary to impose emergency temporary standards necessary to protect “employees” from grave danger in the workplace)....

From Biden v. Missouri:

[H]ealthcare facilities that wish to participate in Medicare and Medicaid have always been obligated to satisfy a host of conditions that address the safe and effective provision of healthcare.... [T]he Secretary routinely imposes conditions of participation that relate to the qualifications and duties of healthcare workers themselves.... Of course the vaccine mandate goes further than what the Secretary has done in the past to implement infection control. But he has never had to address an infection problem of this scale and scope before.... Vaccination requirements are a common feature of the provision of healthcare in America: Healthcare workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps, and rubella....

We accordingly conclude that the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19.

From the dissent in the Biden case. This is by Justice Thomas (joined by Justices Alito, Gorsuch, and Barrett):

“We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 6) (internal quotation marks omitted). And we expect Congress to use “exceedingly clear language if it wishes to significantly alter the balance between state and federal power.” Ibid. (internal quotation marks omitted). The omnibus rule is undoubtedly significant—it requires millions of healthcare workers to choose between losing their livelihoods and acquiescing to a vaccine they have rejected for months. Vaccine mandates also fall squarely within a State’s police power, see Zucht v. King, 260 U. S. 174, 176 (1922), and, until now, only rarely have been a tool of the Federal Government. If Congress had wanted to grant CMS authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly. It did not.

"Just as an MSNBC anchor is saying, 'We're also watching the Supreme Court. It could be a big day'"/"And just like with the Texas abortion cases, SCOTUS has faked us all out. No more opinions today"/"SCOTUS is definitely trolling us..."

 Commentary at SCOTUSblog just now.

"Omicron Makes Biden’s Vaccine Mandates Obsolete/There is no evidence so far that vaccines are reducing infections from the fast-spreading variant."

Commentary by Luc Montagnier and Jed Rubenfeld (in The Wall Street Journal)("Dr. Montagnier was a winner of the 2008 Nobel Prize in Physiology or Medicine for discovering the human immunodeficiency virus. Mr. Rubenfeld is a constitutional scholar").

It would be irrational, legally indefensible and contrary to the public interest for government to mandate vaccines absent any evidence that the vaccines are effective in stopping the spread of the pathogen they target. Yet that’s exactly what’s happening here.

The government's mandates came out when the concern was Delta, not Omicron, and therefore its "findings are now obsolete."

The Supreme Court held in Jacobson v. Massachusetts (1905) that the right to refuse medical treatment could be overcome when society needs to curb the spread of a contagious epidemic. At Friday’s oral argument, all the justices acknowledged that the federal mandates rest on this rationale. 

But mandating a vaccine to stop the spread of a disease requires evidence that the vaccines will prevent infection or transmission (rather than efficacy against severe outcomes like hospitalization or death).... For Omicron, there is as yet no such evidence.

The little data we have suggest the opposite. One preprint study found that after 30 days the Moderna and Pfizer vaccines no longer had any statistically significant positive effect against Omicron infection, and after 90 days, their effect went negative—i.e., vaccinated people were more susceptible to Omicron infection....

According to the CDC, the overwhelming majority of symptomatic U.S. Omicron cases have been mild. The best policy might be to let Omicron run its course while protecting the most vulnerable, naturally immunizing the vast majority against Covid through infection by a relatively benign strain....

It is axiomatic in U.S. law that courts don’t uphold agency directives when the agency has entirely failed to consider facts crucial to the problem....

"Historically, and almost definitionally, a gridlocked Congress that cannot pass laws tends to be better for conservative reactionaries than progressive activists."

"Lawmakers also lack the mastery of esoteric issues, say soil runoff, that civil servants can master. When the courts force Congress to expressly decide, usually either nothing happens — or lobbyists sit in the driver’s seat. Pushing decision-making to Congress from the civil service, or what Trump disdainfully called the 'deep state,' is a goal of the conservative legal project shared by Chief Justice John G. Roberts Jr.... The reality is, even if they tried, the Democratic-controlled Congress probably couldn’t cobble together the votes to pass a mandate like OSHA’s. Ten Republicans in the Senate wouldn’t cross over to break a filibuster. Republicans are emboldened because they think opposition to vaccine mandates in the off-year Virginia elections helped win all three statewide races and flip the House of Delegates."

From "How blocking Biden’s vaccine mandate would be a Supreme Court gift to Trump" by James Hohmann (WaPo).

The Biden administration is relying on general language in a statute passed over a half century ago as it tries to do something that we know Congress won't do on its own, even though Congress has been able to see the problem to be solved for at least half a year. The administration's mandate is such an aggressive imposition on people, and the position of Congress is, essentially, to spare us. It looks as though the Supreme Court is about to make Congress's answer — no mandate — the final answer. 

Isn't that the most democratic — small "d" democratic — resolution of the lawmaking conundrum?

"Bob Dylan and his lawyers are calling the sex abuse lawsuit filed against him in New York last summer a 'ludicrous' money grab by an unbalanced 'psychic' who once stated she had been 'abducted by aliens and piloted their spaceship....'"

"'According to her own website, plaintiff is a psychic who specializes in ‘channeling’ the deceased loved ones of grieving families — for a fee,' the new filing states. It alleges the accuser had not only claimed she had been abducted by aliens, she also purportedly claims that 'she speaks to cats, dogs and other animals — alive and dead — as well as insects and plants.'... [The plaintiff's lawyer said,] 'Some people refer to Bob Dylan as a prophet. People have labels. More than half of Americans believe in psychic phenomena. If you’re going to attack somebody for their beliefs, you’re encroaching upon very dangerous territory.... This is what this country is based on, freedom of beliefs. It shouldn’t divert our attention from the allegations. This case is about the facts.'"

From "Bob Dylan Brands Sex Abuse Lawsuit a ‘Brazen Shakedown’ by Unbalanced ‘Psychic’/'The allegation is false, malicious, reckless and defamatory,' Dylan’s lawyers said in a new response filed in state court in Manhattan" (Rolling Stone).

"Conservative Supreme Court justices on Friday appeared skeptical that the Biden administration has legal authority to impose a broad vaccination-or-testing requirement on large employers."

"They seemed more in agreement with private businesses and Republican-led states that such policies need to be approved by Congress or implemented by state governments than a federal agency — in this case, the Occupational Safety and Health Administration (OSHA). Chief Justice John G. Roberts Jr. was among the conservative justices, who make up a majority of the court, to wonder whether Congress had given authority for agencies 'to enact such a broad regulation.' The Biden administration’s solicitor general, Elizabeth B. Prelogar, said Congress had given just such a power for the agency to enact emergency standards to protect workers in the midst of an unprecedented pandemic."

WaPo reports.

I listened to much of the oral argument, and I thought Prelogar was superhumanly great. I don't think I have ever heard someone speak so quickly for so long without sacrificing any lucidity, terseness, or enunciation. Here's her Wikipedia page. I see that she was Miss Idaho in 2004, she's fluent in Russian, and she has sons who are named Blaise and Beckett (which I'm just guessing is a tribute to Blaise Pascal and Samuel Beckett). 

"If the Chief Justice believes his political judgment is so exquisite, I invite him to resign, travel to Iowa, and get elected. I suspect voters will find his strange views no more compelling than do the principled justices on the Court."

Just a line from Tom Cotton I wanted to memorialize, quoted at Fox News.

It's of a piece with the sort of rhetoric about judges I've been reading for the last 50 years and more. I can't remember a time when I was able to understand anything about the Supreme Court when there wasn't a notion that what they are really doing is politics. And I saw "Impeach Earl Warren" billboards when I was first learning to read — back when I had no idea what "impeach" meant (something about a peach?) or who Earl Warren was.

So it's an old, old theme. But it plays well, and I think Tom Cotton found a spiffy way to do the phrasing. Instead of calling Roberts unprincipled, he points to the other justices — "the principled justices" — and imagines them finding the Chief's "views" "strange" and uncompelling. That's a nice variation on the theme.

And you've got to give Cotton credit for complexity. He addresses the Chief Justice and invites him to do something he's obviously not going to do, though it's more realistic and respectful than the common insults that tell people to do things — like go to hell or kiss my ass — that they're not going to do. "Invite" is polite, and running for President is very grand. But the idea is that if you ran for President with your agenda, you would lose. Cotton predicts the loss in an elegant comparison of voters to "principled justices," who, he suspects, would have the same low opinion of the Chief's ideas.

Now, the so-called "principled justices" oppose the Chief because he's finding something in the law that actually belongs in the political decisionmaking process, and if the Chief were to run for President, he would be taking these ideas to the place where the "principled justices" say they belong. So if the voters rejected these ideas, it would not be for the same reason the "principled justices" rejected them.

Ah! Now, I see the little flaw in Cotton's rhetoric! The only way the voters and the so-called "principled justices" could share the same opinion of the Chief Justice's "strange views" would be if the "principled justices" were thinking in political terms — in which case, they would be no more principled than the Chief Justice.

But if Tom Cotton is reading this — hi, Tom! — I know you already know how to get off that hook. You only said the voters and the "principled justices" would find the Chief's views to be equivalently compelling. It can still be the case that these views are not compelling in court, because they are not law but merely political, and that they are not compelling in the political arena, because people just don't like them.

Should have?

I'm giving this my "Althouse the pedant" tag, so stop now if you don't like where this is going. I'm reading the headline at The Washington Post, "Why Scalia should have loved the Supreme Court’s Title VII decision."

The man is dead. There's NOTHING he should have done.

Why not say "Why Scalia would have loved the Supreme Court’s Title VII decision"? I think I know why. The article is by George Conway. It's in WaPo. I'm going to say: They don't want to concede that Scalia would have joined the majority in this case, that he would have stuck to his principles (and that this case was truly an instance where these principles dictated the outcome the majority reached).