At the Supreme Court, conservatives have been playing defense since at least the 1950's. It's now time for the Left to play defense and for conservatives to be bold.
Jul 4, 2023·edited Jul 4, 2023Liked by William Otis
Bravo!
One addendum on the issue of sexual mutilation of children (aka "gender-affirming care"). CA has enacted as policy and now considering a statute would remove a child from a parent's custody if that parent refuses to affirm the child's chosen gender by not using their pronouns or name, or by denying them "gender affirming care."
This has happened. You should check out fellow Substacker Sasha Stone's most recent post, "Welcome to America's Religious War," which links to the following testimony from a mother whose teenage daughter was removed but the state, mutliated and who eventually "knelt before a train," ending her life.
There is nothing wrong with court involvement in the protection of children. It is in fact a prerogative of government to provide safety for those who cant protect themselves. Even conservatives recognize this.
I want to publish these thoughts from my friend and Ringside subscriber Prof. Daniel Lowenstein, who was having technical problems putting them up here:
"The Harvard professor you allude to was Mark Tushnet. On the merits, I don’t see any reason why gender mutilation should be permitted on a minor under any circumstances whatsoever. I agree there are some people—Deirdre McCloskey seems to be an example—who get satisfaction from living a life mimicking the opposite sex. But I have no idea what kind of very, very rare case you are thinking of in which the person can’t wait until the age of consent. Indeed, if I had my druthers, the age of consent for this purpose would be 25.
"On affirmative action, I don’t think a criminal sanction would do any harm, but I doubt if it would do all that much good. I suspect cases would be rarely brought, especially in the states that need it most. But I think allowing civil damages, payable by the individuals at fault, for any plaintiff who shows he has been disadvantaged by the use of race in admissions would be more effective. Or perhaps damages should be payable by the institution. Minimum damages might be set, say, at three times the tuition for four years (e.g., if the tuition is $50,000 per year, damages would be $150,000 times four years, equals $600,000). The individual should not have to prove what the result otherwise would have been, merely that race was considered against him. That would be payable by the institution, but the individuals responsible would be disqualified from working for a university in the state for, say, 5 years."
I have added a note in the post that, as reader Daniel Lowenstein reminds me, it was Prof. Mark Tushnet that I was trying to recall. But Noah Feldman was a good guess.
For public colleges, criminal penalties are excessive. Courts can simply extend section 1983 liability; in fact, after SFFA v. Harvard, plaintiffs should already be able to do so going forward. Smaller penalties, which can be sought by plaintiffs rather than waiting for politically-influenced prosecutors to act, may be more effective.
Well, it's conceivable that a career prosecutor knows more about mens rea than a career ERISA lawyer. OTOH, I also have some experience with tax-exempt organizations in general and think that both the IRS and individual states, in their role of overseeing not-for-profit organizations, have very strong cases for denying tax exemption (in the case of the IRS) and permission to raise funds (in the case of states) to colleges that discriminate in their admissions policies.
Denying tax exemption to colleges that engage in racial discrimination doesn't require a new act of Congress. As Bob Jones established, it's the law of the land right now. All that is needed is enforcement by the IRS.
A problem with a criminal statute, I think, is that any reasonable version would include mens rea as an element of the offense. Individual defendants would argue that they innocently and reasonably relied on representations by counsel that their colleges' admissions procedures didn't violate the law. Even in the reddest states, it might be hard to secure convictions.
I'm all for denying tax exempt status if that (1) can, and (2) would get done. I have some doubts about both, but that's not my specialty. As to my proposed statute, no further mens rea is needed; we now know that using race in admissions is malum in se (of course many of us knew it well before last week), so Congress is free to ban it without any express mens rea requirement, just as it can ban having sex with a five year-old without any express mens rea requirement.
And I have to doubt that individual admissions officers consult with legal counsel as respects a particular applicant's evaluation, which would be the subject of a discrete prosecution. Even if there were such consultation, however, the government would have an easy time showing that it was not to secure an actual legal opinion, but simply another part of the whole subterfuge to use race while falsely pretending not to. Given the (justified) low public opinion of the legal profession, jurors would have no problem believing that the university lawyers were just another cog in the continued illegal racial balancing scheme, just one office over. Such a belief would have the added virtue of being true.
I like the approach, since I've long thought the only way to bring errant officials to heel is to take the criminal law our of the toolbox. I might differ on details. I do quarrel with the suggestion there was a conservative Supreme Court in the Eisenhower years. Eisenhower inherited a Roosevelt-Truman court, and, in addition to the unlamented Charles Whittaker, he appointed Earl Warren, William Brennan, John Marshall Harlan the younger, and Potter Stewart. Warren and Brennan were judicial liberals, Harlan an establishment Republican, and Stewart only modestly conservative. Jim Dueholm
I certainly agree with your point that we haven't had a conservative Supreme Court in ages, probably not since the Four Horsemen were deep-sixing New Deal laws in the 1930s. It's been a long drought, and one that's persisted despite Republican-appointed majorities on the Court for 50 years or more. Jim Dueholm
Regarding colleges' evasions of the ban on affirmative action, wouldn't a simpler statutory reinforcement be the denial of tax exempt status to schools that engage in racial discrimination. Actually, that doesn't even require a statute. See Bob Jones University v. United States, 461 U.S. 574 (1983).
My experience is that the prospect of going to jail focuses the mind even better than adverse changes in tax status. In addition, neither the plan you propose (nor mine) could make it through Congress as long as the Senate has a 60-vote filibuster. But I think my plan could get adopted by maybe 20 state legislatures.
Either the "edit" function isn't working or I don't understand how to use it. For "evasions of affirmative action", substitute "evasions of the ban on affirmative action".
Bravo!
One addendum on the issue of sexual mutilation of children (aka "gender-affirming care"). CA has enacted as policy and now considering a statute would remove a child from a parent's custody if that parent refuses to affirm the child's chosen gender by not using their pronouns or name, or by denying them "gender affirming care."
This has happened. You should check out fellow Substacker Sasha Stone's most recent post, "Welcome to America's Religious War," which links to the following testimony from a mother whose teenage daughter was removed but the state, mutliated and who eventually "knelt before a train," ending her life.
https://youtu.be/glygWmWD_6w
She blames the transgender cult for murdering her daughter. While that may not meet a legal definition, it's pretty hard to argue with.
There is nothing wrong with court involvement in the protection of children. It is in fact a prerogative of government to provide safety for those who cant protect themselves. Even conservatives recognize this.
I want to publish these thoughts from my friend and Ringside subscriber Prof. Daniel Lowenstein, who was having technical problems putting them up here:
"The Harvard professor you allude to was Mark Tushnet. On the merits, I don’t see any reason why gender mutilation should be permitted on a minor under any circumstances whatsoever. I agree there are some people—Deirdre McCloskey seems to be an example—who get satisfaction from living a life mimicking the opposite sex. But I have no idea what kind of very, very rare case you are thinking of in which the person can’t wait until the age of consent. Indeed, if I had my druthers, the age of consent for this purpose would be 25.
"On affirmative action, I don’t think a criminal sanction would do any harm, but I doubt if it would do all that much good. I suspect cases would be rarely brought, especially in the states that need it most. But I think allowing civil damages, payable by the individuals at fault, for any plaintiff who shows he has been disadvantaged by the use of race in admissions would be more effective. Or perhaps damages should be payable by the institution. Minimum damages might be set, say, at three times the tuition for four years (e.g., if the tuition is $50,000 per year, damages would be $150,000 times four years, equals $600,000). The individual should not have to prove what the result otherwise would have been, merely that race was considered against him. That would be payable by the institution, but the individuals responsible would be disqualified from working for a university in the state for, say, 5 years."
Conservatives must find the will to prevent the queering of America.
The “Harvard Law professor (I don’t remember which one)” is probably Felix Frankfurter Professor of Law Noah Feldman :
https://www.bloomberg.com/opinion/articles/2016-11-06/election-day-is-a-turning-point-for-supreme-court?utm_source=website&utm_medium=share&utm_campaign=copy
I have added a note in the post that, as reader Daniel Lowenstein reminds me, it was Prof. Mark Tushnet that I was trying to recall. But Noah Feldman was a good guess.
For public colleges, criminal penalties are excessive. Courts can simply extend section 1983 liability; in fact, after SFFA v. Harvard, plaintiffs should already be able to do so going forward. Smaller penalties, which can be sought by plaintiffs rather than waiting for politically-influenced prosecutors to act, may be more effective.
Well, it's conceivable that a career prosecutor knows more about mens rea than a career ERISA lawyer. OTOH, I also have some experience with tax-exempt organizations in general and think that both the IRS and individual states, in their role of overseeing not-for-profit organizations, have very strong cases for denying tax exemption (in the case of the IRS) and permission to raise funds (in the case of states) to colleges that discriminate in their admissions policies.
Tom -- As you've deferred to me in my area, I'll defer to you in yours (which I probably should have done earlier anyway).
Denying tax exemption to colleges that engage in racial discrimination doesn't require a new act of Congress. As Bob Jones established, it's the law of the land right now. All that is needed is enforcement by the IRS.
A problem with a criminal statute, I think, is that any reasonable version would include mens rea as an element of the offense. Individual defendants would argue that they innocently and reasonably relied on representations by counsel that their colleges' admissions procedures didn't violate the law. Even in the reddest states, it might be hard to secure convictions.
I'm all for denying tax exempt status if that (1) can, and (2) would get done. I have some doubts about both, but that's not my specialty. As to my proposed statute, no further mens rea is needed; we now know that using race in admissions is malum in se (of course many of us knew it well before last week), so Congress is free to ban it without any express mens rea requirement, just as it can ban having sex with a five year-old without any express mens rea requirement.
And I have to doubt that individual admissions officers consult with legal counsel as respects a particular applicant's evaluation, which would be the subject of a discrete prosecution. Even if there were such consultation, however, the government would have an easy time showing that it was not to secure an actual legal opinion, but simply another part of the whole subterfuge to use race while falsely pretending not to. Given the (justified) low public opinion of the legal profession, jurors would have no problem believing that the university lawyers were just another cog in the continued illegal racial balancing scheme, just one office over. Such a belief would have the added virtue of being true.
I like the approach, since I've long thought the only way to bring errant officials to heel is to take the criminal law our of the toolbox. I might differ on details. I do quarrel with the suggestion there was a conservative Supreme Court in the Eisenhower years. Eisenhower inherited a Roosevelt-Truman court, and, in addition to the unlamented Charles Whittaker, he appointed Earl Warren, William Brennan, John Marshall Harlan the younger, and Potter Stewart. Warren and Brennan were judicial liberals, Harlan an establishment Republican, and Stewart only modestly conservative. Jim Dueholm
I went back and fixed any notion I might have left that we had a conservative Court under Eisenhower.
I certainly agree with your point that we haven't had a conservative Supreme Court in ages, probably not since the Four Horsemen were deep-sixing New Deal laws in the 1930s. It's been a long drought, and one that's persisted despite Republican-appointed majorities on the Court for 50 years or more. Jim Dueholm
Regarding colleges' evasions of the ban on affirmative action, wouldn't a simpler statutory reinforcement be the denial of tax exempt status to schools that engage in racial discrimination. Actually, that doesn't even require a statute. See Bob Jones University v. United States, 461 U.S. 574 (1983).
My experience is that the prospect of going to jail focuses the mind even better than adverse changes in tax status. In addition, neither the plan you propose (nor mine) could make it through Congress as long as the Senate has a 60-vote filibuster. But I think my plan could get adopted by maybe 20 state legislatures.
Either the "edit" function isn't working or I don't understand how to use it. For "evasions of affirmative action", substitute "evasions of the ban on affirmative action".