So much for so-called “originalism”

Estimated read time 15 min read

Abbreviated Pundit Roundup is a long-running series published every morning that collects essential political discussion and analysis around the internet.

We begin today Chris Geidner of Law Dork going beneath the surface of the U.S. Supreme Court’s expected opinion affirming that the shoe salesman can remain on the Colorado ballot but revealing ever-deeper divides.

The final judgment in the case was expected, given the Feb. 8 oral arguments, but, below the surface of that unanimous ruling, however, there was a 5-4 dispute about what else the court should have done in the course of resolving the case — prompting a “protest” from the three Democratic appointees.

The majority made a half-hearted attempt to hide the dispute by labeling their opinion a “per curiam” decision, meaning “for the court,” as the majority did in 2000’s Bush v. Gore decision — but both of the other opinions on Monday referred to the “per curiam” opinion as “the majority” opinion that it is.

Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson highlighted the dispute in a joint opinion concurring only in the judgment, meaning they agreed with the ultimate ruling reversing the Colorado Supreme Court but did not join the majority’s reasoning.

“In a case involving no federal action whatsoever, the Court opines on how federal enforcement of Section 3 must proceed,” the trio wrote.

Adam Serwer of The Atlantic writes that the U.S. Supreme Court’s resolution to the Colorado Supreme Court Case is about something other than so-called “originalism.”

Justice Amy Coney Barrett—alone among the Republican appointees in refusing to go along with their unilateral rewriting of the Fourteenth Amendment—wrote separately, and seemed to urge the media to avoid stating the obvious, that the justices were doing politics rather than law. “The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up,” Barrett wrote. “For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home.”


The message Americans should take home from this case is that when Justice Samuel Alito says, “I do think the Constitution means something and that that meaning does not change,” what he means is that the Constitution changes to mean what he would like it to mean. They should take home the recognition that when Justice Neil Gorsuch says, “Suppose originalism does lead to a result you happen to dislike in this or that case. So what?” he would never allow such a thing to happen if he could avoid it. And they should understand that when Barrett herself says that the Constitution “doesn’t change over time and it’s not up to me to update it or infuse my own policy views into it,” she is not telling the truth, but she would prefer you not point that out.

This case reveals originalism as practiced by the justices for the fraud it actually is: a framework for justifying the results that the jurists handpicked by the conservative legal movement wish to reach. Americans should keep that in mind the next time the justices invoke originalism to impose their austere, selective vision of liberty on a public they insist must remain gratefully silent.

Andrew Atterbury of POLITICO writes about the three-judge panel on the 11th U.S. Circuit Court of Appeals upholding a lower court decision blocking one of the DeSantis Administration’s signature laws.

A three-judge panel of the 11th U.S. Circuit Court of Appeals dealt a blow to the DeSantis administration by deeming one of the Republican governor’s signature laws — the “Stop Woke” Act — unconstitutional, upholding a previous ruling that prevented it from taking hold. DeSantis officials, meanwhile, disagreed with the decision, signaling that the governor could ask the Supreme Court to weigh in.

“By limiting its restrictions to a list of ideas designated as offensive, the Act targets speech based on its content,” Judge Britt C. Grant, an appointee of former President Donald Trump, wrote in the opinion. “And by barring only speech that endorses any of those ideas, it penalizes certain viewpoints — the greatest First Amendment sin.”

A group of businesses — honeymoon registry technology company and Florida-based Ben & Jerry’s franchisee Primo Tampa, along with workplace diversity consultancy Collective Concepts and its co-founder Chevara Orrin — combined to challenge the “anti-woke” workplace policies in federal court. Attorneys for the companies, which are being represented by Protect Democracy and law firm Ropes & Gray, contend that the policies force them to censor themselves “on important societal matters” and “from engaging employees in robust discussion of ideas essential for improving their workplaces.”

Bill McKibben of The New Yorker gives an exit interview to Special Presidential Envoy for Climate John Kerry, who will be stepping down from the position this coming spring.

[MCKIBBEN]: As long as we’re on the subject of politics: sometimes you hear people say, “This energy transition is baked in enough now that it wouldn’t matter if Donald Trump got elected.” How do you see the impact of four years of a Trump Presidency beginning in 2025?

[KERRY]: Who is President matters hugely to this fight, to be able to get to net zero, and also to be able to reach the 2030 goal. (And, by the way, if you don’t reach the 2030 goal, there is no net zero by 2050. People need to understand: you can’t sit there and wait and say we’ll do it later; it has to happen now.) Obviously, a President could come in and put a bad person at the E.P.A. and the Interior and, in terms of every issue which requires a sign-off or something from the federal government, it would be stopped in short; it would slow things down.

Now, will it stop everything? The answer is no. And we saw that during the Trump Administration, because we have renewable-portfolio laws in thirty-seven of our states [specifying how much power must be provided by clean-energy sources]—and those thirty-seven governors, Republican and Democrat, alike, continuing to live by those laws, even while Trump was President. I think the marketplace has basically decided this is the direction we’re going, and this is the future. Look at Ford and General Motors as an example of that. Both of them—Mary Barra and Bill Ford [the chairs of those companies]—decided they’re going to sell electric vehicles, and they’re targeting a time when that’s all they sell.

And so, if someone else were to become President, those folks are not going to go back and say, Oh, look, there’s a new President. Let’s build internal-combustion-engine cars again. Absolutely not happening.

Julian Borger and Bethan McKernan of the Guardian report that Egypt and Qatar appear to be putting the squeeze on Hamas to produce a list identifying the first 40 hostages 

Diplomatic sources in Washington said it was unclear what was stopping Hamas from producing a list identifying the first 40 hostages, noting that uncertainty about lists and identities had dogged the last successful hostage negotiations in November. They suggested it could reflect problems of communication between Hamas units inside and outside Gaza, that some hostages could be held by other groups including Palestinian Islamic Jihad, or that elements of Hamas were withholding the information as a way of obstructing a deal.

Washington does not believe the absence of an Israeli delegation was necessarily bad news for a ceasefire hopes, as Israeli negotiators could arrive within a couple of hours if agreement was reached on a list. Egypt and Qatar have assured Joe Biden’s administration that they were putting pressure on the Hamas representatives in Cairo to come up with the identities of the hostages involved.

The US is also stepping up pressure on Israel to open new land routes, as well as a new sea corridor, to allow a far greater flow of humanitarian aid into Gaza to prevent a famine that UN agencies have warned is imminent. The US vice-president, Kamala Harris, said on Sunday that Israel must “significantly increase the flow of aid”.

Jonathan Lis of Haaretz reports about how PM Netanyahu sought to undermine the American visit of opposition leader and war cabinet minister Benny Gantz.

The trip has created tensions between Gantz and the prime minister, who had refused to authorize it. Netanyahu instructed Mike Herzog, Israel’s ambassador to Washington, not to assist Gantz during the visit and not to join the meetings.

“Netanyahu is enraged by the visit,” a source familiar with the events told Haaretz. “The minute he understood that he couldn’t cancel it, he decided to undermine it in order to signal to the U.S. government that Israel has only one prime minister.”

“If Gantz is not traveling as a government emissary, he does not represent it or Netanyahu. If the ambassador is not in the meetings, it will be difficult for the administration to be sure that its undertakings are moving ahead,” the source added.

2015. Joint Session of Congress. ‘Nuff said. What’s good for the goose…

David Jablinowitz of The Jerusalem Post looks at Minister Gantz’s visit to Washington from Washington’s perspective.

From the White House’s vantage point, however, the invitation extended to Gantz is packaged as a strategically timed move to maintain US backing for Israel in the war against Hamas while trying to somehow control the damage done domestically in the US to President Joe Biden. During the current presidential election campaign, criticism of his supportive policy toward Israel is reaching growing proportions and the political stakes mount.

According to a White House official, within the US diplomatic and defense echelon, support for Israel among the people closest to the president remains strong, even if Jerusalem and Washington may differ on which tactical moves to take at particular times. However, among the political staff involved in running the reelection campaign, there has been pressure. […]

Members of the Biden team were observing that the relationship with Netanyahu was getting singled out in the stinging criticism aimed at the president and his reelection effort. As one aide put it, “It’s one thing for a senator, someone like Bernie Sanders, to say that Netanyahu has to go, but when a voter interviewed on television outside a polling station in Michigan says that she voted ‘uncommitted’ in the [presidential] primary in order to stop Biden from helping Netanyahu – singling the prime minister out that way – that’s different.”

“Invitation extended to Gantz?” That’s not what National Security Communications Advisor John Kirby said yesterday.

Q    Hey, sorry about that.  On the Gantz bit — meeting, how did this meeting come together?  Was this a Gantz request, or did the White House invite him?
And Israeli officials have made clear that Gantz doesn’t represent the Israeli government during this visit, so why host him for such a high-level meeting when — or meetings — when it’s obviously aggravating to the current government?  Thank you.
MR. KIRBY:  Thanks, Aamer.  This was a request by Mr.  Gantz — Minister Gantz — to come to the United States and have meetings.  And he’s a member of the war cabinet.  There is a war going on between Israel and Hamas.  We have been dealing with all members of the war cabinet, including Minister Gantz, since the beginning of the war, certainly when he joined the war cabinet, which was shortly after the 7th of October.  And we see this as a natural outgrowth of those discussions….

Just sayin’…

Timothy Snyder writes for his ”Thinking About…” Substack that nearly every issue we face domestically and internationally depends on successfully defending Ukraine against Russian aggression.

For the past half century, people have been rightly concerned about global warming.  Whether we get through the next half century will depend upon a balance of power between those who make money from fossil fuels and lie about their consequences and those who tell the truth about science and seek alternative sources of energy.  Vladimir Putin is the most important fossil fuel oligarch.  Both his wealth and his power arise from natural gas and oil reserves.  His war in Ukraine is a foretaste of the struggle for resources we will all face should Putin and other fossil fuel oligarchs get the upper hand.  Precisely because Ukraine resisted, important economies have accelerated their green transition.  Should Ukraine be abandoned and lose, it seems unlikely that there will be another chance to hold back fossil fuel oligarchy and save the climate.  More broadly, Putin’s idiotic nation that there is no Ukraine is an example of the kind of oligarchical fantasy wastes time and destroys life as we try to confront the world’s actual problems.

Global hunger is an important scenario for catastrophic global suffering in an age of drastic inequality and resource strife.  Here no country is more important than Ukraine.  For more than two thousand years, since the ancient Greeks, the fertile soil of Ukraine has fed neighboring lands and civilizations.  Ukraine today is capable of feeding something like half a billion people.  Russia’s war against Ukraine has also been a hunger war.  Russia has mined farms, flooded others by destroying a critical dam, targeted grain-storage facilities, and blockaded the Black Sea to prevent exports.  In 2023, Ukraine was able to win an astonishing victory, clearing the western Black Sea of the Russian navy, and opening lanes for export of grain.  Because the Ukrainians did this on their own, it has hardly been covered in our press.  But it is a huge achievement.  People in the Near East and Africa are being fed who might otherwise starve.  If Ukraine is allowed to fall, all of this can be reversed, and suffering and war will spread to those vulnerable and critical areas.

From a different perspective, people fear that our world can end as a result of artificial intelligence, digital propaganda, and the collapse of the human contact needed for political decency.  For a decade now, Russia has been in the forefront of digital manipulation.  Its first invasion of Ukraine, in 2014, was successful chiefly as a hybrid war, in which it found vulnerable minds in the West and inserted useful memes — ones which are still in use today.  And Russia does find backers today among the digital oligarchs, most notably Elon Musk, who has bent his personal account and indeed his entire platform to become an instrument of Russian propaganda.  That said, the Ukrainians have, this time, shown how this can be resisted.  Volodymyr Zelens’kyi and other Ukrainian leaders, by taking personal risks in time of danger, have reminded us that there is a real world.  And Ukrainian civil society has this time taken a playful approach to new media, deconstructing Russian propaganda and reminding us of the human side — and the human stakes.

Jacqueline Charles of the Miami Herald chronicles the further deterioration of Haiti into chaotic gang violence as gangs attacked Toussaint Louverture International Airport outside of the capital Port-au-Prince.

The attack against the airport came amid a suspension of all international flights into Haiti by U.S.-based carriers, citing the ongoing civil unrest. Despite the cancellations, the airport had remained under heavy guard, with members of the country’s armed forces deployed inside, while Haiti National Police officers and soldiers patrolled the outskirts.

Monday’s firefight broke out around 1 p.m. after gunmen opened fire from several directions and attempted to breach the facility by creating a hole in a wall. They were immediately met with heavy gunfire from the police, who were also accompanied by members of the Armed Forces of Haiti.


Gangs control more than 80% of Port-au-Prince and in recent days they’ve grown even more powerful. Their coordinated violent attacks have overwhelmed and outgunned the Haiti National Police, which has struggled to respond to the surge.

The police force, which had roughly 9,000 officers on public safety duty at any given time last year, has been shrinking at an alarming rate, according to the United Nations. The U. N. has said that the police force lost more than 1,600 officers last year. Some were killed by gang members, while others migrated to the U.S. after the Biden administration launched a two-year humanitarian parole program for nationals of Haiti, Cuba, Nicaragua and Venezuela.

Finally today, Pablo G. Pérez González of El País in English asks: How old are we, really?

Well, for the most part, our bodies are composed of water (around 60% by mass). That is H₂O: two atoms of hydrogen for each one of oxygen, which means that most of the approximately 7 octillion atoms that make up our body are hydrogen, or about 62% by number.

And how old are those hydrogen atoms? Again, the answer is not simple. Hydrogen atoms are made up of one proton and one electron. And protons appeared in the universe, according to our most recent calculations, a little less than 13.813 billion years ago, with a margin of error of 38 million years, give or take.

Specifically, the protons of virtually all hydrogen atoms that exist today appeared from the first second after the Big Bang and in the first three minutes counted from that moment, 13.813 billion years ago. From the first second of our universe, quarks, which previously dominated the entire cosmos, disappeared and formed protons and neutrons. Also at that far distant time, the electrons were already quite old. They were formed between a millionth and a trillionth of a second after the Big Bang.

Everyone try to have the best possible day!

#socalled #originalism

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