Morning Report – A generation of renters? 6/24/15

Markets are lower after Greek Prime Minister Tsipras expressed shock that his proposals still do not go far enough to get a deal. Bonds and MBS are up.

Mortgage Applications rose 1.6% last week as purchases rose 1.2% and refis rose 1.8%.

The third revision to first quarter GDP came in at -0.2%. This is an upward revision from the previous -0.7% estimate. A combination of harsh weather, a West Coast port strike, and a slowdown in the oil patch depressed growth. Lower gas prices still are not translating into higher spending at the malls, however. Consumers continue to save / repay debt.

Greece was handed new terms for a bailout. The proposals Tspiras provided do not go far enough, and he took to Twitter to harangue the IMF and the EU. Brave new world: negotiating and posturing via Twitter. “There is still a lot of work to do,” Dutch Finance Minister Jeroen Dijsselbloem, who chairs meetings of his euro-area counterparts, told reporters in Brussels. “We are not there yet.”

Homeownership levels have fallen back to the levels of the early 90s. Millennials are renting in droves. Is this the new face of homownership, or simply the pendulum overcorrecting on the other side? While house prices are back in bubblicious territory (primarily due to a lack of inventory), rates are so low that mortgage payments are still comparable to rents.

Speaking of lack of inventory, homebuilding giant Lennar reported earnings this morning, beating the Street. Revenues increased 30% as deliveries increased 21% and ASPs increased to $348,000. New orders increased 18% in units as well. The stock is up about 5% pre-open. Could housing be the new engine for the economy? Hopefully, as manufacturing seems to be going through a soft patch.

Washington is alleging discrimination in REO, saying that homes in low-income neighborhoods are not being properly maintained. The problem in many of these place, especially in the rust belt, is that the opportunities are so sparse that people are moving out, and no one is moving in. When you have a net outflow of people and an endless supply of vacant houses, these properties become basically worthless. And what bank wants to throw good money after bad maintaining a house that probably will never sell in the first place?

184 Responses

  1. I want to pick up a second rental. or upgrade my current one to a better property. the condo fee is out of control.

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  2. Our rental has been like a little gold mine for us………well………except for “The Bad Year”. We keep thinking about selling it but the longer we wait we figure the better off we’ll be situated when we actually do retire. As long as we don’t need the money we might as well just take the monthly income.

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  3. Pool Pictures…………we’re filling it today. I seriously cannot believe it only took one week.

    During demolition last Wed

    This is what it looked like yesterday morning

    This is what it looks like this morning

    And the little indulgent decoration I coaxed Walter into buying for me

    Our CO daughter is flying in Sat and we’re having a pool party on Sunday!!!

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  4. Congrats lmsinca!

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  5. Scott Walker’s biggest problem apparently is that he’s too honest:

    “”Sometimes you can say something and people think you don’t mean it and sometimes you can say something and people think you mean it,” said one Republican who has seen this tension play out. “When Barack Obama said he’s against gay marriage in 2008, people didn’t think he meant it. But when Scott says it, people think he means it. This is a very big stumbling block for him on Wall Street.””

    http://www.vox.com/2015/6/23/8831247/scott-walker-true-believer

    http://www.washingtonpost.com/politics/inside-scott-walkers-20-million-push-to-get-ready-for-a-presidential-run/2015/06/22/f89cdac0-15d2-11e5-9ddc-e3353542100c_story.html

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    • jnc (from Iglesias):

      Wall Street, for example, loves George W. Bush because while Bush was happy to talk up free markets when it came time to cut taxes and deregulate, he also didn’t hesitate to throw all that stuff out the window when it came time to pony up hundreds of billions of dollars in bailout money.

      The lie that won’t die. The bailout money was forced on Wall Street.

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  6. looks great, lms!

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  7. Thanks guys! I probably should have been a construction worker………I love projects like this.

    BTW, the fish is right side up when you walk into the pool………that’s the top step.

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  8. Slate seems to really believe that taxation is voluntary:

    “But for a variety of reasons—in part because they have the potential to destroy demand for oil as well as the potential to gain emissions-free mobility—electric cars are now privileged as a matter of policy. Your fellow taxpayers will offer you money to get one.

    In essence, then, my fellow residents were offering to bear a portion of the comparatively higher cost (a plug-in Prius costs about $30,000, compared with $24,200 for the plain hybrid version) of a car that can function (for the first 12 miles of any trip) as an electric car. ”

    http://www.slate.com/articles/business/the_juice/2015/06/electric_car_incentives_how_the_wealthy_get_unnecessary_perks_for_buying.html

    No one “offered” anything. They were compelled to pay the taxes for the subsidies.

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  9. Pool looks good, lms.im jealous.

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  10. Scott

    The lie that won’t die. The bailout money was forced on Wall Street.

    Remind me again why we did that?

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    • lms:

      Remind me again why we did that?

      “We” didn’t do that. The federal government did. And it did it in order to more easily maintain the appearance of saving “the system” rather than just a couple of participants in it.

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  11. Thanks McWing………..we’re pretty excited about it.

    I’m thrilled to have a jacuzzi again (the heater’s been on the fritz for several years). I never go in the one at the gym because there’s always a bunch of creepy old guys in there………..LOL, but my aching muscles could use it now and then.

    There’s nothing better than a cold margarita while sitting in a hot jacuzzi on a summer night with music in the background.

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  12. “Remind me again why we did that?”

    To save certain politically connected institutions. And there absolutely were Wall Street banks that were asking for a bailout, Lehman Brothers being chief among them. Others were forced to participate so as to not single out the insolvent ones. Can’t let the market actually know what’s up.

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    • jnc:

      And there absolutely were Wall Street banks that were asking for a bailout, Lehman Brothers being chief among them.

      Notably, Lehman didn’t get one.

      The poster child for a Wall Steet bank that (probably) welcomed the bailout was Citi. The rest of the big guys, not so much. The primary beneficiaries were the hundreds of smaller banks that got TARP money. But we don’t talk about those because they don’t fit into either the TBTF or the anti-derivatives narrative. They all got into trouble doing what the politicians want even more of…lending into residential real estate.

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  13. New Republic goes for maximum derp on the Confederate flag:

    “Is the Confederate Flag Unconstitutional?
    By Alfred L. Brophy ”

    http://www.newrepublic.com/article/122138/confederate-flag-unconstitutional

    Yep, if you don’t like it, it must be “unconstitutional”.

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    • Yep, if you don’t like it, it must be “unconstitutional”.

      Here we have a liberal journalist trying to prove that Scott’s perception of liberals is 100% on target correct.

      Scott, did you put the silly SOB up to it? The timing is suspicious.

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      • Mark:

        Here we have a liberal journalist trying to prove that Scott’s perception of liberals is 100% on target correct.

        He’s not the first, and won’t be the last.

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  14. Republicans voted down TARP on the first go round.

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  15. Oh that’s right………..we bailed out Wall Street to save Main Street……..LOL

    Scott, you sound like you don’t approve of the bailout…………I thought you thought it was necessary though. That’s the way I remember earlier discussions……….but I’m an old lady now so perhaps my memory is failing me! 😉

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    • lms:

      Oh that’s right………..we bailed out Wall Street to save Main Street……..LOL

      I can only recommend that you actually look at the list of banks that received TARP funds, along with the fact that most of the big banks took the money very reluctantly and paid it back as soon as they were allowed to, and consider the implications.

      I thought you thought it was necessary though. That’s the way I remember earlier discussions

      My thinking definitely changed over time, but see this and the last paragraph of this from 2 years ago.

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  16. Oh that’s right………..we bailed out Wall Street to save Main Street……..LOL

    Actually we did. The commercial paper market was shut down at that time, and that affects everyone, not just the banks. Retailers were unable to finance their inventory for the holiday shopping season.. Normal small business was getting cut off from credit.

    The reason for the bailout was because it couldn’t be limited to Wall Street anymore..

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  17. “The reason for the bailout was because it couldn’t be limited to Wall Street anymore..”

    That wasn’t actually tried. Somehow saving the economy got translated into saving the financial system, which then got translated into saving certain specific banks (the aforementioned Citi) and then forcing everyone else to go along with it to maintain the fiction that it was about the public good (corked by Scott).

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    • jnc:

      Somehow saving the economy got translated into saving the financial system, which then got translated into saving certain specific banks (the aforementioned Citi) and then forcing everyone else to go along with it to maintain the fiction that it was about the public good (corked by Scott).

      Just to be clear, I don’t think that Hank Paulsen and GWB orchestrated TARP for the purpose of saving their buddies at Citi and AIG, while deviously marketing it as saving the system. Brent is correct that there was genuine fear of contagion across the financial markets and, as a result, the economy as a whole. I think Paulsen et al determined that some kind of bailout was necessary to save the economy, and that the most politically attractive option was to get everyone to participate rather than providing targeted relief, which would have appeared to be more like what you seem to think it was, ie a special deal for a favored constituency.

      That is to say, I agree with jnc that everyone was pressured to take TARP money for the sake of appearances, but I also think that TARP itself was created out of a genuine (even if misguided) desire to promote the public good. It wasn’t a simple case of Paulsen and GWB (and Bernanke and Geitner and Bair) deciding to save their Wall Street buddies from losing a few dollars, and concocting a “public good” reason for doing so.

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  18. Good critique of Pope Francis’ Encyclical:

    http://www.vox.com/2015/6/24/8834413/pope-climate-change-encyclical

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  19. Why the assumption that new credit providers would not have emerged eventually? Why were/are the existing ones so indispensable?

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  20. I am sure new credit providers would have emerged eventually, but the risk / reward of letting everyone fail was huge.

    Don’t forget a lot of plain vanilla companies had their cash invested in money market deposit accounts. That would have caused a massive liquidity crisis.

    I think if they thought the pain could have been limited to Wall Street Sharpies, the government would have let people fail. Problem was they couldn’t and it was spreading like wildfire.

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  21. That’s a great read Scott.

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  22. That is a good read, Scott. I’ve long thought the confederate flag a less-than-appropriate emblem for state or local governments, but a perfectly fine thing for individual display, as a kind of shorthand for “I’m a redneck and proud of it”, which is generally what it means as an icon of personal expression. The decision of so many companies not to sell anything with a Confederate flag on it (aside, I assume, from books on the confederate flag and the civil war) is irritating political correctness.

    Of course, all that doesn’t touch on the historical fact that the Confederate flag was a lot of different things, including nothing but a field of white.

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  23. @Scottc1: “but I also think that TARP itself was created out of a genuine (even if misguided) desire to promote the public good”

    That’s the problem with liberal public policy and, heck, often conservative policies that might have unintended consequences. Ultimately, I don’t think the Iraq was was a good idea, but I believe it was pursued with good intentions and a genuine desire to protect Americans and liberate Iraq from a dictator. Just as I think TARP was created out of a genuine desire to help . . . though, like so much of modern public policy, became so complicated and expensive that had so many cooks stirring the pot that, at best, it was wash.

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  24. @McWing (from your link): “An advocate had pronounced that “hundreds of thousands” of people would die if the law did not pass, because they would remain uninsured. I pointed out that we didn’t actually know how many lives would be saved by an expansion of health coverage. In fact, given the data we did have, we could not rule out the possibility that more coverage would have no effect on health whatsoever.”

    I’ve had this discussion with even very smart liberals, and there seems to be a sincere belief that you can honestly assess the impact of insurance on longevity and mortality and health generally, and so argue that the vast majority of the insured would have died (apparently just since Obamacare was passed) if it had not been passed, which sounds more like to me making up a number and congratulating themselves on the good work done. But it’s always seemed obvious to me that you can’t accurate measure the nonoccurrence of something. It’s like saying the Patriot Act is awesome because there hasn’t been another terrorist attack.

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  25. @McWing: “I’m pretty sure this also *proves* AGW.”

    I thought the sun didn’t have any real impact on Global Warming, just SUVs. 😉

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  26. Kevin, the argument for universal healthcare has shifted from “life saving” to “a moral goodness.”

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  27. Looks like SCOTUS fucked us again. I’m not surprised, just disappointed.

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    • McWing:

      Looks like SCOTUS fucked us again. I’m not surprised, just disappointed.

      Yup. Roberts again, apparently.

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  28. Thank god the federal government can continue to shovel money to insurance companies.

    Thanks 52%! Helluva law!

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  29. http://www.supremecourt.gov/opinions/14pdf/14-114_qol1.pdf

    Scalia doesn’t hold back in the dissent.

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    • nova:

      Scalia doesn’t hold back in the dissent.

      I seriously don’t know how he can even stand to be in the same room as the politicians that make up the left wing on the court.

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  30. Can we all agree that any state that set up their own exchange ripped off their taxpayers and deserve criminal prosecution? If not, why not?

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    • Got that one w-w-WRONG.

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      • Not sure if Scalia meant to, but one part of his dissent gets exactly to the rotten core of progressive jurisprudence (and progressivism more generally). Emphasis added.

        This reasoning suffers from no shortage of flaws. To begin with, “even the most formidable argument concerning the statute’s purposes could not overcome the clarity [of] the statute’s text.” Kloeckner v. Solis, 568 U. S. ___, ___, n. 4 (2012) (slip op., at 14, n. 4). Statutory design and purpose matter only to the extent they help clarify an otherwise ambiguous provision. Could anyone maintain with a straight face that §36B is unclear? To mention just the highlights, the Court’s interpretation clashes with a statutory definition, renders words inoperative in at least seven separate provisions of the Act, overlooks the contrast between provisions that say “Exchange” and those that say “Exchange established by the State,” gives the same phrase one meaning for purposes of tax credits but an entirely different meaning for other purposes, and (let
        us not forget) contradicts the ordinary meaning of the words Congress used. On the other side of the ledger, the Court has come up with nothing more than a general provision that turns out to be controlled by a specific one, a handful of clauses that are consistent with either understanding of establishment by the State, and a resemblance between the tax-credit provision and the rest of the TaxCode. If that is all it takes to make something ambiguous, everything is ambiguous.

        Yes, that is the fundamental essence of progressivism adn progressive jurisprudence. All words are ambiguous, and hence to be interpreted so as to produce the result desired by progressives.

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  31. From King v Burwell:

    “In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—“to say what the law is.””

    The irony of that sentence followed by a ruling that gay marriage is a Constitutional right would show how far the court has fallen from actually following that prescription.

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  32. Has it ever been true though?

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    • McWing:

      Has it ever been true though?

      It certainly isn’t at this point, regardless of the SSM decision. Frankly I don’t know why SCOTUS even issues written opinions anymore. Eliminate the disingenuous justifications and just tell the truth…”This is our ruling because this is the result we desired.”

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      • Heh. From Scalia:

        We should start calling this law SCOTUScare

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        • Good ending, too:

          And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites. I dissent.

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        • Roberts writes:

          Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.

          How does he know that? A large segment of congress doesn’t even want health insurance markets. It wants a single payer, and one way to generate political support for that is to do exactly that, destroy health insurance markets.

          Liked by 1 person

  33. i’m madder now then i was when they upheld the mandate. i got the vote count right, but figured they’d let Sotomoyar write it as the ultimate fuck you.

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  34. Can we now dispense with the absurdity of voting R for POTUS because of SCOTUS appointees?

    It’s time to kill the party, no?

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  35. Saving Construction again.

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    • Roberts writes:

      But the Act clearly contemplates that there will be qualified individuals on every Exchange. As we just mentioned, the Act requires all Exchanges to “make available qualified health plans to qualified individuals”—something an Exchange could not do if there were no such individuals.

      That is pure nonsense. The requirement of an exchange to provide X to “qualified individuals” in no way at all implies that the set of “qualified individuals” on every exchange must be greater than zero.

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      • More nonsense:

        And the Act tells the Exchange, in deciding which health plans to offer, to consider “the interests of qualified individuals . . . in the State or States in which such Exchange operates”—again, something the Exchange could not do if qualified individuals did not exist.

        Wrong. It is something the exchange does not have to do, not something it “could not” do.

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  36. i’dl like to hear what Brent has to say on the housing case.

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  37. Again, shouldn’t the politicians that enacted State exchanges be criminally prosecuted, or at least impeached for malfeasance? If not, why not?

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    • More sophistry from Roberts:

      If a State chooses not to follow the directive in Section 18031 that it establish an Exchange, the Act tells the Secretary to establish “such Exchange.” §18041. And by using the words “such Exchange,” the Act indicates that State and Federal Exchanges should be the same.

      The words “such exchange” indicates only that the exchanges are to be of the same type, not the same in literally every conceivable respect. That is, the Secretary will establish a health insurance exchange, not, for example, a futures exchange or a commodities exchange. The words cannot sensibly be read to indicate, as Roberts implies, that the Secretary will establish an exchange established by the state.

      Roberts is engaged in pure sophistry.

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      • Roberts:

        Contrary to petitioners’ argument, Congress did not believe it was offering States a deal they would not refuse—it expressly addressed what would happen if a State did refuse the deal.

        The inclusion of a fallback provision in the event of a state refusal in no way at all implies anything about what congress believed about the likelihood of such a refusal

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        • Unbelievable:

          But in petitioners’ view, Congress made the viability of the entire Affordable Care Act turn on the ultimate ancillary provision: a subsub-sub section of the Tax Code. We doubt that is what Congress meant to do.

          Who gives a fuck what you think congress meant to do? You are supposed to apply the law that congress passed, not the one you think they “meant” to pass.

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  38. i’d comment, but the DOJ will probably come knocking for my identifiable information. and shoot me.

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  39. @ScottC1: “Yup. Roberts again, apparently.”

    I was assured by the press and the Democrats that Roberts was a right-wing demagogue. Seems another case of the left’s prognostications being entirely incorrect. They make for very poor oracles.

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  40. @novahockey: “Recall that the SCC is a wildly gameable estimate of the damages that accrue between now and the year 2300 resulting from each of carbon dioxide emitted from human activates.”

    This one cannot begin to expound upon the delusional idiocy of imaging you can do anything more than make up numbers in such a situation. Accurately determining the costs (of any kind) of something 30 years into the future, must less almost 285 years into the future, is lunacy. A single technological innovation could obviate them all, and that is but a single input amongst thousands.

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  41. @ScottC1: “You are supposed to apply the law that congress passed, not the one you think they “meant” to pass.”

    I think they meant to give me a big fat raise, too. And also make me King of America. It was in there. I’m sure of it. Or they meant it to be. Anyway, I’m King now and I make a zillion dollars a year. Chief Justice, bitches!

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    • You have to give the left credit for one thing, namely its ability to select SCOTUS justices that reliably and relentlessly toe the party line. I can’t think of any politically charged decision in the last 30 years in which a D-nominated justice voted against the result preferred by the left. (Except perhaps Bush v Gore, in which Breyer partially voted with the R-nominated majority.)

      The R’s have a horrible track record. Souter was by far the worst selection, becoming a reliable vote for liberally preferred outcomes as if he had been named by a D, but Kennedy and now Roberts have proven to be easily swayed by leftist nonsense. It is truly pitiful that, given the number of seats that R presidents have been able to fill since Reagan, the left has still managed to capture the court and impose its will on the nation via the judiciary.

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  42. I think Scalia nicely validated the premise that was in the article cited a few months back that there’s two courts when it comes to deciding cases: The political court and the legal court.

    “And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.”

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  43. It is truly pitiful that, given the number of seats that R presidents have been able to fill, the left has still managed to capture the court and impose its will on the nation via the judiciary.

    Shoot! You figured it out too soon.

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  44. “Is the Confederate Flag Unconstitutional?
    By Alfred L. Brophy ”

    The answer to any rhetorical question in a headline is “No.”

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  45. Yello, is race fluid like gender?

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  46. Is that a yes,race is fluid?

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    • Is that a yes,race is fluid?

      Oh. You wanted a serious answer. Gender is fluid. Race is a social construct.

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      • McWing:

        Race and gender are fluid or not depending entirely upon what happens to be convenient to a progressive’s argument at any given time. Logical consistency is not what the left does. You know that.

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  47. they told me that in America i could grow up to be whatever i wanted. and they were right.

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  48. What makes gender fluid? Immutability?

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  49. Totally blew my question to Yello. I’ll rewrite it.

    Why is gender fluid? Is it because it lacks immutability?

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    • McWing:

      Why is gender fluid? Is it because it lacks immutability?

      No, it is because it would hurt the feelings of people like Bruce/Caitlyn Jenner to say otherwise. Seriously. This really is the answer.

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  50. i would love to hear yello’ reasoning as to how something based in genetics, gender (XX or XY) is all sorts of Shades of Grey while an alleged “Social Construct” is as rigid as Euclidian Geometry. Why are Social Contructs not fluid? Can, say, someone who is half Chinese and half African be only Chinese or African? Because that’s the logical conclusion here, no?

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  51. I just nutted.

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    • I missed this yesterday, from Roberts’ opinion on SCOTUScare:

      In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—“to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done.

      Truly Orwellian. Undoing what the legislature had done in the statute is precisely what Roberts did yesterday. His entire opinion rests on the assumption that Congress did something other than what it meant to do, and so he was required to undo its mistakes.

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  52. http://www.wdwmagic.com/attractions/magic-kingdom/news/26jun2015-selfie-stick-ban-at-walt-disney-world-to-begin-june-30.htm

    There are some bans I can get behind. I recently went to Universal Studios Orlando, and after the first day I wanted to start carrying a baseball bat to beat the crap out of people with selfie sticks. I also refused to stop and wait for people to finish their pictures because idiots would stop in the middle of main thoroughfares for a good picture and fiddle forever. But those selfie sticks . . . lord, I could get behind a ban on those in public places. 😉

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  53. @yellojkt: “Oh. You wanted a serious answer. Gender is fluid. Race is a social construct.”

    Why wouldn’t they both be fluid? Or a social construct? Ultimately, while you can argue race is a social construct due to the many different shades versus gender, which has generally been attached to which sexual organs you have . . . I guess. However, all that gender fluidity means is that gender, once a fixed thing based on which particular naughty parts you had is becoming a social construct, so that while it used to be you were a man or a woman, you can now be a woman with man parts or a man with woman parts and use technology to mimic the parts of the other sex. So in that sense, gender is now fluid, where historically it has not been. And, in terms of concrete scientific descriptions, gender remains immutable but has become socially fluid.

    Although I would argue that race is only a social construct based on necessity, the same what plant and animal classifications are social constructs.

    Ultimately, I would argue that both race and gender are fluid. Anything that requires you record demographic data from a school registration (something I’m intimately familiar with) to a census allows you to choose your race and change it, and the same with a gender. If you’re obviously a boy and choose to identify your gender as female, then that’s what your gender is. If you choose to be a boy one year and girl the next, or vice versa, then that is what you are, because that’s how you chose to self-identify.

    Similarly, if you choose to identify as Hispanic or Non-Hispanic, that is what you are, irrespective of anything else. You may have been born of two parents who self-identify as Hispanic and you decide you are not: thus, you are Non-Hispanic.

    Similarly, if you look Caucasian but decide to identify yourself as Black and Caucasian and American Indian then that is what you are. Nobody demands you provide evidence of genealogy for your assertions. When your race and gender are whatever you say they are, then they are fluid.

    That being said, discussions of have come up with school registrations in regards to students identifying themselves as something other than male or female, such as “other”. There is, currently, no “other” option under gender for self-identification but I expect that’s coming.

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    • Kevin:

      Nobody demands you provide evidence of genealogy for your assertions. When your race and gender are whatever you say they are, then they are fluid.

      Race and gender are not “whatever you say they are” even if some contingent of society acts as though it is the case. If everybody insists the naked emperor is wearing beautiful clothes, that doesn’t mean the emperor isn’t in fact naked.

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  54. @McWing: “I’m starting to think he believes his own bullshit.”

    Starting? It’s been my opinion since AGW transcended “concern” to “certain doom” that everyone who is sounding the alarm about anthropogenic climate change believes their own press. I’ve gotten into conversations where I’ve discussed global warming with folks and their attitude is basically the same as that of the Baptist minister who was told that Jesus was a nice man but totally not the son of God. The belief tends to be very sincere, I think. It’s what justifies the tactics used in advancing the cause.

    That being said, I’d think any doctor trying to talk to me about how Global Warming was going to effect my health was a flake. It would make more sense to talk about how Global Warming would impact my pocketbook from financial advisers, as the warmer it is in colder climes, the lower the mortality rates. Thus, global warming will mean more oldsters alive and competing for my social security money when the time comes. 😉

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  55. @Scottc1: “No, it is because it would hurt the feelings of people like Bruce/Caitlyn Jenner to say otherwise. Seriously. This really is the answer.”

    The answer is what you touched on earlier: it’s about turning what were previously pathologies into lifestyle choices. As with same sex marriage or BDSM. On the plus side, at least we’ve gotten to a point where masturbation is no longer a mortal sin. 😉

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    • KW:

      at least we’ve gotten to a point where masturbation is no longer a mortal sin.

      Maybe “we’re” wrong and it still is. Only one way to find out.

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  56. @yellojkt: “The answer to any rhetorical question in a headline is “No.””

    Pretty much. My favorite headlines are the ones that suggest conclusions that are the opposite of the article.

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  57. @Michigoose: “It is truly pitiful that, given the number of seats that R presidents have been able to fill, the left has still managed to capture the court and impose its will on the nation via the judiciary.”

    “Shoot! You figured it out too soon.”

    How too soon? Scott cannot repopulate the judiciary, so is helpless before its onslaught of from-the-bench legislation.

    That being said, I think his assertion gives the left too much credit. I think the reality is that opulent societies embrace fetishes and entitlements and novel (or extreme) social positions collectively the way the very rich tend to embrace hundred-thousand dollar watches and the purchase of insanely expensive houses, often many of them that they are almost never in, or purchase other indulgences that seem crazy to those of lesser means.

    Put another way, in a wealthy society progressivism finds its way through the many, many cracks like water. If it were not through the judiciary it would likely be another way. We should count ourselves fortunate that (thus far) we have not ended up like Greece.

    Like

    • Kevin:

      Put another way, in a wealthy society progressivism finds its way through the many, many cracks like water. If it were not through the judiciary it would likely be another way.

      I’ve always thought a good metaphor for progressivism is tooth decay. If you are not taking constant, conscious and proactive steps to protect against it, it will just happen.

      Liked by 1 person

  58. @Scottc1: “but Kennedy and now Roberts have proven to be easily swayed by leftist nonsense”

    I haven’t listened to Rush Limbaugh in years, but I would love to hear his take on Roberts. His theory about Republican politicians veering left in the past usually places the blame on the wife. Specifically, the fact that the politicians wife had to/wanted to move in DC social circles and get invited to the right cocktail parties, and their social status depended heavily on their husband doing the “right thing” on signature liberal issues.

    Roberts is a young man, relatively speaking. And I find it entirely plausible that his wife is highly motivated to get invited to all the right cocktail parties.

    Like

  59. @ScottC1: “Race and gender are not “whatever you say they are” even if some contingent of society acts as though it is the case. ”

    I understand this. What I am saying is that the “contingent of society” we’re referring to is every place where we record or assert our race or gender. Once the fluidity of race and gender has been embraced when we register for school or fill out our census or apply for a license (I cannot speak to how rigorous they are about such things with passport applications) then race and gender is effectively fluid. Once nobody who asks you “what race are you? what gender are you?” will challenge what you say, even if you’re a bearded, tattooed biker with seven kids who self-identifies as a woman then race and gender are effectively fluid.

    I understand that, factually, if you have two parents of Hispanic descent then you are, in fact, Hispanic. In the major social institutions of life, however, it is a choice now, not a reflection of actual genetic heritage. I also understand that if you have lady-parts rather than man-parts, you are a woman. But this is also a choice in all the major social institutions of life, from census on down. The federal government effectively recognizes it as a choice, and popular media is now referring to Bruce Jenner by his new name and gender. This is frustrating, as I’ll read a story about some guy who changed his sex and I can’t be sure if it was a man turning to a woman or a woman turning to a man because they insist on referring to her/him by her/his new gender. Thus, socially, race and gender have become fluid.

    Like

  60. Well, I didn’t just get hit by lightening, so…

    Like

  61. from Scalia’s dissen tin the marriage case:

    The substance of today’s decree is not of immense personal
    importance to me. The law can recognize as marriage
    whatever sexual attachments and living arrangements
    it wishes, and can accord them favorable civil
    consequences, from tax treatment to rights of inheritance. Those civil consequences—and the public approval that
    conferring the name of marriage evidences—can perhaps
    have adverse social effects, but no more adverse than the
    effects of many other controversial laws. So it is not of
    special importance to me what the law says about marriage.
    It is of overwhelming importance, however, who it
    is that rules me. Today’s decree says that my Ruler, and
    the Ruler of 320 million Americans coast-to-coast, is a
    majority of the nine lawyers on the Supreme Court. The
    opinion in these cases is the furthest extension in fact—
    and the furthest extension one can even imagine—of the
    Court’s claimed power to create “liberties” that the Constitution
    and its Amendments neglect to mention. This
    practice of constitutional revision by an unelected committee
    of nine, always accompanied (as it is today) by extravagant
    praise of liberty, robs the People of the most important
    liberty they asserted in the Declaration of
    Independence and won in the Revolution of 1776: the
    freedom to govern themselves.

    Like

  62. and thomas:

    Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits

    Like

  63. Scalia’s dissent has an awesome footnote on page 7 (note 22): he says, “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘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,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

    Like

    • The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

      He should have made it personal and substituted “Justice Anthony Kennedy” for “fortune cookie”.

      Like

      • I think the very first line of Scalia’s dissent is pretty notable.

        I join THE CHIEF JUSTICE’s opinion in full. I write separately to call attention to this Court’s threat to American democracy.

        Has any justice before ever made such an accusation in such an explicit way?

        Like

  64. sorry — -thought i posted it. majority opinion and the dissents

    http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

    Like

  65. “As a philosophical matter, liberty is only freedom from governmental action,
    not an entitlement to governmental benefits.”

    i’m so into Justice Thomas.

    Like

  66. @novahockey: “Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits”

    Thomas remains my favorite Justice, as always. God bless George H.W. Bush. And, not coincidentally, the one most reviled and repulsively insulted and derided by the left.

    Like

  67. I gotta love this tweet:

    Jonah Keri ‏@jonahkeri 3m3 minutes ago

    If you’re feeling pain, anxiety, or shortness of breath over today’s SCOTUS decision, see your doctor. We got that covered for you too.

    Like

    • We got that covered for you too.

      Nope. I pay for my own fucking insurance. And a whole lot more.

      Like

      • The left really is precipitating the implosion of the nation. By elevating every substantive political disagreement to the federal level, and subverting the democratic process by imposing its deisires via SCOTUS, it is leaving its political opponents with one and only one choice: subjugation or separation. The breaking point will come and eventually they will choose the latter. And when they do, it will be ugly and violent. It won’t be tomorrow or the next day, but that day it will come.

        Like

  68. ” it is leaving its political opponents with one and only one choice: subjugation or separation.”

    that’s my fear. if you go through the legislative process, the losers have a fair shake and can say their piece. ACA short circuited that with the why it was handled. same thing here.

    Like

    • nova:

      if you go through the legislative process, the losers have a fair shake and can say their piece.

      There really is no avoiding the fact that today’s left has no interest in the constitution as a matter of principle. If there existed a movement that was dedicated to destroying American constitutional principles not via outright war but by long term stealth, I can’t imagine how it could be more effective than by doing what the left has in fact been doing for the last 85 years.

      Like

      • Alito has it right:

        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.

        Like

  69. process matters. i honestly believe that supporters of SSM were robbed of a victory today.

    Like

    • nova:

      i honestly believe that supporters of SSM were robbed of a victory today.

      It is the same thing that happened with abortion. This ruling virtually guarantees that SSM will remain a contentious national political issue for years to come.

      Like

  70. @Michgoose: “We got that covered for you too.”

    Unless we don’t. But, more to the point, I think I’m going to have to be bleeding from my ears the next time I go to the doctor. Shortness of breath? Hell, if anything will make me feel worse that today’s SCOTUS decision it will be spending half-a-day getting shitty healthcare. Which is not the fault of Obamacare so much as just modern healthcare being what it is. Glad its there if I need an MRI . . . other things, I’ll go to CVS and med myself.

    Good or bad, the ACA hasn’t changed the fact that medical care sucks. I’m looking forward to an era where my iPhone10 and my Apple Watch 5 offers me better and more effective diagnosis and healthcare than I’ve ever had from a GP or specialist.

    Like

    • Kevin:

      Good or bad, the ACA hasn’t changed the fact that medical care sucks.

      I wonder on what metric you are basing this. I think one of the reasons that health care costs are so much higher today than years ago is because medical care is so much better today than ever before. There are more treatments, and more effective treatments, for more problems than ever before. And those things cost money.

      Like

  71. @ScottC1: “There really is no avoiding the fact that today’s left has no interest in the constitution as a matter of principle.”

    Absolutely not, because it’s a paper. They only need insist it’s a “living, breathing” document because it’s the foundation of the government. If they could just shred it, they would. Not because they are evil, but because there is no point to the constitution. It just gets in the way of them passing new laws that mandate moral goods. The point of the government is to advance the populace towards an egalitarian utopia, and the constitution, as written, does not aid in that goal.

    Like

    • KW:

      If they could just shred it, they would. Not because they are evil, but because there is no point to the constitution. It just gets in the way of them passing new laws that mandate moral goods.

      Not on today’s evidence, it doesn’t. Which is primarily why I disagree that they would shred it if they could. Elite leftist politicians in government and on the court understand the cultural authority that the constitution holds for the mass of the population that is too uninformed or ignorant about the details of the issues. For example, imposing SSM on the whole nation could only have been done under the guise of constitutionalism. So too for the abortion regime. Imposing progressive preferences under the auspices of the constitution is exactly what allows them to protect those preferences from being reversed by the people on which they impose them. When a policy is imposed as a matter of constitutional mandate, it is no longer subject to the normal, democratic process.

      As I said, I think it is certainly true that progressives have no use for our constitutional principles as principles. But they definitely have use for the existence of a constitution the proclaimed authority of which they can manipulate in order to impose their will without the hassle of actually getting most people to agree with them.

      Like

  72. @Scottc1: “The breaking point will come and eventually they will choose the latter. And when they do, it will be ugly and violent. It won’t be tomorrow or the next day, but that day it will come.”

    I’m dubious. I think the days of serious threats of secession are over. They can vote for it, maybe, but it to make it stick would require a military effort that could be easily if bloodily quashed by the government. Not to mention, the lack of conservative utopias would tend to indicate that such an independent nation would not likely remain so. Look at our founding documents and our founding fathers and look what we got now. In this modern era, I think that that process would likely be compressed and in 50 years the New Confederacy would be at least as liberal as we are now.

    What I do believe likely is that the Republicans will do better in the next election than anyone will predict, especially Tea Party types. Well enough that we might get an actual Bork-level justice on the court, should one of the liberals retire. I emphasize “might”. I sense a lot of trouble on the part of the Jeb Bush administration trying to get his quasi-liberal, politically correct nomination through a Tea Party-packed (or heavily influenced) senate.

    Like

  73. also labor. it’s the dirty little secret of health care. labor costs are huge.

    Like

  74. It will be fun to watch the AMA when the left and the government (BIRM) turn on it.

    Like

  75. @ScottC: “Elite leftist politicians in government and on the court understand the cultural authority that the constitution holds for the mass of the population that is too uninformed or ignorant about the details of the issues”

    Thus why they can’t shred it. There have been multiple left-leaning and academic-liberal workshops where, as a thought experiment, they come up with a new and improved constitution than enshrines living wages and workers rights and gender equality and so on. I don’t believe for a minute they would wipe the slate clean and start over with an entirely new progressive “constitution” if they could.

    The rights they have found in the penumbras would of course be spelled out in their new, enlightened constitution.

    *edit

    “But they definitely have use for the existence of a constitution the proclaimed authority of which they can manipulate in order to impose their will without the hassle of actually getting most people to agree with them.”

    Again, that’s the “why” of it. If they could replace it with their own document as the ultimate authority, I think they’d do it in a heartbeat. It is awkward to have to make all these elaborate arguments that the constitution doesn’t mean what it says, but what they want it to mean.

    Like

  76. @ScottC1: “I wonder on what metric you are basing this.”

    The anecdotal kind. Every experience I have had with healthcare has been outrageously expensive for what is received, and what is received has often been terrible, including expensive and invasive procedures of no value based on a diagnosis that itself is based on what the health insurance will pay for.

    The amount of money and time that is spent on simple diagnosis with simple prescriptions—really, $600 (that includes what the insurance company pays, which I look at it) for an elbow “brace” that is basically a sock with a hole cut in it? Seriously?

    When the stars align, of course, healthcare in America can be almost miraculous and perhaps things are better now than they were when doctors made house calls. But I know my experience is that I want to avoid it if I possibly can. 😉

    That being said, I appreciate all that is possible with modern healthcare, I just think we’re on the cusp of it getting much, much better, and that will be because of technology, not any government program mandating that it be so.

    Like

  77. @ScottC1: “It is the same thing that happened with abortion. This ruling virtually guarantees that SSM will remain a contentious national political issue for years to come.”

    I think the difference might be that there is no real “baby-killing” involved with SSM. Until such time as the most popular comedy on American television features a lovable abortion doctor, I’m not sure we’ll be comparing apples to apples. 😉

    Which is not to say that it will not remain contentious, I just don’t think it’s going to be nearly as contentious.

    Like

    • KW:

      I just don’t think it’s going to be nearly as contentious.

      From the standpoint of the imposition on those who object, I actually think SSM has the potential to be even worse. No one who objects to abortion is compelled to facilitate or participate in them. People can still conduct their personal lives and business in accord with their moral objections to it without the interference of the government. There are no laws (are there?) that compel a doctor who is personally opposed to abortions to perform one on any woman who seeks one. There are no laws that tell the Christian owner of a commercial real estate space that he must rent space to an abortion clinic that wants to rent.

      But as we have discussed at length, in states that recognize SSM there have already been rulings against Christian bakers and florists who don’t want to cater gay weddings, compelling them to do so. These cases will now become federal issues. And how long before Catholic priests are no longer granted licenses to perform marriages because they refuse to officiate over gay weddings? And what about Christian universities that provide special housing for married couples, but refuse to do so for gay couples that have been “married”. This ruling opens up a huge federal can of worms, probably even in ways that we can’t even contemplate at this point.

      Like I said, this ruling virtually guarantees that this issue never gets resolved amicably among citizens who disagree with each other. It is great for the culture warriors of the left, who are constantly in search of ways to compel conformity with their notions. But for the rest of us, it’s not.

      Like

  78. “All Things In Moderation”

    Ha.

    Like

  79. @Michigoose: “All Things In Moderation”

    Are you suggesting we are somehow being immoderate? Perish the thought. 😉

    Keeping in mind (especially if you are referring to me) I cannot caveat everything, and would hope both knowing me to some extent, and the context of the discussion, would inform the interpretation of my remarks.

    Like

  80. i’dl like to hear what Brent has to say on the housing case.

    Lenders just got racial quotas.

    Like

  81. I thought the “Moderation” part was about tone in conversing with fellow commenters, like not calling someone “asshole.”

    Like

    • McWing:

      I thought the “Moderation” part was about tone in conversing with fellow commenters, like not calling someone “asshole.”

      The rules don’t say anything about mandating moderate opinions. But as SCOTUS has demonstrated so well over the last couple of days, guiding principles are neither here nor there when it comes to progressive judgments.

      Like

  82. @brentnyitray: “Lenders just got racial quotas.”

    Yup. Now, unless you have loans to all races in equal measure, it’s de facto evidence of discrimination.

    Like

  83. Are you suggesting we are somehow being immoderate? Perish the thought.

    Two SCOTUS rulings are not the End Of Life As We Know it.

    Like

    • Mich:

      Two SCOTUS rulings are not the End Of Life As We Know it.

      One of them is, however, quite literally the end of marriage as we know it.

      But the point, of course, was not what the immediate effect of any particular ruling is, but is rather what the logic of the rulings imply for the future of both American jurisprudence and democracy. A SOCTUS that is not constrained by the actual words of a statute, and proclaims for itself the power to ignore the words of a statute in favor of what it thinks the legislature “meant” to do, has no limitation on how it might rule. And a SCOTUS that so misunderstands the concepts of liberty and due process that it thinks the latter requires the re-definition of a word from what it has meant literally for all of human history in order for the former to exist is so corrupted that it cannot possibly be entrusted to protect the integrity of the constitution or the rights of the people.

      Like

      • Ah…yello’s inappositely characterized “strawman” coming to life before our very eyes.

        It’s Time To Legalize Polygamy

        This part cracked me up:

        That’s one reason why progressives who reject the case for legal polygamy often don’t really appear to have their hearts in it. They seem uncomfortable voicing their objections, clearly unused to being in the position of rejecting the appeals of those who would codify non-traditional relationships in law. They are, without exception, accepting of the right of consenting adults to engage in whatever sexual and romantic relationships they choose, but oppose the formal, legal recognition of those relationships. They’re trapped, I suspect, in prior opposition that they voiced from a standpoint of political pragmatism in order to advance the cause of gay marriage.

        Wait, what? Progressives played down their support for polygamy out of political pragmatism? It wasn’t an honest opposition? Say it ain’t so, Joe! But the author shouldn’t worry. Since when has inconsistency with prior arguments/claims ever been a barrier to a progressive trying to advance the cause?

        Like

  84. If you’re looking for a new source of Confederate Flags:

    http://www.proudrebel.com

    Like

  85. @Scottc1: “Progressives played down their support for polygamy out of political pragmatism?”

    I observed two responses: one, that it was straw man nonsense, and that gay marriage was an inalienable right and having it unavailable was a grave injustice while polygamy was whatever, nothing, who cares? And: of course I don’t support polygamists, their all mormons and polygamy is a front for the exploitation of women. Again, totally different.

    If pursued to a granular level, the response was generally: I’m fine with polygamy, as long as it’s not old-style Mormon harem exploitation, but not that many people want polygamy, and it’s not important. They important thing was SSM so they weren’t interesting in clouding the issue.

    Like

  86. @ScottC: “Polyamory is a fact. People are living in group relationships today. The question is not whether they will continue on in those relationships. The question is whether we will grant to them the same basic recognition we grant to other adults: that love makes marriage, and that the right to marry is exactly that, a right.”

    Give the Supreme Court’s SSM decision, I think the only way that argument doesn’t make its way to SCOTUS is if they refuse to hear the case.

    *edit

    “In 2005, a denial of the right to group marriage stemming from political pragmatism made at least some sense. In 2015, after this ruling, it no longer does.”

    It’s coming. Is the polyamory argument going to reach the mainstream, though? Also, it’s pretty clear admission that the SSM folks just didn’t want polyamory included in the argument because it was accurately confirm the conservative narrative.

    Although I still don’t understand why, given the long history of the institution of marriage, anybody would want to live in an institution.

    Like

  87. @scottc1: “he re-definition of a word from what it has meant literally for all of human history”

    I’m not sure of the etymology, but I’m pretty sure it has only meant that for 700-800 years.

    Like

  88. Yello, i would love to hear your reasoning as to how something based in genetics, gender (XX or XY) is all sorts of Shades of Grey while an alleged “Social Construct” is as rigid as Euclidean Geometry. Why are Social Constructs not fluid? Can, say, someone who is half Chinese and half African be only Chinese or African? Because that’s the logical conclusion here, no?

    Like

    • Yello, i would love to hear your reasoning as to how something based in genetics, gender (XX or XY) is all sorts of Shades of Grey while an alleged “Social Construct” is as rigid as Euclidian Geometry.

      I was told there would me no math on this test.

      You are way overthinking this. Your gender is what you think you are. Your race is what people tell you you are.

      Like

  89. @ScottC1:

    Well, I was referring specifically to the etymological roots of the word “marriage”. Not the institution as a whole.

    But marriage has been going downhill forever. First they took away the concubines, and now this.

    🙂

    Like

  90. @McWing: “Can, say, someone who is half Chinese and half African be only Chinese or African? Because that’s the logical conclusion here, no?”

    I’ve already explained that they are whatever they say they are. Those who don’t know this now universal truth will soon enough. 😉

    Like

  91. @yellojkt: “You are way overthinking this. Your gender is what you think you are. Your race is what people tell you you are.”

    Incorrect. Your gender is what you say it is, between two choices (soon to be three). Your race is whatever you say it is, generally with 4-5 choices (and you can be all of them, if you want), and you get to decide separately whether you are Hispanic or Non-Hispanic because that is your ethnic identity, not your race.

    The only limitation is that, if you are Hispanic, you must also be white, black, Native American or Alaska Native, Asian, or Native Hawaiian/Other Pacific Islander. You can’t just be Hispanic any more. Whether or not you are is a choice that you make. And whether you are one or some or all of the other racial options is also your choice.

    Fluid.

    I have to do a lot of federal reporting.

    Like

  92. Thanks yello, so what about someone who isn’t either all Hispanic or all Chinese? Are you saying you cant be half Hispanic or half Chinese, only either Hispanic or Chinese? Why wouldn’t that person be the very definition of fluidity?

    Like

  93. @McWing: “Thanks yello, so what about someone who isn’t either all Hispanic or all Chinese?”

    Well, it’s not either or. Being Hispanic is your ethnic identity, not your race, and you have to pick a race in addition to your ethnic identity, so it could easily be Asian.

    Also, Chinese and Japanese, etc., aren’t races so much as nationalities. As a race, you’re either Asian or/and something else. And possibly Hispanic, or non-Hispanic.

    Like

    • Kennedy’s opinion is weak stuff, I think weaker than R. v. W., at first blush.

      We all knew this would be the result, 5-4, but there were other ways to ground the opinion – actually, I don’t think the opinion is grounded, and it will be problematic as an unresolved social issue that could have been debated, as NoVA and Scott have suggested. By not dealing with any way to tell what level of scrutiny was required to declare a constitutional right to SSM a Pandora’s box of litigation will appear in every other context. Bad case. I like the legislative result, of course, but this was political Courting, if you will.

      I wrote before that I thought the ACA case could be decided several ways, without straining. Therefore I thought that if the Gov won it would be on Chevron grounds. The most interesting part of the decision to me is Roberts directly confronting Chevron ambiguity and deciding to run right over it.

      The most fun part of the case was the sniping. Roberts quoted Scalia’s dissents in other cases as support for his ruling on at least 3 occasions, which seems to have pissed off Scalia.

      Like

      • Mark:

        Surely Roberts brushed away Chevron because that would have allowed a subsequent admin to change its interpretation. He wanted what he wanted and doesn’t want anyone else to screw with it. A thoroughly political decision.

        Like

  94. Are you saying you cant be half Hispanic or half Chinese, only either Hispanic or Chinese?

    You can be both Hispanic and Japanese and be the president of Peru.
    http://www.britannica.com/biography/Alberto-Fujimori

    Like

  95. Your race is whatever you say it is, generally with 4-5 choices (and you can be all of them, if you want), and you get to decide separately whether you are Hispanic or Non-Hispanic because that is your ethnic identity, not your race.

    That’s because self-reporting is the most convenient way to collect this information, but the categories are based on certain descriptions, largely based on geographic origin. Where people can get in trouble is when they claim to be a race that is in contradiction to the definitions of the people who created the categories or what I call the C. Thomas Howell Soul Man problem. You are only a certain race if everyone else agrees with you.

    Light-skinned African-Americans have been able to pass as white because they convince their peers they are white in contravention of various mulatto/one-drop rules that say otherwise.

    The distinction between ethnicity, nationality, and race are also all muddied and confusing. Where is the dividing line in south Asia between Middle-Eastern but white and full Asian? And even more finely, where is the line between South-Asian and East-Asian?

    Race has historically been defined by all sorts of arbitrary criteria: bone structure, skin tone, geographic origin. Hardcore racists, er, race realists, consider Jews to be a separate race rather than an ethnicity, religion, or culture and they have some genetic justification because Jews of the Diaspora infrequently interbred with the native population of their new homelands.

    I have to do a lot of federal reporting.

    So while these are the current categories nothing prevents them from being changed in the future or made more rigid based on identifiable genetic markers. How that would be verified and/or enforced is a different can of worms.

    Like

  96. @yellojkt: “Where people can get in trouble is when they claim to be a race that is in contradiction to the definitions of the people who created the categories or what I call the C. Thomas Howell Soul Man problem. You are only a certain race if everyone else agrees with you.”

    But what is happening is that is changing, if not changed. I work for an urban school district in the mid south and here, as in most places (I know this is true in Mississippi, too), you don’t argue. A kid is obvious black and reports as Asian? Then he’s Asian. The only person whose going to get in trouble is the school teacher or admin who hasn’t gotten the invisible memo and tries to argue with the kid that he’s obviously one race or another.

    That is, it is racial discrimination or profiling to suggest that you know what race someone is better than that person (the same with gender). If you say you’re black, it doesn’t matter that you look caucasian to me, you’re black. If I want to argue about it based on my own preconceptions, the person whose going to get in trouble is me.

    Now, once individual financial benefits or scholarships come into play, it might be another issue. But the writing on the wall looks pretty clear from my vantage point. Race may have once been social constructs for the convenience of the ruling classes, but it’s now a fluid choice someone makes regarding self-description, same as with gender.

    Like

  97. @markinaustin: “The most fun part of the case was the sniping. Roberts quoted Scalia’s dissents in other cases as support for his ruling on at least 3 occasions, which seems to have pissed off Scalia.”

    I smell a sitcom. He’s a grumpy old man. He’s the young Chief Justice! She’s the Wise Latina. See all them and more this fall on Supremes!

    Like

    • http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/06/26/a-great-decision-on-same-sex-marriage-but-based-on-dubious-reasoning/?hpid=z4

      http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/06/26/justice-kennedys-opinion-in-the-gay-marriage-case-may-upend-fifty-plus-years-of-settled-equal-protection-and-due-process-jurisprudence/

      Scott, although both decisions are the “policy” rather than the “law” Court, the ACA opinion is defensible and will not be a precedent that for other matters makes the purely legal judges of the Courts of Appeal squirm and wretch. The two Volokh articles point up what I fear about Kennedy’s SSM ruling. It is not only political, it just shatters a whole lot of precedent and makes no sense as a guideline for related legal issues down the road.

      Like

      • Mark:

        The two Volokh articles point up what I fear about Kennedy’s SSM ruling. It is not only political, it just shatters a whole lot of precedent and makes no sense as a guideline for related legal issues down the road.

        It is difficult for me to take too seriously Volokh’s handwringing given that he himself displays such dishonesty/confusion about what is at issue. For just one example, Volokh refers to the “exclusion” of gays from the right to marry, but no such exclusion has ever existed. Gays have always had the same right to marry that heterosexuals have had, they were simply not inclined to exercise that right. The legal issue has never been the “right to marry” but rather who, states or SCOTUS, gets to define what marriage means in the law.

        I also can’t summon up much concern about the certain confusion Kennedy’s opinion will sow amongst lower courts and on future issues. The text of the constitution is still available to be read and understood by any future jurist who is serious about his oath to support and defend the constitution. Judges do not take an oath to support and defend SCOTUS opinion. But for jurists concerned about doing what SCOTUS would have them do, what possible guidance could be given them? If we have learned nothing else from Kennedy and the bloc of progressives on the court, we have learned that nothing will stand in the way of SCOTUS’ policy preferences. SCOTUS has proven itself willing to cast aside the text of the constitution, precedent, and reason if the policy at issue is important enough to it. Unless and until the bloc of 5 can figure out a way to convey to lower courts their personal policy preferences on future issues and how strongly they feel about those preferences before they rule on them, lower courts worried about being eventually overturned are pretty much in the dark anyway.

        My real concern is what Alito referred to, ie the “irremediable corruption of our legal culture’s conception of constitutional interpretation.” I don’t really care that much whether, in corrupting the constitution, SCOTUS expresses that corruption coherently or not.

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  98. Now, once individual financial benefits or scholarships come into play, it might be another issue

    We knew a kid whose dad was from Morocco whose grades were good but not great. He got accepted to MIT. We’ve always wondered if he reported himself as African-American.

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    • We’ve always wondered if he reported himself as African-American.

      And that is one of the many problems with affirmative action.

      Like

  99. Isn’t Morocco in, you know, Africa?

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  100. It’s been outcome driven for a while.

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  101. Your Constitution and mine seem to be very, very different documents.

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    • Mich:

      Your Constitution and mine seem to be very, very different documents.

      Yes that certainly does seem to be the case. Mine is easily accessible and can be read right here.

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  102. If yours is a “living” document, then yes.

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    • George, do you see any conflict between claiming “textualism” and claiming “originalism”?

      I think that claiming “originalism” provides an opportunity to claim any of the points of view expressed by the authors of the documents.

      I think that claiming “textualism” permits asserting what the text means, as if it were crystal clear.

      Thus the most restrainist view of the Constitution acquires “living” status, just with less wiggle room than an “activist” view of the same language.

      I believe every attempt to parse the language is an attempt to parse the language. Lawyers develop conventions for parsing the language so that other lawyers and judges can rely on some predictability.

      With SSM we have a case in point. Because the equal protection clause is far more strictly applied to blacks than to any other identifiable group, we have developed a hierarchy of “scrutiny”. Gender gets less scrutiny, so titty bars do not have to hire men, and women can get cheaper life insurance at the same age as men. But gender gets more scrutiny than age – no state must give children the right to vote, or to serve on a jury.

      So if Kennedy had wanted to, he could have written a decision that was not a trainwreck, and reached the same result. He could have written that since MEN can choose women as marital partners then WOMEN can choose women as well, because denying them the right to choose exactly as a man could would be a denial of equal protection of the law.

      That construction would not have done violence to equal protection law, regardless of whether you liked the result or not.

      Kennedy was not so kind as to do that.

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      • Mark:

        I think that claiming “textualism” permits asserting what the text means, as if it were crystal clear.

        I think you would be hard pressed to find a textualist who would assert that the text is always crystal clear.

        Thus the most restrainist view of the Constitution acquires “living” status…

        I’m not sure I understand what this means. Are you really saying that you think living constitutionalists are the most restrained interpreters of the Constitution?

        Because the equal protection clause is far more strictly applied to blacks than to any other identifiable group, we have developed a hierarchy of “scrutiny”.

        That hierarchy is entirely a-constitutional. It doesn’t exist in the constitution. It was created out of whole cloth by judges.

        So if Kennedy had wanted to, he could have written a decision that was not a trainwreck, and reached the same result.

        I don’t think so. Any decision holding that the constitution somehow bars states from defining marriage in the same way it was defined for thousands of years is a train wreck. The reasoning itself doesn’t matter. It is the wrong decision, and very clearly so.

        So if Kennedy had wanted to, he could have written a decision that was not a trainwreck, and reached the same result. He could have written that since MEN can choose women as marital partners then WOMEN can choose women as well, because denying them the right to choose exactly as a man could would be a denial of equal protection of the law.

        This would have been just as specious as what Kennedy did argue. In the first place, like Kennedy, it ignores the fundamental issue at hand, namely the definition of marriage. If “marriage” means, as it always has throughout our history, a union between a man and a woman, then it is literally incoherent to suggest that a woman can choose a woman as a “marital” partner. The state can no more “allow” a woman to choose a woman as a marital partner than it can allow a square to choose to be a circle.

        Second, the state is not “denying” anyone the right to “choose” his or her partner. All the state is doing is saying that it isn’t going to hand out government privileges/benefits to partnerships that are not man/woman partnerships.

        That construction would not have done violence to equal protection law…

        Perhaps not, but it would have done violence to the equal protection clause as it actually exists in the constitution.

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        • You assert repeatedly that the fundamental issue is a state’s definition of marriage. That fails in the light of an equal protection argument. The question presented was whether the equal protection argument extends to a new class or not, or whether as it applied before this case, it could lead to this result.

          The “new class” that would be elevated to the same status as blacks under the 14th was obviously homosexuals.

          If limited to as applied before this case, the class discriminated against would be identified as gender, which I did for the example.

          While no one accepts the circular argument you make [and that I made with evidence in 1981 or so], that definition precludes an equal protection complaint, I did not think the latter was likely and I did not want to see the former prevail.

          But Kennedy just ran down rabbit holes, with allusions to “due process”, for God’s sake, and sweeping generalities. There is no “there” there. Roberts’ criticism is pretty damned good.

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        • Mark:

          You assert repeatedly that the fundamental issue is a state’s definition of marriage. That fails in the light of an equal protection argument.

          Perhaps that is true under whatever derivative, corrupted re-writing of the equal protection clause currently holds sway in legal circles. But it isn’t at all true under a straightforward understanding of the words that comprise the actual equal protection clause in the constitution.

          If a state grants certain benefits under the law to people who are married, defined by the state as a legal union between a man and a woman, and it also allows all people, including homosexuals, to create such unions, then it is plainly providing equal protection under the laws to all people. The fact that homosexuals may have no personal interest in involving themselves in a union between a man and a woman has no bearing whatsoever on whether or not the state is applying the law equally to all people, which it undeniably is doing.

          The question presented was whether the equal protection argument extends to a new class or not…

          I have read the equal protection clause several times, and I can find no reference to the fact that it might extend only to certain “classes” of people at all, much less does it establish a method of creating new classes to be so protected. In fact the notion that it might apply only to certain classes, or that it might apply differently to some classes of people than to others, seems to be completely contrary to the plain wording of the clause itself, which requires equal protection for all citizens. So how SCOTUS might come to believe that it does apply to certain classes and not others, or that somehow it suddenly applies to a new class, is beyond me.

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        • So if Kennedy had wanted to, he could have written a decision that was not a trainwreck, and reached the same result.

          There were four dissents of varying qualities, If there was a stronger case to be made, I wonder why one of the confirming justices didn’t write an additional opinion.

          Of the dissents, Clarence Thomas’s is the most bizarre. He cites Loving v. Virginia as a case that supports NOT extending marriage rights to gay couples. He also goes off on a bizarre quasi-libertarian rant that the only reason gays want to get married is to get their hands on all the Free Stuff the gummint gives to married couples and somehow this greed is unseemly and they should just suck it up and suffer their second class status with dignity.

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        • yello:

          There were four dissents of varying qualities, If there was a stronger case to be made, I wonder why one of the confirming justices didn’t write an additional opinion.

          Because all they were interested in was the result, not the reasoning. Seriously.

          Mark is concerned about the reasoning and what it means for lower court guidance and future litigation. But any future cases will be decided by the progressives just as this one was, that is on the basis of political policy preference. That being the case, why should they care at all about what the reasoning is in any particular case? Had Kennedy written a one line opinion that said “We rule in favor of the plaintiffs because we want to” it would have been just as meaningful as the one he wrote. In fact, I’d wager Mark would actually have preferred such a one liner, as it would not have left lower courts which think what SCOTUS opinions say is more important than what the actual constitution says with the impossible task of trying to untangle just what it was that SCOTUS was saying.

          He cites Loving v. Virginia as a case that supports NOT extending marriage rights to gay couples.

          Not anywhere that I can find he didn’t. He cites Loving only to explain that the plaintiffs citing of it as precedent identifying a right to marry is misconceived.

          Petitioners’ misconception of liberty carries over into their discussion of our precedents identifying a right to marry, not one of which has expanded the concept of “liberty” beyond the concept of negative liberty. Those precedents all involved absolute prohibitions on private actions associated with marriage. Loving v. Virginia, 388 U. S. 1 (1967), for example, involved a couple who was criminally prosecuted for marrying in the District of Columbia and cohabiting in Virginia, id., at 2–3.5 They were each sentenced to a year of imprisonment, suspended for a term of 25 years on the condition that they not reenter the Commonwealth together during that time. Id., at 3.6 In a similar vein, Zablocki v. Redhail, 434 U. S. 374 (1978),
          involved a man who was prohibited, on pain of criminal penalty, from “marry[ing] in Wisconsin or elsewhere” because of his outstanding child-support obligations, id., at 387; see id., at 377–378. And Turner v. Safley, 482 U. S. 78 (1987), involved state inmates who were prohibited from entering marriages without the permission of the superintendent of the prison, permission that could not be granted absent compelling reasons, id., at 82. In none of those cases were individuals denied solely governmental recognition and benefits associated with marriage.

          He also goes off on a bizarre quasi-libertarian rant that the only reason gays want to get married is to get their hands on all the Free Stuff the gummint gives to married couples and somehow this greed is unseemly and they should just suck it up and suffer their second class status with dignity.

          Given the way you read opinions, you would fit right in on the progressive wing of the court.

          For anyone who may not have read what Thomas wrote, he was actually discussing the meaning of the word “liberty” in the context of the phrase “life, liberty, and property” with relation to the due process clause of the 14th amendment. (This is important if one actually believes that words have meaning.) His point was that, contrary to the claim of the plaintiffs and of the majority, they were in no way denied “liberty” under the meaning used in the constitution. They have been denied certain government entitlements, namely those that are granted by the government to married couples, but they have not been restrained in any way at all. To wit:

          Petitioners cannot claim, under the most plausible definition of “liberty,” that they have been imprisoned or physically restrained by the States for participating in same-sex relationships. To the contrary, they have been able to cohabitate and raise their children in peace. They have been able to hold civil marriage ceremonies in States that recognize same-sex marriages and private religious ceremonies in all States. They have been able to travel freely around the country, making their homes where they please. Far from being incarcerated or physically restrained, petitioners have been left alone to order their lives as they see fit.

          Nor, under the broader definition, can they claim that the States have restricted their ability to go about their daily lives as they would be able to absent governmental restrictions. Petitioners do not ask this Court to order the States to stop restricting their ability to enter same-sex relationships, to engage in intimate behavior, to make vows to their partners in public ceremonies, to engage in religious wedding ceremonies, to hold themselves out as married, or to raise children. The States have imposed no such restrictions. Nor have the States prevented petitioners from approximating a number of incidents of marriage through private legal means, such as wills, trusts, and powers of attorney.

          Instead, the States have refused to grant them governmental entitlements. Petitioners claim that as a matter of “liberty,” they are entitled to access privileges and benefits that exist solely because of the government. They want, for example, to receive the State’s imprimatur on their marriages—on state issued marriage licenses, death certificates, or other official forms. And they want to receive various monetary benefits, including reduced inheritance taxes upon the death of a spouse, compensation if a spouse dies as a result of a work-related injury, or loss of consortium damages in tort suits. But receiving governmental recognition and benefits has nothing to do with any understanding of “liberty” that the Framers would have recognized.

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        • Andrew McCarthy addresses the same issue I raised last week:

          Did you notice that there was not an iota of speculation about how the four Progressive justices would vote? There was never a shadow of a doubt. In the plethora of opinions generated by these three cases, there is not a single one authored by Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, or Sonia Sotomayor. There was no need. They are the Left’s voting bloc. There was a better chance that the sun would not rise this morning than that any of them would wander off the reservation.

          How can that be? Jurisprudence is complex. Supple minds, however likeminded, will often diverge, sometimes dramatically, on principles of constitutional adjudication, canons of statutory construction, murky separation-of-powers boundaries, the etymology of language, and much else. Witness, for example, the spirited debate between the Court’s two originalists, Scalia and Clarence Thomas, over a statute that, in defiance of Obama policy, treats Jerusalem as sovereign Israeli territory. But not the Court’s lefties, not on the major cases. And it is not so much that they move in lockstep. It is that no one expects them to do anything but move in lockstep — not their fellow justices, not the political branches, and certainly not the commentariat, right or left.

          It is simply accepted that these justices are not there to judge. They are there to vote. They get to the desired outcome the same way disparate-impact voodoo always manages to get to discrimination: Start at the end and work backwards. Guiding precedents are for the quaint business of administering justice. In the social justice business, the road never before traveled will do if one less traveled is unavailable.

          I am entirely in McCarthy’s camp: The Court is undeniably a political institution and “We should thus drop the pretense that the Court is a tribunal worthy of the protections our system designed for a non-political entity — life-tenure, insulation from elections, and the veil of secrecy that shrouds judicial deliberations.”

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        • YJ, we all knew how Kennedy was going to vote, but the four Justices on the relative left were not going to disturb his apple cart or push any of his buttons by suggesting ANYTHING. Caveat: We must assume that Roberts assigned the opinion writing to Kennedy for that to have been the case.

          Scott, the Supremes, and in fact the whole court system, has [have?] been struggling with “equal protection” for 147 years or so. It is plain that the clause means something. But it doesn’t mean many other somethings. Much of the “meaning” is defined by statutes that the Amendment authorizes Congress to enact. There has been a wealth of litigation claiming the Clause’s protection.

          So far, convicts and minors have been excluded from voting and serving on juries and the like. In the not too dim past, women, naturalized immigrants, blacks, Chinese, Japanese, those without real estate ownership, Roman Catholics, and other groups have been denied equal protection by federal, state, and local government, in some cases in derogation of a plain federal statute. How cases are framed, and what competing interests are at stake, either compels classification results, or a sort of chaos.

          For any sort of common sense to prevail, the Hooters case must allow employers to discriminate against male applicants on a classification theory, but not allow them to discriminate against pretty black women with Big Boobs. Remember that Title VII was 14thA enabling legislation. So you can take the view that the common law, which is our heritage, cannot grow around the general principles of the Constitution, to satisfy individual cases or classes of cases, or you can recognize that the Founders were steeped in it so deeply that common law is at the core of the judiciary they actually intended.

          Back to YJ – the Kennedy opinion, relying as it does on no discernible precedent, nor statute, nor common law theory of classification under the Equal Protection clause of the 14th A., is chaotic.

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        • Mark:

          For any sort of common sense to prevail, the Hooters case must allow employers to discriminate against male applicants on a classification theory, but not allow them to discriminate against pretty black women with Big Boobs.

          I totally disagree with this. The Hooters case just demonstrates the contradictory folly inherent in distorting the 14th amendment so as to apply it to private action. The 14th amendment requires the government to provide equal protection to all citizens under the law, but it cannot coherently be construed to require a private business to provide equal access for all citizens to employment opportunities. If anything, a government statute that prevents one business owner from discriminating in his employment practices but allows another to do so is an obvious violation of the equal protection clause. To then go on to claim that it could ever possibly be required by the equal protection clause is a complete corruption of language and reason.

          the Kennedy opinion, relying as it does on no discernible precedent, nor statute, nor common law theory of classification under the Equal Protection clause of the 14th A., is chaotic.

          As I said, it is no different (or perhaps even worse) than if Kennedy had written a single line opinion: “We find for the plaintiffs because we want to.”

          Like

        • the Kennedy opinion, relying as it does on no discernible precedent, nor statute, nor common law theory of classification under the Equal Protection clause of the 14th A., is chaotic.

          I wonder if that wasn’t deliberate. One argument would be that this is so self-evident a decision that a litany of legal references can only undermine the universality of it. Or perhaps the application of the 14th A. to the rights of homosexuals is literally unprecedented.

          I had expected a 6-3 decision with Roberts joining a much more narrow ruling based on the Full Faith and Credit Clause forcing states to recognize same-sex marriages performed in other states (which fits the facts of the case under review) while allowing states to either perform or not perform same-sex marriages within their states. This obviously would not have satisfied SSM advocates and further challenges would have resulted. But this pattern would also have fit Kennedy’s rather incrementalist approach he has taken on these decisions.

          A rejection of this case would have not affected states which had legislatively allowed SSM but would have left in limbo married gay couples who moved into non-SSM states eventually resulting in some very Dred Scottish decisions.

          Really, once a critical mass of states approved marriage equality a ruling of this type was inevitable.

          I also find it interesting that Roberts joined none of the other more vitriolic dissents while the others all round-robined each other. I wonder just how much he buys into the validity of the arguments of his fellow dissenters.

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        • yello:

          One argument would be that this is so self-evident a decision that a litany of legal references can only undermine the universality of it.

          Heh. So self-evident it went unnoticed for 150 years, and was denied even by supporters less than a decade ago.

          Really, once a critical mass of states approved marriage equality a ruling of this type was inevitable.

          I think it was a critical mass of progressive politicians on the Court that made it inevitable.

          I also find it interesting that Roberts joined none of the other more vitriolic dissents while the others all round-robined each other.

          I noticed the same thing. But if you think about it it actually doesn’t make much sense to expect the writer of the majority opinion to sign on to other opinions, since if he agreed with those arguments he would have included them in the main opinion. BTW, I don’t think Alito signed on to either Thomas or Scalia. Those two were the only ones to sign on to all the dissenting opinions.

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        • BTW, I don’t think Alito signed on to either Thomas or Scalia.

          You are correct. I wonder what in those opinions waved him off.

          Like

  103. I read the same assessment of Thomas at DKos. ‘Course, he did get ahead through affirmative action AmIRight?

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    • I read the same assessment of Thomas at DKos.

      Here is my completely independent assessment of the gist of each of the four dissents:

      Roberts: Hey! I’m not against the gays but you guys are going about all the wrong way. This fight belongs at the ballot box because eventually Mississippi is going to come around.

      Scalia: Just who appointed us the final arbiters of things? We’re nine mostly white, mostly Catholic Ivy-League ivory tower inhabitants. A 5-4 decision from us means nothing. Unless we are picking a president.

      Thomas: True Freedom means suffering even when The Man is keeping you down. I might not want to give you equal rights but at least you will have your dignity like my ancestors did.

      Alito: This decision discriminates against bigots.

      Like

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