It’s hard not to think of the printing of two million copies of Harper Lee’s “new book” as a capitalist macroaggression against America. Many readers consider it a sequel, although it’s really a rough and in some ways misbegotten draft of To Kill a Mockingbird, the work that stands as the one and only account of heroic virtue shared by all Americans. When I go to my college classes, I (fake) struggle to find a piece of cultural literacy that all of us in the classroom share. The result is always the same.
Most of the commentary on the Iran deal has focused on whether it is desirable or not – more particularly, whether this obviously imperfect deal is better than the alternative. While I don’t have expertise in these matters, my view for what it is worth is that the deal is a bad one that could turn out to be disastrous. We would be better off doing all we can to maintain the existing sanctions regime than signing on to this seriously problematic deal.
But the badness of this deal is not the focus of this post. Instead, it is that this deal represents yet another example of President Obama violating the law to pursue his objectives — objectives which could not lawfully be enacted. And this deal may represent the single worst policy outcome of all of Obama’s illegalities.
Honorary degrees are the highest symbol of recognition that universities can bestow. And the Ivy League retains the greatest reputation for excellence in American higher education. Thus, it is of more than a little interest that these institutions find excellence overwhelmingly in justices on the left of the judiciary.
Of the fourteen honorary degrees bestowed by Ivy League institutions to living Supreme Court justices twelve went to those on the left of the Court. Justice Ginsburg is the champ: she has an honorary degree from every Ivy League university except Cornell and Cornell does not award honorary degrees. And she is by some political science measures the farthest to the left on the Court. Justice Sonia Sotomayor has two such degrees (Princeton, Yale) and Stephen Breyer, John Paul Stevens and David Souter have one each (Penn, Princeton, and Harvard respectively). While I am not knowledgeable about all foreign judges, the two I did recognize from the Ivy lists, getting two honorary degrees each, were Albie Sachs of South Africa and Aharon Barak of Israel—two of the most famous left-leaning jurists from abroad. Indeed, some of Barak’s opinions make those of William O. Douglas seem modest and lawful.
Against all this celebration of left-liberalism, Brown and Yale did give honorary degrees to Sandra Day O’Connor, the swing justice of her day and a moderate conservative. But no Ivy League University has ever awarded such a degree to anyone sitting now on the right of the Court. What makes this performance even more obviously ideologically driven is that these academic institutions have neglected the one who has had the most academic influence—Antonin Scalia.
With this series of posts, I return to constitutional law issues that SCOTUS will address in the 2015-16 term. One case in particular—Friedrichs v. California Teachers Association—is hugely important and has already generated a great deal of commentary. This site recently hosted an excellent Liberty Forum on the topic, Friedrichs, which involves a constitutional challenge to the compulsory payment of union dues by public employees, promises to be one of the most closely-watched cases next term.
There are two main arguments, one philosophical and the other practical, for the legalization of drugs whose consumption is currently prohibited. I will take up the former here, and the latter in a separate post.
In the Atlantic, Garrett Epps has a piece on Clarence Thomas. I like Epps. He has been to two of the Originalist Conferences that I run and his presentations and writing are lively, entertaining, and thoughtful. And his book on the 14th Amendment was quite enjoyable. But Epps’s politics are far to the left of Clarence Thomas’s and therefore it is not surprising that he is very critical of Thomas. In fact, I think Epps was quite unfair to Thomas. I thought I would respond to some of his major points.
First, Epps starts his piece discussing how Thomas’s confirmation involved charges by Anita Hill that Thomas had sexually harassed her during their tenures at the EEOC. Epps notes that the “experience left him embittered.” While Epps sort of presents both sides, he neglects an obvious inference. The most likely reason that Thomas would have been so embittered by the experience is that he believed the charges were false. To be clear, I don’t know what happened between the two. But the failure to note this obvious explanation for Thomas’s reaction is disappointing.
Second, Epps complains that Thomas’s dissent in Obergfell, the same sex marriage case, did not mention the “key gay-rights precedents.” This complaint is curious. Thomas joined the three other dissents, which did mention these precedents. Thomas wrote separately to discuss the original meaning. Since Thomas had already indicated that he did not believe these dissents reflected the original meaning, he did not need to do so again.
Sticking with the state court theme of my last series of posts, I now turn to what Governor Jerry Brown is doing with judicial appointments in California.
Princeton University Press had just published a new paperback edition of my book, Accelerating Democracy: Transforming Governance Through Technology. It argues for using the tools given by our new computational technology to help democracy adapt to our accelerating rate of social change.
The basic insight of the book should be congenial to friends of the classical liberal tradition in political thought. It is to deploy decentralized mechanisms that modern technology makes possible to improve self-government. For instance, the internet greatly facilitates betting pools, called information or prediction markets, which permit people to bet on the occurrence of future events. Such markets already gauge election results more accurately than polls. If legalized and modestly subsidized, they could also foretell many policy results better than politicians or experts alone. We could then better predict the consequences of changes in educational policy on educational outcomes or a stimulus program on economic growth. In short, such markets would provide a visible hand to help guide policy results. Unfortunately, while such markets are a public good, our government now impedes them at every turn.
The internet today also encourages dispersed media like blogs to intensify confrontations about contending policy claims.
Recently, I critically reviewed Damon Root’s new book, Overruled: The Long-War for the Control of the Supreme Court (see Part 1 and Part 2). In response, Root and others have now taken to the blogosphere in defense of the book and of libertarian constitutionalism. Unfortunately, Root just digs a deeper hole and his defenders only illustrate the problem with libertarian readings of the Privileges or Immunities Clause.