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Tugs tow cruise ship after 463 rescued; 17 injured…

On March 28, 2019 By admin

• Breaking News

Tugs tow Norway cruise ship after 463 rescued; 17 injured

STAVANGER, Norway (AP) — More than 450 passengers were airlifted off a cruise ship that got stranded off Norway’s western coast in bad weather before the rescue operation was suspended Sunday so the vessel could be towed to a nearby port, Norwegian authorities said.

Five helicopters flying in the pitch dark took the evacuated passengers from the tossing ship in a painstaking process that continued throughout the night. The rescues took place under difficult conditions that included wind gusts up to 38 knots (43 mph) and waves over 8 meters (26 feet).

Some 17 people were hospitalized with injuries, police said.

Passenger Alexus Sheppard told The Associated Press in a message sent from the Viking Sky that people with injuries or disabilities were winched off the cruise ship first. The atmosphere onboard grew calmer after the rescue operation’s first dramatic hours, Sheppard said.

“It was frightening at first. And when the general alarm sounded it became VERY real,” she wrote.

Photos posted on social media showed the ship listing from side to side, and furniture smashing violently into walls.

“We saw two people taken off by stretcher,” another passenger, Dereck Brown, told Norwegian newspaper Romsdal Budstikke. “People were alarmed. Many were frightened but they were calm.”

The Viking Sky carried 1,373 passengers and crew members when it had engine trouble in an unpredictable area of the Norwegian coast known for rough, frigid waters. The crew issued a mayday call Saturday afternoon.

Police said the crew, fearing the ship would run aground, managed to anchor in Hustadvika Bay so the evacuations could take place.

Coast guard official Emil Heggelund estimated to newspaper VG that the ship was 100 meters (328 feet) from striking rocks under the water and 900 meters (2,953 feet) from shore when it stopped.

The ship was visiting the Norwegian towns and cities of Narvik, Alta, Tromso, Bodo and Stavanger before its scheduled arrival Tuesday in the British port of Tilbury on the River Thames. The passengers mostly were a mix of American, British, Canadian, New Zealand and Australian citizens.

The airlifts continued at a steady pace Sunday morning, as the vessel was being prepared for towing by two tugboats to the nearby town of Molde, according to Per Fjerd at the Joint Rescue Coordination Center.

The helicopters stopped taking people off the ship when the ship was ready for the trip to shore, and 463 passengers had been evacuated by that time, the Joint Rescue center said. Three of the ship’s four engines were working as of Sunday morning, the center said.

The Viking Sky, a vessel with a gross tonnage of 47,800, was delivered in 2017 to operator Viking Ocean Cruises.

Argument analysis: Justices divided on agency deference doctrine

On March 28, 2019 By admin

• Breaking News

The Supreme Court heard oral argument this morning in a dispute over veterans’ benefits that could become one of the most significant cases of the term. Although the case arose when the Department of Veterans Affairs refused to give James Kisor, who served as a Marine during the Vietnam War, benefits for his post-traumatic-stress disorder dating back to 1983, it has morphed into something much bigger. Kisor and his lawyers have asked the justices to overrule a doctrine that Chief Justice John Roberts has described as “going to the heart of administrative law”: the idea that courts should generally defer to a federal agency’s interpretation of its own regulation. After roughly an hour of debate today, the justices were deeply divided in a case in which their ruling could have implications not only for veterans but also for other areas of the law ranging from the environment to immigration.

The doctrine at the center of today’s case is known as Auer deference. It was named after the 1997 case Auer v. Robbins and is also sometimes known as Seminole Rock deference, after the 1945 case Bowles v. Seminole Rock & Sand Co. The doctrine rests, at least in part, on the idea that a federal agency has more expertise in the subject matter covered by the regulation (and by the law that the agency was interpreting when it issued the regulation), and – as law professor Aaron Nielson wrote three years ago, the agency that wrote a regulation will “know best what it means.”

Arguing for Kisor in the Supreme Court today, attorney Paul Hughes urged the court to overrule the Auer doctrine, which he described as a way around the general requirement that agencies notify the public of proposed regulations and provide an opportunity for comments on those proposed regulations. The lack of an opportunity for the public, and particularly for people or entities who are affected by a regulation, to participate in the process of making the regulations is not, Hughes stressed, “just some speed bump along the administrative process. This matters as a practical matter a great degree.”

The court’s more liberal justices appeared largely unpersuaded by Hughes’ arguments. Justices Sonia Sotomayor and Ruth Bader Ginsburg queried why the justices needed to decide the Auer deference question at all if – as the government contends – either the regulation at the center of the dispute is clear or the VA’s reading of the regulation is “by far the better reading” anyway.

Justice Stephen Breyer seemed to believe that federal agencies, rather than federal judges, have expertise in their specific subject matter that makes them better suited to interpret highly technical regulations. He pointed to an example in which the court “deferred to the understanding of the FDA that a particular compound should be treated as a single new active moiety, which consists of a previously approved moiety, joined by a non-ester covalent bond to a lysine group.” Drawing laughter from the gallery, Breyer asked rhetorically, “Do you know how much I know about that?”

And Justice Elena Kagan pressed Hughes about whether it was appropriate for the justices to overrule their past cases when Congress is well aware of the Auer rule and “has repeatedly acted in this sphere and shown no interest whatsoever in reversing the rule that the Court has long established.”

Hughes pushed back, noting that the Supreme Court has recently overruled its prior cases in other contexts in which Congress could have stepped in. That prompted Kagan to observe wryly that “there aren’t very many of those cases. And we take it super-seriously when we do and we need a – I mean we used to – and we need a good reason for it.”

Chief Justice John Roberts chimed in, noting that the Auer rule had been narrowed over the years. He wondered aloud “exactly how much of a change at the end of the day you’re talking about” – which seemed to suggest that he might have fewer concerns about overruling Auer, because Hughes’ proposed rule might not be a significant change from the current rule.

U.S. Solicitor General Noel Francisco argued on behalf of the federal government. He acknowledged that the Auer doctrine “raises some problems in its applications” but urged the court to keep it in place with some “reasonable limitations” to address those problems.

Justice Neil Gorsuch, who last year joined a dissent from the denial of review by Justice Clarence Thomas that described Auer deference as “constitutionally suspect,” quickly peppered Francisco with a series of questions that left little doubt about Gorsuch’s views on the issue. There are multiple parts to the test that the federal government would have courts apply to determine whether to defer to an agency’s interpretation of its own regulation, Gorsuch told Francisco. “Is that a recipe for stability or predictability in the law,” Gorsuch asked, “or is that a recipe for the opposite?”

Gorsuch spoke even more plainly a few minutes later, when Francisco suggested that the government’s rule would help members of the public who were regulated by a particular agency because they “can rely on the agency” and its interpretation of the regulation, rather than having to go to courts around the country to figure out what the regulation means. “I must say,” Gorsuch told Francisco, “I cast a skeptical eye when the government is worried about private reliance interests,” because “every private party before us” – from the Chamber of Commerce to veterans and immigration lawyers – “says their interests in stability would be better served by eliminating this rule altogether.”

Justice Brett Kavanaugh appeared to believe that the better course would be for agencies always to use the notice-and-comment process when making regulations that interpret other regulations. “You said it takes a long time, and that may be a problem with some lower court impediments to notice and comment, I share that concern, but if notice and comment were more efficient, why not just do notice and comment?”

Francisco agreed that the notice-and-comment process “is a very important process,” but he explained that while it is underway, “you’re facing a rule that, by definition, is ambiguous. And you’ve got to figure out what to do with it.”

Kavanaugh later appeared troubled by the idea that, under the government’s theory, a judge might have to defer to an agency’s interpretation of a regulation even if the judge believes that the interpretation “is a really important interpretation, has real effects on many people, and it’s wrong” – just because the regulation is not clear.

In his rebuttal, Hughes stressed that “the appropriate resolution of this case is to overturn Seminole Rock and Auer in their whole because it’s critical to restore the importance of notice-and-comment rulemaking that Congress thought was a critical check to bring democratic accountability to the agencies.” It’s not entirely clear whether Hughes has the five votes he needs to prevail on this point, particularly because the court’s four more liberal justices seemed staunchly opposed to his position, but after today’s argument it certainly seems possible that he does.

A decision in the case is expected by summer.

This post was originally published at Howe on the Court.

Editor’s Note: Analysis based on transcript of oral argument.

The post Argument analysis: Justices divided on agency deference doctrine appeared first on SCOTUSblog.

Ask the author: “The great oracle of American legal thought” – revisiting the life and times of Justice Holmes

On March 28, 2019 By admin

• Breaking News

The following is a series of questions posed by Ronald Collins to Stephen Budiansky concerning Budiansky’s book “Oliver Wendell Holmes: A Life in War, Law, and Ideas” (W.W. Norton, 2019, 592 pp., cloth: $29.95).

Stephen Budiansky is the author of 17 books of biography, history and science. He was a recipient of a Guggenheim Fellowship in the Creative Arts in 2011.

Welcome, Stephen, and thank you for taking the time to participate in this question-and-answer exchange for our readers. And congratulations on the publication of your latest book.

* * *

Part of the greatness of a great life, I think, consists in leaving it unadvertised.

— Justice Holmes, letter to Lady Tweeddale, April 4, 1931

Question: Yours is the latest in a long line of Holmes biographies, including those by Francis Biddle (1942, pp. 214), Catherine Drinker Bowen (1944, pp. 475), Mark DeWolfe Howe (1957 & 1963, 2 vols, pp. 663), John S. Monagan (1988, pp. 170), Sheldon Novick (1989, pp. 522), Liva Baker (1991, pp. 783), G. Edward White (1995, pp. 648), and Susan-Mary Grant (2015, pp. 224). Then there are quasi-biographies such as those by Thomas Healy (2013, pp. 336) and Brad Snyder (2017, pp. 824). Since 1942, there have been 5,683 biographical pages printed in books. That, of course, does not include yet more printed pages in scholarly journals or a vast array of commentaries in books and journals or collections edited by the likes of Felix Frankfurter.

What does your biography add to the mix?

Budiansky: Thank you, Ron, and glad to have the opportunity to answer your questions about my new biography of Oliver Wendell Holmes.

My aim was not to treat Holmes either as the celebrity figure of his first biographers or as a dry specimen for scholarly analysis, but to draw a more fully realized portrait of an exceptional life. Holmes’ experiences over his 93 years spanned a period of tremendous challenge and change in American history, from the Civil War to the New Deal. The challenge to a biographer is to bring together his public and private lives, which in Holmes’ case are both of unusual complexity and richness.

There are also three specific areas where I think I was able to shed some important new light on his life and thought. First, thanks to Harvard’s monumental project to digitize his entire archive, I was able to systematically read thousands of important, never-published letters. In particular, his lively and indefatigable correspondence with a dozen or so mostly much younger women friends over the course of many decades is a trove of insight into his ideas and daily life, including occasional misgivings and hesitations that I believe he reveals nowhere else. He writes about his fellow justices, his cases, Washington society; he shares his philosophical musings and frequently humorous observations of the passing scene. In both their text and subtexts, I found these letters to be essential to understanding his character, personality, thought and experiences.

Second, thanks to the tremendous generosity of someone who contacted me out of the blue at the start of my project — Judge Hiller B. Zobel, who served on the Massachusetts Superior Court and who had assembled a remarkable collection of Holmes materials over decades of research into the justice’s judicial career — I was able to be the first biographer of Holmes to make a thorough examination of Holmes’ experiences as a trial judge. At the time Holmes joined the Massachusetts Supreme Judicial Court, the justices not only heard appeals but sat individually over many trials — they heard all divorce, murder and equity cases as well as a good many probate and civil actions. Judge Zobel freely shared with me original records he had found of hundreds of Holmes’ trials, and these offer an amazing look at a chapter in Holmes’ judicial career that I think not only has been largely overlooked, but turns out to have been a crucial factor in shaping his judicial philosophy.

Finally, I located in the National Library of Ireland a number of letters previously unknown to Holmes scholars that provide a new perspective on his relationship with an Anglo-Irish noblewoman, Lady Castletown, with whom he is often said to have had “an affair” — though frankly I doubt that.

Question: Official biographies can take a long time. For example, Chief Justice Warren Burger died nearly a quarter-century ago and his official biography has yet to be published. Something of the same holds true with Holmes, whose official biography was never fully completed. Can you say a few words about that?

Budiansky: It was Exhibit A of how trying to restrict access to letters and papers in archives hinders biographers and, perhaps more interestingly, is ultimately self-defeating in its attempt to “protect” the reputation of the subject. Felix Frankfurter was zealous in guarding Holmes’ reputation after Holmes’ death in 1935 and decided that only the official biographer he anointed in 1939 to carry out the task, Mark Howe of the Harvard Law School, would have access to Holmes’ papers. Howe was a prodigious scholar and by all accounts a wonderful person, but his heart was just never in it. He meticulously edited and published Holmes’ Civil War diary and his correspondence with Harold Laski and Frederick Pollock, but could never quite get around to starting on the biography itself. In the end he had finished only two slim volumes before dying in 1967 — and those cover only the first 40 years of the justice’s life, not even reaching his years on the Massachusetts bench, never mind the Supreme Court. After further abortive attempts to have the authorized biography completed, Harvard finally gave up and opened the Holmes papers to researchers in 1985.

So the only thing all this secrecy and exclusivity accomplished was to delay for half a century the first serious, complete biographies of the justice. Hardly a boon to his reputation.

Question: There are some great Holmes lines that, it turns out, were not actually his words. Can you give us a few examples?

Budiansky: Probably the most famous is his oft-quoted assessment of FDR: “A second-class mind, but a first-class temperament,” which he almost certainly never said. He did say something vaguely like that about Theodore Roosevelt, which may have been where the story got started. But every book about FDR seems to repeat it.

Holmes was such a well-known wit that he suffered from the Mark Twain or Winston Churchill syndrome of having just about any commonplace witty saying of the day attributed to him. But his genuine quips were in a class by themselves. Dean Acheson once asked him what old Justice Harlan had been like. Holmes replied, “Harlan’s mind was like a vise, the jaws of which did not meet. It only held the larger objects.”

Question: You write: “[I]t was the Civil War that was his touchstone.” Given that, you dwell on Holmes’ Civil War experience at some length, and impressively so. In what sense was Holmes’ experience the touchstone of his philosophy and jurisprudence?

Budiansky: He hated war, and hated reading about the Civil War, but he always acknowledged it as the great transformative experience of his life. At the Battle of Ball’s Bluff he was struck in the chest, and a year later at Antietam was shot right through the neck. Each time the bullet missed killing him by a fraction of an inch. The experience gave him a determination ever after to face life and the unknown with great moral courage, and the conviction that the only thing you could really do about the human condition, as well as its only true source of happiness, was to throw yourself into your work and just “do your damnedest,” as he liked to say, without worrying about success, failure or saving the world.

He said to his fellow Civil War veterans in one speech that those who “somehow have survived” that terrible ordeal “know the passion and irony of life.” A profound and poetic thought. The war confirmed his deep belief that life is a gamble and there are no certainties; and by the same token it taught him to be extremely wary of ideological certainty. It really confirmed his philosophical skepticism, which in turn was the bedrock of his judicial philosophy. He often warned that law is not some moral abstraction or lofty ideal, but at root a statement of where society will kill you rather than have its proscriptions disobeyed. A brutal realism, but one that underscored the absolute need for tolerance and compromise over ideological zealotry. Before we try to inflict our moral certainties on the world, he was saying, we ought to pause and reflect first that we may well be wrong — and second that certainty all too often leads to violence.

The Civil War also gave Holmes an abiding respect for the so-called common man. He told his friend Harold Laski that the army taught him some great lessons: to be prepared for catastrophe; to endure being bored; and to know that however fine a fellow he thought he was, there were other men whom he might have looked down on had not experience taught him to look up. The lesson that practical ability mattered more than high-minded thoughts or “noble” character was one he never forgot.

Question: “To Holmes,” you note, “the act of writing was above all the act of thinking. Finding the right words was not rhetorical ornamentation: it was the very essence of his work of thinking through a complex legal problem.” Fair enough, and he certainly shaped the law in many ways with his wise words. Then again, many of his memorable phrases do just the opposite: they trade critical thought for the magic that comes from his mantras. On that score, permit me to let the late Max Lerner pose the larger question: “are we in danger of accepting him too uncritically?” Your response?

Budiansky: I certainly agree we should not accept him, or anyone else for that matter, uncritically. But I don’t accept your contention that his memorable phrases were a substitute for critical thought. Their magic is not some slick rhetorical trick, but rather his ability to crystallize in one striking metaphor or turn of phrase a highly complex argument, a beautiful compression of form akin to what only the greatest poets achieve.

But that said, you’re right that in the hands of others his memorable catch-phrases have at times had the effect of dulling careful thinking — “shouting fire in a theater” being the most notorious example, perhaps. Holmes to his credit was well aware of this. He warned, in a really insightful observation, that “the minute a phrase becomes current it becomes an apology for not thinking accurately to the end of the sentence.”

Question: On the matter of constitutional interpretation, you note that Holmes kept the same skeptical “eye on the Constitution that he trained on everything.” By that do you mean that the text of the Constitution was neither seriously important nor determinative for him? What do you mean when you say that, if so, “it is more our loss than his failure”?

Budiansky: He certainly thought that the Constitution was exceptionally important — how could he not — but he was deeply skeptical of attempts to enlist the Constitution as the final word in every partisan dispute. As he often stressed, the Constitution is not a set of “mathematical formulas,” it does not “divide fields of black and white,” it is not the “partisan” of one particular set of economic or social opinions — but, quite the contrary, was meant to be “a frame of government for men of opposite opinions and for the future.”

He loved to twit his fellow justices that he would take any general proposition they cared to offer and decide the case either way based upon it. His point was that in most cases a judgment comes down to specific circumstances, and the broadly worded precepts of the Constitution simply do not take you far enough to determine the outcome of a particular case. In Martin v. District of Columbia (1907), which upheld an ordinance opening private alleyways for public use, he wrote that “constitutional rights, like others, are matters of degree.” Or as he more jocularly told a friend at the time, “I took pleasure in pointing out that a man’s constitutional rights might be a matter of feet and inches.”

He also observed that the worst offenders when it came to reading their own political views into the Constitution were the very judges who claimed to be strictly following its words and nothing else. Anyone who derived a conclusion of “delusive exactness” from the very general language of the Constitution, Holmes pointed out, was perforce bringing in other values and considerations, acknowledged or not. He reported to his friend the Irish historian Alice Stopford Green the wisecrack he had made to his fellow justices underscoring the point: “I took occasion at luncheon to define constitutional law to my brethren as the prejudices of nine old pedagogues read into an instrument that did not contain them, which I hope gave pain.” I think that’s a healthy skepticism we ought to remember, especially in our day when left and right routinely seek to deploy sweeping assertions of constitutional principle or invocations of absolute rights as the unappealable argument on divisive issues.

Question: Professor Thomas Grey tagged Holmes as “the great oracle of American Legal thought.” Judge Richard Posner branded him “the most illustrious figure in the history of American Law.” Professor Albert Alschuler was not so effusive. In his book “Law Without Values” (2002) he wrote: “Despite these hosannas to Holmes, a common theme in writing about him is that he was two people—Jekyll-Holmes and Hyde-Holmes.” What do you think he meant by that?

Budiansky: You’d have to ask him! Alschuler employs a lot of tendentious argument and selective quotation to paint a dark caricature of a psychologically damaged Holmes. I believe he fundamentally misrepresents Holmes’ views about war and the life struggle. Holmes had his human failings as we all do, but he was a man of great integrity, moral courage and personal generosity. He also had an abiding sense of humor about the world, life and himself — something Alschuler seems to have no comprehension of. Humorless academics are not a rare species.

Question: As you point out, in the “1940s and 1950s Holmes’ reputation came under ferocious attack from Catholic legal scholars who saw his rejection of ‘natural law’ … as a dangerous and ‘alien’ philosophy inviting immorality, chaos, even fascism.”

Francis Biddle, one of Holmes’ former “secretaries” (1911–12), was so concerned with such criticisms that he replied to them at some length in his Oliver Wendell Holmes Devise Lecture of 1960 (“Justice Holmes, Natural Law, and the Supreme Court”). Said Biddle: “Our ideal judge will distrust phrases, particularly those that are tinctured with a moral flavor.”

In brief, what was Holmes’ response to his critics? And how did that make him an “ideal” judge?

Budiansky: For the most part he did not respond, though he did write a magnificently dismissive short article about “natural law” in 1918, pointing out the philosophically elementary fact that we are all dogmatic about what is familiar and agreeable to us, yet that does not make our preferences universal, eternal or “natural” truths. I think Biddle’s point was that a judge who can put aside his own even deeply held assumptions embraces one of the most important qualities in a judge — of being able to see both sides of a case without prejudice.

Question: As you portray him, and given his dissent in Northern Securities v. United States (1904), Holmes was no fan of the Sherman Antitrust Act. You quote him as tagging the act “an imbecile statute,” which “aims at making everyone fight but forbidding anyone to be victorious.”

How did that affect Holmes’ reputation in the ideological camps of the day?

Budiansky: He only expressed those views in private, though he also made a point of saying that if “my fellow citizens want to go to Hell, I will help them. It’s my job.” In other words, he would uphold a statute even if it was imbecilic. He did in fact uphold a more clear-cut action under the Sherman Act the following year in Swift v. United States (1905), the Beef Trust case, writing a strong opinion for the unanimous Supreme Court against collusive price-fixing by the meatpackers. But as he complained to his friend Clara Stevens afterward, “I suppose the capitalists think me dangerous and the labor people think me an eccentric slave of capital. Nobody wants a dispassionate man.” He hated being placed by the newspapers and public opinion in one ideological camp or the other based on his decision in a particular case.

Question: Holmes’ subsequent dissents in labor cases such as Lochner v. New York (1905) and Adair v. United States (1908) made him appear to be the darling of liberals. So how liberal was Holmes?

Budiansky: He personally was very skeptical about social and economic reforms, and as much as he enjoyed the intellectual company of young liberals like Herbert Croly and Frankfurter, he was never much persuaded by their enthusiasm for liberal causes. That said, his war experience had left him dubious about “causes” of all kinds.

Yet both from the war and from his time on the Massachusetts bench he also had a genuine empathy for working men and their problems. He believed that since most things in life are an experiment, people in a democracy have the right to try new things even if he himself was doubtful how much good it would do.

Question: What role, if any, did Justice Louis Brandeis (the grand progressive) play in tilting Holmes to the liberal left on constitutional issues?

Budiansky: I’m not sure he did as much as many people think. Chief Justice William Howard Taft grumbled that Brandeis had Holmes under his thumb, which gave him two votes, but that was obviously an exaggeration. It’s true Brandeis at times successfully urged Holmes to file written dissents in cases where he might otherwise have acquiesced in silence to the majority. But Holmes was Holmes, and I don’t think Brandeis really reshaped his fundamental views. There were other more important factors in the 1920s that moved Holmes to the “left” on free speech and upholding the rights of African-Americans convicted in mob-dominated trials, in particular.

Question: You seem to absolve Holmes somewhat regarding his controversial opinion in Buck v. Bell (1927), the sterilization case of Carrie Buck. You point to how Buck’s lawyer helped shape the result in the case and how Chief Justice Taft influenced Holmes’ opinion. Please share with us your take on the case.

Budiansky: I certainly am not out to absolve him for what remains his most notorious opinion,  with its brutal punchline, “Three generations of imbeciles are enough.” But I do think the story is more complex than it is usually made out to be. Unknown to the Supreme Court, the case was exactly the sort of collusive lawsuit that — given several other cases that really provoked Holmes’ judicial ire — I believe he would never have gone along with had he known what was going on. Buck’s lawyer in fact was a close associate of the superintendent of the state mental institution who had championed the Virginia sterilization law, and the appeal had been arranged deliberately to create a favorable test case to have the statute upheld. Much of the factual evidence in Buck’s favor was never in the record, and the constitutional arguments presented by her lawyer were notably weak ones. Taft in his memo assigning the case to Holmes particularly urged him to stress the supposed “imbecility” of three generations in Carrie Buck’s family, which the state argued was decisive proof that any additional children she had would end up as public charges. It’s also often overlooked that it was an 8-1 decision, and that eugenics before World War II had considerable public support in America. Only after the horrors of the Nazi regime did opinion really change.

Question: In your chapter on free speech circa 1918–1919, you write about the impact that the lives of Harold Laski and Felix Frankfurter had on the redevelopment of Holmes’ free speech jurisprudence. Tell us a little bit about that and why you think their experiences were of such great moment to Holmes.

Budiansky: It’s along and fascinating story, but the vicious and anti-Semitic character attacks that Frankfurter and Laski endured at Harvard, coupled with intense pressure from the conservative Boston establishment to have them fired from the faculty for daring to defend free speech for socialists and the rights of striking workers, brought home the price of intolerance in a very personal way to Holmes.

Question: Many years before Justice Ruth Bader Ginsburg made it into the movies, there was a full-length Hollywood movie about Holmes — “The Magnificent Yankee” (1950), which followed a 1946 play, which in turn followed “Yankee from Olympus” (1944) by Catherine Drinker Bowen. A Kirkus review of Bowen’s book said this: “The Holmes cult is a substantial one.” How would you value Holmes’ reputational stock at the present point in time?

Budiansky: Right now I think he is far less known to the general public than in the heyday of what was undeniably a “Holmes cult” for many decades after his death — today he is to most people little more than a name. I have vague hopes my book will change that. I’m not sure who we could get to play Holmes in the new movie — given his long life, it would take a number of them!

Question: Do you suppose that Holmes, if he were alive today, would have any allies on the Roberts Court? If so, who might they be and why? If not, why not?

Budiansky: You know, even in his time he not infrequently found that his great brevity and vivid way with words lost him the support of justices who initially intended to join his opinion. Were he on the Roberts Court, he would never be able to stomach those 83-page decisions that seem to be de rigueur these days, so I suspect he’d still be the Great Dissenter, issuing a lot of opinions by himself in his inimitable and ever-so-concise voice.

***

Cases linked to in this post:

Adair v. United States, 208 U.S. 161 (1908)
Buck v. Bell, 274 U.S. 200 (1927)
Lochner v. New York, 198 U.S. 45 (1905)
Martin v. District of Columbia, 205 U.S. 135 (1907)
Northern Securities v. United States, 193 U.S. 197 (1904)
Swift v. United States, 196 U.S. 375 (1905)

The post Ask the author: “The great oracle of American legal thought” – revisiting the life and times of Justice Holmes appeared first on SCOTUSblog.

The Politics & Policy Daily: Green No Deal

On March 28, 2019 By admin

• Breaking News

What We’re Following Today

It’s Wednesday, March 27.

One Green Dream Goes Down: The Senate rejected the Green New Deal on Tuesday in a vote Democrats labeled a political stunt. In protest, 43 dems voted present. Every Republican opposed the measure—and they were joined by these three Democrats.

July 27, 2016: Attorney General William Barr reported that Special Counsel Robert Mueller’s investigation did not establish any collusion between Donald Trump’s 2016 presidential campaign and the Russian government. But that actually makes Trump’s handling of Vladimir Putin—and his calls for Russia to hack into Hillary Clinton’s email—seem much stranger.

Relatedly, Trump’s actions and rhetoric have many Americans feeling a lot of embarrassment on Trump’s behalf. A new study reports a 45 percent spike in tweets about embarrassment since Trump took office—and many of those tweets reference Trump. The study also found that people tweeted less about embarrassment during Barack Obama’s presidency than they have during Trump’s. (One exception was on October 9, 2016, the date of the second 2016 presidential debate, in which Trump called Hillary Clinton “the devil” and admitted to not paying federal taxes.)

IRA L. BLACK / CORBIS VIA GETTY / THE ATLANTIC

They Weren’t Ready for This: The fallout from Barr’s summary of the Mueller report—which all but clears the president of any wrongdoing—has members of the #Resistance media scrambling to keep the outrage alive, reports McKay Coppins.

A Rocky Alliance: To understand the Democrats’ complicated relationship with Israel, look no further than the speech—and subsequent clarification, which reads close to an apology—delivered by House Majority Leader Steny Hoyer at the American Israel Public Affairs Committee conference in Washington this week.

Booker Is Just Fine: Although his fellow 2020 candidates are receiving more national media attention, Senator Cory Booker of New Jersey is content. He’s building up a strong ground game, and his campaign hopes that as other high-profile Democrats’ efforts fizzle out, Booker will still be going strong, Edward-Isaac Dovere reports from Iowa.

— Elaine Godfrey

Snapshot

Senate Transportation subcommittee chair Ted Cruz and ranking member Kyrsten Sinema talk during a hearing on commercial airline safety, on Capitol Hill. (Alex Brandon / AP)

Ideas From The Atlantic

Character Is Destiny. And Michael Avenatti Is a Bloviator. (Ken White)
“Though he habitually makes flamboyant accusations of criminality, he’s entitled to the presumption of innocence. But nobody who has followed his antics can ignore how very on brand the accusations are.” → Read on.

Democracy Requires a Public Mueller Report (Conor Friedersdorf)
“The special counsel’s probe was unlike most other DOJ cases: It was primarily a counterintelligence investigation, not a criminal one. It concerned the integrity of American elections, a matter of the highest public interest.” → Read on.

Expectations for the Mueller Report Were Set Too High (James Ball)
“Anything short of Mueller leading an FBI raid on the White House and walking out with multiple members of the Trump clan in chains would have felt like an anticlimax. That is why Attorney General William Barr’s four-page summary of Mueller’s report, which neither Congress nor the public has seen in full, seems to many like a victory for the president and his allies. But it isn’t.” → Read on.

What Else We’re Reading

‣ MSNBC’s Trump-Russia Ratings Fizzle: ‘Time to Pivot to 2020’ (Maxwell Tani and Lloyd Grove, Daily Beast)
‣ For Michael Avenatti, a Luxury Lifestyle Built on a Purported House of Cards (Michael Finnegan and Mark Z. Barabak, Los Angeles Times) (? Paywall)
‣ Elizabeth Warren Lays Out Plan to Target Corporate Agriculture, Support Family Farms (Brianne Pfannenstiel and Kim Norvell, Des Moines Register)
‣ The Steele Dossier, Hillary Clinton’s Malignant Gift to America (David French, National Review)

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Trump’s Opponents Have One Assignment Now

On March 28, 2019 By admin

• Breaking News

The Robert Mueller investigation of Russian interference in the 2016 election embodied the hopes of many Donald Trump critics that it was possible to defeat the president by disqualifying him personally. Whatever further revelations are contained in Mueller’s full report, Attorney General William Barr’s summary last weekend has already signaled it’s unlikely to be that easy. But, on balance, that’s a good thing for the voices in both parties resisting Trump’s direction for the country: There’s a far better chance of uprooting his influence over the long run if his presidency is ended by the voters, not the courts or Congress.

Trump is such a uniquely galvanizing and polarizing figure, both in his style and his background, that it’s tempting for supporters and opponents alike to imagine that the political movement he has ignited could not exist without him. To that perspective, Trump is the political equivalent of the “one ring” in the Lord of the Rings books: eliminate him and everything he’s built will fall into oblivion, the way Sauron, his armies, and even the land of Mordor all vanished in a thunderclap after the ring was destroyed.

But if that was ever true (for Trump, not Sauron), it is clearly no longer so. Trump has demonstrated that there is a substantial audience in the evolving Republican electoral coalition for a message that combines open appeals to white racial resentments and unrelenting attacks on “elites” with an undiluted commitment to the traditional goals of economic and social conservatives—from cutting taxes and eliminating environmental regulations to opposing abortion and installing conservative justices on the Supreme Court. The appeal of that formula for significant elements of the GOP base would not disappear even if Trump were forced from office by one of the many investigations still swirling around him. Perhaps the only way other Republicans may be discouraged from following Trump’s volatile path is if voters show that it’s an electoral dead end by repudiating it in 2020.

[Read: After Mueller, the ongoing investigations surrounding Trump]

After the release of Barr’s summary of the Mueller report, such a head-on referendum on Trump’s course now seems virtually guaranteed next year. Trump still faces an array of other legal threats, from federal prosecutors in the Southern District of New York (who have already effectively named him an unindicted co-conspirator in a plot to evade campaign-finance laws) to the accusations of tax evasion, insurance fraud, and sexual harassment from his pre-presidential career. And further details from the underlying Mueller report, if and when it’s finally released, seem likely to create additional complications for Trump (if for no other reason than Barr’s letter signaled Mueller has identified evidence of possible obstruction that has not yet been publicly revealed). But the summary—indicating that the investigation “did not establish” a conspiracy between the Trump campaign and Russian agents—makes it highly unlikely that the president’s critics in both parties will obtain the satisfaction of seeing him removed from office before his term ends.

That’s especially true because senior House Democrats led by Speaker Nancy Pelosi, recognizing the implausibility of winning enough Republican votes for conviction in the Senate, were already dubious about impeaching him.

An electoral rather than legal verdict on this presidency is probably a better outcome for the Trump detractors who consider him a threat to both the rule of law and the nation’s social cohesion. If Trump were compelled to leave office before 2020—either through resignation or congressional action—the majority of his supporters would almost certainly view it as an illegitimate coup by the establishment forces in both parties. And that would allow them to claim that his agenda, tone, and electoral strategy—what could be called Trumpism—had been betrayed but not defeated.

After Barr’s summary, no one will be able to claim the GOP has betrayed or abandoned Trump. Instead, the party is locking arms around him even more tightly. Although the attorney general acknowledged that the special counsel found enough evidence of obstruction of justice that he could not exonerate the president from the charge, congressional Republicans this week did not hedge in their bets or establish any distance from Trump pending the full release of the report. Instead, they uniformly declared the investigation has cleared him. Several, led by Senate Judiciary Chairman Lindsey Graham of South Carolina, immediately pivoted to demanding an investigation into how the Mueller probe itself was launched.

To longtime conservative strategist Bill Kristol, a leading Trump critic on the right, that reaction offers a chilling preview of how Trump may behave for the remainder of his first term—and in a second one, if he wins it. “For me, the last 48 hours … gives me a tiny hint into what the world will look like if Donald Trump is reelected: totally unrestrained, untrammeled, going after his enemies,” he told me on Tuesday. “It’s also distressing to see how many people are willing to just follow Trump’s lead on this.”

Just as telling as the loud Republican reaction to the Barr summary was the party’s virtual silence at the news that the Trump administration is now seeking to invalidate the entire Affordable Care Act in court. After Democrats made sweeping gains in the 2018 election—largely behind the message that Republicans were threatening voters’ access to health care—many in the GOP had hoped to put the “repeal and replace” debate behind them. But apart from Maine Senator Susan Collins, hardly any raised public objections (despite private grumbling) when the administration moved this week to overturn the entire ACA in a case brought by Republican state attorneys general. Nor did many in Congress dissent when Trump proposed to repeal the ACA in his latest budget.

[Read: President Trump still wants to repeal Obamacare]

In these ways (and others), the fusion between the party and its volatile president is steadily growing more complete. And that convergence increases the odds that the 2020 election could harden the existing divisions between what I’ve called the Democratic “coalition of transformation”—diverse, younger, white-collar, metropolitan-based—and the Republican “coalition of restoration,” centered on blue-collar, evangelical, and older whites who mostly live outside of the major urban areas.

With Trump now virtually assured to seek another term after the Barr letter, such a defining election is exactly what veteran Democratic pollster Stanley B. Greenberg is expecting. He believes the president has presented Democrats with the opportunity to cement a majority coalition by identifying the GOP so unequivocally with opposition to demographic and cultural change and with an economic agenda tilted heavily toward the interests of the most affluent.

In 2020, Greenberg argues, the electorate could break away from Trump as decisively as it did in 2018. Last year, Democrats captured over 53 percent of the total House popular vote and benefited from several factors: big margins from minorities and young people, a sharp shift in their direction among well-educated whites, and even modest recovery among working-class whites, especially women distressed by the president’s effort to repeal the ACA. Mueller’s findings, as relayed by Barr, don’t seem likely to defuse that opposition: In a CNN poll released Wednesday, a solid 56 percent of Americans said the investigation had not conclusively exonerated Trump of collusion. An identical 56 percent majority said they are now inclined to vote against Trump for a second term.

With Trump redefining the GOP, Greenberg says, a significant portion of the party’s white-collar support could lastingly break away, like an ice sheet shearing from a glacier. “I think you are going to have a party that goes through a fracturing,” he predicts. Trump’s supporters, of course, expect the opposite: a huge turnout among his core white constituencies that allows him to win the Electoral College, even if he falls short in the popular vote again.

Where both sides might agree is that the results at the ballot box, rather than in any legal proceeding, now look to be the critical factor in determining whether Trumpism represents a short-term detour rooted in a single (and singular) individual, or a lasting force in American politics. Kristol is one of many Trump critics who acknowledges that, if the president wins a second term, his approach “is pretty embedded at least for a while” as the dominant thrust inside the Republican Party. But if he loses, Kristol says, the conservative critics who believe Trump’s direction is both morally bankrupt and electorally myopic may find a wider audience inside the GOP. A 2020 loss would not guarantee that Trump’s direction “will be reversed,” Kristol says, “but it’s at least in question.”

The GOP’s reliance on the white voters most uneasy about a changing America ensures that there will always be a substantial constituency inside the party for the backward-looking, racially divisive populism that Trump has synthesized. But there’s also a sliver of Republicans who still share the perspective of the party’s famous “autopsy” report after Barack Obama’s reelection; that analysis concluded the GOP must seek to engage with America’s growing minority population rather than try to mobilize more white support by portraying that diversity as a threat, as Trump has done. The sheer weight of demographic change could strengthen the “autopsy” position over time, especially if, through the coming years, it becomes clear that Trump’s approach has alienated too many other voters to win elections, as was the case in 2018.

Even in its truncated form, Barr’s summary of the Mueller report signals that no outside force is coming to undermine Trump’s message by disqualifying the messenger. It was probably a false hope to ever assume that some personal vulnerability on Trump’s part would marginalize his agenda. The assignment facing Democrats and Republicans alike who consider Trump’s vision a unique threat is clearer now than ever: prove at the ballot box in 2020 that a decisive majority of Americans reject it.