ObamaCare: The Sky Is Not Falling

Around about 1 P.M. yesterday, the world collectively and rather seriously lost its mind. Jeff Toobin took to the air to proclaim the end of ObamaCare, the death of the modern Commerce Clause, and war and confusion generally; InTrade shares on ObamaCare’s death soared to 59%; and Lyle Denniston, who unlike Jeff Toobin has actually argued appellate matters, tried in vain to maintain some semblance of calm. Let me now add my own sentiment: settle the eff down.

To anyone who expected ObamaCare’s individual mandate to be upheld by a margin of 7-2 or higher, yesterday served as a rather rude reawakening: Alito and the silent Thomas, at least, are lost votes, and likely Scalia as well. But from it’s a long ways from 6-3 to uphold to 5-4 to invalidate, and there’s no reason to think that yesterday’s arguments bridged that gap.

State of Play

True, Kennedy and the Chief Justice alike beat the U.S. Solicitor General, Donald B. Verrilli, pretty bloody. Kennedy and Roberts focused their abuse on the question of whether the government could articulate a plausible “limiting principle” — a legal idea that stops an exception from swallowing the rule — to restrain whatever expansion of government power the individual mandate entails. This General Verrilli appeared only able to manage after the conspicuous assistance of Justices Ginsburg and Breyer.

And true, Roberts and Kennedy both seemed skeptical of his answers. But only to a point — Kennedy himself closed a question posed to amici by suggesting that he’d been partially persuaded by the government’s position, and had located an appropriate limiting principle by focusing on the uniqueness of the insurance markets, and the government’s decision to limit itself to regulating only method of payment:

The young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.  That’s my concern in the case. (Tr. 104)

Elsewhere, Kennedy pushed back on respondent’s claim that the government was impermissibly creating economic activity in order to regulate it:

But [the uninsured] are in the market in the sense that they are creating a risk that the market must account for. (Tr. 70)

This should be the takeaway. Regardless of how long it took to get there, General Verrilli managed to convince five justices that the insurance market is unique in a way that may justify otherwise extraordinary regulatory powers; and that the action/inaction distinction is not nearly as problematic as it seems superficially.

Moreover, the Court posed tough questions on all sides. The questioning was remarkable only for its partisanship: during the Solicitor General’s turn, right-leaning justices conspicuously attacked, while left-leaning justices conspicuously defended. During respondent’s turn, the position reversed. And throughout, Kennedy and Roberts played both sides. If we can draw hints from argument — a practice indulged in by court-watchers more for sport than out of any expectation of accuracy — we start to see a four-Justice bloc to sustain (Breyer, Ginsburg, Kagan, Sotomayor); a three-Justice bloc to invalidate (Alito, Scalia, Thomas); one weakly left-leaning swing vote (Kennedy); and one weakly right-leaning swing vote (Roberts).

Ego and Guesswork

If that is the state of play, Jeff Toobin’s grim forebodings don’t make a bit of sense, especially given the theories he’s put forward about how the Court operates. Recall that Toobin sees Kennedy as something of an egomaniac, a justice who loves his position as the swing vote, and tends to deploy it to maximize his own importance. If Kennedy wanted to see himself go down in history as ObamaCare’s savior, defender of the progressive movement in its most desperate hour, this is exactly how he would conduct himself at argument. Query, too, whether Kennedy wants his enduring legacy to be as the man who took the Commerce Clause to the right of even Rehnquist; or as the architect of the keystone decision that finally brought stability to twentieth century Commerce Clause jurisprudence. Either way, it’s one for the history books. But which makes a better story?

The Role of the Chief

Moreover, if Kennedy breaks left, there’s reason to suspect he’ll draw Chief Justice Roberts with him. If Roberts sees the Court voting to sustain, there’s no practical reason for him to stick to his principles and vote with the conservative minority when, by switching sides to vote with a liberal majority, the Chief could both assign the opinion to a Justice he can trust to minimize the decision’s doctrinal effect, and build the Court’s legitimacy by preventing yet another controversial case from dividing 5-4 on partisan lines.

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Yesterday’s arguments proved that the case won’t be as easy as it should be, doctrinally. But did we really expect anything different with this Court?

Vetiver, “Wonder Why?”

ObamaCare: the Value of Narrative in Appellate Advocacy

Today begins oral argument in No. 11-398, U.S. Dep’t of Health & Human Services v. Florida, the “ObamaCare” case.  By most counts, this is a case Republicans should expect to lose, probably by a lot. The Supreme Court has never limited congressional power to regulate strictly economic conduct, not even at the high point of Chief Justice Rehnquist’s federalist revolution. This may make the five-plus hours of oral argument little more than an exercise in legitimacy, the Court’s attempt to build political cover for itself as an institution by creating the appearance of controversy.

In fact, no matter how close the case ultimately comes out, the matter is probably already, for all intents and purposes, decided. It’s the rare oral argument that changes any judge’s pre-existing view of the merits, a point that’s probably particularly relevant in controversial, closely-watched cases. For judicial opponents of Congressional power, this is a day decades in the making. For proponents of the status quo – and make no mistake, the status quo would uphold the law — this is a chance to put to bed the conspiracy theories and legal fantasies that’ve animated the Tea Party for two years. The destination is already chosen; the rest is just the journey. But the journey does matter.

Sadly, the Court chose to shut out television cameras, squandering a valuable chance to educate the public about the nature of constitutional law, and constitutional decisionmaking. This means we’ll have to wait for transcripts, or live reporting from Court correspondents. When we start to hear reports, keep the following rules about appellate advocacy in mind –

• Infer from questions only carefully: if a Justice asks a question, it’s not always because he or she personally believe the question’s implications. Justices tend to use questions not to tip their hand as to their own beliefs, but to argue with their colleagues by proxy. So if we hear a “liberal” justice ask a question that implies that the individual mandate oversteps precedent, don’t assume their vote is lost.
• Watch who the lawyers are “targeting”: it’s widely believed in liberal circles that Kennedy, Roberts, and Scalia are all “gettable” votes to uphold the mandate. Winning Scalia would be an especially valuable political coup, since he’s widely viewed as more crazily conservative than he actually is (contrast that with Thomas, who actually is as crazy as people think). Arguments from ObamaCare’s proponents turning on Gonzales v. Raich, for example, can properly be viewed as attempts to convince Scalia, who upheld federal power in that case, that the mandate is necessary as part of a complex, otherwise constitutional regulatory regime.
• Don’t expect the Tenth Amendment to come up: as we’ve detailed extensively, the Tenth Amendment argument is just a non-starter. Every lower appellate court has agreed, and the only Tenth Amendment case in recent history, U.S. v. Printz, was written by Scalia, but concerns federal “commandeering” of state officers. That plainly does not apply.
• Look for clues from narrative: the most important part of appellate advocacy is issue framing.  The Court already framed the questions (pdf), and therefore, the context of the debate. But how the advocates from their position is important, especially when we get to the individual mandate question. Look for lawyers to drop initial phrases like, “this is a case about…,” and ask yourself why they’ve chosen to frame an issue in one particular way.

Here, lawyers are in the strange position of framing a narrative maximum effect in sophisticated legal setting, and simultaneously for wider political consumption.  Politically, conservatives will want to take an extreme position – “this is a case about the government straining the Commerce Clause to its breaking point” – but counsel will have to balance the hyperbole the public expects against a legally wiser, more tentative position.  Remember that this is a Court that has never limited the Commerce Clause’s reach as a tool of pure economic regulation. And, more importantly, running to histrionics will immediately put the Court on the defensive. Even if they’ve already made up their minds, if he starts out by staking a far-right position, counsel could be in for a rough first ten minutes of arguments as the Court forces him back into line.

And lastly, remember, the course of argument may not be the best predictor for the Court’s eventual result. I’ve had judges feed me my best theory during argument, and otherwise appear to be on my side, only to lose the unanimously nine months later; and I’ve seen judges beat up on our opponent in argument, hard, only to beat up on us in the final opinion. Hard. Like lawyers, judges like to hear themselves talk, and more so than any other day, the nine justices are conscious of their audience.

Follow a live blog of the event at ABC News, or National Review.

Justin Levine, “Second Nature,” from the OST to Bloody Bloody Andrew Jackson.

The Hunger Games, and the Shallowness of Conservative Economic Morality

Longtime readers will recall that using science fiction to analyze real-world problems is a favorite subject of mine. Consequentially, when someone attempts the same, and manages to thoroughly botch it, I feel compelled to reply. And Forbes writer what John Tamny does to The Hunger Games is basically a war crime.

In his hands, the popular young adult book becomes a warning about the horrors of big government:

A hapless, interventionist, warring government is the only kind that could have fostered the societal crack-up that is Panem, and then Panem reflects – if possible – politicians even more inept pouring gasoline onto the proverbial fire. [. . . .]

In Panem food, something we take for granted, is scarce thanks to power hungry politicians. Even more than monetary debasement, the creation of food scarcity through unnatural barriers to production and trade is the easiest way for politicians to divide the citizenry, and to be fair, often results from monetary debasement.

If you can’t follow the writing, I don’t blame you. This is what happens when you teach ugly five-buck words (“eventuates”) and business slang (“unnatural barriers to production”) to someone with the writing education of a ninth-grader. But the real sin goes deeper, because The Hunger Games emphatically is not a latter-day Atlas Shrugged for kids. Panem’s dictatorial Capitol isn’t evil because it restrains “self-interested individuals” from “creat[ing] what they’re best at so that they can trade their production for that of others.” It’s evil because it overlays a neo-feudal state — in which the Districts owe the Capitol fealty, and receive in exchange nothing but their lives — with Roman-style decadence, inhumanly maintained in willful ignorance of the suffering of others. Katniss’ continuous narrative throughout the book offers a ringing indictment of thoughtless opulence and the culture of selfish entitlement it creates, while contrasting such sins with the friendly congregationalism of the rural poor. These aren’t inobvious themes: the name “Panem,” the gladitorial pageantry of the Games, and the Capitol’s preference for Latin names (Cato, Titus, Seneca, Octavia, Cinna) all identify Panem’s rich-poor gap as a basic sin of empire, so common throughout human history, and demonstrate an artificial scarcity that’s the product of self-interested imperialism, not regulation.

Moreover, throughout the books, neither wealth nor the pursuit of wealth ever correlate with morality. Quite the opposite. During the Games, we see corporations and rich sponsors spending staggering sums of money on Tributes, but only to make the children’s suffering more entertaining, not to help them for their own sake. In books two and three, the Capitol’s rebels renounce both their wealth and privilege in solidarity with the Districts, but also of necessity. And, when Katniss herself becomes wealthy after her triumph in the first Games, she makes a point of sharing her wealth, by inviting friends to live with her in the victor’s villas. Truly, while neither really applies, the economic morality of The Hunger Games is less Rand than Marx.

The author’s not wrong to note other obvious themes, like the virtues of individualism and self-reliance (the “natural, and very American, urge to be free”). Both are plainly on display in Katniss’ idyllic hunts with Gale, conducted in derogation of the Capitol’s ban on hunting. But the Capitol’s hunting “regulations” aren’t products of a well-intentioned nanny state. They’re enacted because Panem’s imperial overlords need scarcity to keep the Districts poor and weak.

I understand Forbes’ need to build The Hunger Games into a paean to conservative economic morality. There simply are no good science fiction or fantasy stories about conservative economic values. We don’t want to hear how Ron Weasley is poorer than Harry Potter because of “the human error frequently behind poverty”; how Kvothe Kingkiller used his first silver talents to short-sell iron futures, made a fortune, and spent the rest of his life kicking beggars in Tarbean; or how Saruman’s strategy of strip-mining Fangorn and scouring the Shire improved efficiency and made him Middle Earth’s greatest job creator. These aren’t good stories, because they aren’t human stories. They don’t inspire. Maybe there’s a lesson in that.

“Small Catastrophe,” the Tiny Tin Hearts

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Image credits to this guy. Oh, and I couldn’t fit it in anywhere, but don’t miss the end of the article:

We’re thankfully a very faint shadow of Panem in the United States, but increasingly we live at the mercy of politicians irrespective of party. If this is doubted, try to evade your taxes, and when you get a letter from the IRS asking for them, ignore the letter. Eventually you’ll be visited by government officials who, if not carrying guns, will be backed by those who do.

Republicans might say that at least Republican politicians seek to lower our rates of taxation, but think about that for a moment. When politicians promise lower tax rates, they’re implicitly telling all of us that they have the power to charge us as much or as little as they want to for our work. A nation founded on deep skepticism of government and politicians now has leaders who “grant” us the right to keep more of our money.

If you didn’t pay taxes, you might go to jail! Isn’t that terrible?! And animals are crapping in our houses! Did we lose a war!??!

A Quick Note on Santorum & Porn

Rick Santorum’s pledge to enforce U.S. obscenity law in a new fight against pornography – widely reported and debated on conservative sites — ought to raise questions. First; why? Second, and more importantly; what laws? As a capstone on America’s sordid history of pornography laws, Reno v. American Civil Liberties Union makes clear that banning adults from viewing pornography is just not a thing. 521 U.S. 844 (1997). The road to that conclusion was long, and full of fits and half-starts, as the Court tried to build a view of the First Amendment that would let them ban “obscene” images without infringing on protected speech. They failed. In a free society, you just can’t draw the line, and Rick Santorum should know better. Maybe he missed an entire half-century of First Amendment jurisprudence, or maybe he just doesn’t care. Either way, he’s in the curious position of being so extreme that he’s looped around the spectrum, and finds himself with no less of an ally than Catherine MacKinnon, who’s walked this path to ruin ahead of him. I’m sure they’ll get along just fine.

In Full Defense of This American Life

About a month and a half ago, Ira Glass and the crew of This American Life came upon a story that seemed almost too perfectly designed for the show’s introspective, vaguely counterculture hipster aesthetic: the tale of a die-hard believer in Steve Jobs’ Apple discovering that those hallmarks of the intelligentsia, iPads and iPhones, are made possible only by work conditions approximating slave labor.

It’s a sordid tale, initially popularized by a well-known off-Broadway show, “The Agony and Ecstasy of Steve Jobs.” It also was, it turns out, too good to be true. This American Life published a retraction this week, along with an apology from the story’s originator.

The incident would be unremarkable — journalists make mistakes every day, even big ones, even consciously — except for the deathly seriousness which Glass and company treat the issue. The show ran a full “retraction” episode, analyzing what went wrong, and where, and offered profuse apologies to the listening audience. This despite the fact that the This American Life team neither deliberately nor negligently misled their audience, and Daisey’s track record for fooling everyone. TAL was an intermediary, as always, relaying someone else’s story in partial reliance on the teller’s integrity; and TAL attempted to fact-check the substance in the first case, and readily warned listeners that not all details were verifiable.

Critics may — but shouldn’t — see this incident as a blemish on the show’s stellar record. In his response, Glass does more than correct the record and model journalistic best practices. He offers a commentary on the problems of journalism itself and, consciously or otherwise, invites silent comparison to peer broadcasters who either refuse to retract stories, or bury the retraction on A30. Effectively, in the show’s greatest tradition, he takes a regular occurrence in American life, steps back, and explores it in depth and personal way. Glass made himself the story, and showed us how he learned from it. Such open introspection should make “Retraction” the show’s finest hour.

Still No Evidence Voter ID Laws Work

In other equally-shocking news, water is wet and the sky is blue. The National Review trots out a recent case of voter fraud to prove the urgent need for voter ID laws, but neglects a critical distinction. The fraud case involved absentee ballots, not ballots cast at a poll site in the ordinary course. Absentee ballots are cast by mail, and have nothing to do with election day voting processes. Stricter voter ID laws would literally have done nothing here.

Originalism and Judicial Restraint, Incompatible as Applied

Public Discourse prints a problematic defense of originalism as a mode of constitutional interpretation, occasioned by a recent book by Judge Wilkinson of the Fourth Circuit, who candidly admits to its shortcomings. Per Gregory Sullivan, originalism shares none of the subjectivity of competing constitutional ideologies, and so should be above reproach:

Whereas Brennan, Ely, and Posner advance theories that inevitably result in judicial supremacy . . . originalism is the only interpretive approach that most consistently will restrain the Court. While Wilkinson is right about one criticism of originalism—its glib and often erroneous use of historical materials—this is a problem that is an abuse of originalism, certainly not its essence. In a fallen world, even a sound doctrine is open to such abuses.

First, I question the seriousness of any commentator who readily drops dog-whistle phrases like “judicial supremacy.” And in this case, caution is well-founded, because Sullivan essentially admits to originalism’s greatest flaw — its inability to cope with a “dense and often contradictory” historical record — before claiming that, but for its fatal flaw, originalism works. Sure. And if we ignore his stopped heart, yes, the patient is doing fine.

The complexity of history, and the fact that there’s always a competing historical narrative, aren’t just little problems. They fatally compromise originalism’s sole virtue — its pretension to objectivity. If judges can still choose results based on originalism, the doctrine allows just as much “judicial supremacy” as the next constitutional modality. But don’t take my word for it. Sullivan notes the problem himself. He just doesn’t think it matters.

Set against this vice is originalism’s great virtue: it closes the door on social progress issues, like gay rights and abortion:

The strength of originalism as a restraining force is found in the really controversial cases: those involving abortion, homosexual conduct, same-sex marriage, and so on. For originalists, these are easy cases. The history of the Fourteenth Amendment with respect to these issues is perfectly clear: they are not constitutional matters at all. The history, that is to say, is uniformly and unequivocally silent on these questions.

Query whether choosing a modality based on the outcomes it generates is any less subjective than the “results-driven jurisprudence of the Warren Court.” Regardless, it’s not clear to me that originalism, properly applied, actually offers easy answers to such social issues. Liberal originalists have demonstrated time and again that laws banning sodomy, banning abortion, or defining marriage are all modern creations. See, e.g., Lawrence v. Texas (“It was not until the 1970’s that any State singled out same-sex relations for criminal prosecution”). And, homosexuality and abortion may not have been topics of ready conversation at the founding, but they’re both life choices of deep antiquity. Applying originalism purely, “unequivocal silence” in the record supports neither a positive right to engage in consensual sodomy, nor a negative right for the state to override the citizen’s interest in privacy, and criminalize such private conduct. Even on this “simple” issue, originalists can tell competing stories.

All of this should suggest that originalism isn’t about fighting “judicial supremacy,” defined as judges making subjective judicial choices. It’s about fighting “judicial supremacy,” defined as judges making subjective judicial choices that favor social progress. Here in turn is the great virtue of Brennan’s “risible” notion of the responsive interpretation: if we accept that all modalities of constitutional interpretation involve subjectivity, we might as well acknowledge that subjectivity, and deploy it cautiously to allow society to grow within the constitutional text. Better a Constitution that grows with its people, than one which steadily becomes irrelevant as society changes.

“Love is Strong,” by Fires in France

In Santorum, Death or Vindication for Democracy?

Especially given Rick Santorum’s two recent wins, and headlines practically blaring Romney’s concomitant weaknesses, I tend to see the Republican primaries as proof of a problem without a solution: members of a democracy don’t always vote for the superior candidate.

To be perfectly clear, I’m no fan of Mitt Romney. But I think it’s reasonable to conclude that he’s a better experienced and substantially less extreme (fleeting appearances to the contrary) nominee than Rick Santorum, and therefore objectively better equipped to run a twenty-first century democracy, where decisions must be made on the basis of reality rather than wishful ideology. Polls and mounting unfavorables to the contrary, Romney’s also better equipped to beat Obama in the general election, as Santorum’s ability to energize for the base simply cannot make up for the mass exodus of moderates Republicans will witness following a Santorum convention.

This is to say, if Republican primary voters are attempting to rationally select (1) the best President (2) who is also best-equipped to defeat the sitting President, they’re doing a bad job of it, or the democratic process is failing to translate their preferences into useful results. My conclusion holds even if Republicans are trying to select, instead, (1) the most conservative (read: extreme) candidate (2) who is also electable.

Given this bleak outlook, there’s one way to save democracy: if we imagine that, despite the voters’ stated goals, the Republican electorate is actually engaged in a longer game of which they’re not even consciously aware: crafting the party over the long term. Here we see two possible narratives emerge:

First, Republicans are happy to take a dive this term, so long as by nominating a conservative candidate, they build a philosophy that can win given enough time, and set the stage for a better message man to win with it. Call this the Goldwater option (per Toobin’s analysis), under which Republicans nominate an evangelical to signal (and cue up) an evangelical revolution, knowing it’ll take about four years to incubate. Even so, this seems like objectively bad strategy, because the current facts don’t fit the Goldwater pattern. Santorum’s evangelical revolution is not so much a true revolution as a counterrevolution against an infant post-culture wars finance-centered Republican Party, happily smothered in its cradle by the chaotic influence of the Tea Party. And, more importantly, the electorate isn’t just “not ready” for Santorum-style theocracy; they’ve affirmatively rejected it in poll after poll showing support for gay marriage rising by the day, and shock at Santorum’s anachronistic opposition to contraception (I mean, really). Truly, Santorum is one of the finest minds of the 13th century… and (maybe) a good alternative to George W. Bush. In the 2000 primaries.

Second, Republicans are engaged in the eschatalogical reinvention of their party, a process that can only be begun by the ritualistic sacrifice of a fundamentalist scapegoat. In Santorum, they’ve found their man. By this theory, Republicans really believe that they lost in 2008 because they weren’t conservative enough, and aim to test the theory by setting a paleoconservative against a week incumbent. If they win, they’ve proved a theory, and the Party can continue to radicalize apace. But when they lose, Santorum absorbs the blame, as a proxy for the religious right, and moderates may begin the arduous task of extirpating the fundamentalist influence on their party.

I want to believe the second narrative is true, but it’s one that entirely deprives the voters of agency. The justification for why democracy “works” in this case is that the electorate is either smarter than its component parts, like a hyper-efficient market, or force standing “behind the veil, unseen yet present”; or that we expect to spin gold from whatever electoral straw the electorate hands us.

Maybe the answer is that democracy can’t be judged by the short-term, or by individual elections, but only in retrospect. The arc of the Republican primary is long, but it bends towards… something?

Stay Useless, by the Cloud Nothings

In Changing Social Norms, Narrative (and the Court’s Fragile Sensibilities) Matter

Consider this a follow-up to yesterday’s post on the culture of the legal academy.

Last week’s New Yorker offers the true tale behind Lawrence v. Texas, the watershed Supreme Court case that made unconstitutional any state law targeting morality in the bedroom, and therefore inaugurated the modern gay rights movement. Per Dahlia Lithwick, and her reviewed author Dale Carpenter, the real John Geddes Lawrence was anything but the poster child for romantic gay love, but — given the healthy distance appellate lawyers prefer to place between themselves and “jury facts,” irrelevant on appeal — that didn’t matter so much.

In order to appeal to the conservative Justices on the high court, the story of a booze-soaked quarrel was repackaged as a love story. Nobody had to know that the gay-rights case of the century was actually about three or four men getting drunk in front of a television in a Harris County apartment decorated with bad James Dean erotica.

Interestingly, the sordid nature of Lawrence’s backstory was essentially compelled by the jurisdictional requirements of the case. Basically, to present the best argument for ultimate Supreme Court review, the plaintiff has to plead no contest to the state’s case, and challenge only the constitutionality of the statute. So, activist lawyers needed a plaintiff who wouldn’t mind a criminal conviction on their record, which is to say, one without a family and a reputation. Advocates weren’t stuck with a less-than-ideal plaintiff; they were going to have to take a less-than-ideal plaintiff and dress them up. Lawrence just happened to fit the bill.

More to the point, both authors frame the argument in Lawrence v. Texas less as one about the law — truly, the law was already quite settled by that point, which contributed to making the case a blowout 6-3 decision — than about the Justice’s sensibilities, and their perception of prevailing social attitudes on sex. Among the factors that changed between Bowers v. Hardwick (the ’90s case that permitted states to criminalize gay sex) and Lawrence was, the Justices now had gay friends, gay clerks, and lived in a legal world where elite players are, regularly and openly, gay.

This invites a broader question: the extent to which social change depends on the Justices’ collective sensitivity to Das Leben der Anderen – the lives, and problems, of others. If that’s the deciding factor in a close case, or if legal conclusions ever follow moral ones at the high court, the social culture of legal elites and the academy isn’t what matters: it’s how that culture is transmitted to the Court, mediated by the barely permeable membrane with which the Justices surround themselves.

By this theory, persuadable judges can be persuaded by contact with life experiences suggesting that legal problems are social problems that actually matter to the outside world. The advocate should do everything possible to ground his case in a believable life story, relatable and meaningful outside of some niche culture. The Justices could safely ignore gay rights so long as they believed (however erroneously) that they’d never met a gay person, or had a gay clerk; but by 2006 they no longer could, given the size of the proudly gay bar. All together, this suggests an advocacy style that emphasizes the client’s story, or at least those parts that resonate with the legal problem (dissonant chords may be safely ignored). Call it a variant of one of the central theses of Critical Race Theory (yes, we’re back there) — narrative matters, but manipulated narrative matters most.

Of course, not every judge will be persuadable. One of Justice Thomas’ favorite clerks, as reported by Jeff Toobin, is herself lesbian. The Justice regularly sent her holiday cards, and even a wedding gift. But despite his affection for gay men and women, and presumably their problems, Justice Thomas is not a gettable vote on gay marriage. But when it comes time to replace Thomas, progressives should first look for a Justice whose life experience will help to ground the Court’s decisions in reality. Using this rubric, Bartlet’s decision to nominate Justice Mendoza looks especially brilliant, not because of Mendoza’s legal philosophy, but because as a former line cop, he could understand stories about the real world, and relate them to his colleagues to persuade them to vote accordingly. Obama’s pick of Sonia Sotomayor looks equally brilliant, precisely for her power to empathize, as does his decision to follow her and guarantee a second female seat on the bench to balance out the seven men.

This approach also has the virtue of acknowledging the Court’s greatest strength, and its greatest weakness — its humanity.

Oh, and, I’ve decided to use this platform partially to promote new, good music! So today’s song is “Avenue of Criminals,” by local band The Canon Logic.

What Can Presidents Do About Gas Prices?

Not a damn thing (and Republicans agree!). Even if Obama authorized companies, today, to drill anywhere they wanted to, market forces wouldn’t reflect the price drop (if any ever came) for months. Here’s a problem with democracy: voters expect leaders to change parts of the world over which they have no actual control, or somehow achieve directly contradictory goals. Should the President talk tough with Iran, and let you guys suffer high gas prices; or fold like Superman on laundry day, so you don’t have to dip into the vacation fund? Pick a side, we’re at war. The only thing Presidents can do is talk about the issue cleverly. Which, admittedly, Obama isn’t doing.