Category: law

On new and old civil disobedience

January 28, 2024 • 11:30 am

According to my go-to source, the Oxford English Dictionary, “civil disobedience is defined this way:

Rebellion of the populace against a governing power; (in later use) spec. refusal to obey the laws, commands, etc., of a government or authority as part of an organized, non-violent political protest or campaign.

The three key aspects here involve deliberately breaking the law, doing it as part of a “political protest or campaign”, and doing it in a peaceful, nonviolent way. But I would add potential effectiveness: the actions must aim at achieving political results, and do so in a way that could reach those results.

The archetypal examples of civil disobedience that met these four criteria are the nonviolent protests of Gandhi and the Indian people that led the British to “quit India” in 1947, and the American civil rights actions of the 1960s that led to the nation-changing civil rights acts of 1964 and 1965.

Gandhi, of course, was one inspiration for Martin Luther King, Jr., who adopted Gandhi’s methods of nonviolent resistance. These were epitomized in his “Salt March” of 1930, which began when Gandhi led protestors on a three-week, 200-mile march to the sea, where Gandhi picked up a lump of salty mud, which was converted into salt. This violated the onerous “salt tax” that the British imposed on Indians buying the produce. Below is the moment that changed India; the caption is “Mahatma Gandhi at Dandi Beach 6 April 1930. Standing behind him is his second son Manilal Gandhi and Mithuben Petit.”

This civil disobedience launched an India-wide resistance movement, and a peaceful one, which played a major role in India gaining its independence in 1947.  Civil disobedience is best used as a way of changing people’s minds. And the Salt Resistance kindled similar protests across India, promoted other resistance, and eventually changed the mind of the British rulers. Here’s a video:

 

To quote Wikipedia:

The Salt Satyagraha campaign was based upon Gandhi’s principles of non-violent protest called satyagraha, which he loosely translated as “truth-force” Literally, it is formed from the Sanskrit words satya, “truth”, and agraha, “insistence”. In early 1920 the Indian National Congress chose satyagraha as their main tactic for winning Indian sovereignty and self-rule from British rule and appointed Gandhi to organise the campaign. Gandhi chose the 1882 British Salt Act as the first target of satyagraha. The Salt March to Dandi, and the beating by the colonial police of hundreds of nonviolent protesters in Dharasana, which received worldwide news coverage, demonstrated the effective use of civil disobedience as a technique for fighting against social and political injustice. The satyagraha teachings of Gandhi and the March to Dandi had a significant influence on American activists Martin Luther King Jr., James Bevel, and others during the Civil Rights Movement for civil rights for African Americans and other minority groups in the 1960s. The march was the most significant organised challenge to British authority since the Non-cooperation movement of 1920–22, and directly followed the Purna Swaraj declaration of sovereignty and self-rule by the Indian National Congress on 26 January 1930 by celebrating Independence Day.  It gained worldwide attention which gave impetus to the Indian independence movement and started the nationwide Civil Disobedience Movement which continued until 1934 in Gujarat.

A key principle of satyagraha is that the protest must be peaceful, and the protestors must take what punishment is dished out. One must, according to Gandhi, “Suffer the anger of the opponent” without retaliating.  (As you see above, that happened: Gandhis and thousands of other protestors were beaten and arrested.

When adopted by the American Civil Rights Movement, these principles were adopted wholesale. Rosa Parks protested an unjust segregation law and was arrested for peacefully sitting in the front of a bus and refusing to move.  The blacks and whites who demonstrated together at the Woolworth lunch counter sit-ins in Mississippi and North Carolina were peacefullyt protesting an immoral segregation law, and, as the video shows below, the protestors were jeered, pushed, and had food dumped over them, but did not resist.

If this video disappears, see it here.

The most iconic instances of civil disobedience that provoked violence by authorities, leading to sympathy for the protestors and eventually ending in the changing the laws, were the marches and civil protests in Birmingham and Selma, Alabama in 1963 and 1965, respectively, which led to the Civil Rights Act of 1964 and the Voting Rights Acts of 1965. Two videos:

“Bloody Sunday” in Selma: March 7, 1965:

The sight of peaceful protestors, both black and white, being attacked by dogs, drenched by fire hoses, run down by horses, and battered with billy clubs—all this was too much for America, and bent the moral arc upwards. It was the visuals, and the knowledge that the protestors were peaceful, yet protesting unjust laws and getting injured for their actions—all this horrified viewers. It’s one thing to read about it, but another to see it.  And in the end, this led to the greatest advance in civil rights in a century.

Protests like this one below are not peaceful. While the painting wasn’t damaged, the walls were, and we had simple vandalism.

From the NYT report:

Two protesters from an environmental group hurled pumpkin-colored soup on the Mona Lisa at the Louvre museum in Paris on Sunday, splashing the bulletproof glass that protects the most famous painting in the world, but not apparently damaging the work itself.

As the customary crowd around the 16th-century painting by Leonardo da Vinci gasped in shock, the protesters, two young women, followed up their attack by passing under a barrier and standing on either side of the artwork, hands raised in an apparent salute.

“What is more important? Art or the right to have a healthy and sustainable food system?” the activists said, speaking in French. “Our agricultural system is sick.” They were led away by Louvre security guards.

It was not immediately clear how the women got the soup through the elaborate security system at the museum, which borders the Seine and contains a vast art and archaeological collection spanning civilizations and centuries.

One of the women removed her jacket to reveal the words Riposte Alimentaire, or Food Response, on a white T-shirt. Riposte Alimentaire is part of a coalition of protest groups known as the A22 movement. They include Extinction Rebellion and Just Stop Oil, the group that poured tomato soup over Vincent Van Gogh’s Sunflowers at the National Gallery in London in 2022.

Does this help the cause of climate change? I doubt it. You might say it does because it calls attention to the problem, but I’m guessing that most of the people who saw this were angry at the protestors and not inclined to take a more salubrious view towards the idea that humans are changing the climate.  This is not only not civil disobedience, but, in my view, ineffective and immature.  Why, then, are they doing it? Your guess is as good as mine.

What about blocking traffic, bridge, and tunnels? This is the speciality of pro-Palestinian demonstrators; an example from Los Angeles is below.

Does this help the protestors accomplish their aims, which is either to bring peace in the Middle East, often to erase Israel and extend Palestine “from the river to the sea”? I doubt it: those whose cars are blocked may be more aware of the protests, but I don’t think they’ll become more sympathetic to the Palestinian cause.  But maybe I’m wrong. Maybe impressionable young people, who are ignorant of history but impressed by the loud, aggressive demonstrations of those favoring Palestine, will come to favor their cause. After all, it is the young who most take the side of Hamas (or Palestine) in the Hamas/Israel war.

At any rate, this is the new form of civil disobedience, although the protestors don’t willingly take punishment. Often there is  no punishment: when pro-Palestinian protestors illegally blocked the University of Chicago’s administration building, or, last Friday, did a lie-in in the Pret a Manger campus food-and-coffee shot, blocking entry, the University police stood by and did nothing.  Protestors here were arrested last year for conducting a sit-in in the admissions office, but the charges were dropped. (I am prevented from learning if the University will exercise its own sanctions for violating university regulations.)

This is the new form of civil disobedience in which protestors publicize a cause, violate regulations and laws, but face little or no punishment. And often they resist punishment or feel that they don’t deserve it. Publicity may be all they want, but it seems to me that political protest must go beyond publicizing a cause, but, to paraphrase Karl Marx, must have a chance of changing the world.

Do these protestors actually accomplish the kind of change they want?  I’ll leave it to the readers to discuss the issue, and I would appreciate hearing as many readers’ takes as possible.

Law firms issue statement saying they won’t hire haters or bigots

November 3, 2023 • 12:15 pm

I got an email and a link from Alex, a retired lawyer who said this:

At this link there is a letter that a bunch of law firms sent to the Deans of law schools – likely triggered by what happened at Harvard and other schools.
It’s a “get-your-act-together” letter.  And the statement “your students who hope to join our firms after graduation” implies that they may not want to hire students from certain law schools.
I was on the hiring committee of a major law firm (which wasn’t a signatory here) and I never saw such a joint statement issued before.  The firms are clearly concerned that the schools might be fostering an ideology that the firms don’t want to be associated with.

Alex said a bit more, but first I’ll show the letter, which was signed by 41 law firms

November 1, 2023

 

Dear Deans,

Everyone at our law firms is entitled to be treated with respect and be free of any conduct that targets their identity and is offensive, hostile, intimidating or inconsistent with their personal dignity and rights. We prohibit any form of harassment, whether verbal, visual or physical.

Over the last several weeks, we have been alarmed at reports of anti-Semitic harassment, vandalism and assaults on college campuses, including rallies calling for the death of Jews and the elimination of the State of Israel. Such anti-Semitic activities would not be tolerated at any of our firms. We also would not tolerate outside groups engaging in acts of harassment and threats of violence, as has also been occurring on many of your campuses.

As educators at institutions of higher learning, it is imperative that you provide your students with the tools and guidance to engage in the free exchange of ideas, even on emotionally charged issues, in a manner that affirms the values we all hold dear and rejects unreservedly that which is antithetical to those values. There is no room for anti-Semitism, Islamophobia, racism or any other form of violence, hatred or bigotry on your campuses, in our workplaces or our communities.

As employers who recruit from each of your law schools, we look to you to ensure your students who hope to join our firms after graduation are prepared to be an active part of workplace communities that have zero tolerance policies for any form of discrimination or harassment, much less the kind that has been taking place on some law school campuses.

We trust you will take the same unequivocal stance against such activities as we do, and we look forward to a respectful dialogue with you to understand how you are addressing with urgency this serious situation at your law schools.

Very truly yours,

[41 law firms, see at the the link]

Alex added this when I asked him if he approved of the letter:

Do I approve?  I would have voted to sign the letter and was surprised/disappointed to see my 800-plus lawyer firm not on the list.
However, I hope that the ““your students who hope to join our firms after graduation” sentence isn’t meant to say that the firms are threatening to forego hiring all students from those schools, since that would be too broad of a stroke.  That’s how CNN interpreted it – “Top law firms signal they won’t recruit from college campuses that tolerate antisemitism.” 
 
Surely there are students at the schools who decry antisemitism and are appalled by the actions of their fellow students and their administrations.  I don’t think they should be punished for the sins of others.  Rather, I think the burden falls on the law firms to vet the students carefully to make sure that they are hiring those that are qualified, fit into the culture of the firm, and won’t become a P.R. burden. 

I agree with Alex. Note that the statement decries all forms of bigotry, not just antisemitism but Islamophobia and other forms of racism. As a private corporation and not a university, law firms can choose any criteria they want to hire new lawyers, and that means they’re free to reject applicants who have proven to be bigots. Colleges and universities are more constrained in their hiring because, after all, even the most vile bigotry is still freedom of speech, protected by the First Amendment. But I don’t make the rules for private businesses and corporations, and if they wish they can delve into an applicant’s past and reject them if they show signs of “violence, hatred, or bigotry.”

This is going to have law students shaking in their boots. While they are free on campus to say whatever they want about issues like the war, they also know they have to live with the consequences. So in the end this may reduce the amount of hatred on American campuses. After all, money talks, especially to lawyers.  (This is not to slur the good lawyers I know!)

Give your take below. While firms can refuse people like the ones they describe, should they? This does impede their freedom of speech on campus, but of course nobody denies that freedom of speech comes with consequences.

Oberlin College sues its insurers for refusing to reimburse it for the damages levied in the Gibson’s Bakery case

August 8, 2023 • 11:00 am

Remember the fight between Gibson’s Bakery and Oberlin College in 2016? It seems so long ago, but it isn’t over yet.  You can read about it on the relevant Wikipedia page, or on the many posts I wrote about it at the time.  If you forget, here’s the summary from Wikipedia:

The case began in 2016 with an incident of shoplifting by a Black Oberlin College student at Gibson’s Bakery, and subsequent arrest of three Black students for assaulting a staff member. Students, faculty members and employees of Oberlin College protested against the bakery, alleging racism. Meredith Raimondo, the dean of students and vice-president at Oberlin College, took part in the protest, distributing a pamphlet falsely alleging racism on the part of the bakery. Oberlin initiated financial sanctions against the bakery and lent material support to protestors. The owners of the bakery sued Oberlin College and Raimondo for damages.

A jury found that the college had defamed the owner of Gibson’s Bakery and his family and awarded them $44 million in compensatory and punitive damages in 2019. The trial judge reduced the total award to $25 million due to Ohio state law capping punitive damages. The trial court also awarded the bakery $6 million for legal fees. The college appealed the decision. In 2022, the Ninth Ohio District Court of Appeals unanimously upheld the 2019 jury verdict which found that the college defamed, inflicted distress and illegally interfered with Gibson’s Bakery; the court also upheld the damages award. Oberlin College then sought review by the Supreme Court of Ohio, but that effort failed when the court declined to accept jurisdiction on August 30, 2022.

Oberlin behaved badly, defaming, lying about, and trying to damage Gibson’s Bakery, and the jury got angry, levying a huge fine.  With interest, the amount that Oberlin had to pay Gibson’s was precisely $36,590,572.48. That’s a big hit for a small school like Oberlin, and a windfall for Gibson’s (alas, two of the owners involved in the fight died during the legal proceedings).

But Oberlin had insurance through four companies:  Lexington Insurance Company of New York; United Educators Insurance of Bethesda, Maryland; Mount Hawley Insurance Company of Peoria, Illinois; and StarStone Specialty Insurance Company of Cincinnati. The College assumed that they could recoup that huge pile of damages from these insurance companies.

But not so fast: the companies are refusing to pay Oberlin, and so the College have had to take them to court. This case will go on forever! Click the screenshot below to read the National Review article about this suit, or  see a more complex post at Legal Insurrection. 

Why are the insurers refusing to pay? Because, they claim, Oberlin violated the conditions of the insurance policy. Not only are the companies balking at paying, but United Educators is refusing to renew its $25 million coverage of Oberlin, coverage that had lasted 34 years.

Here’s the basis of the lawsuit: the insurance companies claimed that Oberlin’s actions rendered reimbursement null and void. I’ve put the meat of the companies’ claims in bold:

William A. Jacobson previously noted at Legal Insurrection that a Motion to Intervene filed by Lexington in 2019 offered evidence that the company was likely planned to refuse to cover the judgement.

The company wrote in the filing that the policy at hand “potentially provides coverage in relation to ‘personal and advertising injury,’ defined to include defamation and/or disparagement in certain circumstances” but that it “excludes any such coverage if ‘personal and advertising injury’ is caused ‘with the knowledge that the act would violate the rights of another … ,’ or if the insured published material it knew to be false. Further, the Lexington policy provides coverage for punitive damages insurable by law, but only where the corresponding award of compensatory damages is also covered by the Lexington policy.”

The filing went on to note that the plaintiffs in the Oberlin case [JAC: Gibson’s Bakery] “allege that defendants Oberlin and Ms. Raimondo published material that falsely characterized the bakery owned by plaintiffs (“Gibson’s”) as being a racist establishment.”

“While such allegations potentially implicate ‘personal and advertising injury,’ plaintiffs also alleged that the statements were published with malice, were intended to injure plaintiffs’ business reputation, and were part of a purported campaign to harm plaintiffs,” the filing read. “If it is established that the defendants knew the alleged statements were false, or if the defendants knew their alleged acts would violate plaintiffs’ rights, the Lexington policy would exclude coverage for any resultant damage. Thus, Lexington seeks to intervene in order to submit jury interrogatories to determine the extent of the defendants’ knowledge in relation to the alleged publications.”

In other words, the College’s actions constituted “personal and advertising injury” that violated the rights of Gibson’s Bakery, and, in its pamphlets and handouts, published information that Oberlin knew to be false. That’s defamation that injured the bakery and was intended to do so.

Of course insurance companies don’t want to hand out such a large reimbursement, so I’m not sure if they’ll prevail in this case. But given Oberlin’s arrogant behavior and invidious actions against Gibson’s Bakery, which the jury saw as unforgivable, I can’t help but be glad that Oberlin hasn’t yet been able to recover the damages. And, in trying to do so, they’re going to have to pay even more money to lawyers.

Note too that Oberlin never issued an apology for defaming the bakery, calling it a racist establishment (not at all true), and trying to hurt Gibson’s business.

From The Oberlin Review. Photo: Talia Rose. 

h/t: DrBrydon, Michael

Trump indicted in third case

August 1, 2023 • 4:54 pm

What a sweet headline! Trump now faces four charges of trying to overthrow the election, making a grand total of 79 charges against him. Will it hurt him? Naah, but it doesn’t make him look good to rational people, either.

This is his second federal indictment, the other being the Mar-a-Lago documents case, and there’s another state indictment in NY about the hush money to Stormy Daniels. And. . . one more liable to be handed down as well: a state indictment in Georgia for interfering in the election. The DA there said she was “ready to go”.

Click to read from the NYT:

An excerpt:

Former President Donald J. Trump was indicted on Tuesday in connection with his widespread efforts to overturn the 2020 election following a sprawling federal investigation into his attempts to cling to power after losing the presidency to Joseph R. Biden Jr.

The indictment was filed by the special counsel Jack Smith in Federal District Court in Washington.

It accuses Mr. Trump of three conspiracies: one to defraud the United States, a second to obstruct an official government proceeding and a third to deprive people of civil rights provided by federal law or the Constitution.

“Each of these conspiracies — which built on the widespread mistrust the defendant was creating through pervasive and destabilizing lies about election fraud — targeted a bedrock function of the United States federal government: the nation’s process of collecting, counting and certifying the results of the presidential election,” the indictment said.

The indictment said Mr. Trump had six co-conspirators, but it did not name them.

The charges signify an extraordinary moment in United States history: a former president, in the midst of a campaign to return to the White House, being charged over attempts to use the levers of government power to subvert democracy and remain in office against the will of voters.

You can  read the indictment here.

This is an extraordinary moment in American political history. The only thing I can compare it to during my lifetime is the run-up to Richard Nixon’s resignation from the Presidency.

 

Supreme Court rules against affirmative action at Harvard and UNC

June 29, 2023 • 9:45 am

You didn’t have to be a genius to predict this one, especially if you paid attention to the Justice’s statements during the hearing. By a vote of 6-3, and strictly along political-spectrum lines, the Supreme Court struck down race-bace admissions at Harvard and the University of North Carolina. The three dissenting justices were Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor, with the majority including Chief Justice John Roberts and associate justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

Click to read, though I found a partial version of the article archived here. It’ll be interesting to read the full decision, to which there’s a link below.

The Supreme Court on Thursday ruled that the race-conscious admissions programs at Harvard and the University of North Carolina were unlawful, curtailing affirmative action at colleges and universities around the nation, a policy that has long been a pillar of higher education.

The vote was 6 to 3, with the court’s liberal members in dissent.

The decision was expected to set off a scramble as schools revisit their admissions practices, and it could complicate diversity efforts elsewhere, narrowing the pipeline of highly credentialed minority candidates and making it harder for employers to consider race in hiring.

More broadly, the decision was the latest illustration that the court’s conservative majority continues to move at a brisk pace to upend decades of jurisprudence and redefine aspects of American life on contentious issues like abortion, guns and now race — all in the space of a year.

The decisions, though coming down to the same thing, apparently differ in the methods that the judges saw as discriminatory.  UNC didn’t use the “holistic” admissions procedure at Harvard, which the school defended vehemently (as did two appellate courts), but which used bogus “likeability” scores to discriminate against Asian Americans. (That these were mendacious was revealed by showing that the lower scores of Asians were given only by admissions officers who hadn’t met the applicants, not by those who actually interviewed them in person.)

The two cases were not identical. As a public university, U.N.C. is bound by both the Constitution’s equal protection clause and Title VI of the Civil Rights Act of 1964, which bars race discrimination by institutions that receive federal money. Harvard, a private institution, is subject only to the statute.

In the North Carolina case, the plaintiffs said that the university discriminated against white and Asian applicants by giving preference to Black, Hispanic and Native American ones. The university responded that its admissions policies fostered educational diversity and were lawful under longstanding Supreme Court precedents.

The case against Harvard has an additional element, accusing the university of discriminating against Asian American students by using a subjective standard to gauge traits like likability, courage and kindness, and by effectively creating a ceiling for them in admissions.

From the Wall Street Journal:

“Eliminating racial discrimination means eliminating all of it,” Chief Justice John Roberts wrote for the court, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. “The student must be treated based on his or her experiences as an individual—not on the basis of race. Many universities have for too long done just the opposite,” he wrote.

The court’s three liberals dissented. Society “is not, and has never been, colorblind,” Justice Sonia Sotomayor wrote, joined by Justices Elena Kagan and Ketanji Brown Jackson. “The Court ignores the dangerous consequences of an America where its leadership does not reflect the diversity of the People.”

Lee Bollinger, Columbia University’s president, expects five years of chaos before higher education fully adjusts to the new legal landscape, as committees and task forces—already in place at many schools—explore ways to employ income levels, socioeconomic factors and other race-neutral factors to maintain diversity.

Although long expected, the decision still was a shock to academia. “Nobody really believes it’s going to happen, even though all the evidence is right in front of you,” Bollinger said in an interview this month.

. . .But at oral arguments, several justices focused on another passage in O’Connor’s 2003 opinion, where she noted that minority enrollment had increased in the 25 years since the Bakke case.

“We expect that 25 years from now, the use of racial preferences will no longer be necessary,” she wrote.

The majority opinion in that case from a generation ago, Grutter v. Bollinger, didn’t say preferences could continue until “you’re satisfied that diversity has been achieved or something vague like that,” Justice Brett Kavanaugh told UNC’s lawyer. “It said 25 years in there.”

The Harvard and UNC decisions, 237 pages long (and bundled), can be found by clicking on either of the screenshots below.  which go to one pdf:

A lot will have to change, and even though schools may be in shock, they should have expected that this would happen and prepared for it. For prepare they will, trying to find workarounds that are legal. What exactly is legal will require a close reading of the decision.

Your take?  One thing that nobody should be is surprised.

Schools are already issuing letters reassuring everyone. Here’s Harvard’s (I left off some of the signatures):

 

Glenn Loury praises Clarence Thomas

June 24, 2023 • 11:45 am

Well, here’s one case where I can’t agree with Glenn Loury, who heaps praise on Supreme Court Justice Clarence Thomas in Loury’s Substack post below. (There’s also a video.) A quote:

The vilification of Clarence Thomas needs to stop. Actually, I’ll go further than that. Clarence Thomas deserves permanent public recognition for his achievements and service to the country. Schools should be named after him. Whatever his past sins, he has served on the Supreme Court for three decades. He has risen from nothing to become one of the most powerful and influential public officials in the country. Yes, he is a conservative, and his views are unpopular in some quarters. But that should not blind us to the magnitude of his accomplishments.

There is no reason that a school or library or public park shouldn’t bear the name of Ruth Bader Ginsburg. Whatever you think of her opinions and ideological orientation, she was a significant figure on the Supreme Court, and so she is a significant historical figure. That’s undeniable. Equally undeniable is the significance and influence of Clarence Thomas. As John notes in the following excerpt from our most recent conversation, Thomas’s career before he ascended to the Court may not have merited a special place of honor. But he is now arguably the most influential justice currently serving. He may not have originated any school of legal thinking, but his opinions will remain consequential for decades after he retires.

Click to below to read more, or listen to the video below, which is embedded in Loury’s post (the post has a transcript of Loury’s discussion with McWhorter, which you can see in the video). They don’t really agree on this one!

I’m not down with a lot of the vilification of Thomas, as who knows what happened during the Anita Hill affair? If you believe Hill, as I did, he was a sexual harasser but not a sexual predator. But I am adamant that Thomas doesn’t deserve big kudos and plaudits.  He’s a so-so Justice whose decisions have, on the whole, been bad for America. His “due” is simply the respect afforded any human being, but beyond that. . . crickets from me.

But Loury apparently thinks that Thomas deserves big plaudits for four reasons:

a.) for getting to the position of Justice as a black man from a background of abject poverty—though of course he was appointed by George H. W. Bush largely because he was both conservative and black, a conservative-acceptable version of the much greater justice he replaced, Thurgood Marshall.  I disagree with many of Thomas’s decisions, though he has voted “properly” in favor of First-Amendment issues in some cases. I don’t deny he’s a smart man and has worked hard to get where he is, and I won’t dismiss him as a sexual predator. No, I dismiss him because I think his diehard conservatism and fabricated “originalism” have been bad for America. But listen to Loury below and make your own judgement.

b.) for being on the court a long time.

c.) to give a big a slap in the face to those people who have demonized him as a “sexual predator” for what Anita Hill said during Thomas’s confirmation hearings. It also repatriates him in the eyes of those who think he’s “politically obstreperous” and thinks for himself (Loury thinks that people who say that are racists.)

d.) for instantiating the American dream by achieving success through hard work, and even when he was held back by racism.

Race, hard work, and longevity on the bench are his “attributes”. But only “hard work” is something to be applauded.  “Longevity” isn’t always a virtue, for there’s a lot of perks you get (like free vacations!) by being one of the nation’s most powerful Justices.

McWhorter weighs in at 6:55, saying that “it’s hard talking about Clarence Thomas, for a million reasons.” But McWhorter wonders what positive accomplishments Thomas made. Unlike Marshall, who had a long record of civil rights activism before becoming a Justice, and even unlike Scalia, whom McWhorter consider the “father of originalism”, what did Thomas do that makes him stand out from other Justices? Loury admits that Thomas has been just a “yeoman contributor to the country” as a justice and doesn’t have “a great degree of accomplishment” comparable to that of other  justices.

And that, ladies and gentlemen, brothers and sisters, comrades and friends, is it. We should laud Thomas, says Loury” as being a “bright black man who made good in America”. Yes, that’s true, but did he DO good in America?

And a “yeoman contributor to the country” is not exactly high praise! I think Loury’s judgment slipped here, perhaps because they’re fellow black conservatives who are smart and accomplished, which gives them a kind of kinship.

A question: What is “gender-affirming care”?

May 20, 2023 • 1:00 pm

I have a serious question, and no, I’m not a Republican or a Nazi for asking it.  According to the Associated Press, 17 states have restricted or banned “gender-affirming care”:

At least 17 states have enacted laws restricting or banning gender-affirming care for transgender minors, though judges have temporarily blocked their enforcement in some, including Arkansas. An Associated Press analysis found that often those bills sprang not from grassroots or constituent demand, but from the pens of a handful of conservative interest groups.

Many of the proposals, as introduced or passed, are identical or very similar to some model legislation, the AP found. Those ready-made bills have been used in statehouses for decades, often with criticisms of carpetbagging by out-of-state interests. In the case of restrictions on gender-affirming care for youths, they allow a handful of far-right groups to spread a false narrative based on distorted science, critics say.

The “distorted science” appears to be mainly the claim that puberty blockers are unsafe. But in fact their safety is in question, and so that’s not “distorted science.”

We don’t know their long-term effects, we know they do have some inimical effects, and at any rate the lack of good long-term data has impelled several European countries to allow blockers to be used only in experimental clinical trials.

Below is what my understanding of “gender-affirming care” includes. I may be wrong, and I haven’t read the bills. but my understanding of the procedure doesn’t make me rush to assure everybody that it’s fine, and that only transphobes would support them.  To me this brand of care involves two primary ways of treating a gender-dysphoric child:

  1. My view was that “gender-affirming care” involved not a therapeutic probing of gender-dysphoric children to see if they may have been gay, and to generally explore their dysphoria—a rather long process of therapy—but rather a rush to affirm a child’s conclusion, or the conclusions of their parents, that the he or she feels as if they were in the wrong body. Instead, I thought “gender-affirming care” was what its name implied: not empathic but objective therapy, but rather a rush to affirm what the child or its parents had already concluded about gender.
  2. I also thought that “gender-affirming care” involved a willingness to use puberty blockers, and use them soon: in some cases they’ve been prescribed after just the first visit to a doctor or therapist.

It’s worth considering whether at least these two aspects of  gender-affirming care should indeed be banned for the time being.  No child’s word should be accepted without question by a therapist, especially when irrevocable medical changes can depend on whether that word is accepted uncritically. There is general agreement that gender dysphoria will resolve one way or the other (often the child becomes gay) without dangerous hormonal or surgical treatment, so why the rush??

Further, I agree with the Europeans that the use of long-term puberty blockers should be considered experimental, not just an off-label use, which is how they’re used in America.  They should not be prescribed except in clinical trials—something that the Europeans, more cautious than we in this matter—have decided.

Now there may be other aspects of these bills banning gender-affirming care that go beyond this, and to which I’d object. But the two behaviors above—banning “immediate acceptance therapy” and prescribing puberty blockers willy-nilly—are, in my view, worth halting pending further data.

Until we know that puberty blockers are safe for long-term use, and absolutely reversible, they should not be prescribed except in clinical trials, and not to the general public.  These are used either at the onset of puberty or before it begins, and a child is in no position to make a decision about its gender at that age. I’m not sure what age should be the cutoff, but surely no younger than 18. We can argue about that after the medical data are in.

And yes, I’m prepared to think that conservatives who propose these bills are doing so not solely out of medical and therapeutic considerations, but to go along with their tribe, perhaps out of a general dislike of transgender people. That is thoughtless and unempathic.

Nevertheless, I might be willing to go along with some aspects of these bans, not on political grounds, but rather on medical grounds and out of concern of the well-being of children and adolescents.

But my ignorance of these 17 bills is profound, so please enlighten me. What kind of “gender-affirming care” do they ban? Do they spell it out clearly?