June 26, 2022

Candidate For Worst Supreme Court Justice Ever: Harry Blackmun

June 26, 2022/ Francis Menton

Yes I know, the competition for the title of Worst Supreme Court Justice Ever is stiff. A decent rogue’s gallery of candidates might include , for example, the likes of William O. Douglas, Earl Warren, and William Brennan. There may be a good case to be made for any of those, and plenty more.
But none of them has the distinction of having authored Roe v. Wade. So for today, permit me to make the case for Blackmun.
Blackmun did not author any large number of important Supreme Court decisions. One might surmise that his colleagues did not trust him with the tough ones. If you wonder if that might be true, try reading the Roe decision.
In any event, the Roe decision by itself is a strong qualification for the Worst Justice Ever award.

June 17, 2022

Some Thoughts on Netflix’s Support for Free Expression

June 17, 2022/ Jane Menton

A month or so ago, Netflix CEO Ted Serandos took a lot of criticism from the LGBTQIA+ community for saying Netflix was going to support its creators’ right to free speech.
Serandos’s response to employee complaints included sending an internal memo last month stating that if employees had a problem with Netflix’s “breadth of content,” then perhaps they should find a job elsewhere.
In an interview with Maureen Dowd for The New York Times, published May 28, Serandos stated that standing up for free expression “wasn’t hard” because a creator like Dave Chappelle is “by all measure, the comedian of our generation, the most popular comedian on Netflix for sure.”
Evidence suggests Serandos is receiving market signals that his audience is most interested in the content he’s being warned not to publish.

May 30, 2022

May 30, 2022/ Francis Menton

Last week I had a post titled “A Chink In The Armor Of The Progressive Administrative State.” The post discussed a recent case out of the Fifth Circuit Court of Appeals, Jarkesy v. SEC, where the Fifth Circuit ruled that an SEC prosecution of Mr. Jarkesy before its own Administrative Law Judge violated the Constitution for, among other things, denying Mr. Jarkesy his right to a jury trial, and giving the SEC unfettered discretion to decide which of its prosecutions can avoid federal District Court jurisdiction.
In the Jarkesy case, a relatively new organization called the New Civil Liberties Alliance played a significant role as amicus. Founded only five years ago (2017) by Philip Hamburger, a constitutional law professor at Columbia Law School, the NCLA has quickly made a big mark for itself in the field of constitutional litigation.
Hamburger was the author of the 2014 book Is Administrative Law Unlawful?, which, although perhaps addressed to a somewhat narrow audience of nerds such as myself, nevertheless has created shock waves in the complacent world of federal bureaucrats who had for decades engaged in rampant unconstitutional practices without effective challenge.

May 23, 2022

May 23, 2022/ Francis Menton

The great mission of the early twentieth century Progressives was to transform our constitutional order without ever amending the Constitution itself. The intellectual leader of the movement was Woodrow Wilson. The fundamental idea was to replace the messy and contentious system of separated powers and slow bi-cameral lawmaking with a cadre of supposedly apolitical administrative “experts” who could run the country smoothly and efficiently.
The idea sounded rather benign to most people at the time, and probably still sounds benign to most people today. Who could be against having “experts” to run significant government agencies?
But a hundred-plus years into this project, we have seen cancerous growth of vast administrative bureaucracies, outside the constitutional structure, and exercising great powers, but accountable to no one but themselves — the very antithesis of the constitutional structure that our founders attempted to bequeath to us.
Last week the Fifth Circuit Court of Appeals in New Orleans knocked a significant chink in the structure under which many of these agencies operate.

May 07, 2022

May 07, 2022/ Francis Menton

The news of the past few weeks has been all aflutter over Elon Musk’s purchase of Twitter.
The main issue for discussion has been, what does this mean for the future of free speech in the American public square? That’s an important issue, to which I don’t have the answer. I think that there are reasons for both optimism and pessimism. More on this issue later.
A second issue is what Musk’s Twitter venture signals as to progressive fantasies about net zero utopia. This second issue has been little discussed, let alone recognized at all, in the recent press coverage. So let me open the door.
The most logical way to look at what Musk is up to is that he is getting money out of Tesla in advance of an almost certain huge decline in its value, while placing his next bet on something else with a much better chance for major future growth. I think that he has recognized that the net zero utopia necessary for Tesla to have continuing exponential growth is impossible and not going to happen.

December 06, 2021

December 06, 2021/ Francis Menton

Currently, America is afflicted by a scourge of overt racism often going under the name “Critical Race Theory,” or alternatively under the even more Orwellian term “antiracism.” I call these doctrines “overt racism” because they squarely fit the definition: they accuse people of evil not on the basis of any act those people have committed or of any statement they have made, but rather solely on the basis of their skin color.
The most patent manifestations of the overt racism of Critical Race Theory and “antiracism” doctrine are found in their accusations of evil against people of the white or Caucasian race. Whites are “privileged”; they are engaged in “oppression” of people of other races; they are “white supremacists” — all of which claims are made without reference to anything the individual accused has ever done or said. Indeed, often the accusations are made to children as young as kindergarten age, as indicated in race training materials now spreading like a cancer through the American public education system.
But where do blacks fit into the CRT/”antiracism” worldview? The stated purpose of the CRT/”antiracism” project is to advance the position of black people, and people of other non-white races, supposedly by overcoming alleged white racism of the past or present. As these things are being practically implemented in the real world, is that what is happening?