Quotulatiousness

February 12, 2017

“Never Go Full Ninth Circuit”

Filed under: Humour, Law, Media — Tags: , — Nicholas @ 05:00

In this week’s “G-File” “news”letter, Jonah Goldberg harks back to a scene from one of his favourite movies:

One of my favorite scenes of any comedy — and it’s very un-PC — is in Tropic Thunder when Robert Downey Jr. (in blackface!) explains to Ben Stiller that you “never go full retard.” The conversation is about film roles. Well, if you haven’t seen it, watch:

Now, I don’t like the term “retard” — and I really don’t like it in political debates. We aim for something loftier here.

Still, the scene came to mind because there should be a similar rule in legal circles: “Never Go Full Ninth Circuit.” Personally, I think it sounds better in Latin: Nolite umquam ire plenus nona circuit (and if any of you Latin pedants send me an e-mail correcting my translation, I will come to your house and scatter your Dungeons and Dragons figurines off the kitchen table).

The other day I noted on Special Report that Antonin Scalia had a rubber stamp on his desk with one of his favorite phrases: “Stupid but Constitutional.” I hope that one day, a Supreme Court justice will have a stamp on his desk that says, Numquam Plenus Nona Circuit.

Anyway, I understand that the case against the Ninth Circuit can be exaggerated. Yes, the West Coast’s federal appellate court has the highest rate of cases that have been overturned by the Supreme Court, but the vast majority of its cases don’t get appealed to the Supreme Court. Hence the qualifier “Full Ninth Circuit.” Going Full Ninth Circuit is when you claim that that the Pledge of Allegiance is unconstitutional. That’s a Simple Jack move, not a Rain Man or even a Forrest Gump move.

QotD: Magna Carta

Filed under: Britain, History, Law, Liberty, Quotations — Tags: , , , — Nicholas @ 01:00

It’s remarkable that the English-speaking world remembers Magna Carta. The product of a struggle between King John and his barons, it was sealed on the bank of the Thames 800 years ago, on June 15, 1215. But in a sense, the most valuable thing about Magna Carta is precisely that it is remembered. Other charters were issued across medieval Europe, but they were rapidly forgotten.

Magna Carta alone endured because the kings of England never consolidated their power fully enough to be able to ignore their subjects. The charter was a useful political weapon in this struggle against arbitrary royal power, which is why it was so often reissued, appealed to, and celebrated, not least in the United States by the Founding Fathers: The Massachusetts state seal adopted in 1775 includes a patriot holding the Great Charter. To remember is, literally, to recall to mind, to renew in thought, which is why memory, as Orwell recognized in 1984, is a great defense of liberty.

This year, Magna Carta is being acclaimed as the contract that first established the idea that law was above government. As British politician and historian Daniel Hannan has put it, from Magna Carta flowed “all the rights and freedoms that we now take for granted: uncensored newspapers, security of property, equality before the law, habeas corpus, regular elections, sanctity of contract, jury trials.” And that’s fair: The barons wanted to limit King John’s arbitrary power, and without limits there is no liberty under law.

But it does not take very much bravery now to celebrate our rights. Today, the language of rights is universal, though often hypocritical. Worse, the danger to liberty in the U.S. and Britain today is not arbitrary power of the sort exercised by King John, who offered no real theory except that he needed the money he was stealing to fight his wars in France. The danger to liberty today, ironically, comes more from arbitrary power backed up by the rights-talk that can trace its origins back to Magna Carta. Against my right to free expression stands your supposed right not to be offended. My right to property must now pay for your right to free health care. My right not to be discriminated against must give way to your right to be discriminated in favor of.

Ted R. Bromund, “Magna Carta limited government”, National Review, 2015-06-15.

February 3, 2017

The Gorsuch nomination

Filed under: Government, Law, USA — Tags: , , — Nicholas @ 04:00

In the Washington Post, Radley Balko says that the nomination of Judge Neil Gorsuch is actually a gift to the Democrats:

It always seems a bit futile to speculate about how a Supreme Court nominee will behave down the line. Conservatives are still kicking themselves over David Souter. Eisenhower called Earl Warren the biggest mistake of his career. I personally was skeptical of Sonia Sotomayor’s history as a prosecutor and her judicial record on criminal-justice issues. She has turned out to be the court’s most reliable defender of due process and the rights of the accused.

But, of course, we do need to look into nominees, and their records and personal histories are all we have. So let’s have a civil liberties-centric look at Neil Gorsuch, President Trump’s nominee to replace the late justice Antonin Scalia.

The Good: As far as I’m concerned, the most important thing to look for in a Supreme Court justice right now is a willingness to stand up to executive power. For at least the next four years (in all likelihood), the White House will be occupied by a narcissist with a proclivity for authoritarianism. We aren’t yet two weeks in to Trump’s administration, and we’re already barreling toward one or more constitutional crises. Oddly and perhaps in spite of himself, of the three names said to be on Trump’s shortlist (Gorsuch, Thomas Hardiman and William Pryor), Gorsuch appears to be the most independent and has shown the most willingness to stand up to the executive branch. […]

Gorsuch is perhaps most known for his decision in the Hobby Lobby case, in which he wrote a strong opinion denouncing the birth-control mandate in the Affordable Care Act. Whether you think that’s a plus or a minus obviously depends on whether you prioritize reproductive rights or religious freedom. But even if you’re bothered by his opinion in that case, Gorsuch’s championing of religious freedom does at least seem to be careful and principled, and not partisan toward Christianity. In Yellowbear v. Lampert, a majority of his fellow appeals court judges ruled that a federal statute required the state of Wyoming to grant a Native American prisoner access to a sweat lodge on prison grounds. Gorsuch went farther, arguing that even prisoners still retain a right to practice their religion.

Gorsuch is a critic of “overcriminalization,” or the massive and growing federal criminal and regulatory codes. I think that’s a good thing. The Volokh Conspiracy’s Ilya Somin points out that he has history of ruling that criminal laws should be read narrowly, with ambiguities resolved in favor of defendants. That, too, is a good thing.

I was also struck by Gorsuch’s acceptance speech. It was noticeably un-Trumpian. He was humble, reverent of institutions and deferential to the office for which he had just been nominated. Unlike the man who nominated him, he came off as someone devoted to the law, not someone who believes he is above it.

January 25, 2017

The “right to repair” gets a boost in three states

Filed under: Business, Law, USA — Tags: , , , , , — Nicholas @ 02:00

Cory Doctorow reports on a hopeful sign that we might be able to get rid of one of the more pernicious aspects of the DMCA rules:

Section 1201 of the 1998 Digital Millennium Copyright Act makes it both a crime and a civil offense to tamper with software locks that control access to copyrighted works — more commonly known as “Digital Rights Management” or DRM. As the number of products with software in them has exploded, the manufacturers of these products have figured out that they can force their customers to use their own property in ways that benefit the company’s shareholders, not the products’ owners — all they have to do is design those products so that using them in other ways requires breaking some DRM.

The conversion of companies’ commercial preferences into legally enforceable rights has been especially devastating to the repair sector, a huge slice of the US economy, as much as 4% of GDP, composed mostly of small mom-n-pop storefront operations that create jobs right in local communities, because repair is a local business. No one wants to send their car, or even their phone, to China or India for servicing.

[…]

Three states are considering “Right to Repair” bills that would override the DMCA’s provisions, making it legal to break DRM to effect repairs, ending the bizarre situation where cat litter boxes are given the same copyright protection as the DVD of Sleeping Beauty. Grassroots campaigns in Nebraska, Minnesota, and New York prompted the introduction of these bills and there’s more on the way. EFF and the Right to Repair coalition are pushing for national legislation too, in the form of the Unlocking Technology Act.

January 16, 2017

QotD: The process of de facto legalization of marijuana in Vancouver

Filed under: Cancon, Economics, Law, Quotations — Tags: , , , , — Nicholas @ 01:00

Despite the fact that I don’t smoke pot — because if I do I will be asleep in approximately three minutes — I have long advocated complete legalization. Largely for libertarian reasons but also because the criminal law is essentially unenforceable. But the medical marijuana regulatory scheme interests me as a grand example of government getting something entirely wrong.

The original medical marijuana regulations allowed people to buy from a single supplier or grow their own or designate a grower. While the system was far from perfect, and found to be unconstitutional, it had the advantage of regulating with a very light hand. But, oh Heavens, there was “leakage”. Medical pot was not always only used by medical users. Yikes.

So Health Canada came up with a regulatory scheme which was going to licence grower/distributors and put the users and their growers out of business. Enter Big Green and a bunch of promoters who sold shares in publicly listed companies based on the new regulations. The promoters made a lot of money using a simple story: there were 45,000 medical pot users in Canada (projected to grow to 450,000 users in a decade) who each used about 3 grams a day and who would have no choice but to pay between $8 and $15 a gram for their “medicine”. You do the math.

To my not very great surprise, people used to paying $0 to $5.00 a gram did not rush to sign up. And, very quickly, at least in Vancouver, pot shops – for registered users only of course – began to spring up. Becoming a registered user was not tough. As the 5th Estate guy discovered, telling a naturopath a charming story about stress and sleep disturbance over Skype gets you your registration. At which point you are free to buy. (I note the 5th Estate did not ask the pot shop owners where they were getting their pot – which is a rather good question because it is certainly not from the licenced growers as they are not allowed to sell except by mail order.)

As anyone who has lived in Vancouver knows, the Vancouver Police Department has better things to do than bust dispensaries. Plus, given the injunction halting enforcement of the Health Canada regs, it is not obvious what they would bust the dispensaries for that would have a chance of getting past the Crown. But even if they did bust the dispensary and even if the Crown brought charges, it is pretty difficult to see how a judge could find a person guilty who was selling to a registered user.

The problem is that the boffins at Health Canada have not quite figured out that their regulations are assuming a world which does not exist. First, they assume that people want to smoke “legal pot”. That might be true if police forces were in the habit of kicking down doors to arrest people smoking pot at home but, I fear, that hasn’t happened in years. (It may occasionally occur as a means of harassment but the probable cause issue is usually sufficient to kick the charges.)

Jay Currie, “Gone to Pot”, Jay Currie, 2015-06-15.

January 15, 2017

QotD: Like the Bourbons, the Guardian learns nothing and forgets nothing

Filed under: Europe, Law, Liberty, Politics, Quotations — Tags: , , , , — Nicholas @ 01:00

The Bourbons, said Talleyrand, learned nothing and forgot nothing. Sometimes it seems as if our modern liberals are just like the Bourbons. Here, for example, is a headline from the U.K.’s hard-line liberal newspaper, the Guardian:

FAR-RIGHT PARTY STILL LEADING IN DUTCH POLLS, DESPITE LEADER’S CRIMINAL GUILT.

What was the crime of which the far-right leader — Geert Wilders — was guilty? It was incitement to discrimination; in other words, not even discrimination itself. He had discriminated against no one, but made a speech in which he called for “fewer Moroccans.” Significantly, the Guardian gave no further details of what Wilders meant by this — whether, for example, he proposed that fewer Moroccan immigrants should be allowed into the Netherlands, that the illegal Moroccan immigrants should be deported, or that Dutch citizens of Moroccan descent should be deprived of their citizenship and forcibly repatriated. For the Guardian, it hardly seemed to matter.

More significant still was the Guardian’s inability, even after the victory of Donald Trump in the United States—which must, in part, have been attributable to a revolt against political correctness — to see that the conviction of Wilders on a charge so patently designed to silence the fears of a considerable part of the population couldn’t possibly reduce his popularity. By illustrating the moral arrogance of the political class against which Wilders’s movement is a reaction, the charge might actually make him more popular.

Theodore Dalrymple, “Incitement to Hypocrisy: The Netherlands unevenly applies a law forbidding provocation”, City Journal, 2016-12-28.

January 10, 2017

“The very concept of a moral absolute […] is alien to them”

Filed under: Cancon, Health, Law, Politics, Religion — Tags: , , — Nicholas @ 02:00

David Warren calls for moral and ethical resistance against “assisted dying” being accepted in society:

Through the casual review of polls, over the years, I have become aware that the general public can itself be moved from approximately 80/20 to approximately 20/80 (four fingers and a thumb to four thumbs and a finger) by any specious argument, if it is repeated constantly, and the Left are able to impose a fait accompli through the courts. Among intellectuals, the swings may be wider and quicker. They are not pendular, however, for once various civilized taboo lines have been crossed, there is no inevitable return, and the only way back is through a field of carnage.

Today, unlike “yesterday” (i.e. a few short years ago) there is 80 percent support for what goes in Canada under the euphemism “assisted dying,” and everywhere under the older euphemism, “euthanasia.” As loyal Christians (or Jews, and many others) we must never surrender to public opinion of this kind. Yet we must recognize that it is pointless to argue with the great mass who, in Canada as in places like Nazi Germany, can so easily be persuaded that down is up, and that words now have new meanings. They simply haven’t the equipment to follow a thread longer than the short slogans in which progressives specialize. Not if their moral schooling was defective, leaving consciences deformed.

People can be “educated” or “catechized” or awakened only one by one, and with their own participation. There is always hope, for as Thomas Sowell says, though everyone is born ignorant, not everyone is born stupid. But in practice, they are retrieved from catastrophic error, only by catastrophe.

At this point in our societal degeneration, “the people” are obedient to what beloved Benedict XVI called the “dictatorship of relativism.” This is understandable because few were raised in anything else. The very concept of a moral absolute (e.g. “thou shalt do no murder”) is alien to them. At the gut level, they may still individually recoil against an evil, but only if they have watched, and found the spectacle “icky.”

January 8, 2017

QotD: “Privilege” means “private law”

Filed under: Law, Politics, Quotations, USA — Tags: , , — Nicholas @ 01:00

Sigh. Hey, guys, privy-lege means “private law.” You know, private law which allows your not-very-competent asses to hold on to positions you’re not qualified for just because you make the right noises. Private law which means your politicians don’t get even rebuked for incompetence and malice that would crucify any one else. Private law means you can enrich yourself while playing at caring for the downtrodden. Private law means you can be an old woman with no accomplishments to your name except marrying the “right” man and then claim to speak for women and youth. Private law means you can play life on the easiest setting, while rebuking everyone with your melanin content (or more) for doing the same, whether you know what they’ve overcome or not.

Privilege means arrogating to yourself the right to judge others, not on behavior, not on their choices, not on their competence or their intelligence, but simply on whether they disagree with you. And to scream “off with their heads” if they don’t.

Privilege means the right to tell people what they should think or feel, and telling people whom they should blame for their plight, even if the people themselves disagree.

Privilege means voting yourself accolades, awards, encomiums, and then relying on your buddies in the press to make you smell like a rose, despite the garbage you roll around in.

Privilege means destroying people and gutting the culture for the privilege (ah!) of standing on top the smoking pyre, being king of the dunghill.

Privilege means being aristos unaware the masses are in pain and – like Antoinette never said – telling them to eat cake.

It’s short lived, though, this sort of privilege, because it destroys that which it feeds upon. And it’s even more short lived in a time when technological change undermines you. For instance, I don’t think the press can shield these aristos much longer. It might last the bastions of the left until the present generation (older than I) retires. Those younger than I, though, banking on it are playing a mug’s game. (Or are simply stupid and as we’ve said, lack both empathy and imagination.)

Long before they inherit, the inheritance will be ashes in the wind.

And the rest of us, the ones who understand the cold equations of economics and culture, of knowledge and power? We’ll be here.

Ça Ira.

Sarah Hoyt, “The Privilege Of Not Caring”, According to Hoyt, 2015-05-17.

January 3, 2017

Procedural hacks and US Supreme Court nominations

Filed under: Law, Politics, USA — Tags: , , , , — Nicholas @ 04:00

Yes, I’m just getting caught up on articles that got published between Christmas and New Year’s, which is why I’m linking to another Megan McArdle article. This one is on the Democratic party’s “festival of wrongness” delusions about hacking the nomination to replace Antonin Scalia on the US Supreme Court:

You may be a bit confused. Republicans hold the majority in this Senate. They will also control the next Senate. How are Democrats supposed to bring the thing to the floor for a vote, much less get enough votes to actually confirm him?

That’s a very good question! The answer some progressives have come up with is that there will be a nanosecond gap between when the outgoing senators leave office, and the new ones are sworn in. During that gap, there will be more Democrats left than Republicans. So the idea is to call that smaller body into session, vote on the nomination, and voila! — a new Supreme Court justice. Alternatively, President Obama could use that gap to make a recess appointment.

The first idea started on Daily Kos, where I initially saw it. I didn’t pay it overmuch attention, as my second law of politics is that “At any given time, someone is suggesting something completely insane.” Usually these ideas go nowhere. This one, however, has gotten a bit of traction; the idea of a nanosecond nomination vote has shown up at the Princeton Election Consortium blog, and endorsements of a recess appointment have appeared in the New Republic and New York magazine.

It’s hard to know where to start with this festival of wrongness. The idea behind the nanosecond nomination seems to be that there are two discrete Senates, the old and the new, with a definite gap between them; yet that somehow, though neither the old nor the new Senate exists, there are senators, who can hold a vote on something — a sort of quantum Senate that pops into and out of existence depending on the needs of the Democratic Party.

The legal grounds for a recess appointment are even weaker, because in 2014 the Supreme Court ruled that recess appointments require at least a three-day gap — not three femtoseconds — between sessions to be valid. Even if that were not the case, Jonathan Adler argues that the new Republican Senate could adjourn sine die, ending the recess appointment a few weeks after it was made. Since Garland would have to vacate his appellate court seat, all Democrats would succeed in doing is opening up another judicial appointment for Trump.

But this is almost quibbling compared with the deeper problem: Even if these moves could work, they wouldn’t work. The people proposing these ideas seem to imagine that they are making a movie about politics, rather than actually doing politics. The hero’s quest is to get a liberal supreme court, but they are stymied until — third act miracle! A daring procedural caper! The gavel slams down on Merrick Garland’s “Aye” vote … cut to him taking his Supreme Court seat … fade to black as the audience cheers. In the real world, of course, there’s a sequel, called “Tomorrow.” And what do the Republicans do then? The answer, alas, is not “stand around shaking their fists at fate, while the moderates among them offer a handshake across the aisle and a rueful ‘You got us this time, guys.’”

December 30, 2016

QotD: Marijuana prohibition

Filed under: Law, Liberty, Quotations — Tags: , , — Nicholas @ 01:00

Now here’s somebody who wants to smoke a marijuana cigarette. If he’s caught, he goes to jail. Now is that moral? Is that proper? I think it’s absolutely disgraceful that our government, supposed to be our government, should be in the position of converting people who are not harming others into criminals, of destroying their lives, putting them in jail. That’s the issue to me. The economic issue comes in only for explaining why it has those effects. But the economic reasons are not the reasons.

Milton Friedman

December 8, 2016

QotD: The law

Filed under: Law, Liberty, Quotations — Tags: — Nicholas @ 01:00

Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.

Frédéric Bastiat, The Law, 1850.

December 7, 2016

Self-protection for women – “making the carrying of mace and pepper spray a sex-linked legal privilege”

Filed under: Cancon, Law, Liberty, Politics — Tags: , , , — Nicholas @ 02:00

Colby Cosh discusses the proposal of federal Conservative leadership hopeful Kellie Leitch to legalize the use of non-lethal chemical weapons:

… Leitch’s Thursday announcement struck me as a potentially elegant move in a hopeless chess game. Noting that a large number of women suffer physical violence over the course of their lives, she proposes that Canadians should be allowed to carry chemical mace and pepper spray for self-defence. “Women should not,” she wrote in a Facebook posting, “be forced by the law to be victims of violence when there exist non-lethal means by which they can protect themselves.”

That’s a true statement, no? Leitch does not suggest that the carrying of chemical spray weapons should be a benefit reserved only to women — she just wants to legalize those weapons generally. Perhaps I am a little more feminist than she is: I would be comfortable making the carrying of mace and pepper spray a sex-linked legal privilege. Hell, I would consider extending it to very small firearms.

Activists for feminism are continually characterizing the world of women as one of terror, abuse, and uncertainty. For Leitch to take them at their word, applying a tough-on-criminals spin, is an authentic Trump touch. I do not wholly approve of the tactic, but, as much as I think some feminists are attention-hungry zanies, I recognize the kernel of truth in their image of the universe. I’ve never had a close female friend who could not tell of bizarre, creepy, threatening things happening to them — sights and encounters that, to a male with an ordinary upbringing, seem to have wriggled from the corner of a Hieronymus Bosch painting.

Leitch got exactly the response she must have wanted from the Liberal Status of Women Minister Patty Hajdu, who blurted that giving women extra self-defence options was “putting the onus on” them, and thereby “offensive.” I find this is an odd way to raise the status of women — suggesting that if some of them might like to carry a can of mace in their purses, and could even be trusted by the authorities to use it responsibly, they are thereby dupes of the patriarchy.

I also enjoyed Colby’s description of Leitch’s “Trump-flavoured” campaign: “it’s like a bag of boring snack chips with a chemical dash of Southern spice exhaled over it. And I can’t help suspecting that there is something slightly phony about the media panic surrounding her candidacy.”

December 3, 2016

Trudeau government to approach legalizing marijuana as an explicitly crony capitalist exercise

Jay Currie was woken up at an ungodly early hour to talk on a radio show about the leaked portions of the Canada Marijuana Task Force Report. It’s apparently not good news for consumers but really great news for the existing favoured “legal” producers:

The leak itself is interesting and more than a little outrageous. The Report clearly favours Health Canada Licenced Medical Marijuana growers and many of those corporate grow shows are publically traded companies. Allowing the report to come out in dribs and drabs (because “translation”) could cause deep uncertainty in the public markets. The government should release the report, in toto, immediately.

Substantively, the Report apparently recommends that legalization efforts be directed at “getting rid of the $7-billion-a year black market. Sources familiar with the report, which is expected to be made public Dec. 21, say all the other recommendations flow from that guiding principle.”

It is not clear whether that “black market” includes the grey market of dispensaries and pot shops which has grown up in Canada and which continues to expand.

Using “legalization” as a weapon against the “black market” is pretty much the level of restrictive thinking I expected from the Task Force. Rather than seeing legalization as an opportunity to regularize the marijuana market, the language suggests a resumption of the war on drugs by other means.

The Task Force is apparently suggesting that the 40 Health Canada approved licencees remain the only legal source of marijuana and proposes that recreational pot, like medicinal pot, continue to be delivered by Canada Post. A nostalgic bow to the mail and a suggestion pretty certain to keep dispensaries and “Bob on the corner” in business for the foreseeable future. Here is a free clue for the Liberal government: recreational pot users are impulse buyers. As I say in my book, “The most common triggers for the decision is that, by their lights, a customer is running low on pot, has run out of pot or has been out of pot for some time but only now has the money to buy more pot.” In short, not likely to wait a week for Canada Post to deliver.

November 21, 2016

“We are one click away from totalitarianism”

Filed under: Britain, Law — Tags: , , , — Nicholas @ 02:00

Cory Doctorow on the awful authoritarian “Snooper’s Charter” that somehow slithered onto the law books in Britain recently:

Britain’s love-affair with mass surveillance began under the Labour government, but it was two successive Conservative governments (one in coalition with the Liberal Democrats, who are nominally pro-civil liberties) who took Tony Blair’s mass surveillance system and turned it into a vicious, all-powerful weapon. Now, their work is done.

The Snoopers Charter — AKA the “Investigatory Powers Act” — is the most extreme surveillance law in Europe, more extreme that America’s Patriot Act and associated presidential orders and secret rulings from the Foreign Intelligence courts. Snowden nailed it when he said it “goes further than many autocracies.”

The fact that these new spying powers — which conscript tech companies to do the collection and retention of materials for use by the government, usually in secret — comes even as the ruling Conservative Party is barely holding itself together after the Brexit vote and the rise of nativist, racist, pro-deportation/anti-migrant movements who are working their way into the halls of power. Needless to say, any project of mass roundups and expulsions will rely heavily on the legal and technical capabilities for surveillance that the British state has just claimed for itself.

November 18, 2016

QotD: The delicate nature of the United States Supreme Court

Filed under: Law, Politics, Quotations, USA — Tags: — Nicholas @ 01:00

This is first-class flummery: What they really mean is that they will be very angry at the Supreme Court if the case goes against them. This is completely true. It is not completely true that the Supreme Court will somehow destroy itself, or its place in American society, if it offers a ruling that American liberals don’t like. I realize that it may feel this way if you are an American liberal. But if the institution survived Roe v. Wade‘s “emanations and penumbras,” and the sudden discovery after a couple of centuries that capital punishment violated the Constitution, it can certainly survive a narrow statutory case that overturns a still-unpopular program.

To listen to most commentators, the legitimacy of the Supreme Court is a delicate flower. It blooms fiercely whenever the court does something they like — stand by for sonorous pronouncements from these same illegitimacy-mongers that “the highest court in the land has spoken” should the court rule in favor of gay marriage this term. But if it issues a single ruling that they don’t like, then it is a despotic institution mired in bad ideology. These things obviously cannot both be true. If the Supreme Court loses its legitimacy, then its rulings about gay marriage and civil liberties will be exactly as illegitimate as its rulings about Obamacare and the Religious Freedom Restoration Act.

In fact, all these rulings are well within the scope of a perfectly legitimate court. I may disagree with some of them — hell, I’m still mad about Wickard v. Filburn. But the Constitution and 200 years of legal precedent give the court the power to make these rulings. And frankly, the biggest threat to democracy is not the court; it is commentators declaring that they’re going to take their ball and go home if the institution starts producing rulings they don’t like. Democracy can survive badly reasoned court rulings. It cannot survive a polity, or a policy elite, that thinks support for our institutions is optional, to be withdrawn should the court have the audacity, the sheer unmitigated gall, to stymie that elite’s agenda.

Megan McArdle, “Obamacare Will Not Kill the Supreme Court”, Bloomberg View, 2015-03-04.

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