How They Decide

I found this analysis of how the Supreme Court justices interpret the laws by Adam Feldman at SCOTUSBlog very interesting. Here’s the post’s opening:

In Trump v. CASA, one of the 2024-25 term’s blockbuster decisions, Justice Amy Coney Barrett’s majority opinion frames the dispute around the judiciary’s authority to issue universal injunctions – that is, orders that prohibit the executive branch from enforcing a law or policy anywhere in the country – and sets the tone through a mode of interpretation that blends textualism, originalism, and historical practice. Throughout the opinion, the court warns against transforming the judiciary into an “imperial” branch and highlights the practical consequences of its decision – indicators of what are called structural and pragmatic reasoning.

These interpretive moves exemplify what the Congressional Research Service (CRS) identifies as eight modes of legal reasoning – textualism, original meaning (originalism), judicial precedent, structuralism, historical practice, pragmatism, moral reasoning, and national identity. Though often overlapping in practice, each draws on distinct sources of authority, from grammatical analysis (textualism) to constitutional design (structuralism) to shared civic values (national identity). Given the Supreme Court’s ideological divisions, these interpretive methods serve not merely as tools but as signals of deeper jurisprudential commitments.

He does his best to perform his analysis empirically. He ends up with the following guiding principles: precedent, moral reasoning, originalism (what the law meant to those who enacted it), pragmatism, structuralism (considering the law within the framework of the body of laws and precedents), and textualism (what the law says).

As should not be surprising the various justices use greatly varying principles for interpretation, all of the justices relying on precedent for 15-20% of their opinions. Here’s the whole breakdown:

It’s gratifying that precedent is relatively high on the list but discouraging that it isn’t relied on more than it is. That pragmatism also figures significantly is inevitable.

Structuralism being a significant factor is presumably a consequence of the institutionalists who are appointed to the court whether by Democratic or Republican presidents.

Originalism is probably the factor that distinguishes the right wing of the court from the left most clearly.

It may be shocking but I think there’s little role for moral reasoning in the decisions of the Supreme Court. There are multiple reasons for that. Most importantly, that’s not the job of the court. It’s the job of the Congress. IMO that most of the training that our members of Congress received in moral reasoning was at their mothers’ knees is a grave problem.

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America’s Eight Political Tribes


I thought you might be interested the post from Michael Baharaeen at Liberal Patriot on the Echelon Insight’s latest attempt at categorizing America’s political “tribes”. It’s summarized in the graphic above. Mr. Baharaeen concludes:

Americans are a complicated bunch, and efforts to reduce everyone on one side to a monolith whose members all think the same way are misguided and unproductive and contribute to our never-ending doom spiral of polarization. Though the fringes of each side may pack a big punch, they are nowhere close to a majority. Anyone hoping to turn the temperature down in American politics and see our fellow citizens once more as individuals who form their own opinions—ones that may occasionally deviate from their own side—would do well to digest Echelon’s research and insights.

As far as I can tell I don’t fit neatly into any of those subtypes. Mr. Baharaeen’s analysis is useful but I think the entire thing can be summarized much more simply: most Americans are socially more conservative than the Democratic leadership and economically more conservative than the Republican leadership. Most people also aren’t above taking a handout as long as they aren’t expected to pay for it or change their behavior.

Take a look and tell me what you think.

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The Right Boxes on Immigration

Center for Progress CEO Neera Tanden checks all the right boxes in her wall Street Journal op-ed on immigration reform:

Democrats can go on the offensive on immigration, because Americans are repelled by President Trump’s extreme policies. But to take on the president’s immigration cruelty most effectively, Democrats must demonstrate that they back real border security.

A strong majority in this country supports clamping down on illegal border crossings and expanding legal immigration. That middle ground rejects the extremes on both ends: Those on the right, including in the Trump administration, who want to curb legal immigration drastically, and some on the left who have ignored the need for a secure border. The public recognizes that America is a land of immigrants and that our country needs immigration to grow and prosper. They also believe immigrants need to enter the country legally.

Democrats can win this issue—and cleave Republicans—if they support ending illegal immigration and increasing legal immigration. The left also has a chance to split the right as they have split us. We can do that with a plan that secures the border and expands the legal immigration system. The Center for American Progress has proposed such a plan.

Fully securing the border begins with ending the misuse of asylum. Migrants claim asylum in the U.S., receive work permits, and are allowed to stay while their cases are adjudicated. That process often takes years because of immigration court backlogs. This system encourages migrants to cross the border and claim asylum rather than pursue traditional legal immigration, putting pressure on the border, often creating chaos, and slowing down the process even more. Smugglers and other transnational criminals have abused the system for over a decade.

Our proposal ends the misuse of asylum and restores it to its original purpose—to protect those persecuted for who they are or what they believe. Asylum should be a last resort, reserved for those who truly need it, not a path for people, often economic migrants, to get into the country outside traditional legal immigration. Under our plan, the legal standard for asylum would be raised for anyone seeking to cross the southern border to apply for it. People from stable democracies would be screened out. Asylum claims would be humanely adjudicated within 30 days. Migrants would remain at the border while their cases are processed so they can be swiftly repatriated if they don’t qualify.

Still, closing the asylum loophole isn’t enough. Fully securing the border requires effective strategies—including more personnel, better technology, and barriers where appropriate—to deter illegal immigration and apprehend contraband goods. Recent surges in resources to DHS should be invested in measures that work at the border rather than terrorizing communities with raids of workplaces where people have been working for decades.

We need to fix what’s broken, and that means fixing everything. A truly functional immigration system would recognize that legal immigration improves economic growth and benefits the entire country. Yet our visa policies are stuck in 1990, when Congress last updated them, and now we have years-long backlogs for green cards. Rigid annual visa restrictions leave workers and families stuck on temporary visas or separated overseas, and the U.S. maintains woefully insufficient avenues for legal migration. This failure to create a visa program for the 21st century fosters illegal immigration.

We should expand legal immigration—with safeguards that prevent displacement for American workers—to provide more certainty and security for American employers and immigrant workers alike. We should also create more opportunities to attract talent from around the world for entrepreneurs to launch businesses in the U.S. and for STEM students to keep their talents here. We should address the legal status of undocumented immigrants who have lived here for years, including Dreamers and farm workers. These people built their lives here, contribute to their communities, and should be able to qualify for a path to citizenship. Leaders of good faith should be able to get behind these humane and security-minded immigration reforms.

As always the devil is in the details. I also wonder whether this op-ed stakes out a policy position or an opening offer. There are a few sentences that trouble me. For example

Rigid annual visa restrictions leave workers and families stuck on temporary visas or separated overseas, and the U.S. maintains woefully insufficient avenues for legal migration.

Is “rigid” being used as a synonym for “any” in that sentence? I have no objections for allowing the annual number of visas to vary by, say, 10% from year to year. Letting them vary by 200% or 500% or more is impractical. There needs to be a limit because our resources are limited and our ability to assimilate new populations is limited. Or this passage:

We should address the legal status of undocumented immigrants who have lived here for years, including Dreamers and farm workers. These people built their lives here, contribute to their communities, and should be able to qualify for a path to citizenship.

“Legal status” and “path to citizenship” seem to be treated as synonymous in that passage and we know from experience they are not. Following the Reagan era reform far fewer of the immigrants whose immigration status was legalized pursued citizenship than had been claimed leading up to the reform. Having one’s status legalized while demurring from seeking citizenship suggests that the ties of the migrants to this country may not be as durable as claimed.

There’s also one nagging question: why didn’t the Biden Administration seek that sort of reform? Is it really as acceptable to the Democratic leadership as Ms. Tanden implies?

My position remains unchanged. I think we should allow more legal skilled immigrants who can speak, read, and write English, fewer unskilled migrants, and far fewer illegal immigrants. If the reform Ms. Tanden proposes facilitates that, I would support it. If it does not, I would oppose it.

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Tom Lehrer, 1928-2025

College professor and satirist Tom Lehrer has died at 97. Chris Morris reports at Variety:

Tom Lehrer, the sardonic singer-songwriter-pianist who rose to national fame after his dark, tartly funny topical songs were used on the comedic ‘60s TV news show “That Was the Week That Was,” has died at age 97.

Friends said that he was found dead in his home in Cambridge, Mass., on Saturday.

Lehrer, who acquired an underground audience in the early ‘50s with a pair of self-released albums, was by trade a professor who taught mathematics, first at Harvard and later in his career at UC Santa Cruz. He told one concert audience, “I don’t like people to get the idea that I have to do this for a living. I mean, it isn’t as though I had to do this. I could be making, oh, $3,000 a year just teaching.”

The Harvard from which he matriculated and at which he taught was a different Harvard. The America he satirized was a different America. Few watched TW3 60 years ago. Even fewer remember it today.

Every generation thinks it invented satire, cf. Four Preludes on Playthings of the Wind, written by Carl Sandburg over a century ago in 1922.

The past is a bucket of ashes.

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Approval


If you want to know why I think the Democrats should be offering policy proposals of their own and not relying so much on being anti-Trump, you need only consider the graph above. The Democrats are at their lowest approval rating in 35 years.

I presume the retort will be that own-Congressman approval remains higher than that. That’s true of both Democrats and Republicans and it won’t improve the Democrats’ fortunes in the mid-terms.

I should also mention that I don’t believe that banking on bad economic news for the country is a good look.

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Back of the Envelope

I did a little back-of-the-envelope calculation comparing the effective tax rate paid by the top .1% of income earners to what they’d be paying with various different flat tax rates (without any deductions). The results of my calculations suggest that they are presently paying an effective tax rate of something between 30% and 35% and it would require a flat tax considerably higher than that to meet present expenses, i.e. for expenses to come reasonably close to revenues.

As I’ve said before since present defense spending is around $1 trillion and the deficit is around $1.9 trillion, we can’t achieve a reasonable deficit solely by cutting defense spending. I don’t think it can be done without increasing the effective tax rate, expanding the tax base on which new taxes will fall beyond the rich, and reducing spending including but not exclusively defense spending. IMO the lowest-hanging fruit other than defense spending is healthcare spending.

Shorter: we’re living beyond our means and changing that will be painful.

If you think there’s a way to do it, please show your work.

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Define “Wall Street” (and “Main Street”)

I found this editorial from the Wall Street Journal if not a concurrence with my recent post at least highly complementary with it:

Financial industry news site Investment Executive reported this week that the largest U.S. investment banks recorded a 17% aggregate increase in trading revenues in the second quarter compared to the same period last year. Goldman Sachs and Morgan Stanley reported more than a 20% increase in equities trading revenue. Talk about springtime for bankers.

Mr. Trump’s semi-tariff reprieve with Japan seems to have prompted investors to double down on the TACO trade—Trump Always Chickens Out—and sent the S&P 500 and Nasdaq to new highs. The price-earnings ratio for the S&P 500 is close to record levels, which suggests that valuations may be stretched.

Look no further than so-called meme stocks, which are experiencing a mania a la early 2021. As then, retail traders are making leveraged bets on stocks that have large short-interest plays such as Kohl’s, GoPro, Opendoor and Krispy Kreme. Hedge funds are riding the stock-market roller coaster to riches, and day traders want in on the fun.

but

None of this signals that there’s a shortage of liquidity, or that current interest rates are restricting credit conditions. Yet back on Main Street, businesses are struggling to borrow. Bank construction loans and housing starts have declined. Job growth has stalled in recent months in most industries outside of healthcare and government.

In other words the Magnificent Seven stocks are doing just fine even as they engage in mass layoffs and big investment banks are prospering but small companies and workers not so much.

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Downstream

This is an observation that I thought of putting in comments but decided to post instead. Something we need to keep in mind: industrial capability is downstream from energy production, intensive energy production. Military might is downstream from industrial production.

Solar power and wind power are fine for particular niches but they do not provide reliable, intensive energy which is what is needed for heavy industry. They might someday but that is not the case today. Today the potential sources for the energy required for heavy industry are coal, oil, gas, and nuclear. All things considered I think that nuclear is the best choice. In preemptive response to criticism of the expense of nuclear energy, a considerable portion of the cost of nuclear consists of legal and regulatory expenses. Those could be addressed with appropriate legislation.

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One Man’s Slush Fund

I totally love this story by Stephen Neukam at Axios:

Top Senate Democrats on Friday accused Republicans of using a $50 billion fund for rural hospitals to “pay off” GOP lawmakers for their support of the “big, beautiful bill,” Axios has learned.

I have absolutely no doubt that the fund is and will be used as a “slush fund”. The rub in this is that one man’s slush fund is another man’s constituent service. It’s subjective. And a great example of why what we do at the federal level should be limited to the Constitutional enumerated powers. It’s as the late Ev Dirksen said: “A billion here and a billion there and pretty soon you’re talking about real money.”

There is no doubt in my mind whatever that there are thousands if not tens of thousands of such slush funds in the federal budget. Whether you think they’re the traditional waste, fraud, or abuse depends mostly on your point-of-view.

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Flickers or Splinters

I don’t know whether to find this op-ed in the Wall Street Journal a flicker of hope or deeply distressing. In the op-ed Yasser Abu Shabab writes:

While most of Gaza continues to suffer under the ongoing war between Hamas and Israel, things are very different for thousands living in eastern Rafah—for us, the war is already over.

The Popular Forces, an independent Palestinian group under my leadership, have secured several square kilometers of land that have been home to my Bedouin tribe, the Tarabin, for generations. We aren’t an ideological movement, but a pragmatic one. Our primary goal is to separate Palestinians who have nothing to do with Hamas from the fire of war.

For the past seven weeks, our neighborhood has become the only area in Gaza governed by a Palestinian administration not affiliated with Hamas since 2007. Our armed patrols have successfully kept Hamas and other militant groups out. As a result, life here no longer feels like life in Gaza. In eastern Rafah, people have access to shelter, food, water, and basic medical supplies—all without fear of Hamas stealing aid or being caught in the crossfire with the Israeli military.

The effect has been tremendous: no more airstrike casualties, no chaotic aid lines, no evacuation orders, and no fear of booby-trapped homes or children being used as human shields by Hamas. While there is still much to improve, people now sleep at night without fear of death.

Sounds hopeful, doesn’t it? He continues:

This should not be the exception in Gaza—it can be the model, the new norm. The vast majority of Gazans reject Hamas. They don’t want it to remain in power after the war ends. But though they hate Hamas, they still fear it. Since protests began earlier this year calling for the group’s removal, demonstrators have been killed, tortured or forced into hiding.

My own family didn’t take part in those protests, but when Hamas killed my brother, Fathi Abu Shabab, and my cousin, Ibrahim Abu Shabab, for trying to secure aid for our family—and when 52 civilians under our care were murdered in their homes—I realized that silence is no longer an option. If we remain quiet now, we will never be free, cease-fire or not.

This may be our only chance to secure a future that rejects violence and embraces reason. What has prevented most Gazans from expressing their true anger at Hamas is the lack of a viable alternative. Hamas still controls aid access and dominates institutions like the U.N. Relief and Works Agency for Palestine Refugees in the Near East, or Unrwa. Hamas still turns aid centers into hubs for its own operations. In some areas, the only thing preventing people from fleeing is the presence of Israeli troops, which might withdraw as part of a cease-fire.

No one else has been willing to step up and risk publicly breaking with Hamas. Those fears lost their meaning for me after my brother and cousin were murdered. Hamas has labeled me a criminal and collaborator, but I am not intimidated by them. I won’t surrender.

As one of my college professors once said, pay no attention to an undergraduate paper until the first “however”.

We need only three things to make this vision a reality: financial support to prevent Hamas’s return, humanitarian aid to meet the population’s immediate needs for food and shelter, and safe corridors so people can move around. In a short time, we could transform most of Gaza from a war zone into functioning communities. When the rebuilding has begun, Hamas can negotiate with Israel for the release of hostages in exchange for safe passage out of Gaza. Let them go to Qatar, Turkey or wherever their enablers will have them. We don’t want them among us.

The hopeful aspects are that this militia is not Hamas, he at least claims to have driven Hamas from the territory they control and are maintaining the peace, and he says the Gazans hate Hamas. The less than hopeful aspects are that it’s a militia, it has no relevant previous experience in governing, and it only controls a few square kilometers of Gaza. Furthermore, I have no idea how the Israelis can distinguish between this particular militia, armed and wearing black hoods, from Hamas or any other militia. Also Israel goes unmentioned in the op-ed other than in the context of the IDF.

There’s a proverb for which I cannot testify as to the veracity, attributed to the Bedouins: “I, against my brothers. I and my brothers against my cousins. I and my brothers and my cousins against the world.” Is the Popular Forces the beginning of a new, brighter future for Gaza or one splinter of a thousand contending splinters, portending a chaotic and continuingly violent future for Gaza? I don’t know. I don’t even know who can know.

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