In the last days of the era BB—Before Beryl—, an old friendly acquaintance … wait. Let me explain. Some decades ago, during the Bubble, there was a website. Its gimmick was to provide reviews of consumer products—books and films, fatally, included—by actual consumers thereof. Royalties were based upon, ostensibly, the quality of the reviews as measured by their popularity and, thus, the ad revenue which they could drive. Unfortunately, this model had the same failures as that identified by Polybius in his comments upon democracy, a form of which maxim has been wrongly attributed to Alexis de Tocqueville, my 12th cousin six times removed, and to Alexander Fraser Tytler, Lord Woodhouselee, my 13th cousin six times removed: that democracy can exist only until the majority discovers it can vote itself largess out of the public treasury. Many excellent reviewers did very well for a time, writing for the site, all off the quality of their work: including (I did mention books and film, did I not?) the now celebrated authors David Abrams, Curtis Edmonds, and Cornelia Read, and the editor JK Kelley (as well as such Grub Street hacks as, well, me). Others, however, created little cliques and claques, upvoting one another regardless of merit and profiting illegitimately in consequence, and running the thing into the realm of the profitless; the founders, in the usual Silicon Valley fashion, sold out for a profit and walked away; the whole thing collapsed in a welter of debts (they never did pay me the $5k or so which they then owed me); and that was that. But many of us remained friendly acquaintances online, and occasionally offline and in person.
So. In the last days of the era BB—Before Beryl—, an old friendly acquaintance of mine from the days of that dead website, a physician and a specialist at that, posted the query, Did the decision in Trump mean that Nixon could not have been prosecuted for Watergate? I replied, naturally, ‘No. Next lay question.’ To which another old friendly acquaintance from the days of that dead website took, mildly enough, both exception and umbrage. In the course of our back and forth, I pointed out, perhaps with more apparent acerbity and asperity than I intended, that only one of us—me—was a lawyer, however retired, and one who in fact had spent some three decades not only in, but effectively as, alone, the in-house appellate section of a small but politically well-connected law firm (and not a Republican one)[1] in one of the four largest metropolitan areas in the United States. My old friendly acquaintance demurred, on the stated ground that Supreme Court opinions are so written as to be (as Article XXIV[2] puts it) ‘understanded of the people’ … wherefore my vita was irrelevant.
To this I replied that I should have to rejoin the issue after the hurricane which was bearing down upon me had passed.
We are now in the beginning of the Era AB, After Beryl, and I have both power and Internet access (‘fear me!’).
Americans remain in character, through centuries of demographic change, what my connexion Edmund Burke MP said of us in the House of Commons, urging conciliation, on 22 March 1775. Amongst the many symptoms of the decay in our public discourse is less an exaggerated deference to expertise, problem though that too often is, than an excessive and adulatory regard for it, leading those who don’t possess it to claim it for themselves. Bluntly, every Karen in every two-bit HOA thinks herself a physician (brandishing ‘essential’ snake-oil and decrying vaccines); every halfwit in the country thinks himself a theologian; and every layperson is persuaded he or she is a lawyer. I do not think it too much to say that part of the envenoming of our increasingly violent uncivil discourse is predicated upon this delusion. I don’t tell engineers how to engineer; I don’t argue with doctors about medicine;[3] I’d as soon mechanics, astrophysicists, doctors of divinity, journos, SAHMs with no other identity, and real estate agents should cease arguing—from a purely lay perspective—appellate law with me, or, for that matter, politics in the academic sense (one of my other degrees), philosophy (another of my degrees), or history.[4] Note that my old friendly acquaintance who was ready to argue law with me should never have dreamt of arguing medicine with that old friendly acquaintance who posted the question which occasioned the argument. I stay in my lane as much as I can do; I’d as soon others also followed the rules of the road. We’d have fewer crashes, as a country, less partisan road rage, and less frequent swerves into the ditch, if we all did this.
But we as a nation go on thinking, each of us, that each of us is omnicompetent, within and without those fields in which we do have some colorable claim to expertise.
As the Era BB stumbled to its end, a lamentable hysteria could be far too frequently observed, and one directed towards the Supreme Court of the United States. Another old friendly acquaintance from the defunct website posted a photograph of the entrance to Auschwitz Birkenau with the legend, This was an official act. (Yes; it was … by German standards, in Germany, under a dictatorship, with the rule of law suspended and no constitution worthy of the name in place. That’s not apples-to-oranges, that’s apples to orcas. I find it interesting, in a mournful sort of way, that people who loathed Ronald Reagan are now urging that freedom is only one generation away from extinction here…)
Others on social media ranted about the Divine Right of Kings and The King Can Do No Wrong, with copies of a portrait of Charles I. Well, that monarch is my second cousin twelve times removed, and we higher Anglicans consider him Charles I King and Martyr, King of England, Scotland, and Ireland, one who, for all his faults and follies, yet became a martyr: to the independence of the Church from interference by a passing majority of her enemies, just as much as were Becket and More;[5] and to the rule of law and to due process, when he was judicially murdered by a kangaroo court which allowed him no defense: one established by a miliary coup led by my despicable fifth cousin nine times removed, one Oliver Cromwell, and a kangaroo court which included ten of my connexions and rather more of my cousins from fourth to eleventh, between ten and fourteen times removed.
Still others, when not having the screaming hab-dabs over how the Court is ‘corrupt’ (rubbish), commenced shrieking over the intrusion of ‘unelected functionaries’ in the political process. Which is an utterly daft thing to say of a Court which, in Loper Bright, told the unelected functionaries of various Federal agencies that they could not do just that and expect the courts to defer to them, and in Snyder, in Fischer, and in Trump—which were not final dispositions, for you laypeople: they were remands with instructions on the law to apply—, told (unelected) prosecutors not to overreach (amazing, really, that people who commonly begin the mnemonic Alphabet Song with ‘A, C, A, B…’ and who lump prosecutors in with police as Enemies of the Proletariat, are now bitching about restraints on law enforcement and prosecution on no other grounds than whose ox was gored and is in the ditch); in Corner Post, told those unelected functionaries the agency regulators they couldn’t change the rules in the bottom of the seventh inning without complying with the Administrative Procedure Act; in Jarkesy, told those unelected functionaries the SEC they couldn’t do an end run around the right to trial by jury before a real and independent judge…
Like my 18th cousin twice removed, Abraham Lincoln, I do not think that ‘thus saith the Court’ is the final answer to any political issue. Nor do I have any exaggerated regard for the Court now or in the past: sometimes, the Court gets it wrong. But, although I agree with Mr Justice Oliver Wendell Holmes Jnr, my 14th cousin twice removed, that the life of the law is not in logic, but in experience, the fact remains that decisions are to be judged upon their legal reasoning and not upon one’s agreement or disagreement with the result. As in a mathematical proof, the right answer is meaningless unless you can show your work and it checks out.
And I think we must conclude, from the present discontents, that, pace my old friendly acquaintance from the defunct website, legal decisions and appellate opinions are not in fact readily and easily understandable by laymen, as a result. As my tenth cousin four times removed, CS Lewis, wrote,
Comparative evaluations of essentially different excellences are in my opinion senseless. A surgeon is better than a violinist at operating and a violinist better than a surgeon at playing the violin.[6]
There is a reason why for so long so many law library shelves, until all of this was moved to the Internet, groaned (and grumbled and muttered about suing over it) beneath the weight of volume upon volume in the Words and Phrases series, and all the Reporters. The term ‘mortar’ means very different things to a bricklayer and an 11C; parents complain of irritable children, but pædiatricians rejoice when an infant is responsive to stimuli; ‘port’ can have several meanings at sea, none of which is the same as the meaning your wine merchant has in mind; testators may wish, absolutely, to make a bequest, but a bequest of a property ‘absolutely’ means something specific in law. Ambiguity abounds in common speech, and so also does misuse: rare is the layman who knows the difference between slander and libel, and rarer yet the layman who is aware how infrequently some statement he resents is in fact actionable as either.
Indeed, I submit that the ascending likelihood of understanding legal decisions and appellate opinions is as follows: laypersons; laypersons who take their opinions from what passes as news in this increasingly benighted country; laypersons who know a lawyer; laypersons who read law-blogs or listen to media-friendly legal ‘experts’ (who are the equivalent of hired expert witnesses in litigation settings); lawyers with no appellate experience; lawyers who subsist off being media-friendly legal ‘experts’; political partisans brandishing their Bar cards; and appellate lawyers, who may in good faith but always within reason disagree. I further submit—and, remember, the question here is not whether you or I approve a result; it is, rather, whether the result was properly reached—that the sort of opinions, whether majority, concurring, dissenting, or concurring in part and dissenting in part, which are embraced, when handed down, by laypersons, tend to be objectively bad: always in their reasoning and quite often in their ruling. After all, the classic samples of popular and popularly misunderstood opinions include Dred Scott; Plessy; Schenck; Buck v. Bell; Griswold;[7] Roe;[8] and Obergefell.[9]
So what did happen in the opinions for the Term? And what is the takeaway?
There were non-unanimous decisions, of course: there almost always are. But they were by no means always split along what laymen and journalists lazily label ‘ideological’ or ‘partisan’ lines. I reiterate: I give each successive Court the respect it earns; the Court as an institution, however, commands respect as the Constitution commands respect. Whoever is on the Court; and whoever one, as an observer, may be. (Of the seventeen Chief Justices of the Supreme Court of the United States, three—Jay, Burger, and Roberts CJJ—are connexions. The other fourteen are cousins of mine. For most of the Court’s history, until recent times, a similar proportion as between in-laws (and outlaws) and cousins has obtained as to the Associate Justices.)[10]
And what, precisely, is it that the Court properly does?
The answer is simple, and is set out in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819), Marshall[11] CJ writing for the Court:
A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations found in the 9th section of the 1st article introduced? It is also in some degree warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a Constitution we are expounding.
Note that: We must never forget that it is a Constitution we are expounding. What does that mean in practice? Well, for our present purposes, the most important thing it means is that the Court must always remember that what it does becomes precedent, of general application, and likely to be used in unforeseen ways in unimagined circumstances after. The decision of a trial court is binding upon the parties to the case decided, and those in privity with them: it is the law of the case. Decisions of the Supreme Court are the law of the land. You may never be a small-town mayor in the Rust Belt; pray God, you shall never be a rioter drunk on MAGA moonshine, storming the Capitol; and by God’s grace you’ll never be remotely like the flabby orange hypno-toad, Donald Trump, who, pace the delusions of his simple-minded acolytes, ‘ain’t no new messiah’ and is not ‘close enough for rock and roll’.[12] But given that even a minimally competent prosecutor can, without or without a typically spineless grand jury, indict a ham sandwich, you may be thankful that prosecutorial overreach has been checked by Snyder, Fischer, and Trump, and that the Court has said clearly that statutes under which prosecutions are brought mean what they say and no more, and cannot be used in the ‘throw mud at the wall and see what sticks’ fashion so long resorted to by prosecutors: whether the target is an ordinary moron, a small-town pol, or an ex-President. The law—and you may thank God for it—is no respecter of persons.
And because the law is no respecter of persons, it is equally true that the lower courts must be and now have been instructed that statutes and the Constitution itself are to be read as written and intended, ‘within the four corners of the document’ (just as we do with contracts), for their intended purpose and not as Hail-Mary passes to reach an otherwise unreachable but desired result. Wherefore you may and ought to be grateful—whether you like the immediate result or not—for the decision in City of Grants Pass, wherein the Court declined to accept an amorphous reading of the Eighth Amendment and its use as a catch-all ‘gotcha’ to justify an otherwise legally unjustifiable decision. After all: if mayors and municipalities and politicians and ex-Presidents of the United States—the powerful—are to be in a position in which they cannot know the law to follow it and the law can be made malleable to their detriment at the whim of any judge, then no citizen is safe. That. Means. You. The powerful are not, of course, above the law; but they must not be beneath it, unworthy of its protections and of equality before it, either: in that, they are the canaries in the coal mine.
The law—and the Constitution, a fortiori—is no respecter of persons; the law—and the Constitution, a fortiori—is the guarantor of our rights: which includes the rights of those we hate, even of those we justly hate. (Politicians, for example.)
One of those rights is of course that of free speech and publication. The ‘corrupt’, ‘unelected’[13] Court so many people are screaming at is the Court that slapped down Texas and Florida, and the Fifth and Eleventh Circuits, in those states’ nakedly political attempt to police the Internet, in Moody v. NetChoice. (The Fifth got it utterly wrong; the Eleventh got it only half right; and now everyone has been told to go back and get it right by conducting a complete facial analysis[14] of the First Amendment implications of the statutes at issue.)
This is equally true of the right to association, particularly when the association is united by a purpose of free speech, and political speech at that. Regulators, legislators, and prosecutors cannot be allowed to use the powers of their office or authority to pressure others to hamper associations engaged in political speech the government dislikes, and thus to do, or attempt to do, indirectly what they most certainly cannot do directly. And whatever you think of the NRA, that principle—one which could as easily save organizations you like—was reaffirmed in NRA v. Vullo.
The law—and the Constitution, a fortiori—is no respecter of persons; the law—and the Constitution, a fortiori—is the guarantor of our rights: everyone’s.
It is unlikely that most of you are investment advisors. Few of you, I think, shall be part of the Atlantic herring fleet. I doubt many of you own a truck stop; I can, to be frank, readily imagine most of you shuddering at the thought, because, Well, Really, That’s Where Those People Work and Gather, Daaahling… It is doubtful in the proverbial extreme that you are a major multinational corporation or a union boss. And there are much better than even odds that you have an irrational fear of firearms and the Frightfully Common People who own them. But if so much as work a day in your life, and granting that you pay taxes, you ought to welcome a series of decisions in which the Court has said, No: regulators do not get to change the rules during the game without adhering to the Administrative Procedure Act, rewrite statutes to say what Congress did not but the agency wishes they had done, obtain injunctions against your business or the business which employs you without satisfying the four factor test for getting an injunction, or try you administratively before an agency employee who is not an Article III judge and without your being able to avail yourself of your right to a trial by jury. Nor shall the courts any longer defer to agencies arrogating to themselves the power to legislate which is held by your elected representatives in Congress. You ought, then, to be grateful, whether or not you like the particular outcome in a particular situation, for the rulings in Loper Bright, Corner Post, Cargill, Starbucks v. NLRB, and Jarkesy. Because that is what those cases do: they say, Stop, to administrative and prosecutorial overreach and to lawmaking by unelected and unaccountable bureaucrats, and any man jack or woman jill of you may tomorrow find yourself in a position in which you’ll be unfeignedly thankful for those precedents.
Likewise, any one of us may at any moment find cause to be heartily grateful that a case cannot be dismissed when it is stayed for arbitration pursuant to an arbitration clause in a contract (you may well be surprised how many arbitration agreements you’re a party to without knowing it, because, frankly, most of you shan’t have read the Terms & Conditions of the things which make your lives easier or keep you employed, or the End User License Agreements which allow you to do all the things you do); and any one of us may find at any moment cause to be heartily grateful that a lawsuit you have every prospect of winning cannot be time-barred just because the government fucked around for years on its decision which gave you the right of action once issued, and then sent notice of its denial to the wrong address so that you didn’t receive it timely. So be thankful for Smith v. Spizzirri and for Harrow.[15]
The law—and the Constitution, a fortiori—is no respecter of persons; the law—and the Constitution, a fortiori—is the guarantor of our rights: and is Kantian. I don’t want to be a—wait for it—complete Kant about this, but what’s sauce for yon goose must, if we are to have equality before the law, be sauce for the gander yonder.
This is one area in which lay opinions on legal decisions so often fail miserably. Yes, it’s true that laypersons, in confronting a legal opinion, literally don’t know what they are talking about, just as laypersons opining on a medical diagnosis do not. But there’s also, always, the hypocrisy. Focusing solely upon their preferred policy outcomes—which is effectively a category error, confounding and conflating legislation with judicial decision-making—, laymen have trouble grasping the stark fact that they must ‘will universals’ here. The law must be the same for you and her and them and the senile old fool and the Day-Glo orange Mussolini wannabe, for W and Obama and Biden and Trump, for Your Guy and Their Guy, or it is not the law. Particular outcomes and your happiness or discomfort with those outcomes is irrelevant: the procedure, and the equalization of the law to apply universally, is what matters.
It’s the sheer hypocrisy which annoys me. The stale-bong-water slacktivists who chant that ‘corporations aren’t people’ (no one said they were: legal personhood has nothing to do with the state of being human): all right; have it your way; and take as the inevitable consequences that newspapers cannot endorse candidates, unions can’t make campaign contributions, corporations can’t be prosecuted or sued civilly, and the Sierra Club, the NRDC, the ACLU, NORML, and the Human Rights Campaign can’t lobby pols, contribute to causes, or sue anyone. The crowds shrieking ‘Keep Your Laws Off My Body and Out Of My Bedroom’? Fine. What do you think Obergefell did? Because it damned sure intruded the state into your private sexual life.[16] Those of you now running about hyperventilating and with your hair on fire over a preliminary presidential immunity ruling? Okay. Nobody’s pulled a Gerald Ford yet and pardoned or otherwise immunized Bill Clinton, or 43, or Barack Obama, so … be careful what you ask for. We have an independent judiciary because its decisions are not subject to being overruled by the other two branches. We have an independent legislative branch because its deliberations and actions are nonjusticiable, and because of the Speech or Debate Clause, Art. I, Section 6, Clause 1:
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
And if we are to have an independent executive branch, there must equally be some degree of presidential immunity, or non-justiciability for some sorts of executive actions. Congress tried a power-grab in 1867 with the Tenure of Office Act, and failed to make it stick with the failed impeachment of Andrew Johnson;[17] the Court, retrospectively, noted that the Act, by then repealed, should have been in all likelihood unconstitutional, in Myers v. United States, 272 U.S. 52 (1926).
To an extent, this confusion, or Sheer Bloody Ignorance, may be excused in laypersons, on a sort of ‘Forgive them, Father, for they know not what they do’ basis: violinists assessing surgery, surgeons reviewing a violin recital. Unfortunately, the dissents upon which people are presently seizing, most notably in Trump, cannot plead ignorance in extenuation. These Justices clearly know better: they have written excellent opinions, including majority and per curiam opinions. Not here, though: these are only in form legal opinions; what they are, are stump speeches, in the same way that the majority opinion in Obergefell was a sociological screed disguised (thinly) in a judge’s robes. As stump speeches, they’re pretty good, and align with my preferences. As legal opinions even in dissent, they are monumentally unpersuasive.
What (inter multa alia) laymen do not understand is that any court is constrained, in its rulings, by the evidence before it (which, in an expedited appeal of a preliminary ruling, as is the case in Trump, may be limited at this stage); by the competence of counsel for the parties; by what points counsel raised and briefed; and, on appeal, by the record and briefs before the appellate court, and, here, the error, if any, committed or not committed by the intermediate appellate court.
That is how appellate law works.
Within these constraints, and at this point in the proceedings, the majority opinion in Trump, distasteful as the immediate result is—I hold no brief for the base, vile, power-hungry, crooked, wholly un-conservative, liberty-hating, sociopathic, damn-Yankee orange son of a bitch—, is, alas, legally compelling. It is incontrovertible that a President of the United States in exerting the powers specifically granted to any holder of that office by the Framers, in the Constitution, is not accountable to the Courts for his actions. He is accountable to Congress only in the context of impeachment (from which only the shameful cowardice of the Senate saved Trump in the past, just as was so for Bill Clinton), and, at the ballot box, to the electorate. Likewise, the Court is not accountable to the Legislative or Executive Branches in its performing its functions; and the Congress, whose impeachment power is constrained by no law save its own will,[18] cannot be made to answer to either of the other branches, and its choice to impeach is not justiciable. See Nixon v. United States, 506 U.S. 224 (1993); 113 S. Ct. 732; 122 L. Ed. 2d 1.
Here, by the way, is where I think the majority foozled the approach shot: instead of speaking of immunity, it had been better to speak in terms of non-justiciability. Political questions are non-justiciable. Nixon, supra, at 228, citing Baker v. Carr, 369 U.S. 186, 217 (1962) and Powell v. McCormack, 395 U. S. 486, 519 (1969). Laypeople may not like hearing this: if so, they have not considered what should become of the separation of powers, and thus of our liberties, were this standard to be abandoned. Be careful what you wish for.
At this stage and in the context of a pretrial motion, and on the current briefs and record, it is equally reasonable to grant ancillary official actions of the Executive a rebuttable presumption of immunity. I believe, personally, with Cousin Tom,[19] that that government governs best which governs least. But it must govern; and the system of federalism and of the separation of powers established by Cousin John,[20] Cousin George,[21] Cousin Alec,[22] Cousin Jimmy,[23] and the rest of the Framers, and glossed by Cousin John Marshall, demands that the three branches not be perpetually in a Mexican standoff after the manner of The Good, the Bad and the Ugly. The determination of what are these ancillary official actions, and if and when any presumption of non-justiciability or immunity is rebutted, is for the district court, and the Court in Trump duly remanded that issue. (Remember when most of those now throwing conniption fits were celebrating Knight First Amendment Institute v. Trump, 928 F.3d 226 (2nd Cir. 2019), and its characterization of that twunt’s tweets as official acts? Be careful what you wish for, as I said at the time.)
Donald Trump is not Charles I: he’s not worthy to lick Charles I’s boots. Do you wish to make Trump a martyr to due process? (If he were to become so, he’d not be Charles I King and Martyr, or S Thomas More; he’d be the Amalgamated International Brotherhood of Putinists & Trumpshirts (Local 666)’s Horst Wessel.) Be careful what you wish for.
All that has happened here is a remand for further proceedings below, consistent with this and prior opinions of the Court, reaching back to Cousin Harry’s[24] day, regarding the extent of what are and what are not core or ancillary powers granted the Executive by the Constitution: just as in Trump v. Hawaii, 585 U. S. 667 (2018). This is the Court’s job; this is what is meant to happen.
The same shall likely happen with the Florida District Court ruling.
Which brings us to the real takeaway from this term’s opinions.
None of this should be happening had Congress done its damned job: impeaching Trump, which should have been unchallengeable and non-justiciable; writing its own statutes and not seeking political cover by passing high-minded aspirational rubbish and leaving the details to the bureaucracy; committing to legal clarity so that all may know what is and is not lawful and unchangingly so, and ensuring equal treatment before the law; crafting legislation that applies equally to both sides…
None of this should be happening had Congress found its balls and reenacted a Special Counsel statute; or had Joe Biden and AG Garland not doubled down on failure and taken the political risk of getting in a better DoJ team from Main Justice and assigning a competent one to take over from Jack Smith.
And none of those failures should be happening had the electorate done its damned job.
I cannot but imagine that the Court is as tired in its sphere as I am in mine of having to step up when no one else will or shall, and being, faute de mieux, the only adult in the room.
You’re unhappy with the present situation? So. Am. I. Wherefore leave off looking for someone else to save your bacon, and get off your asses and vote. And stop wasting time pretending you know the law—and arguing it. It wastes time and does nothing to fix things. As my connexion John Stuart Mill said,
A man who has nothing which he is willing to fight for, nothing which he cares more about than he does about his personal safety, is a miserable creature who has no chance of being free, unless made and kept so by the exertions of better men than himself.
So … stop moaning about legal decisions you don’t understand, and act to address the political issues you do grasp, however feebly. A republic cannot be run on the cheap by cowards and helpless damsels perpetually in distress who must be rescued by the exertions of better men, and by small minds and slackers.
Here endeth the Lesson.
[1] Largely made up of Blue-Dogs and Conservative Southern Democrats, in fact. Though we had a Republican of counsel.
[2] Of the Anglican Articles of Religion, the Thirty-Nine Articles; not of the Constitution, which does not have so many Articles, for those unaware.
[3] I do however take them to task as an historian where I have grounds to do so—my book on RMS Titanic comes to mind—just as, at an earlier point in my life, I cross-examined them as needed.
[4] Last I looked, I’m the author of what is, in an admittedly uncrowded field, the definitive work on the Washington-Huntingdon correspondence and of its effects upon early US immigration policy; the author of what I think I can fairly say is a well-regarded analysis of the political history of the 1941 extension of the Selective Training and Service Act of 1940; the co-author of one, at least, of the primary works on the legal and political history of the enquiries into the loss of RMS Titanic; and the co-author of a popular account of the events of 1937, from the Spanish Civil War to the Second Italo-Ethiopian War and from the publication of the encyclical Mit brennender Sorge to the Marco Polo Bridge incident and the Rape of Nanking, which were the final catalyst for the Second World War.
[5] Sir Thomas being a connexion of mine.
[6] The Discarded Image: An Introduction to Medieval and Renaissance Literature, Cambridge University Press, London, 1964.
[7] ‘My God, Justice Douglas! What is that awful stench?’ ‘Emanations from penumbras, m’ boy, emanations from penumbras…’ William O. Douglas, I’m sorry to say, is my 15th cousin. John Marshall Harlan II is my 17th cousin. Whizzer White, who was right in his dissent, is my 13th cousin twice removed.
[8] Roe—that egregious instance of legislating from the Bench—has bedeviled American public discourse for decades. The infuriating thing about abortion laws is that they ought never to have been made a Federal issue at all. Those opposed to abortion regard abortion as homicide, and the only issue as being, When is it legally justifiable homicide? Those in favor see it as a matter of public health and welfare (and, though they refuse to confess it, of eugenics, mostly racially-motivated eugenics). In the United States’ system of federalism, both these issues are traditionally the province of the several states, such that if Texas, say, wishes to outlaw abortion and Massachusetts, for example, to make it publicly funded to all who seek it, then, under the Ninth and Tenth Amendments, there is nothing for the Federal courts to consider. It’s not simply that Roe was a badly-reasoned opinion; it ought never to have been granted cert. at all.
[9] Again, the issue is not the result, but, rather, its reasoning and how it was reached.
[10] John Jay, 1st Chief Justice of the United States, is a connexion. John Rutledge, 2d Chief Justice of the United States, is my 11th cousin ten times removed. Oliver Ellsworth, 3d Chief Justice of the United States, is my 16th cousin four times removed. John Marshall, 4th Chief Justice of the United States, is my 10th cousin six times removed. Roger Brooke Taney, 5th Chief Justice of the United States, is my 11th cousin six times removed. Salmon P. Chase, 6th Chief Justice of the United States, is my 15th cousin four times removed. Mott Waite, 7th Chief Justice of the United States, is my 13th cousin four times removed. Melville Weston Fuller, 8th Chief Justice of the United States, is my 12th cousin five times removed. Edward Douglass White, 9th Chief Justice of the United States, is my 13th cousin thrice removed. William Howard Taft, 27th President and 10th Chief Justice of the United States, is my 12th cousin four times removed. Charles Evans Hughes, 11th Chief Justice of the United States, is my 13th cousin four times removed. Harlan Fiske Stone, 12th Chief Justice of the United States, is my 9th cousin four times removed. Frederick M. Vinson, 13th Chief Justice of the United States, is my 12th cousin thrice removed. Earl Warren, 14th Chief Justice of the United States, is my 19th cousin four times removed. Warren E. Burger, 15th Chief Justice of the United States, is a connexion. William Rehnquist, 16th Chief Justice of the United States, is my 12th cousin thrice removed. John G. Roberts, 17th Chief Justice of the United States, is a connexion.
[11] John Marshall, being my 10th cousin six times removed. James W. McCulloh is a ninth cousin six times removed. Counsel for McCulloh was Daniel Webster, my 12th cousin thrice removed. Maryland was represented by Luther Martin, my 11th cousin six times removed. Chief Justice Marshall was writing for a unanimous Court, the associate justices of which were my 10th cousin seven times removed, Bushrod Washington; Henry Brockholst Livingston, my 19th cousin five times removed; Thomas Todd, my 9th cousin eight times removed; Joseph Story, 12th cousin six times removed; and two connexions of mine, Gabriel Duvall and William Johnson Jnr JJ.
[12] To paraphrase Messrs Peterik, Smith, and Sullivan as writers of .38 Special’s single, ‘Rockin’ into the Night.’
[13] Thank God. Imagine if it weren’t.
[14] That is, Are the statutes unconstitutional on their face, as a preliminary consideration prior to assessing whether they are unconstitutional as applied in this specific situation?
[15] Cue loud booing from any Old Etonians in the comments.
[16] I reiterate my dissent from this ruling, on grounds you may not expect. Marriage, as a legal institution, has nothing to with love—or sex. It’s about property. It exists merely to promote the orderly division of heritable property from two sets of in-laws, through their children, to the grandchildren. The state has otherwise no valid interest in the domestic, romantic, or sexual arrangements of any two or more consenting, capable adults, and no other justification for extending everything from tax breaks to testimonial privilege to married couples, imposing fiduciary duties on them, and making them one another’s agents, cestuis, and trustees, to preserve a marital estate for the benefit of any children of the marriage. (And, no, save for wry humor I do not root my objection in same-sex marriage’s having deprived legal draftsmen of doing joint Wills, POAs, Durable POAs for Health Care, and the like, at $50 a pop per document, for same-sex couples … although this does violate the Lawyers’ Full Employment Act of 1750 BC as amended.)
[17] My 20th cousin thrice removed. Downward mobility is real. Ludwig, Graf von Ravensberg, became a maternal ancestor of my 15th great grandfather, James III, King of Scots; the descendants of Ludwig’s daughter, Jutta, Gräfin von Hohnstein-Sonderhausen by marriage, in America declined into rural Appalachian preachers from whom Johnson’s mother was descended.
[18] And how supine, spineless, and gutless the bastards are.
[19] Jefferson. Try to keep up, folks. I don’t ask much.
[20] Adams, my 13th cousin seven times removed.
[21] Washington, my ninth cousin eight times removed.
[22] Hamilton, my eighth cousin seven times removed.
[23] Madison, my eighth cousin seven times removed.
[24] Truman, my 13th cousin thrice removed. The reference is to Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
Markham Shaw Pyle, author & historian 