“The Court’s youngest justice drew a distinction between “pragmatists,” judges who “tend to favor broader judicial discretion,” and “formalists,” who “tend to seek constraints on judicial discretion” and “favor methods of constitutional interpretation that demand close adherence to the constitutional text, and to history and tradition.” She placed herself in the latter camp.
As a justice, however, Barrett has behaved as an unapologetic pragmatist. Along with the Court’s other Republican appointees, Barrett supports flexible legal doctrines that give her Court maximal discretion to veto federal regulations that a majority of the justices disagree with — especially regulations promoting public health or protecting the environment. And she’s joined her fellow Republican justices in imposing novel limits on the Voting Rights Act that appear nowhere in the law’s text.
The rhetoric of judicial restraint is potent, so it is understandable why Barrett wants to tap into that potency. Formalist rhetoric enables the justices to claim that they didn’t roll back voting rights or strike down a key prong of President Joe Biden’s efforts to promote vaccination because they prefer weaker voting laws and a flaccid public health system — they simply did what the law requires.
And Barrett is hardly the only justice to engage in such rhetoric. Justice Neil Gorsuch recently published an entire book claiming that judges should rely almost exclusively on the text of a statute or constitutional provision while interpreting it. Justice Clarence Thomas frequently calls for radical shifts in the law, claiming they are necessary to restore the “original understanding” of the Constitution. Even Justice Samuel Alito, the Court’s most partisan justice, recently attributed his new, entirely atextual limits on the Voting Rights Act to having taken “a fresh look at the statutory text.”
The problem with this rhetoric, in short, is that it bears no resemblance whatsoever to the current Supreme Court’s actual behavior.”
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“Jackson involved Texas’s anti-abortion law SB 8, a law that effectively bans all abortions after six weeks, in violation of the fetal viability standard established in Planned Parenthood v. Casey (1992). And SB 8 was, in Justice Sonia Sotomayor’s words, designed to “evade judicial scrutiny.”
Ordinarily, when someone wishes to challenge an unconstitutional state law in federal court, they are not allowed to sue the state directly. Rather, such a plaintiff must sue the state official charged with enforcing that unconstitutional law. But Texas tried to design SB 8 so that no state official would be empowered to enforce its anti-abortion provisions — and thus no one could be sued to block the law.
SB 8 relies on a bounty hunter system. Under SB 8, “any person” except for an employee of the state of Texas may bring a lawsuit against any abortion provider accused of performing an abortion after the sixth week of pregnancy. If an abortion provider loses such a suit, they must pay the plaintiff a bounty of at least $10,000 — and there is no upper limit on this bounty.
SB 8, in other words, terrorizes abortion providers by potentially subjecting them to hundreds or even thousands of lawsuits if they are suspected of violating SB 8’s terms.
As Chief Justice John Roberts explains in a dissenting opinion in Jackson, Texas did not actually succeed in writing a law that is not enforced by state officials — and is therefore immune from federal judicial review. Because “the mere threat of even unsuccessful suits brought under SB 8 chills constitutionally protected conduct,” Roberts wrote, “court clerks who issue citations and docket SB 8 cases are unavoidably enlisted in the scheme to enforce SB 8’s unconstitutional provisions, and thus are sufficiently ‘connect[ed]’ to such enforcement to be proper defendants.”
But the five most conservative justices, including Barrett, all backed Texas’s play. Barrett joined an opinion by Gorsuch that effectively immunized SB 8 from any federal lawsuit challenging Texas’s bounty hunter system. (Technically, Gorsuch’s opinion allowed suits to move forward against state health officials who play a minor role in enforcing the law, but their role in doing so is so small than a hypothetical court order against these officials would be basically useless.)
The implications of this decision are staggering. As Roberts writes in dissent, quoting from an 1809 Supreme Court opinion, “if the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” Jackson provides every state with a roadmap that it can use to neutralize virtually any constitutional right.
So what’s really going on here? Would Barrett really vote to uphold a state law subjecting all gun owners to SB 8-style lawsuits? That seems unlikely. Among other things, Barrett is an outspoken proponent of more expansive gun rights. And a majority of the justices appeared inclined to expand the scope of the Second Amendment significantly during a separate case that was argued last November.”
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“Barrett’s pragmatic approach to the law, and that of her Republican colleagues, is also on display in their decisions weighing the Biden administration’s power to protect public health.
Recall that Barrett defined a pragmatic judge as one who tends “to favor broader judicial discretion,” and formalistic judges as those who “tend to seek constraints on judicial discretion.” Since joining the Court, Barrett has sought to maximize her own discretion to veto federal regulations, while eliminating longstanding constraints on judicial power. And she’s largely succeeded in these efforts because she has five colleagues who share the same goal.
Consider the Court’s recent decisions in National Federation of Independent Business (NFIB) v. Department of Labor (2022), which struck down the Biden administration’s rule requiring most workers to either be vaccinated against Covid-19 or be regularly tested for the disease, and Alabama Association of Realtors v. Department of Health and Human Services (2021), which struck down the Centers for Disease Control and Prevention’s eviction moratorium in areas with substantial levels of Covid transmission.
Both cases questioned the power of federal agencies to write binding national regulations under long-existing federal statutes empowering those agencies to do just that. Before former President Donald Trump started remaking the judiciary, the Court’s decisions governing such rules urged judges to be deferential to both the agencies themselves and to the Congress that delegated such power to an agency.”
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“In NFIB and Alabama Association of Realtors, however, the Court walked away from this more restrained approach to judging — with Barrett joining the majority in both decisions. Both cases relied on the so-called “major questions doctrine,” a doctrine that was invented entirely by judges, and that has no basis in any statute or in the Constitution’s text.
This doctrine places vague limits on federal agencies’ power to issue regulations that are likely to have a significant impact. “We expect Congress to speak clearly when authorizing an agency to exercise powers of ‘vast economic and political significance,’” the Court stated in both the NFIB and the Alabama Association of Realtors cases.
The problem with this major questions doctrine is, as federal appellate Judge Jane Stranch wrote in a lower court opinion upholding the Biden administration’s vaccination rules, “the doctrine itself is hardly a model of clarity, and its precise contours—specifically, what constitutes a question concerning deep economic and political significance—remain undefined.” The Court also hasn’t explained just how “clearly” Congress must “speak” if it wishes to delegate important powers to a federal agency.
The major questions doctrine, in other words, is an invitation to pragmatic judging. The major questions doctrine maximizes judicial discretion because it is so vague, and thus permits judges to invoke it whenever they disagree with a federal regulation and wish to strike it down. After all, if no one can say for sure “what constitutes a question concerning deep economic and political significance,” then the ultimate answer to this question will rest with Barrett’s court.
The same can be said about the nondelegation doctrine, a similarly vague constraint on federal agencies advanced by Barrett’s five Republican colleagues. (The Court’s most recent majority opinion discussing this doctrine, Little Sisters v. Pennsylvania, was decided a few months before Barrett joined the Court in 2020. So there is still a little uncertainty regarding Barrett’s views on nondelegation.)
The nondelegation doctrine would scrap the deferential approach that the Court advocated in Mistretta. In Gorsuch’s words, nondelegation calls upon judges to strike down federal laws permitting agencies to regulate, unless those laws were “‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain’ whether Congress’s guidance has been followed.”
Thus, like the major questions doctrine, the nondelegation doctrine is so vague that it maximizes the discretion of judges to restrict federal agencies. It is a fundamentally pragmatic doctrine under Barrett’s distinction between pragmatic and formalistic judges.”
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“In Brnovich v. Democratic National Committee (2021), for example, the Court fabricated a bunch of new limits on the Voting Rights Act that appear nowhere in the law’s text — including a strong presumption that voting restrictions that were in place in 1982 are lawful, or a similar presumption favoring state laws purporting to prevent voter fraud. As Justice Elena Kagan wrote in dissent, Brnovich “mostly inhabits a law-free zone.””
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“It would be one thing if this Supreme Court were honest about what it is doing. It could write explicitly pragmatic opinions — which emphasize the justices’ desire to reach results that a majority of them deem to be fair, and which admit openly that these results cannot be justified by any provision of the Constitution or any federal statute.
But the Court is not being honest about what it is doing. Rather than admitting that they are engaged in an unfettered, pragmatic approach to judging, the conservative justices continue to wrap themselves in the rhetoric of judicial formalism.”
“While the 2008 Games were marked by some of the worst air quality in Olympic history, China’s “war against pollution” has advanced so much since that Olympians this month could glimpse the previously smog-enshrouded mountains surrounding the city. Air pollution in the capital has decreased by 50 percent since the 2008 Olympics, which if maintained will lead to four years of additional life for the average Beijing resident.”
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“Thousands of miles away in Delhi, air pollution has remained at pervasively high levels for the past few months. The Indian capital’s winter air pollution spike is coming to an end, but the annual cycle — driven by cooler air, cooking and heating fires, seasonal agricultural burning, and the Diwali festival — will persist without further action.
Winter in Delhi is accompanied by a pervasive smell of toxic smoke, by coughing and nausea indoors and outdoors, and by increased hospitalizations for respiratory and cardiac-related illnesses. This past November, Delhi even instituted a partial lockdown for non-Covid reasons, shutting down schools and construction for several days and imposing a work-from-home order for government employees in an effort to reduce air pollution. Throughout the winter into January, Delhi’s Chief Minister Arvind Kejriwal tweeted the city’s bad air pollution levels every day, raising awareness about the issue.
Air pollution in Delhi comes from nearly every source possible: power plants, vehicle emissions, construction dust, agriculture, and the burning of coal for home cooking and heating. All of these activities create particulate matter — minuscule air pollution particles that contribute to cancer, lung and cardiovascular disease, and even cognitive decline.”
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“Millions of deaths per year are attributed to air pollution, and it reduces average global life expectancy by 2.2 years. Air pollution is one of the most pressing public health problems in the world, and one of the most neglected, as Vox’s Dylan Matthews has written. Before the Covid-19 pandemic, poverty, malaria, pneumonia, and diarrheal disease deaths were on the decline, along with maternal and child mortality rates; air pollution, on the other hand, was getting worse in many places.”
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“For decades, public health officials have known that bad air quality can increase the risk of conditions like heart disease, stroke, lower respiratory infections, lung cancer, diabetes, chronic obstructive pulmonary disease (COPD), dementia, mental illness, premature births, and more. But the true extent of the problem — such as the fact that air pollution can be worse for health than heavy smoking, for example — is only now becoming clear, as is the full extent of the threat.”
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“Since the fuel sources that produce air pollution also provide necessities such as electricity, vehicles, factory-made goods, and heating, policymakers face tough decisions on how to deal with air pollution-related health concerns while not eroding well-being in other ways.”
“The US is not a major consumer of Russian crude oil, which makes up less than 4 percent of US consumption, so banning imports shouldn’t have a huge effect; the US doesn’t import any Russian gas. The US can make up the oil gap with imports from other countries, and the Biden administration already is pursuing that path by opening talks with Venezuela. Nor is Russia all that reliant on the US, because US purchases account for about 9 percent of its exports.
The bigger impact on the price of oil comes from what Biden’s announcement portends. Global oil prices have been fluctuating wildly in recent days, reflecting that there is a wide range of uncertainty over what could happen next. One of the uncertainties is whether more countries will follow the US’s move to ban imports, taking Russian oil off the table for a number of foreign markets. Cutting out Russia makes oil more expensive, because it upends the existing network of pipelines and makes countries’ paths to getting oil longer and more expensive.”
“For a long while, Russia has “flooded the zone” and bombarded the population with so many contradictory accounts of reality that they weren’t sure what to believe, or they were too cynical to believe anything. But now it’s full Orwellian control of reality, and that’s a much heavier lift because it’s not about undermining consensus, which is easy; it’s about enforcing one.”
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“I have to be honest, there were a handful of people here who have been warning about this for a long time, who were telling people like me that this was going to be a fascist dictatorship one day, and we’ve been dismissing these people. We were like, “Come on, Putin is a cynic, he’s evil in so many ways, but at least he’s a rational guy. All he wants to do is get himself insanely rich. He’s not going to do anything really drastic.”
But we were all fucking wrong. The alarmists were right all along, and almost every one of them is either dead or in jail or exiled.”
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“we’re in uncharted waters. All these major foreign media outlets, like the New York Times and the BBC, are fleeing Moscow. That’s never happened. The New York Times has had a bureau in Moscow throughout the entire 20th century, including three revolutions and two world wars and the entire Cold War. But now Moscow isn’t safe for the New York Times. I really don’t have the words to describe how unpredictable this situation is.”
“The researchers surveyed more than 6,000 people in the United States, United Kingdom, European Union, Australia, and New Zealand. They contacted them first in December 2020, to assess their intentions before the vaccines were widely available, and asked them to pick a number between 0 and 10 to represent their likelihood of getting vaccinated. Then they followed up in summer of 2021 to see how people actually behaved.
To me, their most interesting findings concerned the most ardent vaccine refusers. Six months later, one-third of the people who had rated themselves 0 in December had gotten vaccinated.
So what happened? What convinced them?
Some of it was circumstances. Among those who had put themselves between 0 and 3 on getting vaccinated, those who were older (and therefore at higher risk of serious illness) and concerned with their health risks were more likely to get vaccinated in spite of their skepticism. So did the people who anticipated indirect exposure to Covid-19 through their friends or relatives. People who consumed more traditional media and who had more trust in scientists were also more likely to come around.
Vaccine mandates were not in effect at the time of these surveys, but the study generally found a mixed response to compulsory vaccinations among the respondents.”
“It should be acknowledged that his approach offers real insight. Indeed, though it is not stated out loud, Mearsheimer’s diagnosis of the Ukraine crisis is shared de facto by a large part of the US foreign policy establishment. The promise of Nato membership bounced through by the Bush administration in 2008, was an act of hubris. The West will not abandon Ukraine, but nor will it intervene militarily. Part of the rage against Mearsheimer is deflected frustration on the part of liberals who recognise in his frankness with regards to the actual limits of Western commitment – and there are good reasons for those limits. A direct confrontation with Russia is something that Nato has always tried to avoid. The US made it clear to Putin that there would be no military participation. Emergency weapons deliveries go a long way towards blurring that line. A no-fly zone would be lethally dangerous.
But for all that, to claim this as an intellectual victory for Mearsheimer’s realism would be perverse. He is no doubt right about the underlying causes of tension. But that is not the same as actually explaining war, any more than gesturing to imperialism is an adequate explanation for why the Kaiser gave the Austrians a blank cheque in July 1914. The realist model is grossly underspecified and fails to grasp the qualitative shift implied by the opening of hostilities. The Prussian general Carl von Clausewitz may have said that war is the extension of policy by other means. But that still raises the question of why anyone, great power or not, would resort to such a radical and dangerous means.
In Moscow itself, none of the serious foreign policy establishment – all devotees to Russia’s future as a great power – believed that Putin would go to war. They were incredulous not because they do not understand the logic of power, but precisely because they do. They saw no good reason for Russia to risk employing the means of all-out war, with all its hazards, uncertainties and costs. Events are proving them right.
Morality and legality are one reason for opposing war. The other is simply that over the last century at least, it has a poor track record for delivering results. Other than wars of national liberation, one is hard pressed to name a single war of aggression since 1914 that has yielded clearly positive results for the first mover. A realism that fails to recognise that fact and the consequences that have been drawn from it by most policymakers does not deserve the name.”
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“If we want to understand what happened in the Kremlin to precipitate the criminal folly of the invasion, what we need are not platitudes about the security dilemmas of great powers, but a forensic account of an epic failure of decision-making and intelligence.”
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“adopting a realistic approach towards the world does not consist in always reaching for a well-worn toolkit of timeless verities, nor does it consist in affecting a hard-boiled attitude so as to inoculate oneself forever against liberal enthusiasm. Realism, taken seriously, entails a never-ending cognitive and emotional challenge. It involves a minute-by-minute struggle to understand a complex and constantly evolving world, in which we are ourselves immersed, a world that we can, to a degree, influence and change, but which constantly challenges our categories and the definitions of our interests. And in that struggle for realism – the never-ending task of sensibly defining interests and pursuing them as best we can – to resort to war, by any side, should be acknowledged for what it is. It should not be normalised as the logical and obvious reaction to given circumstances, but recognised as a radical and perilous act, fraught with moral consequences. Any thinker or politician too callous or shallow to face that stark reality, should be judged accordingly.”