Althouse | category: Emily Bazelon



an endless succession of beans and nuts.

200 journalists and writers release an open letter to the NYT to raise "serious concerns about editorial bias in the newspaper’s reporting on transgender, non-binary, and gender nonconforming people.”

Hell Gate reports.
The open letter, whose signees include regular contributors to the Times and prominent writers and journalists like Ed Yong, Lucy Sante, Roxane Gay, and Rebecca Solnit, comes at a time when far-right extremist groups and their analogues in state legislatures are ramping up their attacks on trans young people....
In recent years and months, the Times has decided to play an outsized role in laundering anti-trans narratives and seeding the discourse with those narratives, publishing tens of thousands of handwringing words on trans youth—reporting that is now approvingly cited and lauded, as the letter writers note, by those who seek to ban and criminalize gender-affirming care.
Hell Gate has an interview with Jo Livingstone, "an award-winning critic and writer who helped organize the open letter."

Here's the open letter. I'll highlight what I think are important parts:
The newspaper’s editorial guidelines demand that reporters “preserve a professional detachment, free of any whiff of bias” when cultivating their sources, remaining “sensitive that personal relationships with news sources can erode into favoritism, in fact or appearance.” Yet the Times has in recent years treated gender diversity with an eerily familiar mix of pseudoscience and euphemistic, charged language, while publishing reporting on trans children that omits relevant information about its sources.

For example, Emily Bazelon’s article “The Battle Over Gender Therapy” uncritically used the term “patient zero” to refer to a trans child seeking gender⁠-⁠affirming care, a phrase that vilifies transness as a disease to be feared.

Are persons seeking "gender⁠-⁠affirming care" not "patients"? If they are not suffering from a condition to be feared, then why is treatment provided? Why are they not told they are fine as they are?

We discussed the Bazelon article on this blog, here

Back to the open letter:

Bazelon quoted multiple expert sources who have since expressed regret over their work’s misrepresentation. Another source, Grace Lidinksy⁠-⁠Smith, was identified as an individual person speaking about a personal choice to detransition, rather than the President of GCCAN, an activist organization that pushes junk science and partners with explicitly anti⁠-⁠trans hate groups.

In a similar case, Katie Baker’s recent feature “When Students Change Gender Identity and Parents Don’t Know” misframed the battle over children’s right to safely transition.

I blogged that story here.

Back to the open letter: 

The piece fails to make clear that court cases brought by parents who want schools to out their trans children are part of a legal strategy pursued by anti-trans hate groups. These groups have identified trans people as an “existential threat to society” and seek to replace the American public education system with Christian homeschooling, key context Baker did not provide to Times readers.

The natural destination of poor editorial judgment is the court of law.

I had a lot of trouble understanding that last sentence. I doubt if you would understand it without reading what comes next, but let me translate. The idea is that the NYT articles have been cited in court cases dealing with legislation about children seeking transgender treatments.

Last year, Arkansas’ attorney general filed an amicus brief in defense of Alabama’s Vulnerable Child Compassion and Protection Act, which would make it a felony, punishable by up to 10 years’ imprisonment, for any medical provider to administer certain gender⁠-⁠affirming medical care to a minor (including puberty blockers) that diverges from their sex assigned at birth. The brief cited three different New York Times articles to justify its support of the law: Bazelon’s “The Battle Over Gender Therapy,” Azeen Ghorayshi’s “Doctors Debate Whether Trans Teens Need Therapy Before Hormones,” and Ross Douthat’s “How to Make Sense of the New L.G.B.T.Q. Culture War.” As recently as February 8th, 2023, attorney David Begley’s invited testimony to the Nebraska state legislature in support of a similar bill approvingly cited the Times’ reporting and relied on its reputation as the “paper of record” to justify criminalizing gender⁠-⁠affirming care....

David Begley! 

As thinkers, we are disappointed to see the New York Times follow the lead of far-right hate groups in presenting gender diversity as a new controversy warranting new, punitive legislation.

I think the NYT is showing leadership and not allowing itself to be led around by the doctrinaire left.

Puberty blockers, hormone replacement therapy, and gender⁠-⁠affirming surgeries have been standard forms of care for cis and trans people alike for decades....

Please cite the science. Is there some idea that medical treatments, once they've gone on for a while, must be correct and above question? Obviously not.

In that view, read this: "What the world can learn from a lobotomy surgeon’s horrible mistake." That's in the Washington Post, published yesterday, written by Megan McArdle.

Back to the open letter:

You no doubt recall a time in more recent history when it was ordinary to speak of homosexuality as a disease at the American family dinner table—a norm fostered in part by the New York Times’ track record of demonizing queers through the ostensible reporting of science.

In 1963, the New York Times published a front⁠-⁠page story with the title “Growth of Overt Homosexuality in City Provokes Wide Concern,” which stated that homosexuals saw their own sexuality as “an inborn, incurable disease”—one that scientists, the Times announced, now thought could be “cured.”

And, now, we're in a time when doctors are providing treatments for transgender persons. What is the lesson here?  

The word “gay” started making its way into the paper. Then, in 1975, the Times published an article by Clifford Jahr about a queer cruise (the kind on a boat) featuring a “sadomasochistic fashion show.” On the urging of his shocked mother, Times publisher Arthur Ochs Sulzberger sent down the order: Stop covering these people. The Times style guide was updated to include the following dictum, which stood until 1987: “Do not use gay as a synonym for homosexual unless it appears in the formal, capitalized name of an organization or in quoted matter.”

New York Times managing editor and executive editor A. M. Rosenthal neglected to put AIDS on the front page until 1983, by which time the virus had already killed 500 New Yorkers. He withheld planned promotions from colleagues he learned on the grapevine were gay. Many of his employees feared being outed. William F. Buckley published his op-ed arguing that people with HIV/AIDS should all be forcibly tattooed in the Times. Obituaries in the Times ascribed death from HIV/AIDS to “undisclosed causes” or a “rare disorder,” and left the partners of the deceased out entirely from its record of their lives. This era of hateful rhetoric also saw the rise of the term “patient zero,” used to falsely accuse an HIV/AIDS patient of deliberately infecting others. This is the same rhetoric that transphobic policymakers recently reintroduced to the American lawmaking apparatus by quoting Emily Bazelon’s Times article.

Yes, there is some bad history there. The NYT should be on guard not to make more mistakes — either similar mistakes or new mistakes overreacting to its famous old mistakes. 

Some of us are trans, non⁠-⁠binary, or gender nonconforming, and we resent the fact that our work, but not our person, is good enough for the paper of record.

What does it mean to say the NYT rejects your "person"?  

Some of us are cis, and we have seen those we love discover and fight for their true selves, often swimming upstream against currents of bigotry and pseudoscience fomented by the kind of coverage we here protest.

I do not see where they have pointed out "bigotry and pseudoscience." Perhaps they mean that the Times articles were not "bigotry and pseudoscience," but they "fomented" "bigotry and pseudoscience" in others.

All of us daresay our stance is unremarkable, even common, and certainly not deserving of the Times’ intense scrutiny. A tiny percentage of the population is trans, and an even smaller percentage of those people face the type of conflict the Times is so intent on magnifying. There is no rapt reporting on the thousands of parents who simply love and support their children, or on the hardworking professionals at the New York Times enduring a workplace made hostile by bias—a period of forbearance that ends today.

The "period of forbearance... ends today."  That made me want to go back to the Hell Gate interview to see what, specifically, this end of forbearance would look like.

The interviewer asks: "Are y'all asking the people who signed on to, for example, agree to not contribute to the Times until there is a response? Is there anything concrete like that being planned?"

Livingstone responds that there was no agreement to do anything other than to sign the letter. She adds that "there will be more letters and more kinds of venues for nonprofits and institutions to sign on" and says, "We made a gathering space that people have just come to us, ready to support."

She concludes: 

And I am proud of and grateful for everybody who is taking a risk on their future engagement by this employer, to stand with us. So when I think about all of that bravery, I feel okay, and can take a nap.

Has the Court's Dobbs draft shifted the press and other partisans back to saying "women," or is "pregnant people" still something they feel disciplined to say?

The Star Tribune has a column (by lawprof Laura Hermer) titled "Pregnant people have rights. Products of conception don't. The leaked Dobbs draft opinion gets fetal rights backward." The text uses the phrase "pregnant person" 5 times and there's also one "person who gave birth" and 5 appearances. 

The word "women" does show up once at the very beginning and once at the very end — in the phrase "women's rights." If you want strong political speech on this issue, you need to say "women's rights." You invite ridicule — even if we stifle our urge to ridicule outside of the confines of our head — if you decorously substitute "pregnant people's rights."

At USA Today, there's "People of color, the poor and other marginalized people to bear the brunt if Roe v. Wade is overturned" by Nada Hassanein. Wouldn't it be stronger to write "Women of color, the poor and other marginalized women"? 

We're told: "If Roe is overturned, people may travel hundreds of miles to get to states where abortions are still allowed. Young and low-income people, who are disproportionately of color, may not be able to afford the cost of travel." Wouldn't "women" generate more empathy? But "people" is used to remember to be empathetic to trans people. 

Anyway, the word "woman" is also used repeatedly in that article, including to refer to the as-yet-not-renamed National Women’s Law Center. 

The Washington Post has "Roe to be decided in one of the worst cities to be Black and pregnant/The stakes are not evenly spread across people who become pregnant, and if the Supreme Court justices need a reminder of that, they don’t have to look far" (by Theresa Vargas). The article does use the word "women" many times, along with many appearances of "people." We're told the Court's "mulling over what protections pregnant people deserve" is occurring in a geographic location where "almost all the pregnant people dying are Black." There's a quote from a report that says "Black birthing people constitute roughly half of all births in DC." (As if the "birthing people" are the "births"!) 

There are a lot of pieces about the Dobbs draft in The Washington Post, but only one other uses "pregnant people": "Meet the Reddit ‘Aunties’ covertly helping people get abortions/The Reddit group offers a glimpse into a post-Roe era where people resort to informal networks to assist those locked out of an abortion" (by Pranshu Verma). This one is very intent on saying "people" and not "women." "People" appears 18 times and the only appearance of the word "women" (there's no "woman") is in a caption under a photo of a clinic that has the word "Women's" in its name. 

Meanwhile, in the NYT, the phrase "pregnant people" has only appeared once since the draft leaked (and there's no example of "pregnant person"). It's in a new column by Emily Bazelon, "Beware the Feminism of Justice Alito." 

So that's a little evidence that the "pregnant people" nicety is getting nixed.

I can't check every elite publication for the absence of "pregnant people" — not if I want to write in this form called blog — but I did check one more, which I regard as an exemplar of liberal elitism, The New Yorker. It has not printed "pregnant people" since last November, in "If Roe v. Wade Goes, What Next?" (by David Remnick). 

I'll stop here, so I can post, but I'll be looking at this issue.

"Granted that most of the mythologizing came later, but for RBG to decide she was indispensable in 2013-14, when there was a Democratic President and Democratic Senate majority..."

"... that could have replaced her with another liberal, was a cosmic misjudgment. (As de Gaulle is supposed to have remarked, the cemeteries are full of indispensable people.) Self-confidence is fine and good, and in her case it was fully justified. But to imagine that through sheer will power you can endlessly defy age and illness is hubris, and we know from the Greeks, hubris invites nemesis — now in the form of a court that will pick apart and discard half her legacy. This is the tragedy we are now facing."

That's one of the most highly rated comments at "Why Ruth Bader Ginsburg Refused to Step Down/She could have had President Obama nominate her successor. But she didn’t get to the Supreme Court by letting other people tell her what she could do" by Emily Bazelon (NYT).

By the way: "Mitt Romney Supports Replacing Ruth Bader Ginsburg Before the Election/Republicans are now almost guaranteed enough votes to replace the late justice before Nov. 3" (Buzzfeed). Romney offered what has become the stock GOP explanation: "The historical precedent of election year nominations is that the Senate generally does not confirm an opposing party’s nominee but does confirm a nominee of its own."

Nemesis ("In ancient Greek religion, Nemesis... is the goddess who enacts retribution against those who succumb to hubris (arrogance before the gods)"):

The NYT "took only minutes — with assistance from publicly available information — ... to deanonymize location data and track the whereabouts of President Trump."

So we are told, in a piece titled "How to Track President Trump," in what feels to me like too much of a prod to readers to do it yourself.

Here's how the article is promoted on the front page of the NYT website (where the image is animated, giving the impression that you can follow the President around in real time if you learn this how-to advice):


Notice the title at the bottom left: "Why Is Trump Finding More Protection Than Nixon Did?" That's not an article about the personal, physical protection of the President from violence, but you don't know that until you click through to the article, and I see no good innocent reason to use the word "Protection" in that headline. Even if the potential to stimulate of violent ideation was purely accidental, it should have been noticed and changed. The "How to Track President Trump" image was already creepy (especially in the animated version, where the dot moves quickly across a GPS image).

The "Protection" article elaborates many differences between the facts relating to impeachment for the 2 Presidents.

The "How to Track" article raises an alarm that it's too easy to track the President (and anyone else). It ends with a plea for more regulation: "The sources who provided the trove of location information to Times Opinion did so to press for regulation and increased scrutiny of the location data market... So far, Washington has done virtually nothing to address the threats, and location data companies have every reason to keep refining their tracking, sucking up more data and selling it to the highest bidders."

"The conservative Roberts majority will no doubt frame future rulings on voting restrictions and gerrymandering as solidly grounded in law and the Constitution."

"And yet it could become increasingly difficult to believe the court is doing law, not politics, if a conservative majority of Republican appointees issued decision after decision that had the effect of helping Republican candidates win elections.... Elections are the only obvious, if indirect, way for the public to express its discontent with a wayward Supreme Court. Maybe a mobilized Democratic Party can somehow overcome all the barriers of Republican entrenchment.... If a new dominant national alliance emerges to the left of the Roberts Court, maybe the justices will find a way to become a part of it. Or the Republicans could remain in power because they make a persuasive case to the voters, not because the court aids in eroding the democratic process...."

From "When the Supreme Court Lurches Right/What happens when the Supreme Court becomes significantly more conservative than the public?" by Emily Bazelon in the NYT.

I have little confidence that my excerpt will be comprehensible to anyone. One key is to understand that there's a theory that the judiciary is really a political branch, and that for all its posing as operating in a completely different mode — interpreting legal texts — it's really tracking democratic preferences. There's a concern that the new majority on the Court will permit redistricting and various voting law that will help Republicans win elections, putting them in control of the overtly political branches of government. And there's an idea that the Court will notice that those supposedly democratic branches are not properly majoritarian anymore and that distortion will motivate the Court — which is covertly political — to step into the role of representing what it knows to be the true majority.

I'm trying to put the argument in blunter language than Bazelon is using. I see that Bazelon is now the Truman Capote fellow for Creative Writing and Law at Yale Law School, which sounds like a fantastic position. But I wonder, what would Truman Capote write?

ADDED: What exactly is "creative writing"? Wikipedia says:
Creative writing is any writing that goes outside the bounds of normal professional, journalistic, academic, or technical forms of literature.... Both fictional and non-fictional works fall into this category....
I'm all for jumping outside the bounds of "normal" legal writing, though I don't like the term "creative writing." First, "creative" is way overused in our culture. Everyone's child is so creative, and young people accept low-paying jobs that are portrayed as "creative." Second, if you're writing nonfiction, you shouldn't be "creating" your facts. You want to be creative in what facts you pursue and how you present them, but why invite the confusion? The use of Truman Capote's name in connection with writing about law is also interestingly confusing, since Capote — for all his excellent writing style — was known to have deviated from rigorous truthtelling in his nonfiction work, "In Cold Blood." From Wikipedia:
Writing in Esquire in 1966, Phillip K. Tompkins noted factual discrepancies after he traveled to Kansas and spoke to some of the same people interviewed by Capote... Tompkins concluded:
Capote has, in short, achieved a work of art. He has told exceedingly well a tale of high terror in his own way. But, despite the brilliance of his self-publicizing efforts, he has made both a tactical and a moral error that will hurt him in the short run. By insisting that "every word" of his book is true he has made himself vulnerable to those readers who are prepared to examine seriously such a sweeping claim.
True crime writer Jack Olsen also commented on the fabrications:
"I recognized it as a work of art, but I know fakery when I see it... Capote completely fabricated quotes and whole scenes.... That book did two things. It made true crime an interesting, successful, commercial genre, but it also began the process of tearing it down. I blew the whistle in my own weak way. I'd only published a couple of books at that time – but since it was such a superbly written book, nobody wanted to hear about it."

In the NYT "Lives They Lived" annual feature, Emily Bazelon writes about Antonin Scalia as a "skeptic about science."

The grand year-end summary of those who have died commemorates Justice Scalia with the thesis statement: "He claimed objectivity when it came to originalism, but he was a skeptic about science."

That sounds so wrong to me. I don't think Scalia "claimed objectivity when it came to originalism." I think he aspired to neutrality and thought originalism at least imposed a standard that would make it possible to call out a judge who'd lapsed into deciding that the Constitution means what he'd like it to mean.

And I don't know what is the basis for calling him "a skeptic about science" unless you just mean he was skeptical of a judge's ability to know science well enough to use it in a neutral way or that he thought that unscientific cultural beliefs could be a rational basis for democratic choices.

So far I've only read the title of Bazelon's piece. Let's see what she's come up with — whether it makes sense and is fair and whether it has an appropriate attitude to belong in the set of year-end tributes that is the the NYT's traditional "Lives They Lived" feature.

Bazelon begins with Edwards v. Aguillard (1987), which is about teaching evolution, a subject that has distressed many religious parents for a long time. There was a Louisiana law that attempted to accommodate these people by requiring that — if evolution were taught — the alternative theory of "creation science" would also be taught.

The Supreme Court majority said this was a violation of the Establishment Clause because there was no secular purpose for the law. As Bazelon puts is:
For seven justices, the decision involved a simple constitutional question. They saw the law as an effort to force religious belief into the science curriculum, and they struck it down.
Justice Scalia dissented because there had not been a trial on the question whether "creation science" could be considered a legitimate, alternative scientific theory.
He saw the case as a question about certainty: What can we really know for sure? Pointing to “ample uncontradicted testimony that ‘creation science’ is a body of scientific knowledge, rather than revealed belief,” he chided his colleagues for treating the evidence for evolution as “conclusive.”
But the uncontradicted testimony that "creation science" is science had to do with whether those who challenged the law were entitled to summary judgment — getting a court to strike down the law without going to trial. Justice Scalia wasn't saying "What can we really know for sure?," but what do we know before going to trial and judging the credibility of the witnesses. And, beyond that: what's a scientific enough question to be permissibly included in a science class? As Justice Scalia wrote:
The people of Louisiana... are quite entitled, as a secular matter, to have whatever scientific evidence there may be against evolution presented in their schools, just as Mr. Scopes was entitled to present whatever scientific evidence there was for it. Perhaps what the Louisiana Legislature has done is unconstitutional because there is no such evidence, and the scheme they have established will amount to no more than a presentation of the Book of Genesis. But we cannot say that on the evidence before us in this summary judgment context, which includes ample uncontradicted testimony that "creation science" is a body of scientific knowledge, rather than revealed belief. Infinitely less can we say (or should we say) that the scientific evidence for evolution is so conclusive that no one could be gullible enough to believe that there is any real scientific evidence to the contrary, so that the legislation's stated purpose must be a lie. Yet that illiberal judgment, that Scopes-in-reverse, is ultimately the basis on which the Court's facile rejection of the Louisiana Legislature's purpose must rest.
Bazelon treats Scalia's Aguillard, written in his first term on the Court, as revealing the pattern his decisionmaking would take. She does get around to something close to what I sketched out in the second paragraph of this pose:
“History is a rock-solid science compared to moral philosophy,” Scalia said at the University of Virginia School of Law in 2010. In other words, he saw his project as stripping the law of judicial ideology. When his colleagues reached results that matched their politics, he derided them with the phrase “any stick to beat a dog,” according to another former clerk, Bruce Hay, now a law professor at Harvard. To prove the impartiality of originalism, Scalia often pointed to the occasional votes he cast against his preferences, like his support for a 5-to-4 ruling in 1989 that found a right to burn the flag in the First Amendment.
Fair enough. But why, if he liked history as a check on judicial activism did he also not show more interest in science? Again, Bazelon quotes a law professor:
And so it’s striking, observes Justin Driver, a law professor at the University of Chicago, “that the justice who more conspicuously than any other was invested in trying to make legal interpretation objective sometimes seemed to be skeptical of science itself, the best means we have of pursuing objectivity.” 
But was he skeptical of science or skeptical of the ability of lawyers and judges to slot science into their legal reasoning? I think Bazelon sees that it is the latter:
At an argument before the Supreme Court in 2006, in a case about climate change, a lawyer for Massachusetts gently corrected Scalia for referring to the stratosphere instead of the troposphere. “Whatever,” Scalia responded. “I told you before I’m not a scientist. That’s why I don’t want to have to deal with global warming, to tell you the truth.”
Bazelon says: "But the court had to deal." Actually, no. The case in question was about standing to sue, and the Court — on the existing doctrine — could very easily have said that Massachusetts did not meet the 3-part injury-in-fact test (which required finding that Massachusetts had a concrete and particularized threatened injury that was fairly traceable to the EPA's decision not to regulate new car emissions and that would likely be redressed by requiring that regulation). I was very surprised — and this was after teaching standing doctrine for more than 20 years — that the Court found standing. Scalia's dissent applied the doctrine in what was the conventional way I'd expected. His approach, finding no standing, really would have kept the Court out of the scientific matter. It would have left the question of how government should respond to global warming in the hands of Congress and the EPA.

Bazelon continues to the subject of same-sex marriage. Is that a science topic? It's a social science subject, and Scalia gets chided for refusing to see the social science research "as settled." I'm extremely wary of this idea that a person is hostile to science if he doesn't readily accept the assertion that science is settled! Bazelon writes:
In 2013, the lawyer defending California’s ban on same-sex marriage gave no examples of how allowing gay couples to marry could be harmful. “I don’t know why you don’t mention some concrete things,” Scalia prodded him. “There’s considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not.” In fact, at that point there was a strong body of evidence showing that children fare as well with gay parents as they do with straight ones.
I'm sure there is. I would expect that from social scientists, but the question was whether the states that didn't have same-sex marriage had a rational basis to think there was a legitimate reason for their law. If you look at the transcript from that oral argument, you will see that Justice Scalia is referring to the power of state legislatures to have this law because these "states... believe it is harmful -- and I take no position on whether it's harmful or not, but it is certainly true that -- that there's no scientific answer to that question at this point in time." The lawyer for the state then aptly pointed out that it was the other side's burden to show "that it's beyond debate that there will be no harm." That is, Scalia was talking about legal doctrine and whether democratic choice should prevail, not whether he believed the stronger "body of evidence" showed no harm to children. The question of what harms children is subtle and not subject to easy or conclusive research. Human life is an ongoing experience. It's at least arguably more scientific to say we don't know.

Finally, Bazelon criticizes Scalia for not accepting what she calls a "scientific consensus" that the death penalty does not deter murder!
He dismissed the findings of a panel of the National Research Council, which surveyed the relevant studies and unanimously concluded in 2012 that the death penalty does not have a deterrent effect. To support his claim to the contrary, Scalia cited three articles. Two were statistical studies that the National Research Council had discredited. The lead author of the third (which was not an empirical evaluation) had previously stated that his paper did not claim the death penalty had a deterrent effect. “Scalia was willing to cite work that was thoroughly refuted by an accepted scholarly institution, without feeling any need to buttress his position,” says John Donohue, a Stanford economist and law professor who conducts empirical research on the death penalty.
I thought the deterrent value of the death penalty — long rejected — had become a serious subject in recent years. Look at this 2007 NYT article. It quotes Cass Sunstein: "The evidence on whether it has a significant deterrent effect seems sufficiently plausible that the moral issue becomes a difficult one... I did shift from being against the death penalty to thinking that if it has a significant deterrent effect it’s probably justified." It's not surprising that more research ensued, and I'm not surprised that a panel of the National Research Council voted unanimously in favor of the old article of faith.

Here's what Scalia wrote about it in 2015, in Glossip v. Gross:
And finally, JUSTICE BREYER speculates that it does not “seem likely” that the death penalty has a “significant” deterrent effect. It seems very likely to me, and there are statistical studies that say so. See, e.g., Zimmerman, State Executions, Deterrence, and the Incidence of Murder, 7 J. Applied Econ. 163, 166 (2004) (“[I]t is estimated that each state execution deters approximately fourteen murders per year on average”); Dezhbakhsh, Rubin, & Shepherd, Does Capital Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel Data, 5 Am. L. & Econ. Rev. 344 (2003) (“[E]ach execution results, on average, in eighteen fewer murders” per year); Sunstein & Vermeule, Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs, 58 Stan. L. Rev. 703, 713 (2005) (“All in all, the recent evidence of a deterrent effect from capital punishment seems impressive, especially in light of its ‘apparent power and unanimity’”). But we federal judges live in a world apart from the vast majority of Americans. After work, we retire to homes in placid suburbia or to high-rise co-ops with guards at the door. We are not confronted with the threat of violence that is ever present in many Americans’ everyday lives. The suggestion that the incremental deterrent effect of capital punishment does not seem “significant” reflects, it seems to me, a let-them-eat- cake obliviousness to the needs of others. Let the People decide how much incremental deterrence is appropriate.
Let the People decide. That is judicial restraint, not hostility to science.

I myself love science, but I'm skeptical of the work product of scientists — especially social scientists. The scientists are human beings with opinions and preferences.

I'm sure many of them hate the death penalty and some of them structure the studies and look at the data under the influence of their opposition to the gruesome old practice. I know I, a human animal, do.

The scientists are human beings, who like me and like the people they may study, have minds that we can only struggle to understand.

Why does a scientist make a conclusion about what helps and hurts children or what stops a person from committing murder?

Who can ever plumb the depths of even the scientist's mind let alone the minds of all the children and of the people who murder and — where do you find them? — refrain from committing murder?

What makes a judge decide a case one way and not another?

What makes a NYT writer — and a Truman Capote fellow at Yale Law School — write about a conservative Supreme Court Justice as a man who claimed objectivity in originalism but was a skeptic about science?

We scarcely know. We can search forever and still scarcely know. And I consider myself decently scientific, saying that. Decently. Humanly. Why am I writing this, really? Can I even know my own mind? Why do I defend Justice Scalia when I see him attacked? Why does that feel unfair to me and why, of all things, is that what I jump to spend my morning parsing?

Ah! It's a mystery!

"The battle lines among American feminists over selling sex were drawn in the 1970s."

"On one side were radical feminists like the writer Andrea Dworkin and the lawyer and legal scholar Catherine MacKinnon. They were the early abolitionists, condemning prostitution, along with pornography and sexual violence, as the most virulent and powerful sources of women’s oppression. 'I’ve tried to voice the protest against a power that is dead weight on you, fist and penis organized to keep you quiet,' wrote Dworkin, who sold sex briefly around the age of 19, when she ran out of money on a visit to Europe. Other feminists, who called themselves 'sex positive,' saw sex workers as subverters of patriarchy, not as victims. On Mother’s Day 1973, a 35-year-old former call girl named Margo St. James founded a group in San Francisco called Coyote, for 'Call Off Your Old Tired Ethics.' Its goal was to decriminalize prostitution, as a feminist act. In its heyday, Coyote threw annual Hooker’s Balls, where drag queens and celebrities mixed with politicians and police. It was a party: In 1978, a crowd of 20,000 filled the city’s Cow Palace, and St. James entered riding an elephant. By the 1980s, Dworkin’s argument condemning prostitution moved into the feminist mainstream, with the support of Gloria Steinem, who began rejecting the term 'sex work.' St. James and the sex-positivists were relegated to the fringes....."

From a long NYT article by Emily Bazelon, "Should Prostitution Be a Crime?/A growing movement of sex workers and activists is making the decriminalization of sex work a feminist issue."

"A third-grader from St. Louis was told he couldn’t return to his elementary school next year — because he’s black."

How is this possible?, you may wonder. I know I did when I read the first reports of this boy's predicament. The explanation is that the child's family is moving out of the city school district and into a suburban school district. His city school is Gateway Science Academy, which was created as part of a desegregation effort, and he could continue to attend if he stayed in the area. But only white kids from the suburbs can cross into the city district, because the idea was to increase the proportion of white students in city schools. So when his family asked if he could still attend, they received a letter telling them that he can't because he's black.
The Missouri Department of Elementary and Secondary Education released a statement clarifying that the “unfortunate situation” is because “of the student’s change in residency.”
“Even if the family's new St. Louis County school district participated in the transfer program, the student would still not be able to transfer. This situation stems from the 1980 U.S. Court of Appeals ruling that the St. Louis City and County schools were maintaining segregated systems. In 1983, the schools reached a Desegregation Settlement Agreement allowing African-American students to transfer into primarily white suburban school districts and for non-African American students to attend St. Louis schools. The goal was to try to balance the racial makeup of the city and county schools,” the statement read.
The mother says: “The only thing I would really like out of this whole outcome are that the guidelines be revised for all children. I don’t think a factor of race should determine if a kid should be able to go to school or not, or the guidelines should have some leeway for how to deal with situations like this.... I don’t want any other families to go through what we’re going through.”

Legally, the question is whether the St. Louis City and County schools has eliminated the vestiges of de jure segregation. That's the compelling government interest that is seen as justifying the ongoing discrimination. After that, continued race discrimination, just for race balancing, violates the Equal Protection Clause, according to the 2006 Supreme Court case Parents Involved v. Seattle School District. That was a 5-4 case, and I think a new liberal majority would be eager to overrule or limit it.

As the mother says, a fix involving "some leeway" for "situations like this" could preserve the overall integration plan. The "situation like this" is a child who is already attending the school, who wants to continue, even as his family moves out of the district.

ADDED: Here's a NYT article by Emily Bazelon suggesting the perspective a new liberal majority would be likely to take on the school desegregation problem. Excerpt:
Justice Stephen Breyer sounded a sad and grim note of dissent [in Parents Involved]. Pointing out that the court was rejecting student-assignment plans that the districts had designed to stave off de facto resegregation, Breyer wrote that “to invalidate the plans under review is to threaten the promise of Brown.” By invoking Brown v. Board of Education, the court’s landmark 1954 civil rights ruling, Breyer accused the majority of abandoning a touchstone in the country’s efforts to overcome racial division. “This is a decision that the court and the nation will come to regret,” he concluded.

Breyer’s warning, along with even more dire predictions from civil rights groups, helped place the court’s ruling at the center of the liberal indictment of the Roberts court. In Louisville, too, the court’s verdict met with resentment. Last fall, I asked Pat Todd, the assignment director for the school district of Jefferson County, which encompasses Louisville and its suburbs, whether any good could come of the ruling. She shook her head so hard that strands of blond hair loosened from her bun. “No,” she said with uncharacteristic exasperation, “we’re already doing what we should be.”

"Have We Learned Anything From the Columbia Rape Case?"

This is a longish NYT Magazine article by Emily Bazelon. Is there anything new here or is this more of a summary of a problem — a conflict — that those of us who've been following the story already know?

1. How Nungesser's parents felt at graduation: It was "devastating," they say, "especially... an exhibition at a university gallery...  that included Sulkowicz’s prints of a naked man with an obscenity and of a couple having sex, inked over a copy of a Times article about Nungesser." I'm a little confused by the word "prints." Prints like etchings or lithographs? Sulkowicz — in email (I think to Bazelon) — called the "prints" "cartoons."

2. Sulkowicz's email gives some insight into the kind of rhetoric she is purveying: "What are the functions of cartoons? Do they depict the people themselves (a feat which, if you’ve done enough reading on art theory, you will realize is impossible), or do they illustrate the stories that have circulated about a person?" Suddenly, I'm thinking about the Charlie Hebdo massacre and other incidents involving cartoons depicting Muhammad. Maybe those who get murderous over cartoons just haven't read enough art theory. And I'm put off by the assertion that if only people would read the right amount of a prescribed sort of material, we'd necessarily believe a particular sort of thing. It's saying: The only reason you don't already agree with me is that you're ignorant.

3.  And I don't even understand how those 2 sentences in Sulkowicz's email addressed the pain experienced by Nungesser's parents. Aside from the parenthetical, which is an assertion, the 2 sentences are 2 questions, but the first question sets up the second question, and the second question is an either/or question, within which the first option is negated by the assertion in the parenthetical. Therefore, Sulkowicz really is saying her cartoons "illustrate the stories that have circulated about a person." So her art work is an illustration added to a NYT story that gives graphic reality to the allegations that were made about Nungesser.

4. I wrote "gives graphic reality to" because I was straining to avoid the word that normally comes to mind: depict. Not having read enough art theory to realize that it is impossible to depict Nungesser himself, I thought the use of that word might make me look ignorant to those who have done the homework. But, for the record, "depict" means "To draw, figure, or represent in colours; to paint; also, in wider sense, to portray, delineate, figure anyhow." Anyhow! As in "The solar progress is depicted by the Hindoos, by a circle of intertwining serpents." R. J. Sulivan View of Nature II. xliv. 288  (1794). (Definition and quote via the unlinkable OED.)

5. Columbia University President Lee C. Bollinger avoided shaking Sulkowicz's hand at graduation and the university has taken the position that it wasn't actual shunning but the mattress getting in the way. Bazelon doesn't come out and call bullshit, but she links to the video so we can decide for ourselves.

6. Because we don't have the transcript of Columbia's disciplinary proceedings, "even the procedural disputes between Sulkowicz and Nungesser are lost in the land of she-said-he-said." Sulkowicz says she was asked "ignorant and insensitive questions." (That's Bazelon's paraphrase.) But we're not seeing the actual context. And Sulkowicz and Nungesser are saying different things about whether their friendly Facebook conversations were admitted as evidence. It's frustrating to have this matter become so public — through Sulkowicz's performance art — and then be deprived of the transcript, but Columbia has to protect student privacy and to encourage other students to feel secure that their privacy will be protected if they need to file a complaint or if they are accused.

7. Columbia is trying to improve its procedure: "Students are now permitted to bring a lawyer to their hearings, and if they can’t afford an attorney, the university will provide one. The university also hired new investigators and other staff members and gave training on how to hear cases to the administrators who serve as panelists."

8. Sulkowicz says "the system is broken because it is so much based on proof that a lot of rape survivors don’t have." And: "Even if you have physical evidence, you can prove that violence occurred but not that someone didn’t want the sex to be violent." Presumably, she wants to fix the system by avoiding the need to prove things that are too hard to prove. Here, that would be the mental element that accompanies the sexual act. But how can you possibly get rid of the need for that evidence?

9. Some people say, get rape cases out of university proceedings and into the criminal justice system. Bazelon's response to that is: "[I]n the eyes of the government, universities have this responsibility because of an important principle rooted in the federal law, Title IX: If a rape prevents a victim from taking full advantage of her education, then it is a civil rights violation as well as a crime." Quite aside from what statutory law requires, universities may properly see themselves as having a role in making the campus environment a safer and friendlier place. Bazelon refers to counseling, academic accommodations, assurances that alleged assailants won’t contact complainants, and education about prevention of sexual assaults.

10. Bazelon mentions early on that Nungesser is suing Columbia, but she doesn't connect that to other issues she discusses. She doesn't say that his lawsuit is based on Title IX (though, as you see in point #9, she says that Title IX causes universities to want to remain involved in providing remedies to victims). And she talks about Bollinger's avoidance of Sulkowicz at graduation (point #5, above) without saying that Bollinger is a named defendant in Nungesser's lawsuit.
The NYT "took only minutes — with assistance from publicly available information — ... to deanonymize location data and track the whereabouts of President Trump."

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