Good Friday Morning, especially to Moderna and Johnson & Johnson this week, who both announced study results showing their vaccines work against the Delta variant (aka the Indian variants). J&J ran a small study measuring immunity response against Delta, which showed promising results. Moderna’s study went a bit further. They announced:
Vaccination with the Moderna COVID-19 Vaccine produced neutralizing titers against all variants tested, including additional versions of the Beta variant (B.1.351, first identified in South Africa), three lineage variants of B.1.617 (first identified in India), including the Kappa (B.1.617.1) and the Delta variants (B.1.617.2); the Eta variant (B.1.525, first identified in Nigeria); and the A.23.1 and A.VOI.V2 variants first identified in Uganda and Angola, respectively.
Long story short: the delta variant appears to only be a threat for the unvaccinated adult population. If you’ve received a Johnson & Johnson, AstraZeneca, Moderna, or Pfizer vaccination, you’re in good shape given all the information we have so far.
This week, I’m going to talk about why I don’t understand the progressive left when it comes to the law anymore. In the process, we’ll hit all the big cases you’ve seen this week from Bill Cosby and Britney Spears to the last two Supreme Court cases of the term. Links to follow.
Where you can find me this week
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Woke corporate America defends Chinese slavery – The Conservative Institute.
Bipartisan infrastructure spending plan could increase inflation – The Conservative Institute.
On law, the Cosby case, the Supreme Court, and more.
When I was a law student, one of my professors liked to joke that in law school, the object of the legal academy was to spend three years lobotomizing the human brain, scramble everyone up, and then send us back to society to interact with normal human beings. There’s a lot of truth to that. It’s a lobotomy compounded by immense stress. What happens first is that you graduate from law school, and then you face the bar exam, which is the single most stressful experience of your life.
You can be top of the class in law school, but if you fail that bar exam, you can’t make your degree actionable. So law students go from the joy of graduating law school to immediately cramming and taking practice tests from May until the end of July (tests they design on purpose for you to fail), preparing for one test that decides whether or not you’re a lawyer. Then boom, you take the test, and then nothing for another three months as you wait for results.
It took me 4-5 months to fully recover from that mentally. And even then, you know your brain has changed forever. For instance, I was watching a random video on Instagram of this crowded wave pool. My first thought was, “I bet they have interesting liability insurance and waivers for people to sign.”
I start here to explain that I know, instinctively, how most lawyers think. We all kind of do. We’re all alike in many respects. There are fundamental differences, of course. For instance, in classes like criminal law, classrooms typically break down into those who are sympathetic towards police and government (prosecutor-friendly) and those who have sympathy towards defendants against the state (me). My skepticism towards the government runs deep; what can I say?
But we share similar thought patterns because we’re required to understand and think certain things to have the degree and pass the bar. There’s a price. You also develop networks of friends with lots of other attorneys. And let me tell you now, no one on earth can genuinely hate another lawyer quite like an attorney. I’m convinced half of the lawyer jokes out there got written by other attorneys. I’ve dealt with one over the last week that has hit more than a few of my nerves.
Anyway, we typically understand each other. But there is truly something different about progressive legal minds because I do not understand them at all. I’ve studied all kinds of interpretive theories, including the current hot topic of critical race theory (CRT). But modern white progressives make no sense. This week is a prime example.
The Cosby Case.
Let’s start with the case that everyone has talked about, and even I’ve been texting about with some of my law school friends: The Bill Cosby case.
I’ll give you my million-dollar unpopular hot take right here: The Pennsylvania Supreme Court got it right. The prosecutors messed up, and as a result, Bill Cosby is going to walk free despite admitting to most of the things he did under oath.
For most of the week, my white progressive friends have said that the Cosby case is a symptom of a system that is corrupt and needs to get torn down. I’m barely paraphrasing one guy who has run CLE seminars for lawyers on various aspects of the law. He’s ranted multiple times about the evilness of the American system and that it needs to get torn down.
Here’s what happened in the Cosby case. First, the District Attorneys involved all believed the same thing: they would never be able to convict Cosby without his confession. But under criminal law, Cosby has the protection of the Fifth Amendment not to testify and incriminate himself. He has the right to remain silent. Cosby also had the threat of a civil lawsuit against him. He refused to testify in that case, too, under the same argument because if he did, the government could use that testimony against him in a criminal trial. The civil trial presented criminal possibilities, so he refused to testify, relying on the 5th amendment.
So what the prosecutor decided and announced to the press and everyone was: We will not prosecute Bill Cosby, and he is under no criminal threat from us. If the state couldn’t do anything to Cosby, that could force Cosby to testify at his civil trial to help the victims get some relief. 5th amendment protections don’t apply in a civil trial if no criminal threat exists. Suppose Cosby got induced to testify in a civil trial, where his 5th amendment protections didn’t apply. In that case, he’d have to admit things under oath that were incriminating and would force more money out of him.
That all happened. The state then turned around, under a new prosecutor, and decided to use that same testimony against Cosby, basically breaking the agreement. They then claimed Cosby had voluntarily given away his 5th amendment rights.
The Pennsylvania Supreme Court smacked that down as violating Cosby’s due process rights and pointing out that the government tried to circumnavigate the Constitution to get the desired result.
Thus Cosby walks, even though he’s admitted under oath everything he did. The government gave away prosecution as an avenue, and they can’t take that back if they forced Cosby to do something. It’s akin to a contract.
Are there arguments against the Pennsylvania Supreme Court decision? Sure! That’s why there are dissents. I know I’ve got some prosecutorial friends who disagree with it and would argue against that position. But that’s different than arguing, as many of the white progressives I know are doing, that the Cosby decision is evidence of a rotten and diseased judicial process.
The only evidence I see is that a prosecutor wanted a result and violated the Constitution to get that result at the height of the #MeToo era. Bill Cosby should still be behind bars for what he did, and I don’t think there’s any question of that based on his own confessions. But he’s not the one who tried to break Constitutional norms to get a conviction. That’s on the government and the prosecutors.
At one point, progressives understood this principle. Progressives used to defend due process, at least some. They don’t anymore. It’s all about the final result and getting there no matter what.
The Supreme Court cases.
There are a few other examples this week, too, from the last two decisions from the Supreme Court.
First up, Brnovich v. Democratic National Committee. In a nutshell, at issue here was Arizona’s new voting laws which included, among many things, bans on ballot harvesting, and they wouldn’t count your ballot if you voted early in the wrong precinct. As far as voting laws go, it was pretty vanilla stuff. Democrats argued that this violated the Voting Rights Act because it was racially motivated and caused racial disparities. The Supreme Court ended up affirming Arizona’s right to have this law.
Biden came out and claimed he was “deeply disappointed” in the Supreme Court’s decision, and said, “In a span of just eight years, the Court has now done severe damage to two of the most important provisions of the Voting Rights Act of 1965 – a law that took years of struggle and strife to secure.” The left had a total freak out about the case.
And it’s all utter nonsense. First, Biden isn’t “deeply disappointed.” In February of this year, his administration sent a note to the Supreme Court saying “[the Biden administration] does not disagree with the conclusion in [the Trump administration’s] brief that [the Arizona measures] violate Section 2’s results test.” The Biden administration didn’t want the Supreme Court to adopt a new framework for interpreting the Voting Rights Act. The Trump administration had proposed one such framework in their brief. But the Court declined to establish a framework. The Supreme Court explicitly stated this early on in the majority opinion (which Gorsuch and Thomas restated in a concurrence):
…we think it prudent to make clear at the beginning that we decline in these cases to announce a test to govern all VRA §2 claims involving rules, like those at issue here, that specify the time, place, or manner for casting bal- lots. Each of the parties advocated a different test, as did many amici and the courts below. In a brief filed in December in support of petitioners, the Department of Justice proposed one such test but later disavowed the analysis in that brief. The Department informed us, however, that it did not disagree with its prior conclusion that the two provisions of Arizona law at issue in these cases do not violate §2 of the Voting Rights Act. All told, no fewer than 10 tests have been proposed. But as this is our first foray into the area, we think it sufficient for present purposes to identify certain guideposts that lead us to our decision in these cases.
The Court will eventually adopt a framework but declined to do so here. Biden and Democrats are freaking out over something that they wanted to happen. The Biden administration explicitly argued the Arizona law was acceptable.
The entire Biden outrage statement and the politics around it is a lie.
There was a similar freakout regarding the second case released Thursday, Americans for Prosperity Foundation v. Bonta. At issue, there was a California law requiring various non-profit organizations to release the names of their donors. The Supreme Court struck that law down because it violated the First Amendment. The Court’s conservatives noted that activists were using those donor lists to attack them. It wasn’t about disclosure; it was about targeted harassment.
The left was calling it a victory for dark money and tried casting it in the light of an evil Koch brothers’ decision since their organization Americans for Prosperity was involved. It was, again, all nonsense. White progressives are having a freakout by themselves.
Here’s an interesting factoid you may not know. The following groups filed amici briefs agreeing with conservatives in this case: The American Civil Liberties Union, the Council on American-Islamic Relations (CAIR), the NAACP, the Human Rights Fund, People for the Ethical Treatment of Animals, the Southern Poverty Law Center, and more. All far-left organizations and every last single one was writing in agreement with conservatives.
Senator Sheldon Whitehouse, a Democrat from Rhode Island, called it an awful decision and derisively called all these groups “dark money” organizations. He can’t name the groups involved because if he did, he’d reveal that all the significant legal groups on his side think he’s wrong. Also, suppose Sheldon Whitehouse wanted to be transparent about donor lists. In that case, he could start by releasing all the names of everyone who gives money to the whites-only club, of which he’s a long-time member. If he and Democrats truly believe in tearing down systemic racism, a whites-only club that has US Senators as its member seems like a good place to start, right?
That won’t happen, of course.
The law isn’t perfect. Nothing is. For instance, I don’t have the slightest clue why Britney Spears currently has one of the most bizarre conservatorship relationships I’ve ever seen. I’ll be honest. I did not know you could legally do some of the things that she describes in her testimony via any legal arrangement on earth. I have to assume there’s more to that story because it is utterly bizarre to my lawyer brain.
But aside from things like that, the law often gets things right. And the Supreme Court got those last two cases right. The Pennsylvania Supreme Court got that case right. The system is not rotten to the very core, as some progressives would have you believe. It works.
Can it be better? Sure. Former Speaker of the House Sam Rayburn was fond of saying, “Any jackass can kick down a barn, but it takes a good carpenter to build one.” The progressive impulse to attack the legitimacy of our institutions, like the law, is coated in a fine piece of criticism of various wrongs that occur. And those are sometimes fair. But they’re not building anything new.
The question you have to ask: are people trying to build, or do they want to tear things down? The law is imperfect, but it is flawed because we are imperfect. We set it as a standard we wish to obtain. But sometimes those standards can clash: sometimes you have to support due process, and in turn, let someone like Bill Cosby go. You don’t get to pick the “good” situations in which to reign the government. You have to check them when they step out of line the moment it happens.
It’s weird how progressives have changed over the years. In a previous generation, they’d have praised something like the Cosby decision because they’d have understood that protecting due process and establishing those rights was more important. They’ve seemingly lost that mooring to reality. And I no longer understand them, even though many of them claim the same legal education and background.
It’s a strange situation. I hope it changes one day. But right now, you have to push forward and keep hammering away at some of their stupidity, one case at a time.
Links of the week
[I clicked on this clickbait, so you have to too] Radioactive Boar-Pig Hybrids Emerge From Fukushima Disaster Site, According To Study – The Daily Wire
Kennedy’s Presidency Accomplished Little, But His Historic Myth Endures – Jonathan Chait, NYMag
Ilhan Omar Knows What She’s Doing: The Democratic congresswoman says she has always been somebody who ‘understands how words can be harmful and hurtful to people.’ We believe her. – The Washington Free Beacon
The Grift That Keeps on Grifting: How three media delusions from the Trump era are still ruining everything – James Kirchick, Tablet Magazine
The New Racism won’t solve the Old Racism – Bret Stephens, The New York Times
In the UK, Resistance to Transgender Activism Is Fueled by Socialized Medicine and Feminist Wine Moms – The Washington Free Beacon
IT IS JUST HYPE TO CALL ELECTISM A RELIGION? Some think it’s just that I don’t like religion and haven’t studied it. And they’re right. But that doesn’t mean we haven’t watched a religion emerge since last year. – John McWhorter
When a Free Society Becomes a Police State: For 26 years, the pro-democracy tabloid Apple Daily was a thorn in Beijing’s side. This week, the paper closed for good. What its death means for Hong Kong — and for us all. – Bari Weiss
Twitter Thread(s) of the week
Satire of the week
Thanks for reading!