Althouse

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• "One of the things we’re trying to push back hard against is reading his work in terms of the benevolence of his enslavers, assuming his owner taught him to write or gave him permission. There’s a risk that his story becomes a tonic to the cruelty of slavery.""
• The Supreme Court turns away 6 plaintiffs who seek relief after they were used, they say, as child slaves producing cocoa in the Côte d’Ivoire.
• "The refusal of Philadelphia to contract with CSS for the provision of foster care services unless [Catholic Social Services] agrees to certify same-sex couples as foster parents violates the Free Exercise Clause of the First Amendment."
• "Court tosses suit by Republican states challenging Affordable Care Act."
• The weeds of the morning —  milk and butterfly.
• The only thing I want to say about Toobin.
• "Some Democrats scoffed at the notion that the GOP would ever be able to deliver 10 votes needed to clear the filibuster. As of Wednesday night, they were at 11 — a number that appears likely to grow."
• Glenn Loury talks with John McWhorter about his adventure in Tucker Carlson land.
• Sunrise, 5:04 a.m.

"One of the things we’re trying to push back hard against is reading his work in terms of the benevolence of his enslavers, assuming his owner taught him to write or gave him permission. There’s a risk that his story becomes a tonic to the cruelty of slavery."" Posted: 17 Jun 2021 11:21 AM PDT Said Ethan Lasser, head of Art of the Americas at the Museum of Fine Arts Boston, quoted in "The Enslaved Artist Whose Pottery Was an Act of Resistance/Poetic jars by David Drake are setting records at auction and starring in art museums, showcasing the artistry of enslaved African Americans" (NYT).

The Supreme Court turns away 6 plaintiffs who seek relief after they were used, they say, as child slaves producing cocoa in the Côte d’Ivoire. Posted: 17 Jun 2021 08:06 AM PDT The opinion — in Nestlé v. Doe — is written by Justice Thomas, announcing the judgment of the Supreme Court and rejecting "a judicially created cause of action to recover damages from American corporations that allegedly aided and abetted slavery abroad." In Parts I and II of the case, where Thomas has a majority — Roberts, Breyer, Sotomayor, Kagan, Gorsuch, Kavanaugh, and Barrett (all but Alito) — he writes:  Respondents seek a judicially created cause of action to sue petitioners for aiding and abetting forced labor overseas. Arguing that aiding and abetting is not even a tort, but merely secondary liability for a tort, petitioners and the United States contend that "the conduct relevant to the [Alien Tort Statute's] focus" is the conduct that directly caused the injury. See id., at 346 (a plaintiff who "does not overcome the presumption against extraterritoriality . . . therefore must allege and prove a domestic injury"). All of that alleged conduct occurred overseas in this suit....  To plead facts sufficient to support a domestic application of the ATS, plaintiffs must allege more domestic conduct than general corporate activity. The Alito dissent is very short. Key insight: "Corporate status does not justify special immunity." ... I would hold that if a particular claim may be brought under the ATS against a natural person who is a United States citizen, a similar claim may be brought against a domestic corporation.

"The refusal of Philadelphia to contract with CSS for the provision of foster care services unless [Catholic Social Services] agrees to certify same-sex couples as foster parents violates the Free Exercise Clause of the First Amendment." Posted: 17 Jun 2021 07:26 AM PDT  The Supreme Court has just ruled in Fulton v. Philadelphia. ROBERTS, C. J., delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, KAVANAUGH, and BARRETT, JJ., joined. BARRETT, J., filed a concurring opinion, in which KAVANAUGH, J., joined, and in which BREYER, J., joined as to all but the first paragraph. ALITO, J., filed an opinion concurring in the judgment, in which THOMAS and GORSUCH, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS and ALITO, JJ., joined. I'll have much more about this soon.

"Court tosses suit by Republican states challenging Affordable Care Act." Posted: 17 Jun 2021 07:21 AM PDT "The justices ruled 7-2 that Texas and 17 other states lacked standing to argue that the individual mandate to purchase health insurance is unconstitutional" — SCOTUSblog reports.   Here's the opinion. BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, SOTOMAYOR, KAGAN, KAVANAUGH, and BARRETT, JJ., joined. THOMAS, J., filed a concurring opinion. ALITO, J., filed a dissenting opinion, in which GORSUCH, J., joined. Looking at that, I'm most interested in why Justice Thomas concurred:  JUSTICE ALITO [dissenting] does not contest [the majority's] analysis. Rather, he argues that the state plaintiffs can establish standing another way: through "inseverability." ("First, [the States] contend that the individual mandate is unconstitutional . . . . Second, they argue that costly obligations imposed on them by other provisions of the ACA cannot be severed from the mandate. If both steps of the States' argument that the challenged enforcement actions are unlawful are correct, it follows that the Government cannot lawfully enforce those obligations against the States"). This theory offers a connection between harm and unlawful conduct. And, it might well support standing in some circumstances, as it has some support in history and our case law. But, I do not think we should address this standing- through-inseverability argument for several reasons. First, the plaintiffs did not raise it below, and the lower courts did not address it in any detail.... Second, the state plaintiffs did not raise this theory in their opening brief before this Court... and they did not even clearly raise it in reply. Third, this Court has not addressed standing-through-inseverability in any detail, largely relying on it through implication.... And fourth, this Court has been inconsistent in describing whether inseverability is a remedy or merits question.... Thus, standing-through-inseverability could only be a valid theory of standing to the extent it treats inseverability as a merits exercise of statutory interpretation. But petitioners have proposed no such theory.

The weeds of the morning —  milk and butterfly. Posted: 17 Jun 2021 06:41 AM PDT Photographed at 5:22 a.m. at my sunrise vantage point, where they were not showing color yesterday.  I like the way going to the same point at the same time — sunrise — every day lets you see the exact day different flowers bloom. And I love the happenstance that caused to dairy names — butter and milk — to pop up on the same day.

The only thing I want to say about Toobin. Posted: 17 Jun 2021 06:21 AM PDT "Toobin isn't just on CNN's airwaves again — he was out mixing and mingling with his colleagues Tuesday night," The NY Post brays. What's notable about the return of Toobin isn't that he was allowed back or that his colleagues are treating him like a colleague now that he is a colleague again. I've been avoiding this story because — as I've said from the start — mishandling a camera and getting seen doing something that would be mundane in private should stimulate pity, discretion, and a rush toward forgetting.  If it's true that what happened to Toobin was pure accident, we should react the way we do when we barge in on someone sitting on the toilet, which is to quickly say, "I'm sorry," and retreat as quickly as possible into the pretense that nothing happened. We don't laugh about it and go on for months calling this person "The Defecator" the way people are calling Jeffrey Toobin "The Masturbator." But there is something I want to say about Toobin, and I'm not seeing the current headlines even mentioning it. As I said last fall, there's a big difference if Toobin intentionally exhibited himself. It's possible that Toobin appropriated a captive audience for his sexual gratification: A person might derive kinky pleasure from flashing a quick glimpse of his nakedness. A person — perhaps Toobin — might think: They'll wonder What the hell am I seeing? No way! He may trust that they won't do anything about it. They'll just think: Oh, poor Jeffrey, so embarrassing. We'll all just pretend we didn't see that. If Jeffrey — or whoever — thinks like that, he could also progress to thinking something more like: I am free! I can do this and get away with it! They'll all pretend they didn't see!  That's abusive. I thought there was going to be an investigation to determine whether what happened was more than an embarrassing mistake. But now Toobin is back, and I see he's still asserting that it was an unfortunate accident, and I don't see anyone questioning that characterization. When was it ever determined that he lacked intent? It seems to me that the powers that be simply waited for some time to pass, then brought him back and expected us not to think about the only question that ever mattered. That plan seems to have worked!  Am I the only one talking about this? To me, the current reintegration of Toobin into the media elite is offensive because it totally eclipses the only question that justified doing anything other than pitying Toobin and never even reporting the story in the first place.

"Some Democrats scoffed at the notion that the GOP would ever be able to deliver 10 votes needed to clear the filibuster. As of Wednesday night, they were at 11 — a number that appears likely to grow." Posted: 17 Jun 2021 05:19 AM PDT From "POLITICO Playbook: The inside view from the West Wing on infrastructure." NUMBER OF THE DAY: 21. That's how many senators now support the bipartisan infrastructure framework proposed by Sens. KYRSTEN SINEMA, JOE MANCHIN, ROB PORTMAN, BILL CASSIDY, MITT ROMNEY and the other members of their centrist group. This is big.... What does this do to the Democrat side of the equation? The fear that Sinema and Manchin will oppose a larger reconciliation package stuffed with the left's top priorities is real. Essentially, Democratic leaders are letting their centrists eat dessert without the veggies.... What is the dessert and what is the veggies? Seems to me the Sinema/Manchin set have a bill with just the veggies and they're saying no dessert for you lefties. Metaphor is challenging!

Glenn Loury talks with John McWhorter about his adventure in Tucker Carlson land. Posted: 17 Jun 2021 08:30 AM PDT   McWhorter didn't think Loury should dignify Carlson with his presence, but Loury thought he should go on the show — "Tucker Carlson Today" (paywalled here) — to reach Carlson's audience. He was wary that Carlson might try to use him as a tool but felt he could defend against that, and in the end Carlson was actually a good listener. Carlson interviewed him the way Oprah would, Loury says. The conversation between McWhorter and Loury develops into a question I've been interested in for a long time. It's something I once asked and got vigorously shamed for even asking. "I can't believe you asked that question!," said the black female law professor, in a tone that seemed to say: I will not remain friends with —or even remain in the presence of — anyone who would ask that question. It happened in the 1990s, a time of Critical Legal Studies, Critical Race Theory, and Radical Feminism at my law school (Wisconsin). I won't try to quote exactly how I phrased the question back then or do a transcript of what Loury and McWhorter say. This is my attempt to frame the question now: Doesn't the demand to think of everything in terms of race risk causing white people to think of themselves as a distinct interest group and to pursue their own interests?  As Loury points out, white people are [going to remain] the largest racial group in the United States — [even if we slip below the majority to] 45%. Black people are only 13%. Hispanic people, maybe 17%. McWhorter states that the white people he knows don't think of themselves as a race and suggests that black people are better off not stimulating consciousness of whiteness. If, under Critical Race Theory, white supremacy finds its way into every institution of American culture, then, by its own terms, our embrace of Critical Race Theory is — right now — reinforcing and advancing white privilege. How could it not? (If the theory is correct.)

Sunrise, 5:04 a.m. Posted: 16 Jun 2021 04:26 PM PDT

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