House of Eratosthenes

The legal justification is supposedly the “Castle Doctrine,” a subset of Texas’s self-defense law that lets you defend yourself and your property by firing on an unlawful intruder without having to “retreat” first. Having spent the past hour poring over the statutes and giving myself a migraine, it seems to me there are two gray areas: One, whether Horn is to be thought of as defending his home, his neighbor’s home, or himself when the shootings occurred, and two, whether having the right to “stand your ground” (i.e. not retreat) entitles you to precipitate a confrontation that could have been avoided by simply not doing anything. The sections that authorize defense of property (9.42 and 9.43) do allow for deadly force — but only at nighttime in the case of burglary, presumably because it’s harder to tell what a burglar’s packing in dim light and also because a burglar who’s coming through the window at an hour when he knows people are likely to be home is likely to be a bolder, more dangerous burglar. The Horn shootings happened in broad daylight. Which means if he’s off the hook, it has to be on grounds that he was protecting himself, not his property, during the confrontation with the burglars.

Dunno if I agree with this analysis. It presumes the Grand Jury followed the letter of the law, and furthermore that there must have been some tip-off of imminent danger to Mr. Horn. The latter of those has not been substantiated by the 911 call I heard (follow link at the top), and the former of those of course has not been substantiated by anything.

I think the grand jurors simply decided they’d had it up-to-here with the law standing up for bad guys. They didn’t think they should have been meeting for the purpose at hand; they moved to dismiss.

Not sure I can agree with that if that’s the way things went down, but I’m certainly not shedding any tears over it.

H/T: Ace.

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Humility
Sunday, June 29th, 2008

Anticipating for yourself what will have to be done; gathering your gear; putting it where you can get to it when you need it; maintaining it properly.

Redundancy That’s me, clarifying the eighth rule for manly thinking, yesterday morning here at The Blog That Nobody Reads.

Wrong f**king goddamn valve type.

Me, to myself, in the park, upon unpacking my spare bicycle inner tube following a blow-out. Three miles from home. Today.

And that one…and THAT one.

Me again, an hour and a half later, in my living room, going through my entire inventory of spare inner tubes none of which had the correct valve.

Shopping tomorrow.

Today was a pretty nice day for a walk anyhow.

And we can all always use a little more humility.

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Pretendin’ Like They Luv Each Other
Sunday, June 29th, 2008

Yeah Travis speaks for me, pretty much. Except I don’t see it as a Republican/democrat thing. As the years roll by and my hair loses its color, “people pretending to like each other when they don’t” ascends, slowly but surely, closer and closer to the top of my list of pet peeves.

YOO-NI-FAED. Bleh.

I do not understand how this fools people. It seems to be a public-relations ploy that goes back to Roman times, and doubtlessly extends back thousands of years before that…unchanged.

The political contender says,

I want people to be unified _{after they’re forced to agree with me}

And what he really means, is…

_{I want people to be unified} after they’re forced to agree with me

And after untold thousands of years of this bait-and-switch game, people still gulp it down like it’s yummy caramel-covered popcorn. Mmmm…look, he wants to unify people!

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Dionne Didn’t Read the Decision
Sunday, June 29th, 2008

Phil’s eyes are bleeding as he reads the commentary from E. J. Dionne about the DC vs. Heller decision.

Me, I’m just shaking my head and giggling. Dionne has just ‘fessed up to writing about the decision without reading it, and the poor bastard doesn’t even realize that’s what he’s done. But to anyone who’s so much as skimmed through it, it’s crystal-clear.

Dionne writes…apparently, thinking he’s making a great point, and playing the English language like a virtuoso plays a fine Stradivarius violin…

Conservative justices claim that they defer to local authority. Not in this case. They insist that political questions should be decided by elected officials. Not in this case. They argue that they pay careful attention to the precise words of the Constitution. Not in this case. [emphasis mine]

I’m rewording slightly, here, my comments to Phil’s post (pending moderation there as of this writing):

Um, E.J., Justice Scalia began to parse out the exact wording in the Constitution on p. 2 (5 in the Adobe PDF file), and is concerned with absolutely nothing else until p. 27 (30) when he turns to relevant historical events. He even has footnotes in his analysis in which he respectfully deals with opposing viewpoints of the language.

I struggle to remember the last time I’ve seen so few words in the Constitution, analyzed by so many words in the decision that labors to fairly and accurately interpret them. Each significant noun and verb is subject to cool, reasoned scrutiny about what it might possibly mean and what it could be reasonably interpreted to mean. The reading within those 26 pages, as one might expect, ends up being a little dry; so I suppose it’s understandable you couldn’t get around to grinding through it — except, that is, for your wanting to write about it, in which case I would have expected you to at least crack it open.

Now you’re nailed. How embarrassing for you.

How did a talented, intelligent guy like Dionne get here? By being overly concerned with what others are thinking, and trying too hard to be a loyal member of a group. From there the words “The Constitution,” seemingly unambiguous, take on a life of their own. That phrase comes to represent the intents not of the Founding Fathers as they signed a specific document, but of liberals in good standing.

So he ends up bitching at Scalia for not being a good liberal. But as he delivers his snotty lecture, behind him the trained eye can see the DC v. Heller decision lying on his desk, with the seals intact, under a thin layer of dust. Dionne didn’t read it. Dionne didn’t skim it. Dionne knows not of what he speaks. Dionne’s opinion is utterly worthless, and he’s the last one to know how much.

But where it really sucks to be Dionne? A year or two from now, DC v. Heller will be a part of law that you will be expected to know if you’re a first-year law student. It does what Supreme Court decisions are supposed to do — end the debate, not with phony aristocratic authority, but with reasoned scrutiny and logic. It’s settled, and the nation will by then have moved on…and Dionne will be hoping-against-hope that the law students will somehow remain ignorant of his ignorant comment on it.

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Now THAT is Scary
Saturday, June 28th, 2008

In fact, I don’t think you’ve seen anything as scary as this in quite some time. (H/T to Rick, who linked it differently.)

Kind of makes you look at the When I Start Running This Place page in a whole new light, huh?

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Not In It For The Attention, Mind You… XVIII
Saturday, June 28th, 2008

Two great-lookin’ babes with wonderful minds. Should I mention them both in the same post? They’re not exactly of the same mind, and there’s a chance someone will get offended, I suppose…but it’s always better to ask forgiveness than permission.

Becky, the Girl in Short Shorts Talking About Whatever, registered and entered a few words after I picked on her rather mercilessly. Her anti-war passions are misguided, but she has a lot of synapses firing per millisecond upstairs and we’re plum pleased to see her stopping by. Legs ‘n all. And we still think she’s right a lot more often than she’s wrong — just puts a lot more thought into how to win, than what’s going to happen after she does so win. Oh well. She’ll come around someday.

Becky is pro-gun? I know she will, because she’s not one of these pure-bred small-l libertarians who obsess over legalizing pot and heroin and crystal meth — and beyond that, their concerns over individual rights come to a screeching halt. You know the type. Becky isn’t like that at all. She thinks for herself; I mean, she really does. She’s a feminist, Catholic, gay, conservative in her own way…I think pro-gun…the girl just isn’t that anxious to fit into any kind of cookie-cutter.

She’s not that eager to play on a level field, either. If I wrote up some stuff that as hurriedly presumed nasty things about gay people, as some of the stuff she’s written about straight white guys…whew. But oh well. When she applies her mental horsepower, it’s considerable and she makes a lot of good points about things you don’t see made anywhere else. Well worth reading.

Speaking of which. Hawkins put out his list of favorite blogs for the quarter and no, we didn’t make the cut. Hey, remember this is The Blog That Nobody Reads.

However, #10 was blogger pal and uber-cutie Cassy Fiano…whose bikini pics make us feel all dirty inside because of the yawning gap of an age difference. And she was kind enough to put in a good word for us. A very, very good word.

My Favorite Blogs
:
House of Eratosthenes: Smart commentary with interesting stories you can’t find anywhere else.

Holy guacamole…

While we’re wiping that lipstick off our face, you know you can take a couple of eggs and fry ‘em up on those big red ears of ours. This one made our day.

Thanks Cas!

For the first two years after we registered with Sitemeter, a “good” day for this blog would have been anything north of a hundred hits — which is pathetically low. For the last three months or so we’re averaging well above double that, and the pattern is not at all consistent with “flash in the pan” stuff. These seem to be brand new nobodies not coming by to not read the Blog That Nobody Reads — and they’re not coming by each and every single day. Actually, the last time we fell short of our old hundred-hit target was over a month ago, for one day, when Sitemeter had an outage and all the hits that would’ve been logged instead went in the phantom zone.

In short — the evidence seems to indicate we’ve made a lot of new friends. We’re happy you’re here. Look around, kick off the shoes, have a cold one, drop a note.

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How to Earn a Eulogy Full of Awkward, Empty Bromides
Saturday, June 28th, 2008

1. Don’t notice anything someone else hasn’t already noticed even if it becomes painfully obvious; and if you do notice it, don’t say anything.
2. Don’t look for ways to make anything better.
3. Accept all criticism, even when it makes absolutely no sense. Become less of what you are, until people decide you’re okay, even though they never will.
4. Even as you accept unreasonable criticism, avoid criticizing anything anybody else does, unless someone else is already criticizing it.
5. Be eager to contribute your energy but avoid contributing your judgment — don’t decide anything. Just be a beast of burden.
6. Don’t do anything that involves risk; before you become part of something, make sure it’ll succeed just as well without you as it would with you.
7. Don’t take yourself too seriously, in fact don’t take yourself seriously at all. Be the comedy relief.
8. Don’t do anything until you’re sure it will earn approval from others.
9. When choosing people to do things for you, favor the mediocre.
10. Avoid decisions; when forced to make one, side with the majority.
11. Learn by repeating what others have to say. Don’t validate anything; when you see authorities contradict each other, decide in favor of the ones you presume have power over you.
12. Eschew any form of confrontation — except, that is, for confronting people who aren’t following the eleven rules above.

¹⁴To the angel of the church in Laodicea write:

These are the words of the Amen, the faithful and true witness, the ruler of God’s creation. ¹⁵I know your deeds, that you are neither cold nor hot. I wish you were either one or the other! ¹⁶So, because you are lukewarm—neither hot nor cold—I am about to spit you out of my mouth.
– Revelation 3:14-16

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Manly Thinking Is
Saturday, June 28th, 2008

1. Going with the crowd when it makes sense to do so; going against it when it makes sense to do so; leaving it alone when it makes sense to do so.
2. Taking advice from those who can state their cases in logical terms and who you know share your goals. Advice…not instructions.
3. Upholding the Morgan Rule #1: If I’m gonna be accused, I wanna be guilty. An identity of displayed and assured harmlessness, is an identity of eunuchs.
4. Asking the five W’s — who, what, when, where, why — when you hear those empty-headed magic words “supposed to.”
5. Engaging diplomacy when the language used is one of diplomacy. And when the language used is the one of horse heads in beds…engaging that.
6. A resolve to defend the weaker from extraordinary threats — but not from ordinary ones, or disasters of their own making.
7. Taking personal ownership of the fitting between Pillars I and II, and of the fitting between Pillars II and III. Know, for yourself, why you know the things you think you know, and why you should be doing the things you think you should be doing.
8. Anticipating for yourself what will have to be done; gathering your gear; putting it where you can get to it when you need it; maintaining it properly.
9. Learning how to maintain the car before you learn how to drive it. That includes changing the tire. Any machine you use, when you use it, the machine is responsible for the predictable behavior and you’re responsible for decisions — and maintenance. You push the button and the light is “supposed to” come on, that means you should know what the light means, so when the day comes that it stays dark you know something about fixing it yourself, or at least figuring out what’s happening.
10. Trust but verify.
11. Don’t get mad; get even.
12. Treating your allies with respect, like they’re adults. Don’t “urge” or “insist”; instead, lay down conditions. Communicate. Negotiate. Compromise where it makes sense.

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Where George and Gerard Agree
Saturday, June 28th, 2008

…good sense is being made.

…and we think some plastic bags and aluminum cans are going to make a difference? The planet isn’t going anywhere. WE ARE.

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Backing the Nanny State…AGAIN
Saturday, June 28th, 2008

That makes two, for me, counting the hands-free requirement that goes into effect Tuesday. I’ll back up the nanny-state goo-gooders again here. All those of you who’ve said I’m “locked in” to my viewpoints on things, take note, I can be flexible if things make enough sense…

Under new regulations, parents who are asked by the organisers of a children’s sports team to take other children to sports fixtures like football or cricket matches will have to be vetted.
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The new rules are part of the Safeguarding Vulnerable Groups Act 2006 and are due to come into force from October next year at the same time as a new Independent Safeguarding Authority to vet adults.

I was wondering about this when my bicycling experience was tapped to teach the cub scouts how to hit those trails. Yes I get checked out when my registration is complete…but…I can lead these kids into the woods on bicycles? Sure, I’m the dad of one of ‘em, but other than that what do you know about me?

It’s not the kind of thing where “if you do nothing wrong you have nothing to worry about.” I had the hair go up on the back of my neck, in particular, when one of the littler ones straggled and I had to go chasing off after him. It gets a guy to thinking: This is a fairly commonplace thing. I’m me. What of the other guys who are put in this situation, who aren’t me? Are they all parents? What if a couple of them are “That Weird Uncle So-And-So” who’s taking the family’s little tyke to the bike meet, whom the parents are just sure is alright…everyone else is sure because the parents are sure…

Like I said. When you’re a parent, the mind wanders. Yes, if you have a virtual stranger around other people’s kids, you ought to know something. I would hope it wouldn’t be a controversy.

Professor Frank Furedi, whose “Licensed to hug?” report for thinktank Civitas this week triggered a debate about the use of Criminal Records Bureau checks, said he knew of parents who have been rebuked for taking too many children to matches without being vetted.

He said: “I have talked to people who were reprimanded for taking three to four boys to football training. They were told they should have spoken to the manager.

“People can drive their own children to matches – but to drive four kids to the same match you should get CRB-checked.”

Makes sense to me. And it seems they got that far without doing it this way in uber-nanny-state Britain, no less. Whod’ve thought it.

Update: Regarding that other nanny-state thing, the hands-free deal. My thoughts are pretty much the same as what they were two years ago — except, as of now, I have in fact successfully trained myself to avoid texting. With considerable but not insurmountable difficulty.

Frank Drews. David Strayer. William Johnson. As of today, those are the only names I have found behind “all these studies that say” that hands-free devices fail to make driving safer. I continue to be told there are all these studies that say it’s the conversation that distracts the driver and not the physical presence of a hand-held device pressed up against the face. Those “studies” are attempting to assert a physical impossibility — when holding a device up to the ear, I cannot change lanes, and neither can you. And, furthermore, to the best I can determine, those “studies” are just being cranked out over and over again by three people. For reasons I don’t know, and don’t really care to find out because it doesn’t matter.

It’s a bunch of baloney. Two hands are better than one, and the discussion ends there.

Having said that, I do agree that the root of the problem is an exaggerated sense of self-importance because out of a hundred calls coming in to your cell phone, only one or two are important enough that it makes sense to take ‘em while you’re driving…hands-free device, or no. By that I mean, someone is in the emergency room, and it’s somebody you didn’t know was in the emergency room before you took the call.

Here in NorCal, people take a hundred calls out of a hundred. About stupid crap.

“Get milk on the way home” doesn’t cut it. Sorry, it just doesn’t. If you weren’t planning to get groceries on the way home as of that morning, you don’t need to pick ‘em up tonight. If you were, and something got left off your list, call the missus after you park the car at the store. If you’re worried that by the time you get there, she might have her phone turned off or she might otherwise be unavailable…you know what? She doesn’t really want the damn milk!

So shut up & drive.

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Anna Malle Died a Couple of Years Ago
Saturday, June 28th, 2008

Just found out. Pretty freaky.

Anna Hotop-Stout, 38, known to the adult film world as Anna Malle, died Wednesday after the car she was traveling in collided with a pickup truck while making a U-turn. She had not been wearing a seat belt, Nevada Highway Patrol officers said.
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Hotop-Stout had retired from the film business a year ago and was working at a Bloomingdale’s wedding registry in Las Vegas, Armstrong said.

“She didn’t want to be known as the old chick that had to work,” he said. “She wanted a normal life again.”

The Las Vegas resident was a passenger in a 2005 Dodge Stratus that was making a U-turn on state Route 160 when it turned into the path of a 1985 Chevrolet pickup truck, the Nevada Highway Patrol said. She was taken to University Medical Center in Las Vegas, where she died.

What a tragedy. Tim Russert and George Carlin get a zillion mentions on the boob tube, on the blogs, on the radio, in the papers…our porn stars burn out, quietly, silently.

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Following-Up on the Gloucester Pregnancy Thing
Saturday, June 28th, 2008

Sorry Becky. I do think your point about “yellow journalism” has a grain of truth behind it; I’m certainly not saying Time Magazine was well-served running with this “pact” based on what little evidence they had. I agree they should probably take another look at that process.

But your skepticism was a little bit too solid. Your demand was that we forget how human nature works, and those things never work out very well. This seems to have happened and been validated as a “pact,” in all the ways that matter to me anyway.

None of the rising juniors TIME identified as being members of the pact have come forward publicly, but nine Gloucester High students have talked to TIME about the girls who decided to get pregnant. Some described the pregnant teens as having little parental supervision. “They could stay out all night if they wanted,” says a classmate, whose parents requested that she not be identified by name. Others noted a herd mentality. “I think the plan was a lot about peer pressure,” says Nicole Jewell, a rising junior who describes herself as being friends with some of the girls involved. “But a lot of girls were excited to be a part of it.”

So did the girls make a formal pact to get pregnant together or not? Without comment from any of the pregnant students themselves, it may be impossible to determine exactly what they agreed to, and when. So far, the only school official to use the word pact is Sullivan, who reportedly now says he does not recall who told him about the pact in the first place. But what does seem clear based on TIME’s reporting is that some of the girls in question did at least discuss the idea of getting pregnant at the same time, and that too little was done to educate the girls on the potential ramifications of that choice.

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Our Split
Saturday, June 28th, 2008

Now that voter registration doesn’t work for this purpose, how do you tell our blue-staters and our red-staters apart today? To a child, or someone from a foreign shore, wanting to understand the definitions — how do you explain the split? Here’s one proposal:

A red-stater and a blue-stater break up a fight between a couple of kids on the middle school playground, and start debating what should happen to them.

The red-stater wants detention for whoever threw the first punch.

The blue-stater wants detention for whoever threw the last one.

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Stare Decisis, and Panic For Sake of Panic
Friday, June 27th, 2008

I was checking out Brutally Honest, Rick’s site to follow up on a mildly interesting and explosively-expanding thread underneath the Harley Davidson “Screw It, Let’s Ride” commercial. I have found it to be a dialog worth following, because it has morphed into a deliberation of manhood; an inspection of what, exactly, it is. We can always use more of that, and I’ve noticed both sides are putting a lot of thought into it. Rick (and Gerard too, evidently) sympathized with the ad and the attitude it sought to promote. Guest blogger and frequent commenter BroKen did not. It would seem at first blush that such an exchange wouldn’t have much place to go, since it’s a battle between pet peeves and therefore between emotions. Rick is sick and tired of being told the planet is in danger and we all need to buy some carbon credits and unplug our cell phones; Ken is sick and tired of apathetic, irresponsible people.

I think Ken’s crime, here, is one of overanalysis. He’s rather like the guy who’s told the urban legend about the late-night pedestrian who sees two headlights coming toward him, assumes they’re motorcycles, and goes between them…is DRT (Died Right There)…and upon hearing the story, the guy asks “but how do they know what he was thinking if he died?” Sometimes logical questions can open up entire sub-arguments that, when all’s said & done, aren’t worth pursuing. It’s possible.

Also possible, is the Panic For Sake Of Panic, and although I’m sure Rick has other examples in mind besides global warming, the environmental movement is certainly central to his inspiration. We’re being called-upon to panic over things quite a lot lately. Panic is not constructive thinking. Masculinity, Ken’s comments about it notwithstanding, can have a lot to do with letting it pass by with little action, or even no action at all. This would be the “keep your head together” aspect of manliness. In the case of the gas that costs almost five bucks a gallon, our error is in forgetting supply-and-demand, being too quick to blame cartoonish stereotypes like “Oil Executives”…presuming that our destruction is desired by people who are engaged in trade with us, and not by the people who seek re-election to Congress periodically through messages that resonate with our suffering. In the case of global warming, we’re confronted by a boogeyman that exists in the mind. Buzzwords, a few “scientists” funded with George Soros’ money, the allure of knowing massive bureaucracies and orthodox fellowships are already mobilized into motion around the boogeyman. The ambition to be part of something huge, nevermind having no impact at all on what it does based on one’s individual participation in it. Like the Barack Obama campaign, modern radical environmentalism has become a tantalizing pastime for those among us who lack intellectual masculinity. Those who desire to clamber on board a massive ship so they can be seen being on it, to grab an oar and help row it so they can be seen rowing it…and have nothing to do with steering it. Steering entails decision-making, and decision-making involves far too much responsibility for the gelded mind.

The four-word tagline “Screw it, let’s ride” is a joke that’s gone over Ken’s head, I’m afraid. In some situations, it can be a healthy and mature attitude. Like, anytime panic is the point. When someone nameless and faceless wants you to lose your bearings, and whispers scary campfire stories into your ear so you’ll fearfully listen to whatever comes next. The headstrong, able-minded manly man says “screw it, let’s ride.”

Through the kernel of truth that was involved in the scary story to make the remaining 99% of the panic digestible, this may entail risk. But we tend to forget that life is all about risk, and it is only through the elimination of life that you completely eliminate all risk.

Enough about that particular confusion vis a vis manhood, masculinity, manly thinking, etc. Let us examine another flavor of such confusion. Let us turn our attention from those who over-analyze, to those who do not analyze enough.

Rick has some more good stuff that is worthy of comment.

Dahlia Lithwick has made a career out of commenting on American law, especially as it is molded and shaped in our Supreme Court. She was born, and remains, a Canadian citizen. If you’ve exchanged ideas over the innernets with enough Canadian citizens about American law, as much as I have, you know what’s strange about that. For the benefit of the uninitiated, I shall expound…

The weakness in her mindset is betrayed by the passage:

The conventional wisdom that the Supreme Court is precariously balanced on a knife’s edge—with four liberals and four conservatives battling for the heart and mind of swing Justice Anthony Kennedy—is too simplistic. The current term has seen enough unanimous and near-unanimous decisions to suggest that the story of a 5-4 court is dramatic but inaccurate. That said, it’s clear there are four justices on the bench who deeply mistrust the judiciary, in the manner of a Rockette who doesn’t care for dancing. Dissenting in this month’s habeas case, Justice Antonin Scalia predicted that judicial overreaching “will almost certainly cause more Americans to be killed.” John Roberts added that “unelected, politically unaccountable judges” should not shape detention policy. One more jurist at the high court who generally believes that jurists cannot be trusted would spell the difference between a court that is a coequal branch of government and one that cheers from the bleachers. [emphasis mine]

Okay, now for this to make any sort of sense — you have to believe that any self-imposed limitation on the Supreme Court’s authority would be tantamount to an internal, self-criticizing belief “that jurists cannot be trusted.” Her “Rockette” crack makes it clear, to me, that she means to devalue such restraint, to make it equivalent into almost to sort of a mental illness. Perhaps she doesn’t realize the extraordinary intellectual difficulty that would be involved in applying this rule to the Supreme Court, and keep other institutions insulated from it, but I’m willing to go out and a limb and presume: Dahlia Lithwick does not believe in restraint of authority anywhere. Wherever someone can order something, they should. She probably liked it just fine when Gavin Newsom handed out marriage licenses when the law clearly said he didn’t have the authority to do it; I’m sure she was just as fond of the Supreme Court giving George Bush the smackdown over Guantanamo detainees and military tribunals.

How about President Bush’s decision to form those tribunals before the Supreme Court decision came down? If I’m correct in thinking Lithwick admires lack of authoritative self-restraint, that’d be a great example of it. Her careless, breezy use of the word “coequal” implies that she thinks the three branches should be able to do more-or-less the same things, and her implication that the Supreme Court carries legislative power would help to substantiate that. Somehow, I don’t think Lithwick is going to be quite as big a fan as that. No, she likes restraints on government-branch power to be jettisoned, when the decision under consideration is one she happens to like.

You simply can’t have separation of powers…a uniquely American doctrine…with that in place. Furthermore, as it’s been pointed out in many other places since then, Lithwick is engaged in some Holy Battle in which we old white males represent the forces of evil, because we’re old, white and male:

Anybody who believes the current Supreme Court looks like America needs to take a few more trips on a Greyhound bus. All the judges are white and/or old; most are both. [emphasis mine]

I have to stand on what I entered at Rick’s place:

What I wouldn’t give for a pleasant (hopefully, to stay that way) dinner conversation with her, or someone from this planet. Is their idea of the “wall of separation” between judiciary & legislature, the same as mine? Do they even have one? Or are they so much into “pack every single panel that has any authority at all with good people like me” that they haven’t even put that much thought into it?

In order to define what exactly is wrong with nutty, delusional people, sometimes it’s necessary to state the obvious. Popular belief notwithstanding, this is something I really hate doing…but let’s go for it.

You have a law. Like most laws, it leaves room for interpretation. Perhaps because the law exists in a context in which it’s impossible to avoid that, or perhaps because the law just happens to be worded badly. Let’s make it a badly worded law to make the example clearer — the law is:

Don’t Drive Fast Here

You drive through there at 45 because you think that isn’t fast. Why, on the freeway, you’re allowed to go as fast as 65! But the cop who busted you thinks anything over 30 is pretty fast. He busts you. You appeal. The case goes all the way to the Supreme Court.

The Court, here, essentially has two options: 1. It can uphold your penalty or 2. It can let you off the hook. It comes down to the “opinion” of the Justices overruling all other opinions now and forevermore (or at least, until a better sign is put up with a better law behind it). The side effect is that, if you are let off the hook for driving 45, it will become legally impossible to cite someone for driving through the same thoroughfare doing 35. On the other hand, if you’re busted, then anyone who gets a ticket for driving 55 and wants to appeal can just forget it.

This is jurisprudence. It is, specifically, stare decisis et non quieta movere; “stand by and adhere to decisions and not disturb what is settled” — or at least, that’s what it is called the next time a different case presents the same question. It is “law,” in all the ways that matter, but without democratic participation by the electorate, without critical thinking, without deliberation about cause-and-effect. Consistency is the only virtue to it.

I made reference to Lithwick’s “planet.” On mine, stare decisis is a noble ideal but when too much emanates from it, that is a toxic agent. So people like me see the Supreme Court as engaged in a struggle, to continue deciding cases for as many decades as possible without hopelessly tying itself up into a huge knot. The nightmare scenario is one in which stare decisis runs headlong off in one direction, and common sense sprints in the opposite direction. At that point, the Supreme Court must overrule itself, and admit that justice has been miscarried. For years.

Lithwick’s planet is one in which this is a desirable outcome. Bad laws like “Don’t Drive Fast” breathe life into the judicial branch, give it a reason for being “coequal,” and the courts are at their most noble and glorious when they seize this false authority and wield it.

I do not know what people on Planet Lithwick mean by “coequal,” exactly. I really don’t. I don’t think they know either. It’s clear to me they think decisions are “good” when they exude greater volumes of stare decisis side-effect…make things illegal that weren’t before…make things legal that were illegal before. It’s obvious they think more highly of the decision when the interpreted effect is contrary to the reasoned expectation of Congress, or other lawgivers, when the laws were legislated or ratified. They place a value on unintended consequences.

On my planet, we call that what it is: Bad law. We count on the judicial branch to step in, and make law that way where it did not exist previously — when Congress is unwilling, or unable, to do it’s job. And it’s an occasion for mourning, not celebration, because we know a law has just been made that has no common sense behind it. We know a “co

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Follow-Up on HornMonday, June 30th, 2008

HumilitySunday, June 29th, 2008

Pretendin’ Like They Luv Each OtherSunday, June 29th, 2008

Dionne Didn’t Read the DecisionSunday, June 29th, 2008

Now THAT is ScarySaturday, June 28th, 2008

Not In It For The Attention, Mind You… XVIIISaturday, June 28th, 2008

How to Earn a Eulogy Full of Awkward, Empty BromidesSaturday, June 28th, 2008

Manly Thinking IsSaturday, June 28th, 2008

Where George and Gerard AgreeSaturday, June 28th, 2008

Backing the Nanny State…AGAINSaturday, June 28th, 2008

Anna Malle Died a Couple of Years AgoSaturday, June 28th, 2008

Following-Up on the Gloucester Pregnancy ThingSaturday, June 28th, 2008

Our SplitSaturday, June 28th, 2008

Stare Decisis, and Panic For Sake of PanicFriday, June 27th, 2008

Follow-Up on Horn
Monday, June 30th, 2008

Humility
Sunday, June 29th, 2008

Pretendin’ Like They Luv Each Other
Sunday, June 29th, 2008

Dionne Didn’t Read the Decision
Sunday, June 29th, 2008

Now THAT is Scary
Saturday, June 28th, 2008

Not In It For The Attention, Mind You… XVIII
Saturday, June 28th, 2008

How to Earn a Eulogy Full of Awkward, Empty Bromides
Saturday, June 28th, 2008

Manly Thinking Is
Saturday, June 28th, 2008

Where George and Gerard Agree
Saturday, June 28th, 2008

Backing the Nanny State…AGAIN
Saturday, June 28th, 2008

Anna Malle Died a Couple of Years Ago
Saturday, June 28th, 2008

Following-Up on the Gloucester Pregnancy Thing
Saturday, June 28th, 2008

Our Split
Saturday, June 28th, 2008

Stare Decisis, and Panic For Sake of Panic
Friday, June 27th, 2008