MUMMERIES, PUTSCH, AND HUBRIS. The 3 words of the day, in my view, reading Justice Scalia’s dissent in Obergefell v. Hodges. Scalia accuses the majority of engaging in “mummeries,” and a “mummery” is a “Ridiculous ceremony (formerly used esp. of religious ritual regarded as pretentious or hypocritical).” That’s from the Oxford English Dictionary. “Putsch” and “hubris” come up in a single phrase: “the hubris reflected in today’s judicial Putsch.” A “putsch” is “An attempt to overthrow a government, esp. by violent means; an insurrection or coup d’état.” That’s the OED again. “Hubris” Scalia himself defines. It’s “o’erweening pride.” To which he adds that “pride, we know, goeth before a fall.” I don’t see how Scalia comes across as any less hubristic for taking the dissenting side. There’s “hubris” in the mummery of humility. You see that all the time in judges. As for “putsch”… that’s one of these silly extravagances. (“Silly extravagances” — I got that phrase from the Scalia opinion: “It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.”)

ADDED: There are some abusive comments on this post, which I depict on my home blog here. Some of the abuse is based on the misimpression that I only mined Scalia’s opinion for these language tidbits, but I go through the whole thing at length on my home blog, here.

HIGHER ED BUBBLE LAW SCHOOL EDITION – Taxprof reports that Cardozo Law School in New York has created a one year jobs program offering their unemployed graduates to small firms at the low, low, price of just $38,000 a year.  In an unrelated story, full tuition is $53,570, not including living expenses for New York City.

HILLARY FLASHBACK: ‘No,’ New York Should Not Recognize Same-Sex Marriages (Video).

Let’s face it, not everyone in the political sphere can be as forward thinking as Dick Cheney and the Koch Brothers.

Speaking of whom, “The arc of history is long, but it bends toward Koch.”

THAT DIDN’T TAKE LONG: Politico Mag Writer Says ‘It’s Time to Legalize Polygamy.’

RELATED:

If the Internet seems slow today, it's because every blog post denouncing slippery-slope warnings about polygamy is being quietly deleted.

— John Hayward (@Cobretata) June 26, 2015

DAVID BERNSTEIN: Chief Justice Roberts: same-sex marriage not constitutionally protected because Lochner

Chief Justice Roberts invokes Lochner v. New York by name no less than 16 times in his [Obergefell] dissent.

Not the real Lochner v. New York mind you, a relatively modest opinion, grounded in precedents holding that the Fourteenth Amendment protects liberty of contract in the absence of a valid police power rationale for the infringement.

The real Lochner held that a criminal law imposing maximum hours on bakers was not a justified infringement of liberty of contract under the police power because though it was defended as a health law, the government presented no evidence that the baking was especially unhealthful, while the plaintiff presented strong evidence to the contrary.

The real Lochner did not even inhibit governments from imposing maximum hours laws in other circumstances–the Supreme Court upheld the next dozen or so maximum hours cases to come before it.

Instead, Roberts invokes the Lochner of historical myth.

And this:

It’s at least slightly embarrassing that Roberts is either unaware of or chose to ignore the last thirty years of Lochner-related scholarship in favor of invoking hoary myths that are useful for rhetorical purposes, and that Thomas and Scalia joined the opinion.

As I wrote at the end of my book, when the Justices use Lochner “as shorthand for what they consider the activist sins of their opponents, they are substituting empty rhetoric for meaningful constitutional argument.” And their understanding of Lochner is always inaccurate to boot.

The real Lochner was about identifying and applying the proper extent of the state police power, not identifying fundamental rights, whose invocation then did all the work. There is none of this in Justice Kennedy’s opinion for the majority in Obergefell.

KNOWN WOLF: Suspect in French Decapitation Attack Today Yet Another Case of ‘Known Wolf’ Terrorism.

And as John Hinderaker writes at Power Line, “Multiple Terrorist Attacks Raise Questions of Coordination.”

BORED IN LONDON NEXT WEEK? Catch me across the pond at the Index on Censorship’s debate on academic freedom and summer magazine launch party on Wednesday, and fellow Instapundit guest blogger Virginia Postrel at her talk at the London School of Economics on Thursday.

ROBERT SPENCER: Michigan Professor Juan Cole Thinks the Charleston Race Murders Are My Fault.

Huh. Well, not everyone can blame CBS and Time-Warner-CNN for seven seasons of the Dukes of Hazzard.

UPDATE: Or was it Matt Lewis of the Daily Caller? “The more foolish and naive among you might fall into the obvious trap and say that it was Dylann Roof, but of course you’d be wrong. Conservatives are to blame.”

But of course — why would the left update their playbook from the leather helmet and single-wing formation era?

VIDEO: TIME TO IMPEACH THE IRS COMMISSIONER? “What happens when an administration refuses to hold its officials accountable for deceiving Congress? Eventually Congress starts looking for ways to hold them accountable directly.”

Faster, please. Though as Ed Morrissey writes at Hot Air, IRS Commissioner John Koskinen “isn’t exactly small potatoes, but if Congress wants to flex its muscle, let’s start where the most damage has been done — and send a message that will ring louder and longer.”

THE IRS SCANDAL, DAY 778: “Now it turns out that 422 backup tapes from the crucial period were routinely erased by IRS workers. The tapes were destroyed in March 2014, according to the Treasury inspector general for the IRS, J. Russell George. That is long after lawmakers started trying to obtain all of Ms. Lerner’s emails, and long after the IRS issued instructions for employees to cease routine destruction of documents that might relate to the probes.”

Unexpectedly.

THOUGHTS ON SATIRE, from Roger Kimball: “We might not like some of the things that Juvenal tells us. But then we in the West pride ourselves on having finally achieved enlightenment about— oh, so many things! We are unburdened by many benighted prejudices that crimped the souls of our ancestors. And how much better we think of ourselves on account of our liberations. If nothing else, Juvenal may help temper that self-satisfaction.”

Read the whole thing. A half century ago, Malcolm Muggeridge observed that there is no way for any satirist can compete with real life for its pure absurdity. And as Roger notes, our Beltway and DNC-MSM elites have gotten exponentially more absurd in the decades since.

EHUD BARAK: ‘WE COULD DEFEAT ISIS IN TWO DAYS:’ “So could Barack Obama, if he wanted to,” Michael Walsh writes.

Nahh, he’d much rather fight Congress that ISIS.

RELATED: Dozens Dead in Hotel Terror Attack in Tunisia.

THE HIGH PRICE OF ENVIRONMENTAL REGULATIONS:

Consider Tesla. The purchaser of each Tesla Model S that costs $70,000 or more receives a $7,500 federal tax credit, plus state credits. Within California, for example, purchasers can get a tax rebate of up to $2,500 and opportunity to access special freeway lanes, an important benefit in traffic-clogged California. Few inhabitants of South Central Los Angeles, one of the poorest parts of the city, know about Teslas, its alleged environmental benefits, or what each vehicle costs them. On the other hand, those in wealthier Brentwood and Beverly Hills have a far better sense of what they gain from a Tesla purchase. It is clear that low-income citizens are subsidizing the wealthy in this case, and as more and more state resources are devoted to such policies, the overall economy becomes less vibrant, generating fewer blue collar jobs and other opportunities for those who are struggling the most in the society.

AKA, “The Drawbridge Effect,” as James Delingpole dubbed it: “You’ve made your money. Now the very last thing you want is for all those trashy middle class people below you to have a fair shot at getting as rich as you are. That’s why you want to make energy more expensive by opposing Keystone XL; why you’re all for environmental land sequestration (because you already own your exclusive country property); and Agenda 21 – which will make all Americans poorer, but you not so much, because you’ve enough cash to cushion you from the higher taxes and regulation with which the greenies want to hamstring the economy.”

FALLEN ANGELS WAS JUST A SCIENCE FICTION NOVEL, RIGHT GUYS? RIGHT? GUYS? “Weak Sun Could Offset Some Global Warming In Europe And US.”

(Headline via one of Glenn Reynolds’ recurring Insta-leitmotifs.)

“MARRIAGE RESPONDS TO THE UNIVERSAL FEAR THAT A LONELY PERSON MIGHT CALL OUT ONLY TO FIND NO ONE THERE.” That, to my eye, is the most memorable line in Justice Kennedy’s opinion for the majority in the same-sex marriage case, Obergefell v. Hodges — the reading of which I just “live-blogged” over at my home blog, if you’re interested.

THE WORLD OF THE CONFUSED: Some were, of course, the usual “gay” or “lesbian,” but in addition to these were “demisexuals,” “androsexuals,” and “therians” (which, she explained, are people who are only attracted to individuals who commune with the same spirit animal). One identified as a “panromantic polyamorous asexual non-binary space god.” Even as the mother of twenty somethings AND a member of the science fiction community, therians is new to me!

WHY CAN’T YOU BE MORE LIKE GLENN? Sign on to the Index on Censorship’s open letter on why academic freedom is under threat and needs urgent protection worldwide. Next week I will be traveling to the UK to talk about these global threats to free speech, but it’s important to remember that academic freedom is in trouble here at home in the USA too. Read more here.

JAMES LILEKS: “The only reason Apple pulled the Civil War apps from the store was fear of the Internet:”

Specifically, fear of the worst part of the internet, where lack of reason is balanced by an excess of enthusiasm. No rational person would complain that there were Civil War sims. No sensible person would believe that society would be improved by demanding their removal. No emotionally stable person could think that they were safer now because someone, somewhere, would not get updates to a game they purchased that allowed them to fight as the Union Army but contained the sight of the Confederate flag. Anyone who would believe these things is tethered to reality by a frayed strand of dental floss, and while they may live in a comfy bubble where everyone believes the same things and has at least two friends who are doing very important work in the field of instructional graffiti, most people are stable enough to resist the siren call of the Stars and Bars, even in the form of a picture on a phone.

But. The loud people may complain. The company would have to explain. An explanation would be seen as a justification.

Read the whole thing.

CULTURAL TYRANTS: “This isn’t stopping at the Confederate flag. It accelerates with each victory the cultural Left achieves. And never, ever is there a price paid for its aggression,” Scott McKay writes at the American Spectator. “A price must be exacted. The Left cannot be allowed its double standards and guilty pleasures on the way to unquestioned cultural dominance. If traditional America must perish under Alinsky’s Rule #4 (‘Make the enemy live up to its own book of rules’), then so must the Left.”

SAME-SEX MARRIAGE WINS. 5-4. 

ADDED: The Chief Justice ends his dissenting opinion (PDF):

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

That’s flashy and will get attention and lots of commentary, including this from me: Celebrate weddings, not court opinions. Peruse court opinions and decide if the reasoning and the precedents fit together well. Don’t let judicial rhetoric push you around. This outcome was thoroughly predictable because it followed so clearly from the precedent. That was obvious at the oral argument. I haven’t read the decision yet, but I’m going to, and I’m not going to let The Chief Justice tell me what I should or should not celebrate.

AND: “Marriage responds to the universal fear that a lonely person might call out only to find no one there,” wrote Justice Kennedy, explaining the second of 4 reasons why the due process right to marry applies to same-sex couples even though the precedents all assumed marriage was between a man and a woman.

PLUS: A poll: What do you think of the Court’s opinion in the same-sex marriage case?

GLASS HALF FULL FINALE – So that’s the book in a nutshell.  I lay out a pretty comprehensive overview of the American market for legal services and law schools, and at the end it seems like times are grim indeed.  And yet, every time the American legal profession has appeared down for the count, it has come roaring back.  During the 19^th Century era of Jacksonian democracy every effort was made to break the hold of courts and lawyers.  The practice was virtually unregulated in a majority of states, state judicial elections became the norm, and legislatures passed new codes of civil procedure to further erode lawyer hegemony.   Times looked grim for the profession.

But lawyers responded by becoming irreplaceable partners with all levels of businesses, working hand in hand with the makers of the industrial revolution.  The great legal historian Lawrence Friedman describes the rebirth in the post-Civil War era thusly:

Nevertheless, the lawyers prospered.  The truth was that the profession was exceedingly nimble at finding new kinds of work and new ways to do it.  Its nimbleness was no doubt due to the character of the bar: open-ended, unrestricted, uninhibited, attractive to sharp, ambitious men.”

Lawyers again faced an existential threat during the Depression, when the economy crumbled and earnings collapsed.  Lawyers did even worse in the 1930s than the economy as a whole.  When World War II ended, however, lawyers started on a historic run that lasted until the 1980s, partially assisted depression-era restrictions on entry like the bar examination and the law school requirement.

Don’t forget that – for better or worse (and from the comments I know many of y’all think that it is worse) – America’s legal profession is utterly unique in the world.  It is bigger, richer, and more intertwined in civic life than anywhere else.  Lawyers founded this country.  Thirty-two of the fifty-five framers of the constitution and twenty-five of the fifty-six signers of the Declaration of Independence were trained or practicing lawyers.  Twenty-five out of forty-four American Presidents have been lawyers, including three of the first four, six of the first eight, ten of the first thirteen.  Lawyers have always been a dominant force in Congress and state legislatures.

America and its legal profession have been intertwined from the beginning, and lawyers – sharp-elbowed and ambitious – will find a new purchase in these changed times.  They have before and they will again.  Whether that is good news or bad news I will leave to you.

COLLEGE DECLARES HAYMARKET RIOT REFERENCE A VIOLENT THREAT TO COLLEGE PRESIDENT: Oakton Community College in Illinois is insisting that a one-sentence “May Day” email referencing the Haymarket Riot sent by a faculty member to several colleagues constituted a “true threat” to the college president. Why?  Because the famous workers’ rally in Chicago “resulted in 11 deaths and more than 70 people injured.” As FIRE’s Ari Cohn noted, “The United States Department of the Interior has designated the Haymarket Martyrs’ Monument a National Historic Landmark. If remembering the Haymarket Riot is a ‘true threat,’ the monument itself would be illegal.”

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