BTW, this whole thing with Bivens shows you why hard core originalism, with no regard for pragmatism, is such a bad judicial philosophy.

There's no text in the Constitution prohibiting a Bivens remedy. Both sides of the debate are making up the law on this.

https://twitter.com/dilanesper/status/1965117521654415737

The originalists are just saying there's this implied rule against courts implying causes of action, because that's part of the Article I "legislative" power. It's all by implication, not clear in the text, and yet the Court's conservatives treat this as some unbreakable rule.

This morning is probably the first day many people will learn that for almost 50 years, going back to US v. Martinez-Fuerte, 428 U.S. 543 (1976), SCOTUS has allowed racial profiling by immigration officers.

It was shameful then, and it is shameful it is still good law. Michael Kinsley used to say the scandal in Washington isn't what's illegal, but what's legal. I actually think this morning's order is rightly decided under the controlling precedents.

The problem is those precedents.

This isn't actually intersectionality (an overused term) because it's not due to the intersection of identities, but I think the conclusion is somewhat right if the reasoning is wrong.

What has happened is the American left has celebrated anarchy/rulebreaking since the 1960's

https://twitter.com/petespiliakos/status/1964733954835227067

A lot of traditional socialist ideas were based on the notion of COMMUNITARIANISM-- that we were in this together, we had obligations to each other, we needed to build a high trust society.

In contrast, the right was more INDIVIDUALISTIC. Think about, e.g., gun rights rhetoric.

Folks, some of the reactions to my thread on shooting the innocent North Korean fisherman seem to be based on a misconception that the only thing that matters is the safety of US spies.

But that's completely antithetical to hundreds of years of customary law on espionage.

https://twitter.com/dilanesper/status/1964221766420877497

When a country sends spies into another country, they are unlawful combatants. Indeed, they are almost the paradigm of what an unlawful combatant is. They are violating the host nation's sovereignty. They are not wearing identifiable insignia. They are often committing sabotage.

A reader asked Matt Yglesias this morning "why did the outsider nerds in DOGE fail while the outsider nerds in baseball succeeded?".

Matt gave a good answer about the backgrounds of the baseball nerds, but there's something about the whole "Moneyball" story that's a bit toxic. The Moneyball story is essentially that baseball managers and front offices had made bad decisions for years, and some baseball fans who were also brilliant statisticians came in with their disruptive paradigm and turned out to be right about all this stuff the insiders got wrong

This deserves a thread.

Imagine if on September 12, 2001, Osama Bin Laden announced that if we don't go into Afghanistan to get the perpetrators, he would sign a binding pledge not to attack America again.

Should Bush have taken that offer?

https://twitter.com/_TimBarker/status/1962700290412438009

Or imagine if on December 8, 1941, Emperor Hirohito announces that Japan will ensure the safety of the US' Pacific territories if we agree to take no action in response to the bombing of Pearl Harbor. Should FDR accept?

Two things that do a lot of work in the mind of Palestinian Cause types are (1) they think all Israeli Jews are far-right religious types who want to kill or remove all the Arabs and (2) they don't really believe Israel has a democratic culture where public opinion counts. So I am getting a bunch of replies from them saying "no way would the war end if Hamas released the hostages. Israel would just go in and drive all the Gazans out or kill them".

But of course, in the real world Israel IS a democracy and public opinion counts there.

A quick thread about something bothering me about l'affaire Lisa Cook. Which is, the type of mortgage fraud she is accused of is common, and rarely gets prosecuted. And it's a type of crime-- involving the ways rich people get privileges the rest of us don't-- that should be. So what is it that Cook is accused of? Well, when you buy a home and take out a mortgage, the bank will ask you if it is your primary residence. The reason for this is the actuarial risk is lower-- buyers are much less likely to default on the loan on their primary home.

Thing that annoys me, inspired by Matt Yglesias' column this morning.

I went to Hong Kong just before the handover, in May 1997. I spent a lot of money to go- it was a lot more expensive then.

I did it because I knew China was a Communist tyranny and would ruin it. I was telling everyone who would listen back then that China was obviously the modern Nazi Germany and all the claims about how free trade would democratize them were BS seeded and spread by folks who had vast sums of money they wanted to make.

It's late at night (not where Claire is, of course), and it might be worth exploring this hypothetical and what it really tells you about pro-lifers and pro-choicers, religious types and secular types.

So first, I'll state the obvious, you of course save the baby. Why?

https://twitter.com/clairlemon/status/1957238830408548771

Well, I'm going to state something at the beginning that's going to surprise you-- it's not because human life doesn't begin at conception, although that question is more complicated than pro lifers say it is. (There's an identical twins hypothetical that gets at that.)

instead of stopping participation in the marriage to browbeat her into having sex with you, you could consider... discreetly cheating?

to me this scenario is just the classic example of how once matched sex drives become mismatched, which is sooooooo common.

https://twitter.com/thechosenberg/status/1956017000305578342

because of all the cultural presumptions around monogamy and the claims that it is the natural state of things, people assume that it is natural for two human beings to live out their lives having perfectly coordinated and synchronized sex drives the entire time.

I will tell you, being ratio'd by the people who.... um.... passionately oppose trans women's participation in sports, and reading their responses, certainly didn't convince me that they just passionately care about c i s women and hold no prejudices against trans folks. I'll just pick one particular line of response-- at least 30 people (5% or so of all responses) responded by saying trans people are mentally ill and we shouldn't cater to their delusions.

And I'm sorry, but people who say that, say that with glee. They mean it as an insult.

"Why can't we just have one binational state in Israel-Palestine? Jews and Palestinians can live together!"

Well, no, we can't. For all sorts of reasons. A thread. First, how exactly is this going to work? I remember Matt Yglesias doing a podcast with Robert Wright, who is a big one-stater. And Yglesias made a clever point. He said all the organizations that support 2 state solutions have extensive and detailed plans about how it will work.

The stories about ICE abuses are a good jumping off point to talk about something that I think low key is one of the worst things the legal conservative movement has done-- eviscerate the Bivens doctrine for suing federal officials who violate the Constitution.

https://twitter.com/ajlamesa/status/1952774834825379993

Bivens is named for Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, a 6-3 decision of the early Burger Court, basically from the same era as Roe v. Wade.

Bivens held that innocent people could sue federal agents for violating the 4th Amendment in a search.

Hot take on Singapore-- its Achilles Heel is that it is a grossly authoritarian society with draconian punishments for lawbreaking. Americans would not like that.

But that kind of society probably DOES benefit the working class.

https://twitter.com/tracewoodgrains/status/1952242705939202301

Singapore's system means that if you are working class you don't grow up around lots of crime. It means that if you are the type of person who is likely to face severe drug addiction that drives you to homelessness the government will simply stop that from happening.

There are all sorts of problems with the "Israel = South Africa" analogy, but one under-discussed problem is that the fight against Apartheid depended on everyone having honest, reachable goals.

The Palestinian Cause is dishonest and its goals are unreachable. During Apartheid era South Africa, the ANC made its ultimate goal clear, and it was not dismantling the South African state. It was eliminating race discrimination (grand and petty Apartheid) and giving Black South Africans the vote. That was it.

China basically took over Tibet, which had been independent. Since then, they have meddled in the country's religion, and invited Han Chinese to move in and change the ethnic/religious composition of the province.

And yet, nobody is seriously saying China must pull out of Tibet. The reason, of course, is that China is very powerful and we all understand the realities of the situation.

The best we can hope for is to use various forms of policy in the long term to moderate China's behavior. And even that has a pretty low likelihood of success.

With Terry Bollea's (Hulk Hogan's) death yesterday, it's a good time to look back at the biggest thing I was ever involved in. For over 3 years, I spent more than half of my worktime on one case-- Bollea v. Gawker.

It was Charles Harder's case-- I handled "the appeal side". I didn't even attend the trial in Florida-- it was tried by Charles, Ken Turkel, and Shane Vogt. But what I did was write almost every legal argument Bollea made in the case, including trial briefs, summary judgment and injunction papers, and several appeals in different states.

This is a good jumping off point for me to talk about what is wrong with the International Criminal Court, a not completely terrible idea in theory that has in practice become unworkable and unrealistic and probably just has to be completely rethought.

https://twitter.com/HillelNeuer/status/1944202762482221323

There's basically 2 reasons why a lot of folks understandably might like to have an International Criminal Court. First, it formalizes something the world has been doing since World War II (and really since the American Civil War in some embryonic senses), war crimes trials.

Ever since I developed my theory about the OJ case, I have become a consumer of stuff written about the case.

There's something that gnaws at me.

In 2025, most smart people know he was guilty.

But many still believe the bad arguments about DNA that the OJ defense made. My basic thesis is this, and I say this as someone generally skeptical of prosecutors: the stuff prosecutors say about DNA is right, and the stuff that defense and defense experts say about it is wrong. Honorable (in that it puts the state to the test), but wrong.

I am going to try and add some value here, in light of the pushback I got for saying Obergefell v. Hodges is safe.

I am going to talk about "how to predict what SCOTUS will do in the future in politically salient cases".

Obviously, like all predictions, nothing will be 100%. But the basic idea is "how do you actually gain some notion of what the Supreme Court is likely to do?".

Or another way of putting it is "how do we know which cases are safe and which ones are on the chopping block?".

And that latter way is a nice way of stating the question.