The Worst Opinions of Samuel Alito

After ranking the best opinions of the best justice, one of my readers suggested ranking the worst of the worst. I aim to please.

It’s worth noting that I’m not the only one who has been calling Alito the worst SCOTUS justice. Five months after I ranked the justices, law professor Adam Lamparello did his own ranking. Like me he put Gorsuch and Kagan at top (though Kagan first and Gorsuch second), and Alito at rock bottom. I had no idea my views aligned this closely with any expert opinion until it was recently pointed out to me.

1. Snyder v. Phelps (2011)

The issue at stake: Free speech
The ruling (8-1): The Westboro Baptists have the right to picket funerals with homophobic hate speech
Alito’s opinion: The lone dissent

I call this Alito’s worst opinion, since it shows his ignorant and unabashed contempt for the First Amendment. He’s so bothered by the negative emotive power of speech — the power of speech to distress or upset people — that he is willing to render void the most basic of American rights. In this case, the other justices ruled that homophobic hate paraders had the right to picket military funerals: a slam-dunk 8-1 decision that should have been 9-0. The four liberals and four conservatives were as one: as long as the Westboro Baptists weren’t trespassing, kept the right distance, weren’t violently disruptive, and followed police instructions, they had every right to spew their hateful bile. If there was any possible dissent here, I would have expected it from Sotomayor, since hard leftists like her often imagine that hate speech shouldn’t be protected by the First Amendment. But even she got this right. It was the conservative Christian, Samuel Alito, who went to bat for the gay man’s family: the picketers, he wrote, were not really engaging in free speech, but assault (!): their homophobia had “brutally attacked” the dead marine and his family. This opinion alone disqualifies Alito as a Supreme Court justice, as far as I’m concerned.

2. Janus v. American Federation of State, County, and Municipal Employees (2018)

The issue at stake: Union agency fees
The ruling (5-4): The extraction of agency fees from non-consenting public-sector employees violates the First Amendment
Alito’s opinion: For the majority

For my #2 slot I choose another (supposed) First Amendment case that actually has nothing to do with free speech. Alito wrote for the majority, ruling that the extraction of agency fees from non-consenting public-sector employees violates the First Amendment. Which it most certainly does not. The First Amendment wasn’t meant to undermine but to protect democratic governance. No matter how much I may disagree with the politics of my union, paying my dues in no way violates my free expression. It keeps me from being a freeloader and reaping union benefits that others pay for. The supposed violation of the First Amendment is absurd on every level. The landmark Supreme Court ruling, Abood v. Detroit Board of Education (1977) — which this case overturned — explicitly prohibited agency fees from being used to pay for political activity; the fees could only pay for collective bargaining and other apolitical services the union provides. Janus was one of the worst Supreme Court rulings of the 21st century, and it shows Alito defending the First Amendment where it has no relevance, just as he tramples on that amendment where it is relevant (see #1 above and #5 below).

3. Trump v. Vance (2020)

The issue at stake: Presidential exemption from state subpoenas
The ruling (7-2): State criminal subpoenas issued to a sitting president are not automatically blocked
Alito’s opinion: For the dissent

Alito was just kissing Trump’s ass in this case. Chief Justice Roberts wrote for the majority, arguing that the Supreme Court has always held that the president is subject to subpoena in federal criminal proceedings. There is no reason to treat state proceedings any different. The majority rejected Trump’s argument that state criminal subpoenas pose a “unique and greater threat to impair the executive’s ability to perform its constitutionally mandated functions”. Alito believed the president deserves greater protection from state law enforcement powers but offered no substantive argument.

4. Burwell v. Hobby Lobby Stores (2014)

The issue at stake: Contraception health coverage
The ruling (5-4): The Religious Freedom Restoration Act of 1993 allows a for-profit company to deny its employees health coverage of contraception based on the religious objections of the company’s owners
Alito’s opinion: For the majority

Here Alito ruled that companies are free to deny their employees health coverage of contraception if the company’s owner has religious objections to birth control. But there is no violation of freedom of religion when an infringement on that right is merely an incidental consequence of an otherwise valid statute. The landmark case of Employment Division, Department of Human Resources of Oregon v. Smith (1990) made this plain, in which Antonin Scalia had written for the majority, noting that to allow exceptions to every regulation that affected religion “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind” — compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws. It’s revealing that this 1990 case was upheld by a conservative majority (6-3), against the liberals who went to bat for religious objectors — Native Americans who wanted to use illegal drugs for religious purposes. Now, in Burwell v. Hobby Lobby Stores, it was the conservative majority going to bat for religious objectors — company owners who want to deny birth control in a legal health coverage plan. Whether liberal or conservative, religious objections like this are unfounded. There is plenty of judicial precedent holding that religious beliefs or observances must not impinge on the rights of third parties, and rightly so.

5. United States v. Stevens (2010)

The issue at stake: Free speech
The ruling (8-1): A federal statute that criminalized the commercial production, sale, or possession of depictions of cruelty to animals violates the First Amendment
Alito’s opinion: The lone dissent

A year before Snyder v. Phelps (see #1 above), Alito was already pulling “exceptions” to free speech out of his ass, and (as in Snyder) standing alone against a landslide majority of 8 justices. The case involved a federal statute that criminalized the commercial production, sale, or possession of depictions of cruelty to animals. The majority (four liberals, four conservatives) ruled that the statute was a violation of free speech, pure and simple and they were obviously right, not only on the general principle of free speech but sheer practicality: TV-shows portraying the hunting of animals would have to logically be criminalized according to the federal statute. Alito ignored the question of legal expression (which is what matters) and focused instead on the repulsive nature of that expression, as he personally found it. Seriously.

6. Doe v. Groody (2004)

The issue at stake: Strip-searching a mother and her 10-year old daughter without a warrant
The ruling: The search was unconstitutional
Alito’s opinion: The lone dissent

Alito was on the Circuit Court of Appeals for this case. His opinion earned him the nickname “Strip-Search Sammy”, and made his appointment by Bush to the Supreme Court in 2006 controversial. In his lone dissent he approved the body search of an innocent ten-year-old girl and her mother, saying that police officers did not violate the Constitution without a warrant that gave them permission to do this. Judge Michael Chertoff’s majority opinion correctly stated that Alito’s position would effectively nullify the Fourth Amendment’s warrant requirement and “transform the judicial officer into little more than the cliché rubber stamp”. A truly horrible dissent on Alito’s part.

7. Gundy v. United States (2019)

The issue at stake: Separation of powers
The ruling (5-4): The Sex Offender Registration and Notification Act’s delegation of authority to the Attorney General does not violate the separation of powers
Alito’s opinion: Concurrence

Unlike every other conservative on the Supreme Court, Alito has never joined an opinion with all of the liberals as a lone conservative. Except in this case… when he and the liberals were dead wrong. Alito concurred with the liberals, agreeing that the attorney general can write his own criminal code. In other words, the chief prosecutor can write the laws for crimes that he gets to prosecute, which is insane. (Gorsuch’s dissent to this ruling was spot-on.)

8. Dobbs v. Jackson Women’s Health Organization (2022)

The issue at stake: Abortion rights
The ruling (5-4): The Constitution does not confer the right to an abortion; the issue must be settled by each state
Alito’s opinion: For the majority

I decided to include this one, as it’s the opinion for which Alito will forever be famous, and for which he is either reviled or praised. And herein lies the problem. Whether you consider Dobbs to yield a good or terrible outcome rides on the question of who has the right to “life, liberty, and the pursuit of happiness”. Women faced with unwanted pregnancies, or the unborn? Pro-choice and antiabortionists each claim a high ground based on premises the other side isn’t willing to grant. And whether you consider Dobbs to be a good or bad judicial ruling rides on the question of how you weigh precedent with respect to textualism. For the first question, I give moral priority to women over the unborn that they carry. For the second, I believe judicial precedents are subordinate to the Constitution itself, and it’s admittedly not easy (though not impossible) to make a Constitutional case for abortion rights. Abortion debates will always involve uphill battles and talking past each other. If I say that I include Dobbs on this list because it represents the first time that the Supreme Court has taken away a long-entrenched (49-year) fundamental right, the antiabortionist will simply counter no, the Supreme Court has allowed states, if they choose, to restore fundamental rights to the unborn. So there you have it.

The Best Opinions of Neil Gorsuch

Readers of this blog know that I enjoy reading SCOTUS opinions and in this post I rank the best opinions of my favorite justice on the court, Neil Gorsuch.

What I have selected as Gorsuch’s best (eight of them) illuminate how originalism looks when consistently applied. They cover a lot of ground: the Constitutional rights of private business owners, Native Americans, criminals, gay and transgendered people, cell-phone users, kids who grossly act out in school, immigrants, and Americans with commonwealth status. They show how textual meaning matters and that process is as important (if not more so) than outcome in judicial rulings. As dissents they can be frustrating as they are entertaining; as concurrences they turn in surprising directions. Gorsuch writes with a razor, and I enjoy his opinions especially when he is in the minority scolding his colleagues.

1. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018)

The issue at stake: Free expression
The ruling (7-2): A Colorado baker has the right to refuse designing wedding cakes that celebrate gay marriage
Gorsuch’s opinion: Concurrence

For Gorsuch’s best opinion, I choose not one of his prestigious majority rulings, nor one of his razor-sharp dissents, but a concurrence which should have been the majority opinion. It’s the well known case of the Colorado baker who refused to design a wedding cake celebrating gay marriage. Led by justice Kennedy, the majority (7-2) upheld the right of a private business owner (Jack Philipps) to refuse to design one of his products (a cake) in a particular way (that celebrates gay marriage). But the majority ruled on the narrowest grounds imaginable — that the Colorado Civil Rights Commission during its consideration of the case had shown an anti-religious bias, and in speaking contemptuously of religion violated the Phillips’ rights to free expression. So they reversed the Commission’s decision in favor of the baker on this technicality, emphasizing that this case should not provide future guidance for courts that will face similar issues.

In his concurrence Gorsuch did better than that, taking the case on its merits and arguing that Philipps was justified period in refusing designs for cakes — regardless of the Colorado Civil Rights Commission’s attitude towards him. The Commission had not only showed religious hostility; it had failed to recognize the more substantive point, that private business owners cannot be compelled to create a product that they object to on religious or moral grounds. Stunningly, the Commission had already acknowledged this very principle in its own treatment of three bakers who refused to bake cakes with anti-gay messages on them. The Commission, said Gorsuch, should have found in the Philipps’ favor, just as it had found in favor for the other three bakers. All four bakers were in the same situation. The three bakers refused to sell a cake that denigrated same-sex marriage, just as Jack Philipps refused to sell a cake celebrating same-sex marriage. Most crucially: The atheist bakers in the first case were happy to sell to persons of Christian faith, just as the conservative Christian baker in the second case was happy to sell to gay people. In both cases, it was the kind of cake, not the kind of customer, that mattered to the bakers. Gorsuch’s reasoning was absolutely correct. Business owners cannot be compelled to artistic design, only to provide equal access to their products. Whatever they do create, they must sell impartially and without discrimination. But they aren’t obligated to create something in the first place that goes against their religious or moral convictions.

Gorsuch’s concurrence should have been expanded on and embraced as the majority opinion. Instead we got an egregious cop-out. In Kennedy’s ruling, “the outcome of cases like this in other circumstances must await further elaboration in the courts”. Clearly most of the justices didn’t want to get their hands dirty for fear of being perceived as bigoted homphobes. But there is no conflict here between free speech and civil rights. As a bisexual it wouldn’t faze me in the least if a baker told me he didn’t make cakes celebrating same-sex unions. His business, his house, his rules — and for me, a mere inconvenience like going into any other business and being told they don’t carry what I need. Now, if I grabbed one of the baker’s products off the shelf and tried to buy it but was refused service because I’m bisexual, then obviously that would offend me; and indeed that would be a violation of discrimination laws. But no one has the right to expect business owners to design products they refuse to carry. The woke sense of entitlement is truly astonishing. I’ll say it again: business owners should not be compelled to artistic design, only to provide equal access to their products. That’s what Gorsuch was saying in his concurrence, and that’s what should have been the unambiguous ruling in Masterpiece Cakeshop.

2. McGirt v. Oklahoma (2020) and Oklahoma v. Castro-Huerta (2022)

The issue at stake: Native American sovereignty in the tribal courts
The rulings (5-4; 5-4): The federal government and tribal courts (not the states) have exclusive jurisdiction to prosecute crimes committed by Natives on Indian reservations (2020). On the other hand, the federal government and state governments (not the tribal courts) have jurisdiction to prosecute crimes committed by non-Natives on Indian reservations (2022).
Gorsuch’s opinion: For the majority in 2020, and for the dissent in 2022

It’s become clear to me that conservative justices have either a poor understanding of Native treaties or are simply contemptuous of them. Except for Neil Gorsuch. He has joined the liberal justices four times against the other conservatives in ruling in favor of the tribes — not because he’s a bleeding heart, but because he’s following proper conservative jurisprudence, and holding the government to its vows. Of the four cases, I choose these two, jointly, for the #2 slot. They argue essentially the same thing.

In McGirt v. Oklahoma, Gorsuch ruled that prosecution of crimes by Native Americans on Indian reservations is under the jurisdiction of the tribal courts and federal judiciary, not the state courts. He stated categorically: “We are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.” He was joined by the four liberals at the time (Kagan, Ginsburg, Breyer, Sotomayor) for a 5-4 ruling. McGirt, however, left open the question about crimes committed by non-Natives on Indian Reservations. The issue was decided this year in Oklahoma v. Castro-Huerta, and it should have gone the same way, but with Ginsburg replaced by Barrett it ended up being a conservative majority that ruled 5-4 against tribal jurisdiction. Gorsuch wrote a furious dissent, joined by the three remaining liberals: “Where this Court once stood firm, today it wilts. Where our predecessors refused to participate in one State’s unlawful power grab at the expense of the Cherokee, today’s Court accedes to another.” It’s the proper dissent — and to stress the point, a conservative one — which appeals to the landmark ruling of Worcester v. Georgia (1823), which has persisted for over 200 years, stating clearly that native tribes retain their sovereignty unless and until Congress ordains otherwise. If people don’t like tribal sovereignty, that’s for Congress alone to change, not the Supreme Court — which in this case, under Kavanagh’s majority ruling, was legislating from the bench.

3. Gundy v. United States (2019)

The issue at stake: Separation of powers
The ruling (5-4): The Sex Offender Registration and Notification Act’s delegation of authority to the Attorney General does not violate the separation of powers
Gorsuch’s opinion: For the dissent

Separation of powers is an important issue, but Americans have become increasingly indifferent to it. Today’s generation prefers immediate and favorable results, and to hell with the wider and long-term consequences. Whether it’s the judicial branch trying to legislate, the executive branch trying to legislate, or either of the elected branches trying to be judges, the threats to the rule of law, liberty, fair notice, democratic self-rule, and equal protection under the law remain the same.

The case of Gundy involves the executive branch assuming a legislative role, in what I take to be a stunning scenario: the nation’s chief prosecutor, the Attorney General, is able to write the laws for crimes he gets to punish. The Sex Offender Registration and Notification Act (SORNA) delegates that authority to him. Here the attorney general declared that a pre-SORNA sex offender was required to register under SORNA and then prosecuted him for having failed to register. This placed the power to make a law and the power to enforce it in the same hands — an egregious violation of the separation of powers. Alito and the four liberal justices ruled 5-4 that this was perfectly fine, but they were dead wrong. Gorsuch wrote for the dissent, saying:

“It would be easy enough to let this case go. After all, sex offenders are one of the most disfavored groups in our society. But the rule that prevents Congress from giving the executive carte blanche to write laws for sex offenders is the same rule that protects everyone else.”

Indeed. It’s crazy to allow the chief prosecutor to write his own criminal code. It invests him with far too much power over half a million people. Alito is always out to lunch, so I expect insanity from him, but the liberals had their collective heads up their asses in Gundy. This ruling may not be particularly well known, but I rank it as Gorsuch’s third best and most important opinion.

4. Bostock v. Clayton County (2020)

The issue at stake: Gay and transgender rights
The ruling (6-3): An employer who fires an employee for being gay or transgender violates Title VII of the Civil Rights Act of 1964
Gorsuch’s opinion: For the majority

Gorsuch wrote for the majority (6-3) — himself, Roberts, and the four liberals — arguing that Title VII prohibits employers from discriminating against any individual “because of such individual’s race, color, religion, sex, or national origin”. Discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat employees differently because of their sex — the very practice that Title VII prohibits. This is one of the most conservative rulings ever handed down by the Supreme Court, though people see it as a liberal one. It’s friendly to liberal politics, but it’s conservative law. It’s what Scalia’s originalist doctrine looks like when properly and consistently applied (though I doubt Scalia would have followed his own doctrine in this case).

Gorsuch’s argument is as bullet-proof as it is straightforward. Discrimination on the basis of one’s sexual orientation or transgender status is by definition sex discrimination, because in both types of discrimination, an employer must consider the employee’s sex — in other words, the employee’s biological marker of being a man or a woman — before the employer can identify the employee as homosexual (one who is sexually attracted to someone of the same sex) or transgender (one who is identifying with the other sex). Without the employer’s consideration of the employee’s sex, it would be impossible for that employer to discriminate against the employee on the basis of sexual orientation or transgender status. “Sexual orientation” and “transgender” cannot be defined, let alone understood, without explicit reference to sex.

The dissenting justices (Kavanagh, Thomas, Alito) crawled uphill with lame rebuttals, protesting that Congress didn’t put “homosexuality” or “transgendered” in the Act, and that Congress didn’t mean “gay” or “trans”, when writing the Act. But that’s wholly irrelevant. Gorsuch rubs the conservative noses in Scalia’s conservative originalist doctrine: “Discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second”, so it doesn’t matter that they aren’t explicitly named in the Act, or that they weren’t intended at the time of writing — anymore than it matters that interracial marriage wasn’t intended to be protected by the Equal Protection Clause when written in 1868.

Bostock is a solid example of value-free orignalism and gives lie to the myth that orignalism yields outcomes mostly favorable to conservative politics. For that reason I rank it at #4.

5. Carpenter v. United States (2018)

The issue at stake: Searching cell phone data without warrants
The ruling (5-4): Acquisition of cell-site records without a warrant violates the Fourth Amendment
Gorsuch’s opinion: A dissent and concurrence

This is sort of the inverse to the Masterpiece Cake case, where instead of concurring with the majority and scolding them at the same time, Gorsuch now dissents from the majority while agreeing with what drove them to rule the way they did. The case involved the government charging Timothy Carpenter for aiding and abetting robbery, on the basis of his cell-site evidence. Carpenter moved to suppress the government’s cell-site evidence on Fourth Amendment grounds, arguing that the FBI needed a warrant based on probable cause to obtain the records. The lower courts denied his motion to suppress, but the Supreme Court found in his favor, ruling that the Fourth Amendment protects not only property interests, but also reasonable expectations of privacy.

Gorsuch affirmed the former but denied the latter in his dissent. The framers, he insisted, didn’t protect privacy based on “reasonable expectations” in some ethereal way dependent on judicial intentions. They protected privacy in particular places and things — persons, houses, papers, and effects — and against particular threats — unreasonable governmental searches and seizures. The problem is that two Supreme Court rulings from the 70s — Smith v. Maryland and United States v. Miller — argued on the basis of “reasonable expectations of privacy”, and concluded that Fourth Amendment claims don’t apply to information shared with third-parties. Once you disclose information to third parties — like your bank, accountant, or doctor — you forfeit any reasonable expectation of privacy you might have had in it, and the government had a lawful right to obtain it by compulsory process. This of course is horribly wrong, as Gorsuch acknowledged with the majority (Roberts, Kagan, Ginsburg, Breyer, Sotomayor). His fellow conservative dissenters (Kennedy, Thomas, Alito) did not acknowledge this, and they concluded that cell-site records are no different from the many other kinds of business records that the government can obtain without warrants.

But that’s a terrible dissent, for as Gorsuch says (again, in agreement with the majority), people in fact do generally expect that information they entrust to third parties will remain private and confidential. But the remedy for this isn’t to appeal to some vague illegitimate idea about “reasonable expectations”, as the majority did. Rather than assert a Fourth Amendment claim based on a particular judge’s sensibilities about the “reasonableness” of our expectations to privacy, one must assert a Fourth Amendment claim based on cell-site data qualifying as personal property under existing law. And such a law does exist. Telephone carriers hold the information, but there is a statute that designates a customer’s cell-site location information as “customer proprietary network information” (CPNI) and gives customers rights to control the use of and access to CPNI about themselves. The statute generally forbids a carrier to use, disclose, or permit access to individuals indentifiable CPNI without the customer’s consent (except as needed to to provide the customer’s telecommunication services). Congress even afforded customers a private cause of action for damages against carriers who violate the Act’s terms. So customers have legal interests in this information, and those interests may well rise to the level of property right — which is legitimately protected by the Fourth Amendment. But in Carpenter, the plaintiff pursued a “reasonable expectations” argument, not a property rights argument, forfeiting, in Gorsuch’s view, a legitimate claim.

Gorsuch’s dissent in Carpenter is about reaching the goal by the safe path. The majority had the right idea, but they were trying to fix a problem without killing the monster that made it possible. Gorsuch writes:

“I cannot fault the Court today for its implicit but unmistakable conclusion that the rationale of Smith and Miller is wrong; indeed I agree with that. At the same time, I do not agree with the Court’s decision today to keep Smith and Miller on life support and supplement them with a new and multilayered inquiry [that only compounds the “reasonable expectations” problem]. Returning there, I worry, promises more trouble than help. Instead I would look to a more traditional Fourth Amendment approach.”

I too would rather see our cell-phone data shielded by the laws of property rights, and not leave the question eternally open to whatever this or that justice may think constitutes “reasonable expectations” to privacy. Smith and Miller should have been overturned, and the third-party doctrine ruled unconstitutional for everything — bank records, medical records, email servers — not just cell phones. Gorsuch’s shrewd criticism of both the majority and the dissent earns its place at #5.

6. A.M. v. Holmes (2016)

The issue at stake: Arresting kids for childish pranks
The ruling: The arrest of a 13-year old boy for repeatedly belching in school is lawful
Gorsuch’s opinion: For the dissent

This case is from Gorsuch’s last term on the Tenth Circuit (in Denver), a year before he joined the Supreme Court, and I include it on this list because it’s such a great dissent against a majority of idiots who seem not to have the common sense God gave geese. A middle school boy in Albuquerque, New Mexico was arrested for repeatedly belching on purpose during his gym class. The boy created a class distraction and was banished to the hallway, and he poked his head back into the classroom to belch again. At this point you might think that banishment to the principal’s office and a school detention would have been reasonable, but instead, the school had the boy arrested, put in handcuffs, and thrown into juvenile detention.

The boy’s mother was furious and sued the school officials and arresting officer, and rightly so, but lost her case. The judges on the Tenth Circuit took 94 pages to explain why arresting the boy was lawful, as the boy had violated a New Mexico statute which made it a crime to “willfully interfere with the educational process of any public or private school”. Gorsuch took only 4 pages to dissent, explaining that judicial precedent made the arrest of the boy unlawful. He pointed out that the New Mexico Court of Appeals long ago ruled that the statutory language on which the officer relied for the arrest in this case does not criminalize noises or diversions that merely disturb the peace or good order of individual classes. It criminalizes severe actions, like physical invasions of the school’s operations. Simply put, said Gorsuch, childish pranks do not justify the arrest of a child.

You don’t say. Gorsuch was the lone dissenter in this case, defending a 13-year old who was carted away in handcuffs because he couldn’t stop being gross. I belched all the time in my youth; I’m glad I wasn’t raised in New Mexico. This is an obscure ruling, and not even SCOTUS, but I love it so much — because I can’t believe Gorsuch had to counter such idiocy — that I place it at #6.

7. Niz-Chavez v. Garland (2021).

The issue at stake: Deportation
The ruling (6-3): Deportation hearing notices must be presented in a single document
Gorsuch’s opinion: For the majority

This is a technical case in which everything hinged on the word “a” in a statute, and got attention for that reason alone, but also because it saw three conservatives (Gorsuch, Thomas, and Barrett) joining hands with the three liberals (Kagan, Breyer, and Sotomayor). The other three conservatives who dissented (Kavanagh, Alito, and Roberts) were nonplussed to say the least.

The case involved Agusto Niz-Chavez, an unauthorized immigrant from Guatemala, who had been reported to the government for driving infractions. He received documents to appear at a deportation hearing in two separate installments. The first didn’t state where or when he needed to attend the hearing, though the second (received two months later) did. Niz-Chavez made an appearance at the hearing, where he stated his intent to seek withholding of removal under the Immigration and Nationality Act (INA) and relief under the Convention Against Torture. The immigration judge denied both applications, and Niz-Chaves appealed to the Board of Immigration Appeals. In addition to challenging the immigration judge’s conclusions, Niz-Chavez asked the Board to remand the case since his first notice to appear didn’t include the specific time and place of his removal proceedings, and thus didn’t trigger the stop-time rule under the INA. (The stop-time rule means that the clock stops ticking once you receive a Notice to Appear. That date becomes the end date of the immigrant’s continuous residency.) Niz-Chavez argued that he was now eligible for cancellation because of the deficiency of the notice he received. His appeals were rejected the Board and lower courts, and the case went to the Supreme Court.

The question for SCOTUS to settle was simply this: Must the government serve a specific document that includes all required information for a deportation hearing, or may the government serve that information over the course of multiple documents? Gorsuch’s answer was that the government must serve a single document with all the required information in order to trigger the stop-time rule.

“To trigger the stop-time rule, the government must serve a notice containing all the information Congress has specified. To an ordinary reader, a notice would seem to suggest just that: a single document containing the required information, not a mishmash of pieces with some assembly required. Someone who agrees to buy “a car” would hardly expect to receive the chassis today, wheels next week, and an engine to follow… At one level, the dispute may seem semantic, focused on a single word, a small one at that. But words are how the law constrains power. In this case, the law’s terms ensure that, when the federal government seeks a procedural advantage against an individual, it will at least supply him with a single and reasonably comprehensive statement of the nature of the proceedings against him. If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.”

More than fair enough, I say.

Interesting post-script to this case: Legal experts saw parallels between this case and Bostock v. Clayton County (#4 above). In both Gorsuch wrote for a majority of liberals (Kagan, Breyer, Sotomayor) and/or libertarians (himself, and Thomas and Barrett in this case; Roberts in the other case), against conservative ideologues (Kavanagh and Alito especially). In particular, Gorsuch and Kavanagh were seriously at odds with each other in each case, even though both are Trump appointees; both were former law clerks to Anthony Kennedy; and both were attendees of Georgetown Preparatory School. Yet Gorsuch and Kavanagh are as opposite as night and day in terms of jurisprudence.

8. United States v. Vaello Madero (2022)

The issue at stake: The Insular Cases (American colonialism)
The ruling (8-1): The Constitution does not require Congress to make Supplemental Security Income benefits available to the residents of Puerto Rico
Gorsuch’s opinion: Resentful concurrence

I love this one. The case involved Jose Luis Vaello-Madero, who was born in Puerto Rico in the 50s and moved to New York in the 80s. In 2012, he started receiving SSI payments with the onset of health problems, and in 2013 he moved back to Puerto Rico to help care for his wife. In 2016, the Social Security Administration (SSA) informed Vaello-Madero that because he had moved back to Puerto Rico, it was terminating his SSI benefits — and not only that, to add insult to injury, seeking to recover $28,000 in benefits it had paid Vaello-Madero between 2013 and 2016 when he was living in Puerto Rico.

Congress had established the Supplemental Security Income program to provide cash benefits to low-income elderly people with disabilities, and that program extends to residents of the 50 states, the District of Columbia, and the unincorporated territory of the Northern Mariana Islands — but for whatever reason, not to those living in Puerto Rico. The question for the Supreme Court is whether Congress violated the Fifth Amendment by establishing the program everywhere except Puerto Rico?

The ruling was pretty straightforward. The Constitution doesn’t require Congress to make benefits available to anyone in its unincorporated territories. Sotomayor dissented anyway, with no legal basis for her dissent. Instead of dissenting, Gorsuch concurred with the majority while delivering one mighty pissed-off screed. He concurred only because no one was asking the Court to overturn the Insular Cases — the series of Supreme Court rulings from the early 20th century that held that the federal government could rule Puerto Rico and other territories without regard to the Constitution. Gorsuch called for a case that would ask SCOTUS to do exactly that — to overturn the racist and colonial rulings. His screed is worth citing at length:

“A century ago in the Insular Cases, this Court held that the federal government could rule Puerto Rico and other Territories largely without regard to the Constitution. It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law. The flaws in the Insular Cases are as fundamental as they are shameful. Nothing in the Constitution speaks of ‘incorporated’ and ‘unincorporated’ Territories. Nothing in it extends to the latter only certain supposedly ‘fundamental’ constitutional guarantees. Nothing in it authorizes judges to engage in the sordid business of segregating Territories and the people who live in them on the basis of race, ethnicity, or religion. The Insular Cases can claim support in academic work of the period, ugly racial stereotypes, and the theories of social Darwinists. But they have no home in our Constitution or its original understanding. The Insular Cases’ departure from the Constitution’s original meaning has never been much of a secret. Even commentators at the time understood that the notion of territorial incorporation was a thoroughly modern invention. Because no party asks us to overrule the Insular Cases to resolve today’s dispute, I join the Court’s opinion. But the time has come to recognize that the Insular Cases rest on a rotten foundation. And I hope the day comes soon when the Court squarely overrules them. We should settle this question right. Our fellow Americans in Puerto Rico deserve no less.”

Hopefully the Insular Cases will be overturned someday.

 

Not perfect, by any means…

I certainly don’t agree with Gorsuch all the time. (Anyone who agrees with any justice “all the time” probably isn’t much of an independent thinker.) Gorsuch has shown some some blind spots in three particular areas: separation of church and state, labor law, and voting rights. He’s too liberal in defending the rights of religious expression for government employees. Private cake-bakers, yes, absolutely, but public-school football coaches praying at midfield isn’t appropriate, despite what he wrote for the majority in Kennedy v. Bremerton School District (2022) (in my view the worst opinion he has ever written). His perspective on unions leaves much to be desired. While he didn’t write the opinion or any concurrence for Janus v. American Federation of State, County, and Municipal Employees (2018), he did join that horrible ruling which now prevents people, acting through their state and local officials, from making important choices about workplace governance — and on top of that encourages freeloading non-union members who reap the same benefits as dues-payers. Then there was Rucho v. Common Cause (2019), to which he contributed nothing, but joined the opinion just the same; thanks to that ruling (which claimed the Court lacked jurisdiction and left matters for the states and Congress to decide), partisan gerrymanders are able to deprive citizens of a most fundamental constitutional right: to participate equally in the political process and choose their political representatives. Still, I do I agree with Gorsuch’s opinions more than those of any other justice, and I consider him a model of impeccable judicial integrity.

A Republic, If You Can Keep It

Ben Franklin’s quip in 1787 was a warning. Democratic republics usually devolve into mob rule or become oligarchies, or even dictatorships, and one of the Constitution’s best safeguards against those trends is the separations of powers — our system of checks and balances that fewer people these days seem to think important. Lawmakers are our moralists and ethicists; they stand for the people who elect them and advocate accordingly. Executives are the police, enforcing what our lawmakers decide. And judges are our amoral adjudicators; they interpret laws, neutrally and impartially, to be sure “the laws are legit”; that they don’t conflict with the Constitution; and they do this even when — especially when — the outcome is personally unfavorable to the judge. Without those divisions a republic’s days are numbered. History teaches hard lessons in this regard.

Franklin’s quote is a suitable title for Neil Gorsuch’s book, which came out three years ago. You’d think I would have cracked it sooner. Gorsuch is my favorite justice on the Supreme Court, but for whatever reason, I assumed this book would be like most books by SCOTUS justices — memoirs and autobiographical anecdotes about the justice’s personal life, for which I’ve little interest. Turns out there’s very little of that. Most of A Republic, If You Can Keep It is about exactly what I want: the author’s jurisprudence and his views of the proper role of judges under the Constitution. It covers a lot of ground, drawing on many court cases as examples. I’ll go through some of the highlights and examples that I found particularly interesting.

Separated Powers

No matter how you blur the separation of powers, says Gorsuch, it ends up bad. When the judicial branch decides what the law should be, the people are excluded from the lawmaking process, replaced by a handful of judges who don’t have a constituency. When the executive branch makes new laws, a slow process that’s supposed to reflect and benefit from the views of the people is left to a single actor. And when either of the elected branches assume the judicial function, instead of a neutral judge and a jury of their peers, the people are left with politicized decision makers who will be tempted to pick winners and losers based their current popularity more than merit — whatever happens to be in fashion. “However you mix what are supposed to be separated powers, the threats to the rule of law and liberty are much the same. At risk are the promise of knowable and stable law, fair notice, democratic self-rule, and equal protection under the law.” (p 45) Americans have become increasingly blind to these dangers; they prefer immediate and favorable results, long-term consequences be damned.

The role of the judiciary is probably the most important of all, being an unelected branch charged with the highest honor or being impartial and above personal agendas. Says Gorsuch:

“Legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. Judges should do none of these things in a democratic society, instead striving to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history — not to their own moral convictions or the policy consequences they believe might serve society best. If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.” (p 48)

Gorsuch draws on cases to show how these threats manifest. I’ll cover two.

(1) Gutierrez-Brizuela v. Lynch (2016) shows the dangers of mixing of executive and judicial powers. Gorsuch was on the Tenth Circuit for this case, and it involved two conflicting provisions of U.S. immigration law. The first law implies that certain people who have illegally reentered the United States can gain lawful residency at any time, provided that the Attorney General grants them adjusted status. But the second states that these same people can’t gain lawful residency unless they first leave the country and wait ten years. The government said (a) that Gutierrez-Brizuela should lose and (b) that the court had to defer to its own understanding of how the two statutes should be reconciled, rather than the court’s understanding — which was allowing an executive agency to assume the role of the judiciary.

With regards to (a), Gorsuch ruled that the balance tipped decidedly toward the petitioner: Gutierrez-Brizuela had relied on judicial precedent, and it would be unfair to upset his expectations now and to create substantial uncertainty for people in similar positions. But Gorsuch also wrote a separate concurrence to address point (b) — the real elephant in the room — arguing that an executive agency should never assume the role of the courts. Specifically Gorsuch argued that the Supreme Court ruling Chevron v. Natural Resources Defense Council (1984) needs to be overturned. That ruling has become known as the “Chevron defense” and for 38 years now it has allowed executive agencies to use legislative power to perform a quasi-judicial function. It’s an ongoing bone of contention, and with Gorsuch I believe incompatible with the constitutional division of powers:

Chevron tells us that we must allow an executive agency to resolve the meaning of any ambiguous statutory provision. In this way, Chevron seems no less than a judge-made doctrine of the abdication of the judicial duty. Transferring the job of saying what the law is from the judiciary to the executive unsurprisingly invites the very sort of due process (fair notice) and equal protection concerns the framers knew would arise if the political branches intruded on judicial functions.” (p 78)

Thus do people like Gutierrez-Brizuela end up getting shafted without fair process. Chevron is so open-ended that it allows agencies to reverse their current views 180 degrees anytime based merely on the shift of political winds — and without deigning to announce their views in advance. Chevron also says that we should infer from any statutory ambiguity Congress’s intent to “delegate” its “legislative authority” to the executive to make “reasonable” policy choices. But this is horseshit; Congress has never expressed this intent. An executive agency has no power to act unless and until Congress confers power on it; Chevron stands Constitutional rule on its head.

(2) Unites States v. Nichols (2016) & Gundy v. United States (2019) shows the dangers of the executive assuming the legislative function — in a stunning scenario in which the nation’s chief prosecutor is able to write the laws for crimes he gets to punish. In these two Supreme Court cases, the question was, could the attorney general both declare that a pre-SORNA sex offender was required to register under SORNA (Sex Offender Registration and Notification Act) and then prosecute him for having failed to register? This placed the power to make a law and the power to enforce it in the same hands — an egregious violation of the separation of powers. Samuel Alito and the four liberal justices ruled (5-3) yes, that this was fine, but they were dead wrong. Gorsuch wrote the dissent, rightly arguing:

“It would be easy enough to let this case go. After all, sex offenders are one of the most disfavored groups in our society. But the rule that prevents Congress from giving the executive carte blanche to write laws for sex offenders is the same rule that protects everyone else.”

Indeed. It’s insane to allow the chief prosecutor of the United States to write his own criminal code. It invests him with far too much power over half a million people. Alito is always out to lunch, so I expect insanity from him, but the liberals had their collective heads up their asses in Gundy.

Originalism and Textualism

From an early point in his career, Gorsuch realized the importance of originalism:

“I began to see the importance of interpreting written laws as originally understood. I saw what happens to ordinary people in real cases, to the rule of law, and to the role of the judge when courts abandon that task in favor of ‘evolving’ the law in ways they think preferable. My concerns only grew as I became a lawyer and, later, a judge. I saw people sent to jail or fined for conduct the written law did not proscribe. I saw contracts rewritten based on little more than a judicial policy preference. I came to realize that when judges abandon the original meaning of a law to pursue some other goal they find worthy, they risk exercising political will rather than legal judgment. And, in the process, they threaten the legitimacy of the judicial enterprise and the right of the people to fair notice under the law’s demands.” (p 106)

There are many judiciary examples of the road to hell being paved with good intentions. One of them is Ohio v. Roberts (1980). Gorsuch explains that the Sixth Amendment’s Confrontation Clause gives defendants the right to confront witnesses and cross-examine their testimony, but in this 1980 ruling the SCOTUS justices said that the purpose of the Confrontation Clause was simply to restrict the admission of unreliable hearsay into evidence, and that judges could dispense with it if they found the testimony “reliable”. But what does that even mean? Under this ruling, identical cases were often treated differently. Some judges found detailed statements reliable; others were fine with the briefest statements. Some judges thought because the witness was in custody, it made his testimony reliable; others thought because he wasn’t in custody it was reliable. Some judges thought testimony given right after the events was reliable; others said that the passage of time made it reliable.

This terrible standard — for all the good intentions that drove it — went on for 24 years, until SCOTUS overturned Ohio v. Roberts. The case was Crawford v. Washington (2004), in which the court ruled that the Confrontation Clause gives defendants the absolute and unconditional right to confront witnesses and cross-examine their testimony. “A defendant’s right to confrontation today can mean no less than it did at the nation’s founding. It is not for judges to decide how to balance the competing interests of efficient law enforcement on the one hand, and accurate criminal convictions on the other.” (p 110) This of course is the doctrine of originalism, which is often caricatured.

Originalism properly understood

First things first: it’s not just conservatives who are originalists. It’s true that conservatives got us back on track with orignalism in the ’80s, led by Antonin Scalia, but it’s no longer so partisan. The queen of liberals, Ruth Ginsburg, counted herself an originalist, and Elena Kagan — currently the best justice on the court after Gorsuch — said in 2015 basically that all justices who count for anything are originalists and textualists, thanks precisely to Scalia. Says Gorsuch:

“Elena Kagan acknowledged in her Scalia Lecture at Harvard Law School in 2015, ‘we’re all textualists now’. Capturing the spirit of the law school back when she and I attended, Justice Kagan went on to relate how professors and students often used to approach reading a statute with the question, ‘Gosh, what should this statute be?’, rather than ‘What do the words in the statute say?’ That much has changed, and as Justice Kagan said, ‘Justice Scalia had more to do with this change than anybody’ because he ‘taught everyone to do statutory interpretation differently’.” (p 48)

The best liberals, in other words, acknowledge their debt to Scalia’s originalist jurisprudence. So should we all. And when misguided liberals complain that originalism throws us back on an antiquated world that’s doesn’t fit with the 21st century, they’re spitballing. Originalism means that original meaning is fixed; obviously new applications of that meaning will arise with new developments and new technologies (p 111). Nor does originalism imply a disdain for precedent. It’s just a matter of getting the right precedent (as any judge would agree); there are good precedents and bad ones. Nor does originalism lead necessarily to results that are politically conservative. Gorsuch blasts that myth with ease:

“Originalism is a theory focused on process, not on substance. It is not ‘Conservative’ with a a big C focused on politics. It is conservative in the small c sense that it seeks to conserve the meaning of the Constitution as it was written. The fact is, a good originalist judge will not hesitate to preserve, protect, and defend the Constitution’s original meaning, regardless of contemporary political consequences. Whether that means allowing protestors to burn the American flag (the First Amendment); prohibiting the government from slapping a GPS tracking device on the underside of your car without a warrant (the Fourth Amendment); or insisting that juries — not judges — should decide the facts that increase the penalty you face in a criminal case (the Sixth Amendment). In my own judicial career, I’ve written many originalist rulings with so-called ‘liberal’ results.” (p 115)

He’s not kidding about that last. Many times Gorsuch has joined the liberal justices — to rule in favor of Native American Indians, the transgendered, and immigrants. As I often say, a conservative judiciary approach can be just as friendly to liberal politics as to conservative politics, because it is appropriately blind to politics. Without that, you don’t have a system of checks and balances anymore. You just have a politicized court doing as they please.

On Precedent

According to Gorsuch, “laypeople — and for that matter, more than a few lawyers and judges — have more misunderstandings about the nature and role of precedents than about any other aspect of legal reasoning.”

“Judges often say that they construe or interpret a statute, which means they try to determine the meaning of its language. By contrast, judges and lawyers often say that they analyze a judicial precedent. Although analyzing an opinion involves delving into the judge’s words, you must go beyond the judge’s words. You must also understand the opinion’s legal background, the facts of the case, and the relationship between those facts and the outcome. In other words, with case law [involving precedent] you can’t just interpret its language; you must also engage in legal reasoning to find what we call the case’s holding — the rule or principle necessary to justify or explain the outcome. When lawyers and judges analyze a precedent, they’re usually trying to find out what the holding is. They’re also trying to gauge how broadly or narrowly the holding sweeps — that is, how it will apply to future cases that present a similar issue but with different facts.” (p 212)

It is, to put it mildly, not an exact science, and it can enshrine bad decisions for a long time, but also good ones. I’ll cover three of the many examples Gorsuch uses — cases involving professional baseball, endangered species, and kids who belch in class.

Baseball

Does major league baseball engage in interstate commerce so that it must obey federal antitrust laws, like other businesses that operate across state lines? We might think obviously yes, since professional baseball is a form of commerce, and certainly an interstate one. But exactly one century ago, in Federal Baseball Club v. National League (1922), the Supreme Court ruled that the Sherman Antitrust Act did not apply to Major League Baseball. That’s why Major League Baseball hasn’t faced any competitor leagues since 1922, and to date remains the only baseball league with an antitrust exemption. The Supreme Court’s reasoning was that “giving exhibitions of baseball doesn’t involve interstate commerce” — which is shifty to say the least.

“Taking” wildlife

When a farmer plows a field and unintentionally disturbs birds that have settled there, is he safe from the charge of “taking” wildlife? We might again think obviously yes, since harming or taking wildlife intuitively has to do with actions aimed at killing or capturing. As a circuit court judge put it: “If I were intent on ‘taking’ a rabbit, a squirrel, or a deer, I would go forth with my dogs or my guns or my snares and proceed to harass, pursue, hunt, shoot, wound, kill, trap, capture, or collect one of the target species.” But in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (1995), the Supreme Court ruled that the words “harm” and “take” in the Endangered Species Act can apply to habitat modification or degradation. Speaking as a conscious environmentalist, I’m a bit on the fence with this precedent. I personally approve extending the idea of harming wildlife as applying to that which interferes with the breeding, feeding, or sheltering habits of endangered species. But I disapprove of punishing farmers for unintentionally harming wildlife on their own property. If I were a justice, I wouldn’t interpret the term “harm” or “take” that liberally; that’s for lawmakers to do, if they want to amend the Endangered Species Act. To that extent, anyway, I agree with Gorsuch that this particular precedent is wrong-headed.

Belching in class (how rude… and perilous)

Then there are cases where judicial precedent can be a very good thing. In one of my favorite Gorsuch cases he was the lone dissenter, resting his case on a precedent that none of his colleagues would accept. In A.M. v. Holmes (2016), a 13-year-old middle school boy in Albuquerque, New Mexico was arrested for repeatedly belching on purpose during his gym class. The boy created a class distraction and was banished to the hallway, and he poked his head back into the classroom to belch again. At this point banishment to the principal’s office and a school detention would have been reasonable, but instead, the school had the boy arrested, put in handcuffs, and thrown into juvenile detention.

The boy’s mother sued the school officials and arresting officer and it went to court. The judges on the Tenth Circuit took 94 pages to explain why arresting the boy was legit, as the boy had violated a New Mexico statute which made it a crime to “willfully interfere with the educational process of any public or private school”. Gorsuch took only 4 pages to dissent, explaining that judicial precedent made the arrest of the boy unlawful. He pointed out that the New Mexico Court of Appeals long ago ruled that the statutory language on which the officer relied for the arrest in this case does not criminalize noises or diversions that merely disturb the peace or good order of individual classes. It criminalizes severe actions, like physical invasions of the school’s operations. Simply put, said Gorsuch, childish pranks do not justify the arrest of a child. This is a case where precedent is not only a good thing, but plain common sense. It’s too bad the mother didn’t win her case.

Verdict

There’s plenty more in A Republic, If You Can Keep It that shows why Neil Gorsuch is the best SCOTUS justice we’ve seen in a long time (in my view, the best to serve in my lifetime). It’s one thing to preach good jurisprudence, and quite another to consistently practice it. Scalia didn’t always live up to his great standards. I’m not saying Gorsuch is perfect, and I’ve certainly disagreed with him at times. But in his own words, that’s fine, for there can never be agreement all of the time, and our democracy depends on our ability to reason and work with those who interpret things differently.

Overturning Precedent and Concerns About Originalism

Today’s lesson is twofold. The overturning of judicial precedent can be very necessary at times, and judicial originalism is a good thing to be embraced. Here’s an overview of some major Supreme Court rulings that overturned landmark precedents.

1. West Virginia State Board of Education v. Barnette (1943). The court ruled 6-3 that forcing public school students to salute the American flag was unconstitutional, because it compelled them to confess orthodox politics. This overturned Minersville School District v. Gobitis (1940), which had said that mandatory flag salutation was constitutional, because national unity was the basis of national security.

2. Brown v. Board of Education of Topeka (1954). The court ruled 9-0 that segregating black kids from whites — “a separate but equal” policy of educational facilities for racial minorities — violated the 14th Amendment’s Equal Protection Clause. This effectively overruled Plessy v. Ferguson (1896), which had said that while the 14th Amendment did indeed establish absolute equality for the races before the law, separate treatment did not imply the inferiority of African Americans. Brown v. Board of Education of Topeka now said, to the contrary, that “separate but equal” facilities are inherently unequal and thus violate the Constitution: a segregation of public education based on race instills a sense of inferiority and has a detrimental effect on the education and personal growth of African American children.

3. Mapp v. Ohio (1961). The court ruled 6-3 that evidence gathered by authorities through searches and seizures that violated the Fourth Amendment cannot be presented in a state court. This overturned Wolf v. Colorado (1949), which had ruled that illegally obtained evidence did not necessarily have to be excluded from trials (and that the solution to such illegally obtained evidence lay in disciplining police officers under the public eye).

4. Gideon v. Wainwright (1963). The court ruled 9-0 that state courts must appoint attorneys for defendants who cannot afford to retain lawyers on their own. This overturned Betts v. Brady (1942), which had ruled the opposite — that defendants don’t have the right to be appointed counsel if they can’t afford it.

5. Miranda v. Arizona (1966). The court ruled 5-4 that suspects being interrogated by the police must be informed that they are allowed to remain silent and also allowed to ask for an attorney during questioning. This overturned both Crooker v. California (1958) and Cicenia v. Lagay (1958) which said that denying counsel didn’t violate the Due Process Clause of the Fourteenth Amendment.

6. Brandenburg v. Ohio (1969). The court ruled 9-0 that held that the government cannot punish a Ku Klux Klan leader’s inflammatory speech unless that speech is directed to inciting imminent lawless or violent action. Hate speech, or the mere advocacy of violence, does not in itself incite to violence, and generally speaking, hate/inflammatory/rebellious speech is fully protected under the First Amendment. This overturned Whitney v. California (1927), in which a citizen was convicted for helping to establish the Communist Labor Party of America, and teaching the violent overthrow of government.

7. Gregg v. Georgia (1976). The court ruled 7-2 that capital punishment laws don’t violate the Eighth and Fourteenth Amendment’s prohibitions on cruel and unusual punishment. This overturned Furman v. Georgia (1972), which had invalidated all death penalties.

8. Lawrence v. Texas (2003). The court ruled 6-3 that two persons of the same sex cannot be criminalized for engaging in sexual conduct, as it violates the Due Process Clause of the Fourteenth Amendment. This overturned Bowers v. Hardwick (1986), which had ruled that there was no constitutional protection for acts of sodomy, and thus that states could outlaw sodomy if they wanted to.

9. Crawford v. Washington (2004). The court ruled 9-0 that the Sixth Amendment’s Confrontation Clause gives the accused the absolute right to confront witnesses and cross-examine their testimony. This overturned Ohio v. Roberts (1980), which had said that the purpose of the Confrontation Clause was to restrict the admission of unreliable hearsay into evidence, and judges could dispense with it if they found testimony reliable. The result of this was that for 24 years, identical cases were often treated very differently, depending on what a judge personally found to be “reliable”.

10. Citizens United v. Federal Election Commission (2010). The court ruled 5-4 that the government cannot ban corporate funding of independent political broadcasts during election cycles, as it violates the First Amendment. This overturned Austin v. Michigan Chamber of Commerce (1990), which had allowed the government to prohibit corporations from using treasury money to support candidates in elections (on grounds that corporate wealth can unfairly influence elections).

11. Obergefell v. Hodges (2015). The court ruled 5-4 that the right of homosexual marriage is guaranteed by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. This overturned Baker v. Nelson (1972), which said there is no constitutional right to same-sex marriage.

12. Janus v. American Federation of State, County, and Municipal Employees (2018). The court ruled 5-4 that union agency fees extracted from nonconsenting public-sector employees was a violation of the First Amendment. This overturned Abood v. Detroit Board of Education (1977), which had said non-union members may be assessed agency fees as those non-union members are benefiting from the collective bargaining process as much as the union members are.

13. Dobbs v. Jackson Women’s Health Organization (2022). The court ruled 6-3 that the Constitution does not confer the right to an abortion. This overturned Roe v. Wade (1973) and also Planned Parenthood of Southeastern Pa. v. Casey (1992), the latter of which had refined Roe by saying that the Constitution protects the right to seek a previability abortion (approximately before the third trimester).

The vast majority of these rulings (the ten blue ones) were correct in overturning the precedents, though I disagree strongly with the red rulings and feel ambivalent about the green one. My level of dis/agreement has nothing to do with whether or not the outcome is un/favorable to me, though I do personally like the outcomes of all the blue cases, and dislike the outcomes of the red and green. What matters is whether or not the rulings were reached by sound jurisprudence. The reds were clearly not.

In the case of (10), Citizens United v. Federal Election Commission (2010), the majority based their ruling on a flimsy understanding of the First Amendment. I’m pretty uncompromising when it comes to defending the First Amendment, but corporations aren’t members of society in the way that individuals are, and there are compelling governmental interests to curb corporations’ ability to spend money during local and national elections. Fair elections cut to the heart of our democracy, and appeals to the First Amendment to allow unchecked corporate funding are extremely hollow.

The case of (12), Janus v. American Federation of State, County, and Municipal Employees (2018), rests on an even worse appeal to the First Amendment. Union agency fees do not require individuals to endorse ideas they disagree with. Abood v. Detroit Board of Education (1977) made clear that agency fees could only be used to recover the costs of collective bargaining, contract administration, and grievance adjustment purposes, and that they could not be used for ideological or political purposes. Just because unions are political bodies and get politically involved doesn’t mean that paying union dues or agency fees constitutes an endorsement of everything a union does. I’ve been a union member of my public library for 27 years now, and have served proudly as a president for three and a half terms. I’ve also disagreed plenty with what my union does at times, and for the political candidates it endorses. In no way does that mean paying union dues conflicts with my freedom of expression. Paying my union dues is simply right and fair, so that I’m not a freeloader who reaps benefits like a welfare king. Janus goes down as one of the worst rulings that Samuel Alito ever wrote. Abood should not have been overturned.

Then we have the case of (13), Dobbs v. Jackson Women’s Health Organization (2022), with Alito once again at the helm in overturning a landmark 70s ruling. Unlike Janus, however, Dobbs isn’t so easy to tear apart. It’s hard to deny the problems with Roe v. Wade. Even Ruth Ginsburg acknowledged its foundation was shaky. She believed that women ought to have sovereignty over their bodies (as do I), but she also believed that Roe was decided wrong. It was decided on the basis of privacy — holding that the Due Process Clause of the Fourteenth Amendment provides a “right to privacy”, which protects a pregnant woman’s right to an abortion — and Ginsburg thought the Equal Protection Clause would have provided a stronger shield for abortion rights. But, as even the dissenting justices in Dobbs candidly admit, the right to an abortion in any context lacks constitutional foundation.

Ginsburg was no doubt acutely aware of this, which is why she also believed that the Equal Protection Clause should have been used cautiously and incrementally, in a number of rulings instead of one fell swoop — a swoop that probably harmed the evolution of abortion rights by going too far and too fast. With its sweeping pronouncement Roe created a more polarized environment, inviting no dialogue with legislators and effectively removing the ball from the lawmakers’ court. At the time of the ruling (1973), abortion laws were evolving across the nation, with a strong trend towards liberal statutes. Roe contributed to a major pro-life backlash, making a ruling like Dobbs more and more inevitable when conditions were right for it.

As dispirited as I am by Dobbs, I can’t pretend that it was a bad ruling. We should also bear in mind that America is the only place where abortion ever enjoyed Constitutional protection. In other countries where it is legal, it’s legal because it is codified in laws (as it is in some of our 50 United States), laws that are the outcome of legislative give and take, as laws should be. In many of our states, abortion is permitted up to 15 weeks, which is liberal compared to European countries which cut off the abortion option at 12 weeks. If America is ultra-conservative about abortion in some states, it’s flaming liberal in others (in four states, third-trimester abortions are legal), and that’s the nature of federalism. I would prefer to see a right like abortion enshrined in federal law (rather than leave it to the states), but most of my objections to Dobbs have to do with my pro-choice convictions. I can muster up some judicial arguments but they’re not strong.

As for the ten rulings in blue (1-9, 11), they overturned precedent with complete originalist integrity. Students shouldn’t be forced to salute a flag in public schools; check. “Separate but equal” facilities is an oxymoron from a constitutional point of view; check. Evidence gathered illegally (without warrants) should be inadmissible; check. All defendants are entitled to legal counsel, whether they can afford it or not; check. Suspects being interrogated deserve to be reminded of their rights; check. People should have the right to say what they want, no matter how inflammatory, hateful, or rebellious they are; check. Capital punishment is not necessarily cruel and unusual; check. Judges are not supposed to substitute a conditional guarantee of the Confrontational Clause for an absolute one found in the Constitution’s text; check. Gays should be able to bang each other to kingdom come, just like straights; check. Gays should also not be obstructed from marriage; check. All of those rulings overturned precedents that were wrongly decided.

Originalism: a safety corner for the bigoted and privileged?

It continues to surprise me that originalism is seen this way. I can only suppose that leftists have in their mind a Robert Bork-like caricature of originalism, where precedent counts for nothing and jurisprudence is a mask for the dark-age ideologue. (There’s a reason why Bork was rejected by the Senate.) When applied soundly, there is little to fear from originalism. It has proven time and time again to be liberating for all people. Consider:

It certainly doesn’t promote (a) blind nationalism. Take case (1), above, West Virginia State Board of Education v. Barnette (1943), where the court ruled that the First Amendment cannot enforce a unanimity of opinion on any topic, including deference to the American flag. This means that Minersville School District v. Gobitis (1940) — which said that public schools can require students to salute the flag — was wrong the day it was decided. It was overruled by conservative principles grounded in the First Amendment.

And not only do you not have to salute the flag, you can burn the thing (if it’s yours to burn), thanks to Texas v. Johnson (1989). One of the justices in that majority ruling was none other than the arch-conservative originalist, Antonin Scalia. Originalism is the enemy of blind patriotism, not a friend of it, because the framers of the Constitution had no use for unctuousness to one’s government.

Others object that originalism means that (b) racists would have won the day, but that’s entirely false. Take case (2), Brown v. Board of Education of Topeka (1954), which outlawed racial segregation, and which originalist justices cite with approval. It wasn’t a “liberal” or “progressive” ruling (at least not from a judiciary perspective). It was rather Plessy v. Ferguson (1896) — which upheld racial segregation — that was activist and judiciary liberal, because it violated the Fourteenth Amendment (ratified in 1868). The Equal Protection Clause of that Amendment says that individuals in similar situations must be treated equally by the law, and so school segregation is wrong, pure and simple. Saying that a black child cannot go to a white school was just as unconstitutional in 1896 as it was in 1954. Originalist justices understand this.

The idea that we would still have bans on interracial marriage if we adhered to originalism is also backwards. Originalists believe that the Fourteenth Amendment safeguards interracial marriage. That amendment’s Due Process Clause prohibits arbitrary deprivation of life, liberty, and property, while its Equal Protection Clause mandates that individuals in similar situations be treated equally by the law. In other words, originalists believe that Loving v. Virginia (1967) — which struck down interracial marriage bans — was the proper (conservative) ruling. Interracial marriage bans have been unconstitutional since 1868, even if it took 99 years for America to fully realize this.

Ditto for worries about (c) homophobia. Take case (10), Obergefell v. Hodges (2015). Bans on gay marriage were always unconstitutional (or at least since 1868), because of the Due Process Clause and Equal Protection Clause. To ignore that and be a homophobe is to be a judiciary activist instead of a proper conservative.

The hard-core originalist on the court right now is Neil Gorusch, and he authored Bostock v. Clayton County (2020), which says that an employer who fires an individual for being gay or transgender violates Title VII of the Civil Rights Act of 1964. Gorsuch argued that Title VII prohibits employers from discriminating against any individual “because of such individual’s race, color, religion, sex, or national origin”. Discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat employees differently because of their sex — the practice that Title VII prohibits in all manifestations. Gorsuch’s reasoning was value-free and hinged solely on what the word “sex” meant to the lawmakers who put it in the Civil Rights Act. Bostock is in fact one of the most conservative rulings ever handed down by the Supreme Court, though people see it as a very liberal one. It may be friendly to liberal politics, but it’s conservative jurisprudence and the enemy of homophobia.

Still others say that originalism means that (d) sexists would have won the day, and that women would never have become entitled to equal protection under the law. But the Fourteenth Amendment prohibits denying “to any person within its jurisdiction the equal protection of the laws”. “Person,” not “men.” When women got the right to vote (with the Nineteenth Amendment in 1920) and fell under the Equal Educational Opportunities Act (in 1974), it may have been liberal progressive politics providing the impetus, but a judiciary originalist sees the matter a bit differently. The originalist sees “liberal” laws like these as simply removing blind spots and putting into practice what the Constitution always said or implied.

In short, originalism has nothing whatsoever to do with being privileged or bigoted. Few realize that there are liberal justices who pride themselves on being originalists. Ruth Ginsburg said, “I count myself as an originalist,” and Elena Kegan said, “We’re all originalists now”. (She said this in her Scalia Lecture at Harvard Law School in 2015, where she acknowledged the judicial indebtedness to Scalia, who “taught everyone to do statutory interpretation differently.”) For a simple reason: every justice, conservative and liberal, believes the Constitution is one of the finest legal documents ever written. It was always more enlightened and ahead of its time than many justices dreamed possible. It can’t always give us what we want, but then we shouldn’t expect it to. It plays no partisan favorites; it’s better than that.

SCOTUS charts

A few observations from these SCOTUS charts.

  • Gorsuch and the three liberals were less often in the majority this term; the other five remained consistent with last term.
  • Roberts and Kavanagh are almost never outside the majority.
  • Barrett hasn’t been doing much. She wrote the least number of opinions last year (8 ) and second least (behind Roberts) this year (12).
  • Kagan wrote a lot more this term (17) over the previous term.

In and of themselves, these observations don’t mean much but I find it interesting that my two favorite justices (Gorsuch and Kagan) are kissing across the orange-blue divide, and my second two favorites (Thomas and Breyer) the next closest to the middle. Confirms my opinion that these justices at least aren’t ruling as ideologues.

 

The Stranger Things Characters Ranked (For Each Season)

I’ve seen many rankings of the best Stranger Things characters, but they’re kind of superficial because characters change from season to season. So here are the definitive rankings for each season. I’m only doing the top 5 for each, followed by some honorable mentions. And for season 3 there are no “best characters” — for that one I list the five worst!

Season 1

The first season is all the kids. And Hopper who is boss.

1. Mike. He’s the soul of season 1, a killer dungeon-master and natural leader for the nerd crowd. He loves El from the start but with all the anxious denials of a 12-year old.


2. El. What she conveys in her silences and curious stares is sublime. If anyone other than Millie BB had been cast for Eleven, the series wouldn’t be the cultural phenomenon it is.

3. Hopper. Haunted by the death of his daughter, he does everything to save Will Byers. He has so many dimensions, rage and tenderness, and is played flawlessly — one of the best characters in any TV series.

4. Lucas. There were a lot of Lucas haters for season 1, but I loved him for all the reasons he was criticized. His jealousy over Mike and Eleven, and how it drives his character, is precisely what makes him so real and endearing.

5. Dustin. Everyone adores him for obvious reason. He’s genuinely funny without trying, and his dialogue is so natural it seems ad-libbed by Matarazzo.

Honorable mentions for season 1: Nancy (great character arc), Steve (another fabulous arc), and Joyce (plays the hysterical mother very convincingly).

Season 2

The sophomore season is all the lonely hurt. And Hopper again, who is even more boss.

1. Mike. This season he’s Emo-Mike, mad at the world, shitting on his friends (except Will), acting out in school, still hurt by the loss of Eleven. His mother even makes him throw his toys away. I love him even more this season ’cause I feel his pain.

2. El. She gets even better this season as she comes to terms with her anger and homicidal impulses. Her relationship with Hopper is handled perfectly and her reunion with Mike a major high point of the series.

3. Hopper. He too gets better and better. We see deeper flashes of rage but also unexpected tenderness. He’s territorial of El and wants to keep her secret and on a tight leash.

4. Will. This is Will’s season, and Noah showed us what he can do when being torn inside out. Seriously.

5. Max. With season 4 in our rear-view, it’s hard to remember the days of Max-haters. Not me. I loved her from the start, how she was a loner preferring the company of boys. Everyone (Mike, Dustin, even El) shits on the poor girl this season except for Lucas, yet Max takes it all in stride.

Honorable mentions for season 2: Sam Owens (love that guy), Steve & Dustin (their bromance was born here), Lucas, and Joyce.

Season 3 (The Worst)

Ranking the best characters of season 3 would be meaningless. Aside from Eleven no character stands out. They’re all given lousy material to work with. So here I’m doing the five worst characters, who are easy to single out.

1. Hopper. I can’t think of a character from any TV series who undergoes a perverted caricature like the Jim Hopper of Stranger Things 3. He’s light-years away from Hopper of seasons 1 and 2 — over the top in every frame and acting like a buffoon. His rage could have been compelling if taken seriously, but he’s played entirely for laughs.

2. Erica. Young sassy brats work in small doses. Erica’s brief moments in season 2 were amusing. As a main character in season 3 she is 100% annoying.

3. Robin. Her motor-mouthing isn’t endearing. She’s almost as annoying as Erica.

4. Joyce. Joyce isn’t terrible this season, but she does play into Hopper’s silliness. It’s a major downturn from her compelling performances in seasons 1 and 2.

5. Mike. Like Joyce he’s not exactly bad this season, but he’s just kind of there, and played too much for comic relief. Quite a fall from the Mike who was the best character of seasons 1 and 2.

Season 4

This is the season of hell — ladies put through hell (El and Max), a guy accused of summoning demons from hell (Eddie), a poor kid going through hell (Will), and a man living in hell (Hopper in prison). They are the best characters of season 4 hands down:

1. El. She’s put through the ringer 700 ways to Sunday — bullied in high school, arrested for lashing out at her bully, taken to the Silo Lab where she relives her worst traumas (involving more bullying), on top of being manipulated by Papa, and then shot at by government assassins. For all her pain she fails to defeat Vecna — who not only gets away but initiates the end of the world. But you’ve never been more proud of El than in season 4. What a performance.

2. Max. Like El she has nothing to smile about this season, and by the end she’s braindead, blind, and broken. Max has come a long way since season 2, and has easily catapulted up to the #2 character.

3. Eddie. The only seasonal guest who makes a top five, Eddie is easily the best character after the ladies. He’s overtaken Mike as the dungeon-master god, is scapegoated for murder and demon-worship, and damn, he can jam some metal.

4. Will. The most heartbreaking scenes are between Mike and Will. The genius is that Will’s sexual orientation is never mentioned by anyone; it doesn’t need to be, and while Mike remains oblivious, Jonathan seems to be catching on. Wonderful work from Noah.

5. Hopper. Not quite the boss he was in seasons 1 and 2, but still a great comeback for Hopper, and almost enough to atone for his atrocious outing in season 3.

Honorable mentions for season 4: Sam Owens (as solid as his season-2 performance), Mike (still not back in the top 5, but almost), Nancy (the perfect army commando), Steve & Dustin (their bromance continues), and Lucas (good arc as he bonds with the jocks). I should also point out that Erica, who was 100% annoying in season 3, has been dialed way back in season 4 to become fairly tolerable.

“This is Hawkins, Not Westeros”

Maybe so, but this is a feeble reply.

The reply comes from Matt Duffer in response to Millie Bobby Brown, who opined in an interview that the Duffers need to start taking things more seriously and kill off some of the major characters in Stranger Things.

Millie Bobby Brown: “They need to kill off some people. The cast is way too big. Last night we couldn’t even take one group picture, there were like 50 of us… Matt and Ross Duffer are two Sensitive Sallies that don’t want to kill anyone off. We need to have the mindset of Game of Thrones.”

Matt Duffer: “Believe us, we’ve explored all options in the writing room, but we aren’t Game of Thrones. This is Hawkins, not Westeros.”

Matt continued, saying that Stranger Things wouldn’t be Stranger Things anymore if there were deaths for death’s sake, and without ‘realistic’ ramifications. But that’s not the idea. I don’t think Millie was intending the Game of Thrones analogy that literally. All she was saying is that the Duffers need have the balls — and indeed the “realism” they disingenuously appeal to — to kill off at least one or two major characters, for Christ’s sake, and for good. They can’t just keep knocking off the Barbs and the Bobs and the Eddies, and faking it with the Hoppers and the Maxes. Not only has that formula become painfully predictable by this point, it is NOT realistic to keep your major characters shielded like this. Audiences have come to expect more in the post-Game of Thrones era — not so that body counts need to be as high as in the Westeros world, but so that show writers at least take a cue from that world, and have the artistic integrity to let a precious character die once in a while. We’re in season 4 with one to go, and that hasn’t happened yet.

I should make clear that I love Stranger Things 4 — it way exceeded my expectations after a turgid season 3 — but Millie’s point here is well taken.

The Best Scenes in Stranger Things

Now that season 4 has had its say, it’s time for this. I have 50 scenes total: 11 from the first season, 15 from the second, 6 from the third (yes, surprisingly, that many), and 18 from the fourth.

(See also my rankings of all the episodes and the four seasons.)

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1. The Snow Ball (Season 2, Episode 9). Happy endings aren’t my thing, but when done right they hit like the deepest tragedies. After a season of misery and estrangement, the kids find happiness on the dance floor, as each of the four boys ends up with the “right girl” — Mike with El, Lucas with Max, Dustin with Nancy-to-the rescue, Will and a nameless “Zombie Boy” fan. To the stalker smash “Every Breath You Take”, as only appropriate, since El has been stalking Mike in the Void for a whole year. I’m hard pressed to think of an epilogue in TV history that pays off the entire season like the Snow Ball does in Stranger Things 2. Of course it’s my favorite scene of the series.

Stranger Things Finale: 6 Questions After Season 3, Episode 8
2. Leaving Hawkins (Season 3, Episode 8). No, you’re not misreading this. For all my trashing of season 3, the finale is excellent and its epilogue almost as good as season-2’s (see #1 above). The Duffers managed to produce a Stranger Things equivalent of the Grey Havens. Mike, Lucas, and Dustin are Sam, Merry, and Pippin tearfully watching the departure of “Ring-bearers” Eleven and Will, who have taken the most punishment in the series and are sailing west to start over. The reprisal of “Heroes” (the Peter Gabriel cover) is perfect for this montage after Hopper’s voice-over.

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3. Max and Vecna (Season 4, Episode 4). The final sixteen minutes of Dear Billy never lose their power, no matter how many rewatches. The sequence starts with Max reading her letter by Billy’s grave, and ends with her falling from the sky into Lucas’s arms, while in between she is pulled into a waking nightmare that I keep thinking will kill her even though I know she escapes it. The power of music is portrayed in a way never seen before. I’m not sure what my song would be to save me from Vecna (any of these might work), but the Kate Bush song works cinematically, and the montage that plays as she resists Vecna is brilliant. Those flashbacks are virtually the only times we see Max and Eleven smiling this season, underscoring how grim the fourth season is for each of them.

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4. Mike and El’s Reunion / Mike Attacks Hopper (Season 2, Episodes 8 & 9). From the end of season 2, where everyone is huddled inside Hopper’s cabin bracing for a demo-dog attack, to El’s surprise rescue, to her reunion with Mike, to Mike’s furious assault on Hopper. All of this enormously pays off El’s season-long absence, and it’s the highest emotional point for me of the series. You feel Mike’s rage at Hopper for keeping her hidden so long. You feel El’s jealousy over Max when she snubs the poor girl (Max has been shat on by everyone except Lucas throughout this season). You want Mike and El to hold each other forever; Finn Wolfhard plays it wonderfully, asking through tears why El never called back to him in the Void.

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5. The Massacre at Hawkins Lab (Season 4, Episode 7). The final eighteen minutes of this episode involve the most despicable acts of violence in the series, with twists and reveals brilliantly executed. Eleven leaves the closet to find One and finds mangled corpses down every hall. She bursts into the Rainbow Room and sees One killing the last child (Two), and then listens to his sickening views of humanity and the world. She attacks him in rage and almost gets torn apart for it, before blasting him into the shadow realm where he turns into Vecna. This is the culmination of three episodes in which El is put through the Nina ringer, reliving traumas worse than high school bullying.

https://rossonl.files.wordpress.com/2022/06/goofbye-hello.png6. Good-bye Mike, Hello Will (Season 1, Episode 8). Even if El doesn’t really die, it’s not a cop-out like the season-3 Hopper. Her sacrifice fits like a glove; she certainly thinks she’s about to die as she blasts the demogorgon and follows its disintegration into the Upside Down. It’s the ending the season deserves, with Mike left crushed, not fully understanding how he came to love this girl in the space of six days. Meanwhile, as his girlfriend vanishes, his lost friend is resuscitated in the Upside Down by Hopper and Joyce, with extremely emotional flashbacks of Sara Hopper dying in the hospital. The double climax pays off everyone’s arc perfectly.

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7. Max’s Death / The Apocalypse Begins (Season 4, Episode 9). By far the most upsetting scene of the series, and the most catastrophic. Max’s death initiates the apocalypse (the earthquake does take at least one satisfying victim, ripping Jason in half), and Lucas and El unleash enough tears and anguish to indict the gods. Max’s resurrection by El isn’t a cheat (though it easily could have been), since Max is broken and blind and returns in a coma. I’d rather be dead than come back like that. As a post-script, the book Lucas reads to Max in the hospital is probably the most brilliant homage of the series to date: The Talisman, by Stephen King and Peter Straub. The novel is about a dark parallel world — a medival version of the United States — and the passage Lucas reads involves the blind character Speedy. A not so subtle hint about what’s in store for Max if she ever wakes from her coma.

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8. “Home” (Season 2, Episodes 3, 5, & 7). In each of these scenes El seizes onto the idea that she has found her true home. The first comes in the flashback with Hopper (episode 3), when he brings her to his cabin. The second comes at her Aunt Becky’s house (episode 5), where she is invited to live. The third comes in Chicago, at the abandoned warehouse of Kali and her crew (episode 7). That last one especially is poignant, but the “home” theme works powerfully as an arc over all the episodes. At each place — cabin, house, and warehouse — El repeats the word “home”, with an increased desperation to know her place in the world outside Hawkins Lab.

7 Details You Might Have Missed In 'Stranger Things 3'
9. “Heroes” (Season 1, Episode 3). The early scene that made me a fan and makes me tear up every time. A corpse is dragged from the quarry and everyone thinks it’s Will’s. Mike’s furious reaction as he accuses El and runs home enraged, to the scoring of Peter Gabriel’s cover for David Bowie’s “Heroes”, is a rare piece of cinematic art. It’s in this scene that two things come sharply into focus: the kids’ acting talents, and the Duffers’ writing-directing skills. From here I binged the rest of the episodes and never looked back.

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10. Snow Ball Nightmare (Season 4, Episode 9). In this dark homage to the season-2 Snow Ball dance, Max hides from Vecna inside her happiest memory. There are the blue and white balloons, the glitzy decoratives, and “Every Breath You Take” is playing. But it all quickly unravels as Vecna breaks down her mental barriers. The Police song segues into the eerie-sounding “Dream a Little Dream of Me” (the favorite tune of Vecna’s father), the balloons explode into blood, and everything turns gray and Upside-Downish. Vecna arrives to finish Max off, but then Eleven intervenes — having piggybacked onto Max’s mind — and a battle on the dance floor paves the way to pain and the apocalypse. The Snow Ball nightmare is cut into six scenes adding up to about ten minutes, and it’s absolutely brilliantly constructed.

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11. Closing the Gate (Season 2, Episode 9). Pulling this off requires more than an expenditure of power. El must look within and face herself, lest she be paralyzed by her inadequacies. The flashbacks of her lab traumas, trials with Kali, and the ghost of Papa are brilliantly used to show the conflict raging inside her: “You have a wound, Eleven, a terrible wound. And it’s festering. It’s rotting. And it will grow. Spread. And eventually, it will kill you.” Kali urged that the wound comes from Dr. Brenner and his abuse, making vigilante justice the path to healing; El sees that the wound comes less from Papa and more from herself, even if by accident. Giving in to homicidal urges is self-destructive — and it’s this epiphany that liberates her from self-paralysis, allowing her to blast the Mind Flayer and close the real wound.

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12. El and Hopper’s Heart-to-Heart (Season 2, Episode 9). I use those words deliberately. In episode 1 of season 3, we were supposed to believe that Hopper found the idea of a “heart to heart” wholly alien; that discussing serious issues with his daughter was out of his comfort zone and beyond his comprehension (such that he needed Joyce to coach him every step of the way). This despite the fact that in the last episode we saw him in — this one, episode 9 of season 2 — he was having the purest heart to heart you could imagine. Hopper and El have a lot of great scenes together in season 2, but this one is their best, as they each admit to each other how wrong they’ve been.

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13. Will Inside the Wall (Season 1, Episode 4). This scene has given me a few nightmares, at least three or four that I recall, maybe more. Joyce rips down her wallpaper and sees her terrified son shouting to her in a flesh-encased portion of the wall. Her hysterics are convincing; this is the way a mother would act. Stranger Things is at its scariest when it does weird shit like this, and although seasons 2 and 4 are darker and scarier on whole, season 1 managed to land what I consider to be the most frightening scene. It makes us feel as helpless as Joyce. Will is up close but out of reach, alone in Hell, being terrorized out of his mind.

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14. Helicopter Sniper/Papa’s Death (Season 4, Episode 8). Eleven’s farewell to Papa doesn’t miss a beat, nailing all the right cords of love and hate. She does love Brenner, but also hates him for his monstrous manipulations, for trying to convince her that she’s a monster, for abusing her mother, and for robbing her of choice in the name of liberation. When he begs for understanding as he dies, she feels a genuine pull toward forgiveness, but is strong enough to refuse absolving him. A heartfelt “good-bye” is all she has to give; it suffices. The prelude to this is the explosive spectacle of her bringing down the helicopter containing the sniper who kills Papa and comes close to killing her too.

Stranger Things Season 3|Billy saves Eleven from The Mind Flayer - YouTube
15. “The Wave Was Seven Feet” (Season 3, Episode 8). Oh, season 3, how shitty thou art. Your plot is a carbon copy of season 2’s: the Mind Flayer has taken over a human host (Billy this time instead of Will); there is a Gate that makes this possible (at the Mall instead of the Lab); the Gate thus needs to be closed, to sever the connection to the Upside Down. El can’t close the Gate this time though, because she has lost her powers. And yet the Duffers were able to make lemonade out of these lemons in the way El defeats the Mind Flayer: by empowering its victim. She describes a memory she had shared while inside Billy’s mind, and manages to reach Billy, who sacrifices himself. It’s an extremely moving scene.

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16. D&D Campaign: The Demogorgon (Season 1, Episode 1). The next two are really a tie, but I’m giving pride of place to the season-1 game. It’s the first scene of the series and does more with less. The boys’ campaign is a perfect summation of my nerdy childhood and shows why the game was so fun in the early ’80s. Mike is established as the group leader (and so of course the dungeon master), Lucas the pragmatic skeptic, Dustin the hilarious, and Will the sensitive kid. It also establishes the series trope of using D&D creature names for the real shadow threats about to devastate Hawkins. It’s almost as though these D&D games are summoning evil from the Upside Down.

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17. D&D Campaign: The Cult of Vecna (Season 4, Episode 1). Be assured that the season-3 game is nowhere on this list. Will’s dungeon-master costume was ridiculous, his DM skills were atrocious, and Mike and Lucas were a pair of jerks. The season-4 game makes D&D shine again. Eddie is the supreme DM, his Hellfire pals rock, and Mike and Dustin are in top form. The power of this scene is magnified by the basketball intercut. Lucas’s final shot and Erica’s last die roll have me holding my breath every time I watch it. “That’s why we play,” says Eddie, when only two player characters are left standing, and how bloody right he is.

Stranger Things] Hopper & Eleven Fight dub w/ CamdoesDubs - YouTube
18. Telekinetic Tantrum (Season 2, Episode 4). El and Hopper are so pissed at each other you can feel the fire. She returns from stalking Mike at the school — having flouted Hopper’s rules that keep her confined in his cabin — and he goes through the roof, screaming in her face and taking away her Eggo and TV privileges. She retaliates by throwing a mega-tantrum, hurling books and shattering windows. She’ll have to clean up her mess the next day, but it’s pretty sweet to see a frustrated kid let loose like this. Some of the rawest acting talent is on display between Millie and David Harbour in the tantrum scene, and I’m not surprised it’s a favorite of Ross Duffer.

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19. Possession Trauma (Season 2, Episode 4). Possession is the king of horror tropes, but also the riskiest because it’s hard to do right. Noah nailed it with subtleties that even Linda Blair didn’t pull off in The Exorcist — alternating between being shaken and terrified, to making resolute demands (that his mother run him a freezing bath, because his possessor “likes it cold”), to stalking about the house confused — and it’s the first of those that he delivers at the start of Will the Wise. Season 2 then becomes an assault-on-all-fronts, as the Mind Flayer plans to wreak devastation through this kid, and slowly eats away his mind.

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20. Tracking-Shot: Home Invasion (Season 4, Episode 4). The Dear Billy episode is known for Max and Vecna (see #3 on this list), but this scene did just as much to make me a nervous wreck. It’s prefaced by a touching moment between Mike and Will, as Mike admits he’s been a jerk and Will so obviously wants to fuck him on the bed right there, to Mike’s utter obliviousness. Then the government goons crash the house and start shooting. A shootout like this is surprising enough in Stranger Things, but it’s done in a single tracking shot that looks viscerally real. The last time I was this impressed by a tracking shot in a TV series was True Detective‘s “Who Goes There?”

https://rossonl.files.wordpress.com/2022/06/save-them.png21. “I Can Save Them” (Season 2, Episode 7). Contrary to popular opinion, The Lost Sister is one of the best episodes of season 2 (my third favorite, after The Gate and Will the Wise). The fact that Kali isn’t the strongest character is irrelevant; she’s all that she needs to be. The episode isn’t about her (despite the title), it’s about Eleven, and how she comes to terms with herself — her murderous impulses, the question of where she belongs — to which Kali serves as a mentor to follow or reject. Without Kali, Eleven wouldn’t have had an arc to speak of in season 2. Her decision to return to Hawkins and her real friends is one of her best moments.

https://rossonl.files.wordpress.com/2022/07/el-will-needs-mike.png22. Can’t Say the Words (Season 4, Episode 8). This has to be the most heartbreaking scene of the series. Will assures Mike that El needs him, loves him, and can’t live without him, but of course he’s talking about himself, not El. The look on Jonathan’s face in the driver’s seat, as it begins to dawn on him what’s really up with his brother, is some fine subtle acting. The genius of Will’s arc is that his sexual orientation is never spelled out. It doesn’t need to be, and the drama is stronger for it.

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23. Flipping the Van (Season 1, Episode 7). The pre-credits sequence of The Bathtub episode could stand on its own as a short film. As Mike and El almost share a first kiss in the bathroom, Dustin barges in, and all hell breaks loose. The government goons descend, and the kids take to their bikes, flying down roads and around corners, side paths that cut between homes, rendez-vousing with Lucas, until they’re sandwiched between oncoming vans. The van-flip is spectacular, as are the reconciliation scenes — between Lucas and El, and Lucas and Mike — in the junkyard. Did all that really happen in a pre-credits sequence? Yep.

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24. Emo Mike & Nancy (Season 2, Episode 1). These two scenes play wonderfully back to back: Mike getting scolded at the dinner table for acting out in school, and Nancy having dinner with Barb’s parents, who tragically believe their daughter is still alive. Mike retreats to his basement where he still keeps El’s fort; Nancy retreats to the bathroom where she breaks down over Barb. Through the Wheeler siblings we feel the cost of the season-1 losses, and I was glad the Duffers had the nerve to take those losses seriously throughout season 2. In the hands of other show writers, Nancy would have moved on already, and El would have reunited with Mike early in the season instead of at the end.

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25. Hopper in the Demo-Pit (Season 4, Episode 7). The best demogorgon outing is the season-1 classroom scene (see # 6) — with the boys shouting over each other and Lucas vainly firing his slingshot until El steps in — but the Russian Demo-Pit shows how fast these beasts are. Truth told, the boys in season 1 were confronted by a very slow one; Lucas wouldn’t have gotten off two rocks, let alone four, against the one in the demo-pit. Hopper has quite a time of it, as the creature tears his fellow inmates apart.

Stranger Things: 10 Things You Didn't Know About the Byers House | Flipboard
26. Joyce’s Ouija Wall (Season 1, Episode 3). If there’s a scene in Stranger Things that shouts classic, this is probably it. Joyce’s Ouija Wall has become such an iconic image that restaurants and fun houses have replicated it. The scene, in conjunction with “Heroes” (#10 above) — both from the Holly Jolly episode — is what turned me into a hard-core fan. It represents Joyce’s breakthrough with Will, as she communicates with him through the Christmas-tree lights, and he tells her to run from the house as the demogorgon bursts through.

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27. Stalking Mike (Season 2, Episode 2). Much of the drama in season 2 is carried on El’s presumed death, with Mike in denial. He has no idea how right he is, that El hears him calling her all the time and wants to let him know she’s okay. The scene that shows her stalking him in the Void is especially well shot, flicking back and forth between Mike alone and El only inches away from him in the black background. Their mutual pain is felt acutely in this scene.

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28. Inside Billy’s Mind (Season 3, Episode 6). One of the few scenes that justifies season 3’s existence. It runs eleven minutes, from the point of El washing up on the California beach, to being assaulted by chaotic images of Billy’s past, to finally returning to herself in Hopper’s cabin — only to find out that it’s a nightmare cabin, with her friends gone and Billy waiting there to torment her. It’s one of the freakiest scenes in the series that makes you feel the terror of being mentally trapped and unable to wake up.

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29. Reunion with Papa (Season 4, Episode 5). Not a happy one for El, but shocking and powerful. I was expecting Brenner to return in season 4 for flashbacks, but wasn’t thinking he was still alive. It was a strong move to bring him back and mentor El once again. Their dysfunctional relationship, and El’s Stockholm dependency, was so well presented in season 1 that it demanded a follow-up, and season 4 takes it to the next level. That Owens is working with Brenner (with mixed feelings) is a big bonus.

Visiting Stranger Things Filming Locations in Atlanta » Whisky + Sunshine
30. A Bromance is Born (Season 2, Episode 6). Almost any scene between Steve and Dustin is list-worthy, and I could name several. But the train-track scene is where the bromance was born and it has attained a near mythological status. It’s hard to believe Dustin once had a crush on Max. Maybe he still would if not for Steve.

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31. The Diner Scene (Season 4, Episode 3). Paul Reiser is a great actor, Sam Owens a great character, and the diner scene a great homage to Reiser’s role in the 1982 film. His speech marks a turning point in season 4, as Eleven is offered a window of opportunity: to trade in the misery of school bullying for the monstrous torments of getting her powers back. The scene is shot as an epic montage with soaring music. We see (or hear) Vecna closing in on Max, as Owens explains to El the last resort he’s had in place in case a threat like Vecna emerged — and assures her that she’s probably not the bad person she thinks she is.

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32. “She Tried to Get Naked!” (Season 1, Episode 2). Unlike the slapstick comedy of season 3, the humor in the early seasons is natural and organic and genuinely funny. This scene being an excellent case in point. It’s exactly the way 12-year old boys would react to a girl about to take her clothes off. Mike is sweet as he takes care of this strange girl and gives her fresh clothes and a towel and teaches her about the need for privacy.

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33. Steve and the Demo-Bats (Season 4, Episode 7). The next three are Steve’s demo-fights from seasons 1, 2, and 4. This one gets priority for taking place in the Upside Down. The demo-bats are terrifying against the red and purple hues of the landscape. Steve doesn’t get to use the spiked bat this time — instead he pulls an Ozzy move and tears apart a bat with his teeth.

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34. Steve and the Demo-Dogs (Season 2, Episode 6). A brutally intense scene in which Steve gets flanked by a second demo-dog as he faces the one ahead, and barely manages to bat them away. He beats a hasty retreat into the bus with Dustin, Lucas, and Max — who begin screaming their heads off when one of the beasts appears above them, looking down the ladder hole. I almost shit my pants when I first watched this.

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35. Steve and the Demogorgon (Season 1, Episode 8). Steve’s turning point is well earned, when he decides that his assholeries require atonement. He has had a genuine change of heart (finding that he doesn’t like being an asshole), making his character arc one of the series’ best. He goes back into the Byers’ house to help Nancy and Jonathan, and the strobe light works to great effect against the backdrop of the Christmas-tree lights, making his fight with the demogorgon mega-intense.

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36. Sauna Battle (Season 3, Episode 4). The next two are Eleven’s battles with the Mind Flayer in season 3, the first against Billy and the second against the Flayed. It was nice that El got to kick some ass before losing her powers in the finale, and equally nice that we never lose sight of her vulnerability. Billy nearly strangles her before she manages to throw him through a brick wall. Interesting post-script to this scene: when El collapses into Mike’s arms crying, that wasn’t acting on Millie’s part; shooting this scene put her through the ringer.

Stranger Things Season 3 ⁄ Hawkins Crew vs Mind Flayer Scene - YouTube | Stranger things, Robert englund, Netflix
37. Cabin Battle (Season 3, Episode 7). The last ass-kicking that El dishes out on the Mind Flayer before losing her powers, and brilliantly choreographed. Hopper’s cabin is devastated as the Flayed Beast punches holes through it to seize her. It’s a miracle she’s not torn in half by the tug-of-war between her friends and the Flayed, and also miraculous that no one in the cabin is killed by Nancy’s shotgun blasts. Mike ripping the flayed piece off El’s leg is excruciating to watch, and her splitting the monster apart gratifying.

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38. Mike Jumps (Season 1, Episode 6). Bullying is major theme in Stranger Things (except in season 3), and Mike’s bullies are the worst, making him jump off a cliff for humiliating them in front of the entire school. El’s surprise rescue is sublime, and the flashback of her opening the Gate is heart rending, as she sincerely believes that she’s the monster, despite Mike’s assurances.

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39. El Smashes Angela’s Face (Season 4, Episode 2). When it comes to her own bullies El is less effective. Without her powers and sense of self-worth she’s defenseless, and in this sense I felt far more sorry for her than for Mike in season 1 (who for the most part took Troy in stride). It was hugely satisfying to see her smash Angela in the face with a roller-skate — even more than seeing her break Troy’s arm with telekinetic powers. (I place Mike’s cliff rescue above the roller-skate incident because of the iconic moment when El, Mike, and Dustin share a group hug.) Once again her flashbacks reinforce her view of herself as a monster, only this time Mike isn’t the best shoulder to cry on.

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40. El Rips Mike a New One (Season 4, Episode 3). You can hardly blame her. Mike isn’t the most supportive or discerning boyfriend even when the pain is plain. He can’t say (or write) that he loves her, and digs himself in deeper by protesting that he thinks she’s the most incredible person in the world and a superhero — which she obviously isn’t anymore, but it’s the wrong thing to say in any case. This is how their season-3 fight/breakup should have been handled; with the seriousness it deserved.

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41. Eddie’s Death (Season 4, Episode 9). Eddie is the secret hero of season 4. Not just because he finally steps up and faces down the Upside-Down with metal jams, but for his cafeteria wisdom in his very first scene — his unabashed pronouncements like “forced conformity is what’s really killing kids” (see #47 below). Dustin’s reaction to Eddie’s death is the culmination of a bromance over season 4 which for my money is just as compelling as his bromance with Steve over seasons 2 through 4.

We Gotta Talk About Bob In "Stranger Things 2"
42. Bob’s Death (Season 2, Episode 8). On my first watch of season 2, the death of Bob Newbie took me completely off guard. Yes, the Duffers had killed off Barb in season 1, but that was as early as episode 3. Bob made it to the penultimate episode, was a lovable character and partner to Joyce, and I couldn’t see him getting the axe. When he outran the demo-dogs, I breathed again, knowing I was foolish for worrying… and then the doors crashed down. It’s a wonder Joyce didn’t go to Pennhurst after watching Bob torn apart and eaten.

The Full Significance of Barb's Death on STRANGER THINGS - Nerdist
43. Barb’s Death (Season 1, Episode 3). This is the scene I return to when I think of the “horrors” of season 3 that weren’t at all scary. Season 3 was body-horror (gross-out horror), and as far as that goes it’s okay. I like David Cronenberg films as much as the Duffers. But body horror isn’t menacing like the deeper and more feral horrors of seasons 1, 2, and 4. Barb’s death remains one of the most terrifying scenes in the series, relying on what you can hear and sense but not see (the demogorgon), and an utterly terrified Barb who fights vainly for her life.

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44. Conversational Affection (Season 4, Episode 9). As the bathtub is prepared for El, she and Mike enjoy some lighter moments, including an argument over pineapple pizza, which Mike rightly calls blasphemous. Will and Jonathan have a more serious talk, and as usual in season 4, Will is heartbreaking to watch as he can’t discuss what’s tearing him up inside. Though Jonathan seems to get it now.

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45. “Crazy Together” (Season 2, Episode 2). This moment shows Mike and Will taking comfort in each others damage. It’s almost as if Mike thinks Will is the only one worthy of his affections, on the logic that if he suffering so much (from the loss of El) then so should others suffer. It’s why he finds Lucas and Dustin so goddamn insufferable (as they persist in having a good time, and with a girl from California to boot), and ditches Halloween night to take Will back home with him. So they can be crazy together alone.

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46. Eddie’s Cafeteria Rant (Season 4, Episode 1). The moment Eddie walks that cafeteria table is the moment season 4 makes clear that Stranger Things is back in top form. You know you’re going to love this guy, you know you’ll love the Hellfire Club, and you know those damn basketball jocks will eventually join the Satanic Panic that Eddie is making fun of. The way he rips into Mike and Dustin when they tell him Lucas has gone to the dark side (i.e. joined the basketball team) is hilarious.

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47. Burning Inside Out (Season 2, Episode 6). As an Exorcist fan I got considerable mileage out of season 2, and the opening scene The Spy is inspired by Regan McNeill’s hideous PEG procedure. Will Byers is having it even worse than Regan, convulsing under the doctors who ask him where it hurts, to which he can only scream “everywhere”. Noah’s acting is so convincing that the actors thought he was really in agony during the shoot.

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48. Eleven’s Self-Surgery (Season 3, Episode 8). The season 3 finale is bookmarked by three mighty El moments. The last occurs in the epilogue when she reads Hopper’s letter (see #2), the middle is her transcendent moment with Billy (see #9), and the other is the very first scene, in which she rips the flayed piece out of her leg. It’s possibly the most visceral scene in the series. Millie screams so fucking loud I can imagine those mall windows really broke on set from sonic devastation.

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49. El’s Reunion With Hopper (Season 4, Episode 9). This was bound to be a tear-jerker, but with Millie driving the scene, it’s an ultra tear-jerker. I love how they comment on each others loss of hair.

Mike And Eleven (Mileven): Adorable Or Disastrous? • The Daily Fandom
50. Mike Makes His Move (Season 1, Episode 8). Can’t forget this one. Mike and El’s first kiss. He got the best girlfriend on the planet.