Harding, Wilson, and the Perils of Expertise

A co-worker called my attention to an article from my local newspaper: Harding, Wilson, and the Perils of Expertise (August 16, 2022). It’s always nice to see Harding rescued from his undeserved reputation. Those who have read my presidential rankings know that most historians favor Wilson and put Harding in the cellar. That’s 100% backwards. I judge Harding to be the second best president of all time and Wilson the very worst. The Telegraph article, written by Robert Graboyes, gets the two men right:

“The fallibility of expertise is obvious when one considers that for nearly a century historians have considered Woodrow Wilson among the near-great presidents and Warren Harding among the worst. (Harding died 99 years ago this month, and Wilson six months later.)

In 1921, Harding gave the most courageous presidential civil rights speech ever. Speaking in Birmingham, Ala., Harding called for racial equality. White spectators stood in stunned silence while Black spectators cheered. Civil rights pioneer W.E.B. Dubois called the speech ‘a sudden thunder in blue skies’ driving discussion ‘into the clear light of truth.’

In contrast, Wilson, Harding’s predecessor, helped poison race relations for a century. Even by 1910’s standards, Wilson’s racism was appalling. As president, he strived to undo whatever modest gains African-Americans had made since the Civil War.

Harding openly supported anti-lynching legislation — which Wilson opposed. Wilson’s acolytes whispered (falsely) that Harding had an African-American ancestor; Harding’s response amounted to ‘maybe so, and I don’t care.’

Wilson invited Hollywood pioneer D.W. Griffith to screen his technically pathbreaking but thematically toxic Birth of a Nation at the White House — the first film to be shown there. The film featured Wilson’s words: ‘The white men were roused by a mere instinct of self-preservation… until at last there had sprung into existence a great Ku Klux Klan, a veritable empire of the South, to protect the Southern country.’ (Wilson later developed misgivings about the film, but his screening had already helped revive the Klan.)

Historians often favor leaders with expansive agendas during dramatic times over those with modest goals in calmer times.

Wilson led America into World War I, sired the Federal Reserve, and exerted an imperious (‘Wilsonian’) foreign policy. Harding wasn’t a great president [actually, he was], but his America craved ‘normalcy’ after the nightmare of World War I. Wilson expanded the federal government, while Harding focused on the less sexy goal of tidying it up. Today’s Office of Management and Budget and Government Accountability Office trace their origins to Harding. Harding’s appointees were often outstanding– Secretary of State Charles Evans Hughes, Treasury Secretary Andrew Mellon, Commerce Secretary Herbert Hoover and Chief Justice William Howard Taft.

Wilson’s venality and Harding’s generous nature were not limited to race.

Wilson’s 1912 Socialist opponent, Eugene V. Debs, was imprisoned for urging resistance to World War I conscription. Wilson wrote, ‘This man was a traitor to his country and he will never be pardoned during my administration.’ From prison in 1920, Debs ran against Harding, who then commuted his sentence and invited him to the White House, saying, ‘I’ve heard so damned much about you, Mr. Debs, that I am now glad to meet you personally.’

Wilson ignored warnings that draconian punishment of Germany would elicit disaster. Fury over his Versailles Treaty was a catalyst for Germany’s monsters — anarchists, communists, proto-Nazis. Wilson excluded senators from negotiations over the League of Nations, and they rejected his brainchild. Harding involved senators deeply in negotiations over a postwar disarmament treaty and won unanimous Senate approval.

Harding signed the unfortunate 1921 Emergency Quota Act closing America’s doors to immigration. But the act passed nearly unanimously in both houses — more a product of Wilson-era xenophobia than of the newly inaugurated Harding.

Immensely popular while in office, Harding’s posthumous reputation suffered from his naïve trust of unworthy cronies. Interior Secretary Albert Fall was imprisoned for corruption. Harding’s corrupt attorney general, Harry Daugherty, was forced from office by Calvin Coolidge, Harding’s successor. But were Fall and Dougherty worse than Wilson’s attorney general, A. Mitchell Palmer, who whipped up the first big Red Scare, deported immigrants and launched raids of dubious constitutionality against Americans? Harding’s posthumous reputation also suffered from the (correct) rumor that he fathered an illegitimate child with a much-younger woman.

Harding was what Winston Churchill called Clement Attlee: ‘a modest man with much to be modest about.’ Compare that to a story told by Sigmund Freud: an associate remarked to Wilson how proud he was to have contributed to the president’s election victory. Wilson’s icy response, Freud said, was: ‘Remember that God ordained that I should be the next president of the United States. Neither you nor any other mortal or mortals could have prevented this.’

Rest well, Mr. Harding.”

The Outer Planes: The Best and Worst Afterlife Options

I was drawn into an exercise with Manual of the Planes (1987) and Planescape (1994), both of which detail the planes of existence in the D&D universe. (If you play D&D but don’t own either of these products, I’d recommend getting one if not both.) The question: if all these planes actually existed, (a) which of the outer planes would be your preferred afterlife, and (b) which would you beg the gods to spare you from?

(a) Of the 17 outer planes, these are the places I’d like to go when I die, in descending order:

1. Elysium. Plane of neutral good. The Elysian fields are my top choice, but they’re a dangerous narcotic. The atmosphere induces a state of self-satisfaction and contentment, but it also robs much of your self-determination in order to ensure the fostering of “pure goodness” — peace, love, and good will from all the plane’s inhabitants. The Oceanus river dominates all four layers, and for me it’s a coin toss between layers 2 (Eronia) and 4 (Thalasia). Eronia has mountains and the largest waterfalls in any of the outer planes, while Thalasia is the quintessential paradise — where the Oceanus becomes a sea, with only islands for dry land, and the islands are the final resting places for heroes who died for good cause. But while Elysium is my favorite plane for atmosphere, I’m not wild about losing my memories and sense of free will, which is what the drug-like environment does to you. Rating: 4 ½ stars.

2. Gladsheim. Plane of chaotic neutral with good tendencies. It has the best pantheon of gods (the Norse of course), and a mythology that points to an apocalypse to end all apocalypses (Ragnarok). The geography is great: vast floating islands suspended in air and connected by bridges. The idea in Gladsheim is that people’s ideals are best proven through conflict and challenge (sort of the opposite of Elysium), and the best part is that you don’t have to worry about dying permanently if you’re killed in combat; resurrection awaits you in Valhalla. As the Norse put it, “It’s a perfect day to die — just like yesterday, and the day before.” And since I’m a laughable excuse for a warrior, I’d surely be killed almost every day indeed, before even drawing my weapon. I’d probably seek refuge among the elves of Alfeim, and only go into the regions of Asgard or Vaneheim when I’m in a reckless mood. Weakling or not, I love Gladsheim and everything about the Norse pantheon. Rating 4 ½ stars.

3. The Twin Paradises. Plane of neutral good with lawful tendencies. You can’t beat the politics of this plane. It’s a quasi-libertarian commune, organized by the individualist ideal — that people who work toward their dreams and individual strengths produce a better society for all. A place for merchants, business owners, and artists who love and want to improve their craft. There are no free handouts in the Twin Paradises, but there’s a huge influx of opportunity and talent (both scientific and magical) given the healthy unregulated competition. The first paradise (Dothian) is the gentle one, the second (Shurrock) the inhospitable one of rugged mountains and hidden alpines and lethal predators — but a perfect haven for privacy seekers like mages and scientists who need isolated environments, or wilderness explorers who just need the world to themselves. Shurrock would be my choice. Rating: 4 ½ stars.

4. The Seven Heavens. Plane of lawful good. I like the first heaven (Lunia), which is always night but illuminated by stars, and which has the ocean surf, and a perfect view of the next six heavens ascending the mountain. But I also like the third heaven (Venya), which is basically a Shire paradise of rolling hills for the hobbit pantheon. The downside to the Seven Heavens is its collectivist culture, and the numerous tests and trials one undergoes for self-improvement. I mean, I’m not looking to improve myself all that much in the afterlife, though I can tolerate a bit of it. Rating: 4 stars.

5. The Beastlands. Plane of neutral good with chaotic tendencies. Also known as “The Happy Hunting Grounds”, these three layers are filled with forestry, huge plants, and mammals that are sentient and speak. There are also the creepy mortai (faces in the sky) that seem to watch everyone’s move. I’d go with the second layer (Brux), because it has two suns perpetually rising and setting opposite each other, for an eternal dawn/dusk. (The first layer has a constant midday sun, and the third layer is a constant starlit night.) The Beastlands are a nature’s paradise, and quite beautiful, but the downside is the highly collectivist spirit that drives the principle of consumption — that everyone, and every mammal and plant, is going to be another’s dinner at some point, at which point the soul of the consumed merges with that of its killer. This is understood to be the way of things in the Beastlands: all living things are part of the food chain and are ultimately consumed by a predator for the greater good. Rating: 3 ½ stars.

6. Arcadia. Plane of lawful neutral with good tendencies. Arcadia is way too collectivist for my taste, not to mention imperialist; the inhabitants colonize distant planes and worlds to remake as much of the multiverse in their image as possible. But the sheer mystery of the plane is fascinating. It’s the plane of utter perfection where harmony itself is born. The lands are filled with orchards of perfectly lined trees, ruler-straight streams, orderly fields, and cities laid out in geometrically pleasing shapes. The mountains suffer no erosion at all. There used to be three layers, but now there are only two, since the third (Nemausus) was so stiflingly lawful that it became absorbed into the purely lawful neutral plane of Nirvana. The second layer (Buxenus) has “retraining camps” for those who are punished through ostracizing and other forms of shaming; the Arcadian authorities are not above kidnapping and brainwashing to keep people in line “for the betterment of society”. I would stick with the first layer (Abellio) and mind myself accordingly. It’s certainly not an afterlife where one can feel “free” in the genuine sense of the word. Rating: 2 ½ stars.

7. Olympus. Plane of chaotic good. This is the afterlife of eternal orgies and wild parties — and uninhibited individualism — and so by rights it should be higher on my list. But I’m not wild about how Olympus is the most emotionally volatile of the outer planes, where love and hate, rage and joy, run over logic at every turn and make everyone short-tempered. Though it’s not an evil place, there’s plenty of greed, wrath, and envy on Olympus that’s often released with dangerous consequences. My choice would be layer 1 (Arvandor), for its rolling forests and since it’s the domain of the elves. But it’s also the domain of the Greek gods, whom I find annoying in the extreme. (In a structural sense, Olympus is a lot like the first layer of Gladsheim, which has the Norse gods and elves.) There’s also the mercurial weather. Of all the upper planes, Olympus would be my last choice. Rating: 2 stars.


(b) These are the last places I would want to go when I die, in descending order.

1. The Nine Hells. Plane of lawful evil. Although I believe Hades and the Abyss are objectively worse, I find the Hells so gruelingly punitive in its torments, and the fact that it’s run by lawfuls makes it oppressively organized. Probably the worst punishments come by ice and fire — the former on layer 9 (Cocytus), the frozen lake, where traitors are buried up to their heads and devils swing mallets against them, and the latter on layer 7, where blasphemers roasting on their backs in 125-degree heat and getting rained on by fire as they curse the sky. But I think the layer I’d hate most is 8, where you spend eternity in a pit of feces. As a fan of Dante’s Inferno, I can’t help but fear the Nine Hells more than any other plane.

2. The Abyss. Plane of chaotic evil. Of all its nasty 666 layers, it’s the 503rd (Torremor) that would have me shitting my pants. Torremor has no solid ground. It’s a tangled nest of beams and perches, rooks and pinnacles, bridges and arches, connected by unreliable ropes and chains. One false slip (which is very easy to do) sends you falling and falling, eventually to be broken and shattered on bridges and pinnacles lower still. (Levitate and fly spells don’t work on Torremor.) There are filthy waterfalls of shit and offal that tumble forever. Torremor is the home of the demon Pazuzu from The Exorcist film, which has given me the worst nightmares of my life.

3. Hades. Plane of neutral evil. Objectively speaking, this is probably the very worst of the outer planes. The three layers consist of realms utterly devoid of emotion and hope. There are no colors, just gray lands and skies throughout, with no sun, moon or seasons to break the bleak monotony. Anything that has color entering Hades soon fades to gray. Optimists who enter soon become suicidal. Everyone despairs and becomes depressed. All the layers are bad, but I’d fear the first in particular (Oinos), which is filled with stunted and withered gray plants, and where any number of diseases are almost guaranteed to be contracted.

4. Gehenna. Plane of neutral evil with lawful tendencies. The environment on these four layers is nasty — mountains without any bases or peaks, with everything built into the sides. In other words, you’re always on a 45-degree slope, in danger of falling and tumbling down a mountainside that never ends. Layer 2 (Chamada) is especially nasty, containing the most violent terrain of the four, and where lava flows in cascades thousands of miles wide, enough to bury and swallow entire cities.

5. Tarterus. Plane of neutral evil with chaotic tendencies. The prison worlds of Tarterus — planet-orbs arranged like a string of pearls stretching into the void — are the stuff of nightmares. There’s no sun on any of the layers; the soil of the planet-orbs gives off heat and a reddish glow, bathing the worlds in a hellish light. There are six layers of these worlds, and I’d pray to avoid especially the fifth (Porphatys), which is wet and cold, and the black clouds over each planet-orb unleashes black snow that burns like acid.

6. Pandemonium. Plane of chaotic neutral with evil tendencies. No known life exists on this plane (save a few deities, like Loki), and it’s made entirely of rock with tunnels and caverns. All the open space is filled with howling winds that screams the sound of everything said in the place. Normal fires cannot survive, there is no natural light, and conversation can only be accomplished by shouting at close range. The fourth layer (Agathion) is the worst; the tunnel winds are so strong they smash you against the walls.

7. Acheron. Plane of lawful neutral with evil tendencies. This one isn’t quite so terrifying as the above six. It’s basically a Gladsheim for the opposite alignment (lawful neutrals with evil tendencies, as opposed to chaotic neutrals with good tendencies). It’s the “Infinite Battlefield” of wars without meaning, rebels without causes, soldiers who fight for good reasons, bad reasons, and no reasons at all. Massive blocks drift in the atmosphere and crash into one another; each block contains armies (of orcs, goblins, hobgoblins, bugbears, etc.) waiting for their block to bump into another so they can continue waging pointless war.

To recap, my top choices:

1. Eronia, 2nd layer of Elysium, or Thalasia, 4th layer of Elysium
2. Asgard, 1st layer of Gladsheim
3. Shurrock, 2nd layer of the Twin Paradises
4. Lunia, 1st layer of the Seven Heavens, or Venya, 3rd layer of the Seven Heavens
5. Brux, 2nd layer of the Beastlands
6. Abellio, 1st layer of Arcadia
7. Arvendor, 1st layer of Olympus

My nightmares:

1. Malebolge, 8th layer of the Nine Hells
2. Torremor, 503rd layer of the Abyss
3. Oinos, 1st layer of Hades
4. Chamada, 2nd layer of Gehenna
5. Porphatys, 5th layer of Tarterus
6. Agathion, 4th layer of Pandemonium
7. Avalas, 1st layer of Acheron

The Rise and Fall of TSR (Slaying the Dragon)

I enjoyed Slaying the Dragon and learned a lot about the rise and fall of TSR, especially the latter. My biggest takeaways from the book:

(1) Re: Gary Gygax. Saint Gary was no saint, and he often lied about his supposed powerlessness and ignorance. Not only was he aware of TSR’s disastrous errors, he participated in them as they were happening. He threw his business partners (Brian and Kevin Blume) under the bus, martyring himself to the board of directors. Hate to say it, but he almost deserved to be dethroned. The Blume brothers offered him their stock shares which he spurned; so when they sold their shares to Lorraine Williams instead, he had largely himself to blame.

(2) Re: Lorraine Williams. She was even less admirable — notwithstanding the author’s attempts to “reconsider her legacy”. After Gary hired her to manage the company in 1985, she managed a hostile takeover of sorts, forcing Gary out of the company by the end of the year. (Though Gary has largely himself to blame for being victimized here; see above.) The biggest problem with Lorraine is that she wasn’t a gamer, disdained gamers (didn’t consider them “social equals”), didn’t treat her staff well, and as a result had a hard time holding onto talented writers. Genius designers kept leaving TSR for greener pastures. An “outsider” being in charge of a gaming company made it impossible for TSR to reclaim its glory years of ’74-’83. On the other hand, it’s true that Lorraine pulled TSR out of debt (from the mismanagement sins of Gary and the Blume Brothers) and thus saved D&D from extinction, and there were some admittedly top-quality products made during her reign between ’85-’97. Most notably, the 2nd edition D&D settings (though not so much the railroady adventure modules) of Ravenloft, Dark Sun, and especially Planescape. Speaking of which…

(3) Re: Zeb Crook. He designed the most brilliant post-’83 setting in D&D history: Planescape (’94). After ’91 I lost interest in D&D and wouldn’t become re-obsessed until the late aughts. I really missed out on Planescape. I’m immersing myself in it now, and have to say it’s worthy of golden-age products. And yet, despite the praises sung by critics and consumers alike, sales continued to drop in the “Reign of Lorraine”, irrespective of the product’s quality. Sometimes these new stunning products and boxed sets (like Planescape and some of the Dark Sun adventures) were so expensive that they actually lost the company money with every copy sold.

(4) Re: The Random House Ponzi Scheme. Shit like this sticks. By the middle of ’95, TSR owed its distributor Random House almost 12 million dollars, and Random House was demanding that most of this debt be paid off within two years. This was the culmination of a ponzi scheme that had been in place, going all the way back to ’79 (in Gary’s day), whereby Random House paid TSR for the products TSR gave it to distribute, whether those products sold or not. The money that flowed into TSR’s coffers wasn’t dependent on sales: “All the company had to do was create, print, and ship products, and cash would flow like the mighty Mississippi back to Lake Geneva. The printing of products was essentially the printing of money. TSR had broken free of supply and demand.” Until Random House had had enough. TSR was suddenly held accountable in ’95, and it was only a matter of time before…

(5) Re: The Takeover by Wizards of the Coast. Lorraine, for all her unconscionable sins, must be given credit for saving D&D a second time. The first time was in ’85 (see 2, above) when she saved TSR from bankruptcy. She kept TSR on its feet for 12 years, producing loads of content, a lot of it bad — though a significant amount surprisingly good — even if she didn’t have the vision to grow the business. The second time was at the end in ’97, when TSR was so drowning in debt that Lorraine sold the company to Wizards of the Coast — which saved D&D yet again, since WotC was packed full of D&D geeks and fanatics. I doubt there would have been the gilded age of 3rd edition D&D had this not happened. Notably, Lorraine almost refused to sell to WotC, for no other reason than she hated its CEO Peter Adkison. But for whatever reason she relented, and wounds began to heal almost immediately under the new management. Under Lorraine, brand had come first, and staff were replaceable, no matter how creative. Under Peter, staff weren’t expendable cogs: “they were holy orders, the massed brothers and sisters who had imagined strange new worlds, then heaved them out of the black depths and into the light”. Staff retention was one of the biggest reasons Peter Adkison bought TSR; to get the most out of peoples’ talents.

Readers know that I’m not a fan of what Wizards of the Coast has done with D&D in more recent years. 5th edition has been cheesified and wokeified. But at least the game lives on, and under company management unlike the TSR years, where nepotism, bad investments, overextension of business, ponzi scheming, and treating staff like shit had been the way of things. I always knew TSR had its problems, but I never knew how deep and subterranean they went.


A Curious Reversal: The Hebdo Cartoonists vs. Rushdie

My teeth nearly fell to the floor when I read a conservative outlet defending Muslim sensibilities. Usually this kind of thing comes from the left, not the right, but in The American Conservative Michael Davis slams Salman Rushdie, on the one hand feebly granting that stabbing him was bad, while on the other passionately implying that such violent reactions are warranted and to be expected. From his article, Rethinking Salman Rushdie:

“If someone insults your mother, you clock him. As a man, at least, there’s really nothing else you can do. It may not be strictly legal, but it’s perfectly honorable. Conversely, if you don’t want to get clocked, don’t insult anyone’s mother. Legally, he may be in the wrong. Morally, though, he’s right.

Salman Rushdie’s novel The Satanic Verses didn’t violate the legal limits of free speech. But, as even his staunchest defenders will admit, it was deliberately insulting to Islam. Though Rushdie now calls himself a hardline atheist, he was born to a Muslim family in Mumbai, a city with a large Muslim minority. He knew what he was doing. He knew that he was offending the deepest convictions of two billion Muslims around the world. He wasn’t offering an intelligent critique of their faith. He was mocking it.

No, he didn’t deserve to be stabbed last week. That should go without saying. But getting stabbed doesn’t make him a hero, either. On the contrary. Rushdie is a first-rate wordsmith, but a very banal blasphemer. His treatment of Islam was shallow and flippant, and Muslims have every right to be angry with him. We’re not obliged to lionize him because some have overreacted so terribly.

Human beings should be more respectful of each other’s convictions. Religion shouldn’t be treated as something banal. Art shouldn’t be flippant. These are moral judgements; they are also literary criticisms. And they’re perfectly fair.

Rushdie’s defenders obviously don’t care about his literary merits, though. This has nothing to do with art and everything to do with politics. They only care about “free speech.” I don’t want the kind of freedom Rushdie’s supporters are offering, and neither should you. It erases any distinction between beauty and ugliness, between good and evil, between truth and lies. It is the enemy of poetry, art, music, romance, community, worship—of everything that makes us human. It is the freedom to scoff and sneer, never to love or hate. And while it may keep us safe from death, it gives us no reason to live.

You can write endless blog posts insisting on your First Amendment right to insult other people’s mothers. But if you try to exercise that right, you are going to get clocked.”

Where to begin in refuting this mountain of parody? “As a man, at least, there’s really nothing else you can do, but clock those who insult your mother.” So the author believes that true men go around slugging people in response to insults. No, if someone insulted my mother, I’d either ignore it, laugh at it, or reply with a counter-insult. Funny how this author is a Christian, a follower of the dude who advised turning the other cheek. Maybe Jesus wasn’t manly enough for Davis.

Davis complains that Rushdie’s treatment of Islam is “flippant” and that he is a “banal blasphemer”. So what? Does Davis want material that is deliberately insulting to Islam or that mocks it to be outlawed? He says that “human beings should be more respectful of each other’s convictions” and that “religion shouldn’t be treated as something banal” and that “art shouldn’t be flippant”. Seriously. Many Muslims have maintain that criticizing the doctrine of Islam — no matter how serious and studious the attempt — offend their deepest convictions. Should we then cease all efforts to critique jihad doctrine so as not to insult anyone?

Davis says that “mocking other people’s religion is childish” and that “it’s boring” and that “it doesn’t make for good art”. That’s 100% irrelevant. I happen to believe that The Satanic Verses is one of the most boring books I’ve ever read, and that Rushdie would have never gotten the fame he did if not for the controversy of the few passages. That’s not the question. The question is whether Rushdie should be allowed to publish the book and live in peace and feel safe. Anyone can dislike or hate The Satanic Verses, but Davis is coming close to saying it should be banned, or that the attack was justified. In other words, that the mockers of Islam deserve more censure than the Muslims who want to kill the mockers of Islam. He doesn’t say that of course, but that’s the undeniable subtext. For that reason alone, it’s important to support Rushdie’s novel.

A Curious Reversal: Hebdo vs. Rushdie

Now: Rewind the clock back to 2015, when the Charlie Hebdo cartoonists were killed. Back then it was leftists who were coming down like an avalanche on the blasphemers — blaming the cartoonists for offending Muslim sensibilities, while merely paying lip service to the idea they didn’t deserve to die for it. Pretty much exactly how Michael Davis is now blaming Rushdie. What’s curious is how much support Rushdie is now getting from the left as compared to the cartoonists of seven years ago. The left is suddenly coming out in droves favoring free speech — not their usual line, especially when it came to Charlie Hebdo.

Why the reversal? I suspect the reason is that Rushdie has mounds of leftist credentials, and so it’s easy for the left to defend one of its own. But that’s not defending free speech; that’s just defending the speech of someone you like or respect.

Rushdie didn’t always have this kind of backing. Back in 1989 he was hammered by the left when Khomeini issued the fatwa. He was an unknown back then, and many liberals at the time (including former president Jimmy Carter) started protesting how terrible it was that Rushdie was insulting Islam, instead of focusing on the Islamic death threat against him.

Even though Rushdie is still alive, Khomeini’s fatwa was successful. His purpose was, yes, to get Rushdie killed, but even more to put the West on notice — to make clear that they cannot speak in a way that offends Muslim sensibilities; to extend sharia blasphemy restrictions to the west. That strategy has born fruit. By the 21st century, and certainly by today, many westerns have internalized the idea that you cannot speak about Islam in any critical manner. Rushdie, however — quite ironically — has by now acquired enough leftist cred that it actually takes a conservative like Michael Davis to come down hard on him for insulting Islam.

Wonders and hypocrisies never cease.

The Targaryen Kings Ranked

House of the Dragon starts this weekend, and in preparation I’ve been going through the Targaryen histories presented in The World of Ice and Fire and Fire and Blood. The kings are a colorful lot, and I rank all seventeen of them. (In the TV series we’ll get the fifth and sixth kings, Viserys I and Aegon II, neither of whom score very well on my list.) I rank them similarly to the way I ranked the U.S. presidents, not on the basis of how likeable or mean they were, rather on how good or bad they were for the Seven Kingdoms. With the presidents, I used categories of peace, prosperity, and liberty, and here I operate similarly, with peace, prosperity, and justice, since the concept of “liberty” doesn’t make much sense in the feudal world of Westeros (unless perhaps you’re a Wildling).

1. Jaehaerys I, 4th king. Excellent.
2. Aegon V, 15th king. Very good.
3. Viserys II, 10th king. Very good.
4. Daeron II, 12th king. Very good.
5. Aegon III, 7th king. Good.
6. Jaehaerys II, 16th king. Good.
7. Maekar I, 14th king. Average.
8. Aegon 1, 1st king. Average.
9. Viserys I, 5th king. Poor.
10. Maegor I, 3rd king. Poor.
11. Aerys I, 13th king. Bad.
12. Baelor I, 9th king. Bad.
13. Aenys I, 2nd king. Bad.
14. Daeron I, 8th king. Very bad.
15. Aegon II, 6th king. Very bad.
16. Aegon IV, 11th king. Atrocious.
17. Aerys II, 17th king. Atrocious.

1. Jaehaerys I, the Conciliator (4th King, 48-103 AC). Rating: Excellent. United the Seven Kingdoms and started a golden age.

If only the Targaryens could have cloned this guy. He had the longest reign of any Targaryen king, and those fifty-five years were chock full of peace, prosperity, and justice. Westeros became a near paradise, thanks to the king’s fair and level-headed policies, not to mention his progressive ambitions. He improved infrastructure dramatically, with new networks of roads. He created a unified code of law for all the Seven Kingdoms. This was arguably both good and bad — bad because locals lost some autonomy, but mostly good, since many of the local customs were barbaric. His sister-wife, Queen Alysanne, ruled at his side and was also widely loved. She persuaded him to outlaw the practice of First Night, whereby a male noble could claim the right to have sex with any man’s wife on the first night of their marriage (if the man was of lesser rank). Jaehaerys disarmed the Faith Militant, forbidding the clergy weapons, and worked hard to heal the schism between crown and faith that had threatened the kingdom’s fabric since the Targaryen conquest. He appointed a new High Septon who preached the doctrine of exceptionalism (that incest is an abomination for the Andal peoples, but it’s okay for the Targaryens of Valyrian stock). Thanks to this evangelical campaign, the people of Westeros came to accept Targaryen incest, removing an eternal threat of rebellion. When Jaehaerys died, “Westeros mourned, and it was claimed that even in Dorne men wept and women tore their garments in lament for a king who had been so just and good. His ashes were interred with that of Good Queen Alysanne, beneath the Red Keep. And the realm never saw their like again.” (WoIaF, p 65)

2. Aegon V, the Unlikely (15th King, 233-259 AC). Rating: Very Good. Gave rights to the peasants and was adored by them.

Known to many of us as “Egg” (from The Tales of Dunk and Egg), Aegon came to feel a kinship with the peasantry during his career as a boy squire. He traveled the realm like this, disguised as a commoner, during the reigns of Daeron II, Aerys I, and his father Maekar I. His major takeaway from those travels was the plight of the peasants, and how to navigate squabbles among petty lords. As soon as he became king he launched reform after reform to improve the lives of commoners: raising taxes on aristocrats, and punishing lords who abused their peasants. On whole this was a stunning mark of progress in Westeros. Aegon V took cues from his grandfather Daeron II (see #4 below), in putting diplomacy above military might. He gets a bad rap for the lousy economy during his reign (thanks to drought), but he at least tried to address the issue (unlike Aerys I, who all but ignored the problem of drought in his reign). He also had a bad image among nobles who felt they lost too much power over the peasantry. But this is to Aegon’s credit; rulers who are willing to suffer unpopularity for doing the right thing should be commended. Virtually all of the peasant rights and protections would be undone by Tywin Lannister, the Hand of King under Aerys the Mad (see #17 below), but for a few decades at least, under Aegon V and Jaehaerys II (see #6 below), the commoners of Westeros enjoyed remarkable freedoms for a feudal society. Aegon is also famous in how he died: trying to bring dragons back to life by hatching the last surviving dragon eggs. This resulted in the tragedy of Summerhall — a mysterious fire erupted, destroying most of the castle and killing the king.

3. Viserys II (10th King, 171-172 AC). Rating: Very Good. Did more in a single year than the best kings do in ten.

He reigned for only a year but showed enough potential to be a new Conciliator even better than Jaehaerys I. Ruling came natural to him, since he had served as the Hand for the three previous kings — Aegon III, Daeron I, and Baelor I. Those latter two were quite bad, and it was Viserys who moderated the worst of their obsessions, almost single-handedly keeping the realm from falling apart. As king he went full progressive, reforming the law codes that Jaehaerys I established. He founded a new royal mint and expanded trade with Essos, skyrocketing Westeros into prosperity. He died suddenly from illness, but many believe that he was poisoned by his son and successor, Aegon IV (see #16 below), which I think rather likely.

4. Daeron II, the Good (12th King, 184-209 AC). Rating: Very Good. Made peace with Dorne and brought it into the realm. At home put down a civil war mercifully.

Unlike the first Daeron in every way (see #14 below), he was no warrior but a skilled diplomat, and exactly what was needed to mend the fences broken by his terrible predecessor Aegon IV (see #16 below). He gave the court a full-fledged enema, flushing away Aegon IV’s corruption, and removing incompetent people from their positions. Also opposite Daeron I, the second Daeron succeeded in bringing Dorne into the realm — not by belligerence, war, or occupation but peaceful diplomacy. He didn’t have many warriors on his court, preferring maesters, septons, and singers. Needless to say, this earned him enemies, as many of the warrior elite disdained intellectualism and preferred the sword to the pen. So they threw their support behind Daeron’s half-brother Daemon Blackfyre (a bastard of Aegon IV who had been legitimized by Aegon) which ignited a civil war, to which Daeron responded most effectively — crushing the rebellion with the help of the Dornish. He was merciful in victory, accepting the defeated lords back into the king’s peace instead of punishing them as some of his advisors urged.

5. Aegon III, the Dragonbane (7th King, 131-157 AC). Rating: Good. Hated kingship but kept the realm stable.

He isn’t remembered kindly, but that doesn’t mean he was a bad king, and in fact he was better than most on this list. After the civil war of the Dance of Dragons (129-131 AC, see #15 below), Aegon III established the much needed peace. It’s true he wasn’t warm. He was traumatized by the Dance of Dragons and the slaughter of so many family members, including his mother Rhaenyra, the rightful queen, who was roasted to death before his eyes. He was young, didn’t court the nobles, hated kingship, and (largely to his credit) cared more about the common people than his lords. But sometimes those who are thrust into unwanted leadership roles end up doing better than others would, precisely by not being too activist. Like Jaehaerys II (at #6 below), Aegon III ranks high because he didn’t fuck things up. For a twenty-six year reign, that’s a success story. The worst thing about him is that he didn’t like dragons or try to prevent their passing, though there wasn’t much he could have done to stop that. There were only four dragons left at the start of his reign, thanks to Aegon II (see #15 below); by 153 AC all of them were dead, and the world wouldn’t see any more until Danaerys a century and a half later. What matters most is that Aegon III’s rule was long, stable, and peaceful. That’s what people want, especially after a nasty civil war.

6. Jaehaerys II (16th King, 259-262 AC). Rating: Good. Defeated the last of the Blackfyre rebels. Reconciled the great houses to the Iron Throne.

Most remember him for the War of the Ninepenny Kings — the fifth and final Blackfyre rebellion — which Jaehaerys halted on the Stepstones before the rebels could set foot on Westeros. Also in his favor, though arguably a mixed bag, is the reconciliation he brought about between nobles and the crown. The nobles had come to resent the Iron Throne since Aegon V enacted reforms that hugely favored the common people (see #2 above). Jaehaerys kept most of these reforms alive (it was Tywin Lannister under Aerys the Mad King who would eradicate them), while massaging some of the rough edges, and doing other things for nobles to balance the pro-peasant law codes. Aside from that, he places this high on my list because nothing bad happened during his reign. For any king, especially a Targaryen king, that’s a good show.

7. Maekar I (14th King, 221-233 AC). Rating: Average. Didn’t do much, but didn’t do harm.

Maekar gets a pass because he didn’t fuck things up, which in itself is very commendable for a Targaryen king. He was a warrior at heart but never started any wars and for the most part presided over a period of peace (in between the Second and Third Blackfyre Rebellions under Aerys I, and the Fourth Blackfyre Rebellion under Aegon V). When he fought, it was defensively, as in the Peake Rebellion, in which he was killed. There’s not much to know about Maekar, and when there’s not much to know about a king, he’s in all likelihood pretty much okay.

8. Aegon I, the Conqueror (1st King, 1-37 AC). Rating: Average. Founded the Seven Kingdoms by conquest.

The most famous Targaryen king is difficult to rank. On the one hand, wars of conquest are hardly admirable. On the other hand, his invasion of Westeros ended the permanent state of war that had existed in the Seven Kingdoms for ages. Aegon’s conquest can probably be esteemed like other wars of unification in which the ends barely justify the means. After the conquest he pursued a pointless bloody conflict with Dorne for many years (4-13 AC). He did nothing to actually unify the realm besides subjecting it to his rule. (The real task of unification was left to the 4th king, Jaehaerys (see #1).) Aegon was similar to his descendant Danaerys of three centuries later: “bend the knee to me or die”. When provoked, he was ruthless like Danaerys, incinerating Harrenhal as she would later do to King’s Landing. But he genuinely cared for his subjects (like Dany did for the slaves of Mereen), and tried to navigate conflict by being politic, especially with the lords of the Seven Kingdoms and the clerics of the Faith. Ultimately, he was better than Dany, because for all her positives, Dany was tainted by the madness of her father Aerys II, which got the better of her in the end.

9. Viserys I (5th King, 103-129 AC). Rating: PoorPresided over the best period in Targaryen history, while seeding it with civil war, the decline of his house, and the death of the last of the dragons.

I’ve seen rankings that put this guy pretty high, on grounds that his reign was peaceful and prosperous, and that the Targaryens were at the height of their power during these twenty-six years. (There were more dragons at this time than ever before.) While all of that is true, the credit for it goes entirely to his predecessor Jaehaerys I (see #1). Viserys inherited a great realm, and on the surface he maintained it, but without doing anything to ensure those blessings would continue — and indeed doing enough to ensure they would not. He avoided war and bloodshed, but did a terrible job as a leader and failed to secure the line of succession. He broke precedent by insisting on his daughter Rhaenyra as his heir, which fueled endless factionalism. While upholding his choice of Rhaenyra, he never did it forcefully enough, and people ran over him left and right. The result was the worst civil war in Targaryen history — the Dance of Dragons — which broke out after his death when his son Aegon usurped the throne (see #15 below). In fairness, there are some things to commend in Viserys’ rule. He was generous and open-handed. But he basically wanted to be everyone’s friend, which a king can’t afford to do, especially in his situation.

10. Maegor I, the Cruel (3rd King, 42-48 AC). Rating: Poor. Cruel and sadistic, but did what needed doing against the Faith Militant.

This one will also be controversial, for the opposite reason of Viserys I. Most rankers put Maegor somewhere in the bottom three, casting him as a bloodthirsty tyrant who craved violence. I read him a bit differently. That he was a sadist is beyond doubt. The question is to what degree that impacted his kingship and made the realm suffer. One thing should be cleared up: his so-called overzealous treatment of the Faith Militant. When it came to the clergy, Maegor did exactly what needed doing, especially after the ineptitude of Aenys I (see #13 below). His conflict with the Faith was a war, and his actions and atrocities against the Faith were no worse than the actions of almost any king in most wars. For that matter, there were far more atrocities under Aegon’s conquest than Maegor’s war against the clergy. (Maegor never pulled an equivalent of the Burning of Harrenhal or the Field of Fire.) He smashed the Faith Militant as they deserved. His cruelty had more to do with the way he treated rebel lords — over-punishing lords who did wrong — though at least they were actually doing wrong. He also occasionally punished the innocent, like when he killed all the craftsmen involved in the building of the Red Keep (so that only he would know the Keep’s secret passageways). Maegor I ranks at #10 mostly for securing the Targaryen hold in Westeros after Aenys almost lost it. If you steered clear of him, you might think him a good king to have. If you worked in his circle, or if you were an artisan of the Red Keep, or if you were one of the many ladies he raped and disfigured, well, then you’d rightly wish him dead.

11. Aerys I (13th King, 209-221 AC). Rating: Bad. Kept his head in books while his Hand created a police state.

The bookworm king was always reading; always a book in his hand about philosophy and deep mysteries, when he should have been reading up on military strategies and how to improve trade and address disasters like plague. The Blackfyres (the legitimized bastards of Aegon IV, see #16 below) took advantage of his weakness and staged not one, but two rebellions during his reign (the Second and Third Blackfyre Rebellions). The Greyjoys also rebelled against the Iron Throne. There was drought that drove hordes of people into banditry and lawlessness. Aerys dealt with all these problems by avoidance — by giving his Hand, Brynden Rivers, virtual autonomy. He deserves a large amount of credit for this, as Rivers swiftly putting down the rebellions, but Rivers was also a tyrant, installing a police state in Westeros that made people terrified of the Hand’s “thousand eyes and one”; people distrusted their neighbors for fear of spies. Aerys I ranks at #11 for not taking his office seriously, poorly managing the economy, and failing to address crime and banditry properly instead relying on a tyrannical police state.

12. Baelor I, the Blessed (9th King, 161-171 AC). Rating: Bad. Shoved religion down everyone’s throat to the detriment of the realm.

The most pious Targaryen to sit the Iron Throne is proof that you should never put a religious zealot in power. To his credit he cleaned up Daeron I’s mess by making peace with Dorne. Though he did this in a lunatic way, by walking to Sunspear barefoot; and when the Dornishmen refused to free Aemon the Dragonknight, Baelor rescued him personally by walking through a viper nest — believing that the vipers would not harm a religiously devout man like himself. He was bitten twelve times for his convictions and forced to lie in bed for months. Traumatized by the event, he grew increasingly mad, and locked away his sisters so that no men could have sex with them. He took a septon’s vows of chastity (which threatened the line of succession) and obsessed spiritual matters even more, shoving affairs of state to the periphery. He tried to outlaw prostitution and prosecuted whores (and even the whores’ children), exiling them from King’s Landing to horrible fates. He gave tax exemptions to fathers who made their daughters wear chastity belts. He turned the city into beggars by giving out free bread to everyone. He pissed off nobles by forcing them into publicly pious acts, like washing the feet of lepers. Thankfully he killed himself — unintentionally, by starvation, when he chose to fast for 40 days and 40 nights, in order to cleanse himself of lust — and the realm was saved from many more years of fanaticism. His very able Hand became Viserys II (see #3), and a very good king, if for only a single year.

13. Aenys I (2nd King, 37-42 AC). Rating: Bad. Thoroughly indecisive.

This guy wasn’t made for kingship or affairs of state. He was a daydreamer and lost himself in hobbies — singing, mummery, and mimes. He craved approval (a bad trait in a king), and was frequently paralyzed by indecision for not wanting to disappoint one side or another. In the wake of Aegon the Conqueror, there were rebellions that needed putting down — in the Riverlands, the Vale, the Iron Islands, and Dorne. Instead of either putting them down or negotiating a settlement, Aenys dithered and made bad situations worse. He left problems for his advisers to solve. Eventually the Faith Militant rose up and besieged the Red Keep, when Aenys refused to abandon the Targaryen practice of incest — the one issue he had the balls to stand firm on. But he lost his balls when the Faith attacked the Keep; he fled like a coward to Dragonstone where his Aunt Visenya advised him to respond to the Faith with the fire and blood they deserved. Aenys refused to do that, and died soon after. (He may have been poisoned by Visenya, who wanted her son Maegor on the throne.) Aenys I ranks at #13 as a thoroughly ineffectual king who came close to losing the realm.

14. Daeron I, the Young Dragon (8th King, 157-161 AC). Rating: Very Bad. Started a pointless war to prove to himself that he was super-human, and got tens of thousands of people killed.

He faced the challenges of the new post-dragon era in the way of boy-kings who think themselves invincible. He was 14 when he took the throne, and right away hell-bent on “completing the conquest” that Aegon I never finished: he would bring Dorne into the realm. When reminded by his councilors that there were no more dragons (the last dragons died in the reign of his predecessor Aegon III, see #5 above), Daeron was undaunted, replying, “You have a dragon. He stands before you.” People died for that ego. The boy-king conquered Dorne for a brief moment, until the Dornish rose up and overthrew everything he accomplished. The death toll on both sides totaled about a hundred thousand, and it was all for vain dreams of glory. What made this so reprehensible wasn’t just the fact that the Targaryens lacked the might to take Dorne (without dragons), but that Dorne wasn’t even an enemy at this point. The Young Dragon got what he deserved: in the fourth year of his reign, he went to discuss terms with the Dornishmen after they murdered Lord Tyrell, and was treacherously attacked and killed under a peace banner. Can’t say I blame Dorne, even for treachery, and good riddance to this sword-happy fool who spared the realm more catastrophe by dying after only four years.

15. Aegon II, the Usurper (6th King, 129-131 AC). Rating: Very Bad. Started a devastating civil war by claiming a crown that wasn’t his, and having zero competence to rule.

This worthless twit was the son of Viserys I (see #9) but not the king’s designated heir; that was Aegon’s half-sister Rhaenyra. No matter. Incited by his mother Alicent Hightower and the knight Criston Cole — and by his pathetic sense of entitlement — he usurped the crown on Viserys’ death and started the worst civil war in history, the infamous Dance of the Dragons. Thoroughly incompetent in matters of state, he left most of the governing to governing to Criston Cole. Meanwhile his brother Aemond One-Eye fanned the civil war flames by pursuing outrageous vendettas. He and Aemond attacked his aunt Rhaenys during the war and killed her, though the king was burned by dragonfire and maimed in the process; he had to recover for almost a year and a half on Dragonstone while Aemond carried on as regent. Eventually he murdered his half-sister Rhaenyra (right in front of her son, the soon-to-be Aegon III, see #5 above) by commanding his dragon to roast her. As a huge northern army descended on King’s Landing, Aegon was thankfully murdered — poisoned by his own councilors —  before he could fuck things up even more and turn Westeros into a wasteland. Aegon II ranks this low for torpedoing the Targaryen legacy (dragons would soon go extinct) and bringing utter ruin down on the realm.

16. Aegon IV, the Unworthy (11th King, 172-184 AC). Rating: Atrocious. Ruled badly on purpose, through rank cronyism.

How this fat toxic piece of shit didn’t start any immediate wars is beyond me, but he certainly made future wars inevitable — the five Blackfyre Rebellions of 196, 212, 219, 236, and 260 — by legitimizing all his bastards. And he had bastards up the wazoo. Lust and gluttony ruled him, and while those vices don’t necessarily a bad king make (Robert Baratheon was lustful and gluttonous and a rather average king), they do when they are directly the cause of misrule. Aegon IV filled his court with undeserving fools who had no skills other than to amuse him, flatter him, or satiate him in bed. When he grew increasingly fat he ended up forcing himself on the ladies. Some chronicles say he slept with over 900 women. He’s known as the Unworthy, but “King Rape” would be just as fitting. He stole from one house and gave to another purely on whims, doing more than any other king to misrule the realm through cronyism — selling offices to flatterers and dimwits, and wreaking 100% havoc on the political fabric of Westeros. Again, it’s amazing that this didn’t lead to any immediate wars. George Martin says that Aegon IV was the worst Targaryen king, and I give the author’s opinion its proper due. But I say the worst has to be…

17. Aerys II, the Mad King (17th King, 262-283 AC). Rating: Atrocious. Caused the end of the Targaryen dynasty. Wanted the world to burn and everyone to die.

Seriously. What can I say about the Mad King that hasn’t been said throughout the pages of A Song of Ice and Fire? The singular good thing he did was make Tywin Lannister his Hand, which brought immense prosperity to the realm, not to mention that Tywin often rescued the realm from Aerys’ stupidities. (Though Tywin also stripped peasants of their rights codified into law under Aegon V, which was bad.) Aside from that, Aerys was completely insane and cruel. He wiped out houses for perceived slights, usually imagined. He alienated the realm out of obsessive paranoia. He manufactured a dispute with the Iron Bank of Braavos. He began to fulfill his sexual desires by watching people burn to death, and by randomly torturing and killing people. He tried to murder the entire city of King’s Landing, and allowed Rhaegar to kidnap Lynanna Stark, which ignited a realm-wide civil war. His madness was off the scales, and it finally caught up to him, leading to the downfall of House Targaryen. He’s easily the worst king by any standard.

Graeme Wood’s Article in The Atlantic

Graeme Wood has written an excellent article on the Rushdie affair, but before I get to that, I want to briefly revisit an older article by Wood that surprised people when The Atlantic published it in March 2015. At the time, Wood was the first writer of a mainstream publication to dare to explain the obvious: that the primary motivations of Islamic jihadists are indeed Islamic. Fourteen years after 9/11, and a mainstream publication had finally said upfront what was usually tiptoed around. Here are just a few citations from it, since The Atlantic articles are behind a paywall:

The reality is that the Islamic State is Islamic. Very Islamic. Yes, it has attracted psychopaths and adventure seekers, drawn largely from the disaffected populations of the Middle East and Europe. But the religion preached by its most ardent followers derives from coherent and even learned interpretations of Islam.

Virtually every major decision and law promulgated by the Islamic State adheres to what it calls, in its press and pronouncements, and on its billboards, license plates, stationery, and coins, ‘the Prophetic methodology,’ which means following the prophecy and example of Muhammad, in punctilious detail. Muslims can reject the Islamic State; nearly all do. But pretending that it isn’t actually a religious, millenarian group, with theology that must be understood to be combated, has already led the United States to underestimate it and back foolish schemes to counter it.

Following takfiri doctrine, the Islamic State is committed to purifying the world by killing vast numbers of people. Muslim apostates are the most common victims. Exempted from automatic execution, it appears, are Christians who do not resist their new government. Baghdadi permits them to live, as long as they pay a special tax, known as the jizya, and acknowledge their subjugation. The Koranic authority for this practice is not in dispute.

Many mainstream Muslim organizations have gone so far as to say the Islamic State is, in fact, un-Islamic. It is, of course, reassuring to know that the vast majority of Muslims have zero interest in replacing Hollywood movies with public executions as evening entertainment. But Muslims who call the Islamic State un-Islamic are typically, as the Princeton scholar Bernard Haykel, the leading expert on the group’s theology, told me, ’embarrassed and politically correct, with a cotton-candy view of their own religion’ that neglects ‘what their religion has historically and legally required.’ Many denials of the Islamic State’s religious nature, he said, are rooted in an ‘interfaith-Christian-nonsense tradition.’

All Muslims acknowledge that Muhammad’s earliest conquests were not tidy affairs, and that the laws of war passed down in the Koran and in the narrations of the Prophet’s rule were calibrated to fit a turbulent and violent time. In Haykel’s estimation, the fighters of the Islamic State are authentic throwbacks to early Islam and are faithfully reproducing its norms of war. This behavior includes a number of practices that modern Muslims tend to prefer not to acknowledge as integral to their sacred texts.

The Koran specifies crucifixion as one of the only punishments permitted for enemies of Islam. The tax on Christians finds clear endorsement in the Surah Al-Tawba, the Koran’s ninth chapter, which instructs Muslims to fight Christians and Jews “until they pay the jizya with willing submission, and feel themselves subdued.” The Prophet, whom all Muslims consider exemplary, imposed these rules and owned slaves.

It’s easy to forget how unusual an article like that was back in 2015. Since then, more moderate publications have followed Graeme Wood’s lead in speaking inconvenient truths.

Salman Rushdie and The Cult of Offense

Here is Wood’s article on Rushdie, posted yesterday (August 14, 2022): Salman Rushdie and the Cult of Offense. I reproduce most of it because of the paywall. Much as it pains me to admit it, Wood is even right about Jimmy Carter (one of my favorite presidents). Even the wisest are wrong about some things.

On Friday, a man stabbed Rushdie in upstate New York. The suspect is 24, from New Jersey, and reportedly an admirer of Iranian theocratic rule. “The news is not good,” Rushdie’s agent, Andrew Wylie, said in a statement. Rushdie took a hit to the liver and will likely lose an eye. By Saturday night, Rushdie was reportedly off his respirator and talking.

The honorable response is to say that we are all Rushdie now, and that America’s failure to protect him is a collective shame. In the face of this thuggery, Rushdie’s work should be read publicly, and his name thrown in the face of apologists for the regime that once ordered and offered to pay for his assassination.

But we are not all Rushdie. And in fact the past couple decades have led me to wonder if some of us are more Khomeini than we’d like to admit.

In 1989, the reaction to the fatwa was split three ways: Some supported it; some opposed it; and some opposed it, to be sure, but still wanted everyone to know how bad Rushdie and his novel were. This last faction, Team To Be Sure, took the West to task for elevating this troublesome man and his insulting book, whose devilry could have been averted had others been more attuned to the sensibilities of the offended.

The fumes are still rising off of this last group. Former president Jimmy Carter was, at the time of the original fatwa, the most prominent American to suggest that the crime of murder should be balanced against Rushdie’s crime of blasphemy. The ayatollah’s death sentence “caused writers and public officials in Western nations to become almost exclusively preoccupied with the author’s rights,” Carter wrote in an op-ed for The New York Times. Well, yes. Carter did not only say that many Muslims were offended and wished violence on Rushdie; that was simply a matter of fact, reported frequently in the news pages. He took to the op-ed page to add his view that these fanatics had a point. “While Rushdie’s First Amendment freedoms are important,” he wrote, “we have tended to promote him and his book with little acknowledgment that it is a direct insult to those millions of Moslems whose sacred beliefs have been violated.” Never mind that millions of Muslims take no offense at all, and are insulted by the implication that they should.

Over the past two decades, our culture has been Carterized. We have conceded moral authority to howling mobs, and the louder the howls, the more we have agreed that the howls were worth heeding. The novelist Hanif Kureishi has said that “nobody would have the balls” to write The Satanic Verses today. More precisely, nobody would publish it, because sensitivity readers would notice the theological delicacy of the book’s title and plot. The ayatollahs have trained them well, and social-media disasters of recent years have reinforced the lesson: Don’t publish books that get you criticized, either by semiliterate fanatics on the other side of the world or by semiliterate fanatics on this one.

It is unfair to pick on Carter, because many who have less excuse for these atrocious opinions have agreed with him. These include professional writers. (Carter is a writer and poet, but his writing is more an unfortunate hobby than a real calling.) Like Carter, these writers have condemned murder, to be sure, but hastened to change the subject to the apparently equally urgent problem of the victims’ own sins.

In 2015, after jihadists killed eight members of the staff of Charlie Hebdo, PEN America, a venerable institution promoting the interests of writers and of free expression—and one that Salman Rushdie himself once led—presented the survivors with an award for their courage. Fanatics had warned them for years that they’d be killed for their cartoons, but they published anyway. After the slaughter, hundreds of PEN members, led by Teju Cole and Francine Prose, doubted whether they deserved an award, and objected in a sententious, scolding open letter.

Today, with Rushdie sliced to ribbons in a hospital bed in Erie, it is impossible to read their letter without noticing how fully they surrendered to this cult of offense and took the side of those offended against those slain.

How awful that the Charlie Hebdo artists and writers were shot to death, the signers said. But should we really applaud them? “​​There is a critical difference between staunchly supporting expression that violates the acceptable,” they wrote, “and enthusiastically rewarding such expression.” They then proceeded to explain (after, to be sure, a statement that mass murder is not acceptable) that Charlie Hebdo’s ridiculing of the “marginalized, embattled, and victimized” was also not acceptable. In 1989, Team To Be Sure had betrayed its philistinism by reducing Rushdie’s novel, one of the greatest by a living writer, to an “insult.” PEN’s critics of Charlie Hebdo declared that its “cartoons of the Prophet must be seen as being intended to cause further humiliation and suffering.” The letter did not even attempt to criticize Charlie Hebdo on literary grounds.

It takes nerve to describe artists and journalists who were recently shot in the face as having themselves caused “suffering.” To do this in one’s capacity as a PEN America member speaks to a larger faltering of the culture, in its confidence that the liberty of individuals is worth fighting and dying for. (I note that since the attempt on Rushdie’s life, almost no one has advanced these arguments. I am not sure why successfully killing several cartoonists contemptuous of religion gets to be sure treatment, but trying to kill a novelist contemptuous of religion does not. In any case I welcome into the ranks of the sensible whoever wishes to join.)

Now that Rushdie’s head has been partially detached, and on American soil, I hope these distinctions will need no further elaboration, and that those who elided them will swallow their full helping of shame. Rushdie has survived long enough to see free expression debased in the name of free expression. Survive a bit longer, Salman, and we’ll see this cause restored to the status it deserves.

Have the Duffers become victims of their own intentions?

I remember my disappointment with Stranger Things 3, and saying to a friend: “It’s curious that as the kids are growing more mature, the show is becoming less mature.” A lot of that had to do with the farcical comedy of season 3, but it may also have owed to the paradox of kids less able to transcend themselves when age robs them of the gift. And that, believe it or not, has a lot to do with why the Duffers made Stranger Things to begin with.

What made Stranger Things 1 and 2 so special was that kids were the focus in an adult series — and that’s why studios kept rejecting it:

“The biggest complaint from studios was that Stranger Things is a horror show that focuses on a group of children as the main characters. Executives said that the Duffers should either (a) change the tone of the show to make it more kid-friendly, or else (b) shift the focus to the teen or adult characters. The Duffers said doing that would ‘lose everything interesting about the show.'”

I’m sure those execs are kicking themselves for their incompetence, and it reminds me how Peter Jackson’s Lord of the Rings project kept getting rejected because studios were afraid to commit to three films over three hours long a piece. Hindsight is 20/20 and a real bitch.

But to use the Duffers’ own words against them: if focusing on teens and adults would rob Stranger Things of “everything interesting about the show”, then Stranger Things 3 and beyond were all but doomed. And I think this is where Stranger Things 4, despite its overall excellence, fails to measure up. I realize that’s not the fairest criticism — kids do have to grow — but fair or not, the fact is that there’s a certain magic to the show that was lost once the kids graduated from middle school. Puberty is a real bitch too, and in the case of Stranger Things it killed the series’ uniqueness. Teen horror has been around for decades.

That being said, I think the fourth season (unlike the third) was amazing and actually gave us some better content than anything seen in the first two. But it also had its problems (on which see below), and because the kids are no longer kids, it seems that the show needs to become even more adult — characterwise, more deep and mature. That’s the approach I took in writing my fanfiction novels, when I imagined the kids in their later years.

Anyway, here’s my ranking of the seasons to date, with a hopeful prediction for season 5.

#1. Season Two. The sophomore season gives us the most to care about. All the main characters are alienated, whether from others or themselves. Eleven is isolated in a cabin, torn between her new father Hopper and a mother she wants to find; Mike is a shell, believing his girlfriend dead but not letting go; Will is possessed and becomes a proxy murderer for the Mind Flayer; Nancy suffers guilt over Barb; Dustin can only find acceptance in a dangerous shadow-pet (Dart). It took nerve for the Duffers to treat their characters this honestly, and especially to emasculate its lead character Mike while keeping El out of reach until the final episode. The chemistry between El and Hopper is sublime. This is what sequels should be like, and for me it’s the height of the series, not only in terms of the tone and atmosphere (it’s much darker than season 1), but the emotional ride. It all comes together in a dramatic payoff: Mike and El’s tearful reunion, El closing the Gate, and the best scene of the series, the Snow Ball. Season 2 is best because it’s so immersive and doesn’t flinch from the cost of what went on before. Rating: 10/10.

#2. Season One. The premiere season is so meticulously crafted that not a single scene feels wasted. Even the quietest character moments advance the story. In this sense it’s the most polished season. As with season 2, there’s a lonely feel to it that makes Stranger Things more than just a science fiction show about other-dimensional aliens. We invest in the characters for their real-world problems. There’s abuse (Eleven’s at the hands of Dr. Brenner), grief (Hopper’s for Sara, the kids thinking Will is dead), bullying (from Troy), torture (of Eleven in the lab, and of the animals she is required to torture in turn), and parental dysfunction (Ted and Karen Wheeler). This is “Stand by Me” squared, showing kids at an age when they’re old enough to know real danger, but still young enough to believe that friendship has infinite power. A season without fault or blemish; I rank it at #2 not because it’s deficient in any way, only because season 2 takes things even higher and deeper. Rating: 10/10.

#3. Season Four. What it gets right, it gets so right that on first viewing I thought it was actually my favorite. There’s a return to season-1 Stockholm drama, with Eleven and her abusive Papa; the Silo Lab arc from episodes 5-8 is my favorite arc in the whole series. As in season 2, friends are down and distant. Max is guilt-ridden and suicidal; El is miserable, bullied by peers in the present and past; Lucas is into sports and less into Mike and Dustin’s ideas of fun. The emotionally vulnerable die as they daydream. Vecna’s killings, sadistic as they are, are but a means to an end — to create enough gates to start the apocalypse. El and Max deliver fabulous performances. There is, however, some annoying season-3ish comedy that creates a tone problem (especially with Murray and Joyce, though also Argyle and Robin), and contrived plotting that makes the Russia story line up too conveniently with the events in Hawkins. If not for the overall excellence — and for some of the best content ever seen in the series — those elements would reduce the rating to an 8, but it’s no less than 9. Rating: 9/10.

#4. Season Five (?). I hope the Duffers will go out like Breaking Bad — with a fifth season so epic that it sets a new bar — but I expect that it will be about as good as season 4, give or take. We know that it will focus on the characters from season 1 and that Will has a critical role to play, which sounds promising. While it was nice in season 4 to see the core group — Mike, Will, Lucas, Dustin, El, Hopper, Joyce, Nancy, Steve, Jonathan — split up across the world and painted into corners, for the final showdown we need them back and tight where it all began, with less spotlight on latecomers (and lamecomers) like Robin, Erica, and Murray. I’m expecting that Will’s return will be very bad for him; that he may become Vecna’s instrument in destroying the world; and that Max, if she wakes at all, will be greatly diminished. Here’s praying for a full eradication of post-season 2 comedy and more depth of character. Predicted rating: 8-9/10.

#5. Season Three. The steaming misfire. The Duffers wanted a “summer blockbuster” with the campy tone of Jurassic Park, and they went off the cliff with comedy. Compared to the trials of Will (seasons 1 and 2) and the nightmares of Vecna (seasons 4 and 5), the horror is more silly than menacing. The best part is getting to see Eleven kick ass like never before (against Billy in the sauna, and the Flayed creature at Hopper’s cabin) before she loses her powers. And the final episode is admittedly a staggering piece of cinema. Aside from that, it’s hard to believe how bad this season is. The characters are cartoon versions of themselves, especially Hopper. The plotting is so lazy and contrived you’d think it was scripted by a teenager, and adding to the lazy feel is the fact that the overall plot is just a repeat of season 2 (the Mind Flayer is using a human host, and a gate needs closing to defeat it). Some scenes are downright painful to watch; they seem intended to mock the series and piss off fans, and they completely succeeded. Rating: 4/10.

For the dirty details on my rankings, see here.

The Supreme Court Paladins

After showcasing the hall of shame it’s time for the good justices, and this is a completely serious post. These are my favorites:

1. Louis Brandeis (1916-1939) (R-D)
2. Neil Gorsuch (2017-present) (R)
3. Robert Jackson (1941-1954) (D)
4. John Marshall Harlan (1877-1911) (R)
5. Elena Kagan (2010-present) (D)
6. Hugo Black (1937-1971) (D)
7. Stephen Field (1863-1897) (D)
8. Antonin Scalia (1986-2016) (R)
9. Oliver Wendell Holmes (1902-1932) (R)

Five Republicans and five Democrats (Brandeis was both), so it’s some consolation that I’m party-blind — just as these justices do an admirable job of leaving party at the door when they sit the bench. Readers may wonder about certain omissions, like John Marshall (1801-1835) and Earl Warren (1953-1969), but those two were highly activist. I’m not saying they were bad justices, and it’s undeniable that their activism landed positive results. Marshall established the process of judicial review, and Warren’s court democratized the Bill of Rights. In each case, it was less out of an activist desire to remake the law, and more to remedy the effects of governmental paralysis. Still, I believe they’re overrated. They were strong leaders, but not the best judicial thinkers, and they had primarily political rather than legal backgrounds.

1. Louis Brandeis (1916-1939). Appointed by Woodrow Wilson. The best justice was appointed by the very worst president, though that’s not surprising. Justices prove time and time again they are not beholden to the executive. Neil Gorsuch (at my #2 slot) is another case in point. Readers may be surprised in any case to see Louis Brandeis topping my list, since his reputation is one of a living constitutionalist, but that reputation is misleading. It’s true that he believed the Constitution had to be interpreted in light of present realities but he wasn’t activist. The biographer Jeffery Rosen calls him a “living originalist” — somewhere between the hard-core originalists and the living constitutionalists — which is about right, though I think more the former in effect if the latter in appearance. Brandeis always insisted on judicial restraint; any “activism” on his part was just a matter of taking constitutional principles to their logical conclusions, or clarifying them in a period of technological change. His starting point was always the framers — the values they meant to protect, especially speech and privacy. Some aspects of his jurisprudence have been embraced by liberals like Ruth Ginsburg and Elena Kagan (who have called themselves originalists), and other aspects by conservatives like Antonin Scalia and Clarence Thomas (the hard-core originalists). Both camps agree that he was a model of jurisprudence and didn’t dissent (as some judges and justices do) when the court’s ruling produced results that he found personally displeasing. Quite the contrary.

There are six particular reasons that Brandeis earns the top slot on my list:

(1) He developed a fact-based evidence approach to arguing cases, instead of just relying on legal theory. He began this as a lawyer, years before his appointment to the Supreme Court, and the method came to be known as the “Brandeis Brief”. It’s now a staple of constitutional law. With the Brandeis Brief, the courts were brought into the solid orbit of facts. From 1907 to 1914 Brandeis defended people who were overworked in the name of “the freedom to contract” (established by the terrible Lochner v. New York ruling in 1905), advocating statues that prescribed maximum hours of labor and minimum decency of wages. In 1908 he famously appeared before the Supreme Court in Muller v. Oregon, representing the state in defending women workers. He had two pages of legal arguments, and over a hundred pages of statistics, sociological data, historical facts, and expert opinion arguing that women were unable to work for more than ten hours at a time. Astonishingly — considering this was the Lochner era of 1905-1937 — he won his case: the Court ruled that states could limit the working hours of women; it was constitutional under the Fourteenth Amendment, in the interest of protecting their health. Facts and evidence-based arguments impressed the court, and those are the kind of arguments that would impress Brandeis when he became a SCOTUS justice in 1916.

(2) He did more for the cause of free speech than any other justice in American history (on which see below).

(3) He advocated strenuously (if in vain) for the cause of privacy, which he believed was inherent in American law, and should apply to electronic surveillance as much as to physical trespass (on which see below).

(4) He believed in preserving federalism, which meant preserving the autonomy of the states. State legislatures had to be able to make laws suited to varied and changing needs; their laws should be struck down only when they interfered with basic freedoms (on which see below).

(5) He was acutely aware of the dangers of big business. He defended personal and economic liberty and opposed centralization in business or government (on which see below).

(6) He was objective about FDR’s New Deal legislation. Although a foe of strong centralized federal government like FDR’s, Brandeis supported the constitutional validity of most of the New Deal legislation — though not indiscriminately. He joined, for example, the Court’s ruling which held the National Industrial Recovery Act of 1933 to be unconstitutional, as well as the ruling of Humphrey’s Executor v. United States (1935), which said that the president may not remove any appointee to an independent regulatory agency except for reasons that Congress has provided by law. And he wrote the ruling for Louisville Joint Stock Land Bank v. Radford (1935), which invalidated the Frazier–Lemke Act because it deprived the bank of private property without just compensation, in violation of the Fifth Amendment. Brandeis thus showed himself to be objective on a huge issue that was very hard to be objective about.

Brandeis, in other words, might be called a Jeffersonian libertarian who espoused the ideals of small government and local democracy while applying those ideals to uphold state regulations that tamed the excesses of big business and monopolies. (I wish Brandeis could be unleashed today on corporations like Facebook and Youtube.) Like Jefferson, he believed that the greatest threat to our constitutional liberties were uneducated citizens, and that democracy could not survive ignorance.

— At his best: Judicial Deference to State Experimentation. In New State Ice v. Liebmann (1932), Brandeis dissented to the 7-2 ruling that struck down a state law (Oklahoma’s) that required manufacturers to get licenses from a state commission before opening a new business. Brandeis didn’t like the government intrusiveness, but he believed that state and local responses to economic challenges had to be encouraged, unless they violated the Constitution. The majority said that the license requirements for ice manufacturers violated the Due Process Clause. Brandeis (correctly, I believe) thought the majority were reaching. Likewise, in Liggett v. Lee (1933), Brandeis dissented to the 6-3 ruling that struck down a state law (Florida’s) that aimed to protect small independently owned businesses in competition with out-of-state chain stores by taxing the chain stories with a license fee. In that case, he was livid that the Court had prevented states like Florida from trying to protect local businesses from out-of-state rivals. In his view, the ruling failed to defer to legislative fact-finding, not to mention that it offended the principles of federalism (states rights) and judicial restraint. Also, Brandeis was a Jeffersonian, not a Hamiltonian, and knew the dangers of big corporations. He showed, using fact-based evidence, that when states ignore safeguards against corporate power, the result are institutions that have the power to challenge and/or dominate the states themselves. Florida’s tax was a constitutional good, going beyond merely protecting a handful of small businesses from out of state competition. The tax protected the viability of American ideals like equal opportunity, economic self-sufficiency, and personal liberty. The Court had eradicated that tax because it (supposedly) violated the Equal Protection Clause. Giving big businesses an added advantage in the name of “equal protection” is Orwellian, and Brandeis said as much in his dissent.
Free Speech. Brandeis believed that speech could be restricted only if (a) it threatened to result in harm that was both imminent and serious, and (b) there was no time for deliberation to defuse the danger. He was way ahead of his time. It would take more than 40 years, in Brandenburg v. Ohio (1969), for the Court to establish the “incitement to violence” provision: that in order to lose First Amendment protection, speech must be “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (which is why hate speech is protected; people shouldn’t be arrested for speaking hatefully, but try telling that to the modern woke). In the ’20s the victories for free speech were more foundational. Brandeis became the famous defender of the First Amendment in Gitlow v. New York (1925) — a landmark ruling that made free speech a state right, for the very first time, as much as a federal one. But the Court upheld Gitlow’s conviction anyway, 7-2, on grounds that his speech directly advocated the unlawful overthrow of the government. Oliver Wendell Holmes dissented, and Brandeis joined him, on grounds that indefinite advocacy of overthrowing government should be protected speech; they rightly insisted that threats had to be imminent to fall outside First Amendment protection. Two years later, in Whitney v. California (1927), Brandeis wrote a concurrence to the 9-0 ruling, which remains to this day the greatest defense of free speech ever written by SCOTUS justice, explaining why the solution to bad speech is more speech, or counter-speech, or better speech, but not censorship: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.”
Privacy. In Olmstead v. United States (1928), the Supreme Court dealt with its first case of electronic searches. The feds were tapping phones to enforce Prohibition, Olmstead was a bootlegger generating more than $2 million a year from illegal booze and he protested that the wire taps that busted him violated the Fourth Amendment. (Actually the wire taps were illegal under Washington state law.) In a 5-4 ruling, Chief Justice Taft said that Olmstead’s rights hadn’t been violated: the Fourth Amendment only prohibited searches or seizures accompanied by physical trespass, and the feds hadn’t trespassed on Olmstead’s property when they placed the wiretaps on the phone lines near his house. Brandeis found that inadequate in the 20th century. Phone conversations often contained more sensitive information than sealed letters. He wrote: “At the time of the adoption of the Fourth and Fifth Amendments, force and violence were the only means by which the government could compel self-incrimination. Thus, the protections offered by these Amendments were necessarily limited to address only imaginable forms of such force and violence. However, with the technological advances, the government has received the ability to invade privacy in more subtle ways.” Brandeis’s wisdom wouldn’t prevail until exactly 90 years later, in Carpenter v. United States (2018), when the Court ruled that cell phone data had Fourth Amendment protection. Even here however, the ruling was narrow, applying only to cell phone data, and not to other forms of third-party data (like bank records, etc.) which to this day police can search without warrants. The Court has yet to fully embrace Brandeis’ view that all forms of electronic surveillance without warrants are unconstitutional. This is a classic case where hyper-literal originalism fails. I certainly don’t think Brandeis was a judicial activist for trying to apply the Fourth Amendment in an era where spying can occur without physical trespass.

— At his worst: Free Speech, Part 2. Brandeis hadn’t always been a free speech purist. In Schenck v. United States, Frohwerk v. United States, and Debs v. United States — all delivered in March 1919 — Brandeis joined a unanimous court in upholding Woodrow Wilson’s tyranny during World War I, ruling that criticizing U.S. involvement the war is a criminal offense, and that criticizing the draft is a criminal offense. The people in these cases were sentenced to years in prison for simply exercising their free speech rights. However, two of the nine justices — Brandeis and Oliver Wendell Holmes (see #9 below) — redeemed themselves months later, in the case of Abrams v. United States, which also sent people to prison for speaking against U.S. involvement in the war. This case was delivered in November, but this time the ruling was 7-2: Brandeis and Holmes had had a change of heart, repenting of their errors. They became the strongest champions of free speech from then on.
Eugenics. In Buck v. Bell (1927), the Supreme Court made one of its worst rulings of all time, ruling that it was constitutional to sterilize people against their will if they were unfit or mentally disabled. Brandeis didn’t write anything for the opinion but he did join it. (To be fair, eugenics was widely accepted between 1907-1939, and Harvard University itself was promoting it, so we can hardly fault presidents like Harding and justices like Holmes and Brandeis too much for following what the best scholars and experts were saying on the subject.)

Best Brandeis quote: “The most important political office is that of the private citizen.”

2. Neil Gorsuch (2017-present). Appointed by Donald Trump. The best justice on today’s court — and in my opinion, the second best justice of all time — is an originalist whose objectivity rarely cracks; a consistently conservative justice, even when his legal opinions happen to align him with liberal politics. Some examples: in United States v. Haymond (2019), he wrote for the 5-4 majority (himself and the four liberals), overturning the lower court’s denial of a trial by jury to a man convicted a second time of carrying child pornography. (Rightfully: a new crime demands a new trial, no matter how despicable the offense. That’s a conservative legal position, though a liberal social point of view.) He joined the liberals against the conservatives to protect immigrants from being deported in Sessions v. Dimaya (2018), striking down a statute about “aggravated felonies” that was unconstitutionally vague. He even joined the liberals on a gun issue in United States v. Davis (2019), in which the Trump administration was trying to over-punish two criminal defendants. Gorsuch, however, has two Achilles’ heels: labor law and religious influence in the public sector. When it comes to church-state issues, he could take a few lessons from Robert Jackson (see #3 below). But on whole, Neil Gorsuch is the justice I’ve been waiting for all my life.

— At his best: Indian Rights. In Washington State Department of Licensing v. Cougar Den Inc. (2019), Gorsuch joined the four liberals to rule that a fuel wholesaler owned by a member of the Yakama Indian Nation was exempt from paying state fuel taxes for using public highways because the Yakama Treaty of 1855 granted members of the Nation the right “to travel upon all public highways” and preempted its obligation to pay the tax. Only two months later, Gorsuch and the liberals ruled again in favor of Indians: In Herrera v. Wyoming (2019), saying (a) that statehood does not imply termination of reserved hunting rights for Indians, and (b) that establishment of a national forest does not render an area occupied — thereby upholding Indian treaties. Liberal politics, but conservative law. Then, in McGirt v. Oklahoma (2020), Gorsuch joined the liberals in ruling 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 wrote the opinion for McGirt, stating 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.” McGirt, however, left open the question about crimes committed by non-Natives against Natives on Indian Reservations. The issue was decided in Oklahoma v. Castro-Huerta (2022), with a conservative majority (Barrett having replaced Ginsburg) ruling against Indian jurisdiction. Gorsuch wrote a furious dissent, joined by the three 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 a 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: native tribes retain their sovereignty unless and until Congress ordains otherwise.
Wedding Cakes for Gay Couples. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018), the majority (7-2) upheld the right of a private business owner (Jack Philipps) to refuse to design one of his products in a particular way (i.e. the right of a baker to refuse to make a wedding cake that celebrates gay marriage). But the ruling was on narrow grounds, and it stated that it could not provide a precedent for future scenarios like this. 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, the substantive point being that private business owners cannot be compelled to create a product that they object to on religious or moral grounds. Stunningly, the Colorado Civil Rights 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.
Separation of Powers. In Gundy v. United States (2019), 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, which is a classic violation of the separation of powers. The ruling was 5-4 in favor of a Super-Attorney-General, and 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 crazy to let the chief prosecutor write his own criminal code — in other words, to write the criminal law for those he’s going to prosecute — as it gives him way too much power over half a million people.
Gay & Transgendered Rights. In Bostock v. Clayton County (2020), Gorsuch wrote for the 6-3 majority (himself, four liberals, and Roberts) ruling that an employer who fires an individual merely 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”. His entire reasoning was value-free: 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. It doesn’t matter that gays and transgendered 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.

— At his worst: Prayer in Public Schools. In Kennedy v. Bremerton School District (2022), Gorsuch, for whatever bizarre reason, decided that a football coach’s prayer at midfield was private speech, not governmental, and therefore he had the right to kneel and pray without any interference from the school officials. But the coach’s speech was obviously not private. Even though it was after the game, he was still acting in his role as a public employee. He was engaging in a prominent public display of religiosity, and the school officials had every right to tell him that such behavior is inappropriate. Now school officials don’t have that right anymore, thanks to Gorsuch.
Labor Laws and Unions. In Epic Systems Corp. v. Lewis (2018), the Court upheld the validity of employment contracts in which employees give up their right to collective litigation against their employer. Gorsuch penned the decision, first framing the issue as a straightforward matter of resolving a potential contradiction between two federal statutes: “It is this Court’s duty to interpret Congress’s statutes as a harmonious whole.” But it’s not the Supreme Court’s duty to do that, but rather to examine each statue on its own constitutional merits. Gorsuch is usually better than that. The result is that without class action options, employees will be less able to sue, and employers less accountable to their employees. Gorsuch also joined the terrible ruling of Janus v. American Federation of State, County, and Municipal Employees (2018), which decreed that the extraction of agency fees from non-consenting public-sector employees violates the First Amendment — which it does not. Just because a person disagrees with the politics of a union doesn’t mean that being forced to pay an agency fee violates his or her free expression. It keeps the person from being a freeloader and reaping benefits that others pay for.

Best Gorsuch quote: “Originalism is the worst form of constitutional interpretation, except for all the others.”

3. Robert Jackson (1941-1954). Appointed by Franklin Delano Roosevelt. First of all, this man could write. Take this, on the subject of free speech: “In this field every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.” Or this: “Compulsory unification of opinion achieves only the unanimity of the graveyard.” His legacy, aside from prosecuting Nazis at the Nuremberg trials, was a consistent defense of free expression and maintaining a high wall of separation between church and state. It’s interesting that he and Hugo Black (see #6 below) hated each other so much (especially when Black shafted Jackson out of a chief justice nomination), when they were very similar in their approach to jurisprudence; strangely, they each dropped the ball on free speech on a singular occasion: Jackson came down hard on communist assemblers (for which Black rightly blasted him) and Black came down on public school students wearing armbands to protest the Vietnam war. No justice is perfect. We could certainly use a Robert Jackson on today’s court, where religion is being increasingly defended in the wrong places, even by first-rate justices like Neil Gorsuch.

— At his best: Free Expression. In Virginia State Board of Education v. Barnette (1943), Jackson wrote for the majority, striking down requirements in public schools to salute the flag and recite the Pledge of Allegiance. It’s one of his most famous opinions.
Separation of Church and State. In Everson v. Board of Education (1947), he dissented when the 5-4 majority ruled that a New Jersey law providing public payment of transportation costs to and from Catholic schools did not violate the Establishment Clause. Jackson said rightly that it did violate the clause. Likewise he dissented in Zorach v. Clauson (1952), when the 6-3 majority said that a public school district could allow students to leave school for part of the day to receive religious instruction, as long as the instruction took place away from the school and didn’t have public funding. Jackson rejected even those conditions, maintaining a firm church-state division, and concluded: “Today’s judgment will be more interesting to students of psychology and of the judicial processes than to students of constitutional law.”
Presidential Power. In Youngstown Sheet & Tube v. Sawyer (1952), he wrote a concurring opinion about presidential power which is one of the most widely cited opinions in SCOTUS history. The background involved Truman seizing control of steel production facilities during a strike to keep the productions running. Hugo Black wrote for the 6-3 majority, denying Truman the right to do this, but it was Jackson’s concurrence that outlined the now-famous three-tiered test for presidential power as follows: (1) cases in which the President is acting with express or implied authority from Congress, in which case “his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate”; (2) cases in which Congress has thus far been silent, in which case “his authority can derive support from congressional inertia, indifference or quiescence”; (3) cases in which the president is defying congressional orders, in which case “his power is at its lowest ebb, and the Court can sustain his actions only by disabling the Congress from acting upon the subject”.
Internment of Japanese Americans. In the appalling case of Korematsu v. United States (1943), Jackson was one of three dissenters, arguing against the use of executive power to deprive citizens of their basic rights. Not even national security warrants that, especially when there’s not a shred of evidence against those being detained. The internment of Japanese Americans, said Jackson, was terrible and would set a precedent for war-time racial discrimination.
Desegregation. In Brown v. Board of Education (1954), the Court voted unanimously to overturn the “separate but equal” doctrine of Plessy v. Ferguson (1896). The court ruled that separate facilities were inherently unequal, according to the Equal Protection Clause of the Fourteenth Amendment. Earl Warren wrote the opinion, and there were no dissents or concurrences. But Jackson did write a concurring draft before he was suddenly hospitalized by the end of March. He was released on May 17, when the ruling of Brown was delivered, so that he could be present for the important 9-0 decision. His unpublished concurrence wasn’t made available until 1986, during the scandal of William Rehnquist’s confirmation hearing. As a law clerk under the Warren court, Rehnquist had written privately to Jackson, urging that Plessy should be upheld. When questioned about it during his confirmation hearings, he lied, claiming that it was Jackson who said this. In fact Jackson believed that Plessy should be overturned but he struggled to find a constitutional argument for it. His unpublished concurrence stated that (1) he was “predisposed to the conclusion that segregation has outlived whatever justification it may have had”; (2) yet he found no evidence that segregation was prohibited, particularly since states that had ratified the Fourteenth Amendment had segregated schools at the time; (3) the enforcement of desegregation should ideally be left to Congress, since the “courts have no power to enforce general declarations of law”, but in this case the Court must act because “our representative system has failed”; (4) changed conditions in America, along with the importance of a public education, required the Court to strike down the “separate but equal” doctrine in public education. In other words, while Jackson couldn’t legally justify Warren’s ruling in Brown, he did so on the basis of social imperatives, which was unusual for him. My own feeling is that Warren’s opinion was legally justified (on the basis of the Equal Protection Clause, just as he argued), and that Jackson was second-guessing himself too much. He did the right thing, if by the wrong road, but he certainly wasn’t a Plessy supporter as Rehnquist claimed (who was projecting his own prejudices onto Jackson in order to secure his chief justice confirmation).
Procedural due process. Jackson was a staunch defender of protecting people from overreach by government agencies. Before depriving someone of life, liberty, or property, due process is required — an unbiased trial, being notified in advance, the right to present evidence and call witnesses, to know the opposing evidence, to cross-examine, to have legal counsel, etc. It was largely for this reason that Truman appointed Jackson to prosecute Nazi war criminals at Nuremberg, granting him a leave of absence from the court between 1945-46. In this, Jackson presented a good face of America to the world: even the lowest Nazi war criminals deserve due process.

— At his worst: Communist sympathizers. In Dennis v. United States (1951), the Court ruled 6-2 that Eugene Dennis had “conspired and organized for the overthrow and destruction of the United States government by force and violence”. This was a load of horseshit, and it’s amazing that Jackson joined this ruling. Hugo Black was one of the two dissenters (see #6 below, for the full citation), blasting the majority as fools — for Dennis and his friends hadn’t been engaged (or even charged) with any immediate overt acts of any kind. All they’d been doing was assembling and talking about communist writings that teach the overthrow of the U.S. government. This was a failure of SCOTUS to uphold basic free speech rights (something Jackson was usually good about), but then this was the McCarthy era.

Best Jackson quote“Compulsory unification of opinion achieves only the unanimity of the graveyard.”

4. John Marshall Harlan (1877-1911). Appointed by Rutherford Hayes. Not to be confused with his grandson John Marshall Harlan II (who served on the Court from 1955-1971, and wasn’t a very good justice), the first John Marshall Harlan was a former slave holder and proponent of slavery. He swore during the Civil War that he would resign from the army if Lincoln signed the Emancipation Proclamation, but later repented (in 1871) and became a fervent critic of slavery and prejudice. He was the first justice to earn a law degree, and when he joined the Court he swiftly earned his reputation as “The Great Dissenter”, especially in cases that restricted civil liberties. It was a dark period on the Court when many constitutional provisions were dead letters. Harlan advocated (in vain) that the Bill of Rights be incorporated into the Due Process Clause of the Fourteenth Amendment (ratified in 1868), and thus applied to state and local governments. He insisted (in vain) that the residents of U.S. Territories in the Philippines, Puerto Rico, and Guam be entitled to the full Constitutional rights of American citizens. And he dissented (in vain) against a pack of justices who ruled that racially segregated public facilities were fine, as long as they were “equal”. He was certainly no activist and paid proper deference to state legislatures. But he used common sense on a court filled with judicial blindness. I rank Harlan at #4, but he’s actually the justice I respect most for standing alone (very often) against the scorn of his colleagues.

— At his best: Civil Rights. In The Civil Rights Cases (1883) — five separate cases brought by African Americans suffering racial discrimination — the issue at hand was the Civil Rights Act of 1875. This congressional law outlawed acts of racial discrimination, but the court ruled 8-1 that the Fourteenth Amendment only prohibited state acts of discrimination, not acts committed by private individuals and privately owned businesses. Harlan argued that to allow acts of discrimination in the private sphere created a badge of slavery that marks minorities as inferior, thus violating the Reconstruction Amendments (13th, 14th, and 15th). (The Court actually acknowledged that the Thirteenth Amendment does apply to private actors, but only to prohibit people from owning slaves, not from engaging in general discriminatory behavior.) Harlan’s dissent fell on deaf ears.
Incorporating the Bill of Rights. In Hurtado v. California (1884), a 7-1 majority ruled that state governments were not obligated to use grand juries in criminal prosecutions. Harlan was the lone dissenter, in his first major push for incorporating the Bill of Rights (in this case the Fifth Amendment) into the states, and not just the federal government.
Racial Segregation. Most famously, he dissented in Plessy v. Ferguson (1896), in which the 7-1 majority ruled that segregation laws don’t violate the Constitution as long as the facilities for each race are equal in quality. As Harlan pointed out, this doctrine of “separate but equal” is an oxymoron:

“Everyone knows that the statute in question had its origin in the purpose, not so much to exclude white people from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. In view of the constitution, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.”

His “color-blind” comment became famous, but it would take almost six decades for Brown v. Board of Education (1954) to strike down segregation and call out the “separate but equal” doctrine for what it was (see #3 above, under Robert Jackson). Harlan also dissented in Berea College v. Kentucky (1908), which ruled that states could prohibit private schools from admitting both black and white students.
Colonialism. In Downes v. Bidwell (1901), the Court ruled 5-4 that the Constitution doesn’t necessarily apply to American territories like Puerto Rico, Hawaii (before it was a state), the Philippines, and Guam, and Congress has jurisdiction to create laws within territories that would not be allowed by the Constitution. Harlan was incensed, writing: “It will be an evil day for American liberty if the theory of a government outside the Supreme Law of the Land finds lodging in our Constitutional Jurisprudence. No higher duty rests upon this court than to exert its full authority to prevent all violation of the principles of the Constitution.” Harlan was as anti-imperialist as he was anti-racist.
Voting Rights. In Giles v. Harris (1903), the Court refused (in a 5-4 ruling) to assist African Americans in Alabama who were being denied the right, and it was none other than Oliver Wendell Holmes (see #9 below) who wrote the ruling. The case involved Alabama’s efforts to limit voting to those who owned property and could pass a literacy test. Giles (suing for more than 5000 black citizens) asked the Court to add the names of many black citizens to the voting rolls, but Holmes denied the request because the voting regime was fraudulent, and it was not for the Court to add names to a fraudulent system. In other words, because the system is unfair, Holmes wouldn’t make it more fair by adding names to an unfair system. Further, because the case was brought in equity, rather than as a constitutional challenge, Holmes believed it would not be proper to invalidate it (even though he believed it was invalid). Harlan dissented, believing that the Court did have jurisdiction to invalidate the law, and said that Holmes and the majority were copping out.

— At his worst: The Chinese. Harlan wasn’t perfect. If he was enlightened with respect to Africans and other races, he had deep prejudices against the Chinese. In United States v. Wong Kim Ark (1898), the Court ruled 7-2 that people of Chinese descent born in the United States were citizens by birth. Chief Justice Fuller and Harlan dissented, and Harlan actually said: “There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. I allude to the Chinese race.” Like the chief justice, Harlan believed there were dangers of having large numbers of Chinese immigrants in the U.S.

Best Harlan quote: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”

5. Elena Kagan (2010-present). Appointed by Barack Obama. She’s the best liberal to sit the court in the past 40 years, with no axes to grind and a broad view of the law. She has allied with conservatives on the court more frequently than other liberals, which means nothing in itself, but may just be an indication (and it is) that she interprets the law as a judiciary and not a tribal ideologue. For example, she joined the five conservatives in favor of Jack Phillips, the baker who had refused to make a cake for a gay couple’s wedding, whereas Ginsburg and Sotomayor dissented. She joined the conservatives in allowing a forty-foot-tall cross commemorating soldiers who died in World War I to remain on public land in Maryland. Ginsburg and Sotomayor found the Christian symbolism to be overwhelming and a violation of the establishment clause of the Constitution. Kagan recognized that the cross was acceptable because it dated back to the 1920s and belonged to a venerable line of World War I memorials, whose particular religious significance had faded over time. Kagan’s intellect is so sharp that it led Harvard law professor Mark Tushnet to predict in 2013, that someday the Supreme Court might be formally led by Chief Justice Roberts, but intellectually led by Justice Kagan. Of course, that was before Neil Gorsuch joined the court. Both he and Kagan are the best of today’s court, and they both rank on my list of the best justices of all time. Like Gorsuch, Kagan is especially good in her dissents and writes with a razor when the situation calls for it.

— At her best: Union Agency Fees. In Janus v. American Federation of State, County, and Municipal Employees (2018), Kagan went on the full offensive in her dissent against the attack on unions: “There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this nation’s law — and in its economic life — for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy. The majority has overruled Abood for no exceptional or special reason, but because it never liked the decision. Speech is everywhere — a part of every human activity (employment, health care, securities trading, you name it). For that reason, almost all economic and regulatory policy affects or touches speech. The First Amendment was meant not to undermine but to protect democratic governance, including over the role of public-sector unions.” She was right. Janus is one of the most poorly reasoned SCOTUS decisions in the 21st century.
Gerrymandering. In Rucho v. Common Cause (2019), the conservative majority (led by Chief Justice Roberts) ruled that partisan gerrymandering claims present political questions beyond the reach of the federal courts. (Gerrymandering is the manipulation of electoral boundaries so as to favor one party or class of citizens over another.) Kagan made another trenchant dissent: “The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.” Rucho most certainly involved a constitutional question; Roberts (and the other conservatives) were just throwing up their hands because they didn’t want to get them dirty.
Deportation. Kagan is just as good in writing for a majority. In Sessions v. Dimaya (2018), she wrote for the liberals and Gorsuch, striking down an immigration statute that defined “aggravated felonies” as unconstitutionally vague. The Immigration and Nationality Act (INA) classified these categories, and legal immigrants convicted of those crimes were getting unjustly shafted with deportation.
Free Speech. In Iancu v. Brunetti (2019), Kagan wrote for a 6-3 victory in striking down a law banning vulgar or scandalous trademarks. Applying that rule, the government had denied a trademark for the name “FUCT,” concluding that it was phonetically equivalent to the past tense or past participle of “fuck”. Kagan argued that the trademark law’s restriction violates the First Amendment because “it disfavors certain ideas”. Note the dissenters in what should have been a 9-0 slam dunk: Roberts, who said that while the First Amendment protects freedom of speech, “it does not require the government to give aid and comfort to those using obscene, vulgar, and profane modes of expression”; and liberals Sotomayor and Breyer, to their shame. So in this very interesting case, four conservatives and two liberals upheld the First Amendment, while one conservative and two liberals did not. This weight of opinion lends credence to the claim that the stronger threats to free speech come more from the left than the right. I’m glad that it was a liberal justice who penned the decision.

— At her worst: No objectionable rulings or opinions stand out in particular. I’ve been routinely impressed with Kagan.

Best Kagan quote: “My politics would be, must be, have to be, completely separate from my judgment.”

6. Hugo Black (1937-1971). Appointed by Franklin Delano Roosevelt. Like John Marshall Harlan (#4), Hugo Black represents a 180-degree turn from an ugly past, in his case being a member of the Ku Klux Klan. People joked that as a young man he wore white robes and scared black people, and as an older man he wore black robes and scared white people. Despite his inclinations to uphold FDR’s New Deal regulations and expand the federal government, Black defied the easy categorization of a liberal. He was in many ways a judiciary conservative, and some scholars say that he was the most politically liberal originalist who ever sat on the Court. He believed in judicial restraint, and insisted that judges rely on the intent of the framers as well as the “plain meaning” of the Constitution’s words. He fervently opposed the idea that justices should be activists, social engineers, or rewriters of the Constitution. This often goes unnoticed: before the arch-conservative Scalia there was the flaming liberal Black, both judiciary conservatives. The Stone-Age Robert Bork later wrote in admiration: “Justice Black came to have significantly more respect for the limits of the Constitution than Justice Douglas and the other leading members of the Warren majorities ever showed.” So while Black was often on the same page of opinion with Warren and his activist liberals, he usually arrived at those opinions by a safer road.

— At his best: Free expression. Black was a free speech absolutist, maintaining that Congress could not make any laws that abridged the First Amendment. In Dennis v. United States (1951), he was one of two dissenters against the majority who ruled that a member of the Communist Party USA had “conspired and organized for the overthrow and destruction of the government by force and violence”. This was pure horseshit (but it was the McCarthy era, so no surprise), and Black dissented as follows: “The petitioners were not charged with overt acts of any kind designed to overthrow the Government. They were not even charged with saying anything or writing anything designed to overthrow the Government. The charge was that they agreed to assemble and to talk and publish certain ideas at a later date. The indictment is that they conspired to organize the Communist Party and to use speech or newspapers and other publications in the future to teach and advocate the forcible overthrow of the Government. No matter how it is worded, this is a virulent form of prior censorship of speech and press, which the First Amendment forbids.”
Separation of church and state. Black believed in a fairly high wall of separation between church and state. He dissented (along with Robert Jackson, see #3 above) in Zorach v. Clauson (1952), when the 6-3 majority said that a public school district could allow students to leave school for part of the day to receive religious instruction, as long as the instruction took place away from the school and didn’t have public funding (meaningless qualifiers that didn’t fool Black or Jackson for a moment). And in Engel v. Vitale (1962), he wrote for the majority, ruling against teacher-led prayer in public school classrooms. However, his wall of separation wasn’t quite as high as Jackson’s (see further below).
Incorporating the Bill of Rights. Black crusaded on this point, believing (like John Marshall Harlan decades before, see #4 above) that the entirety of the federal Bill of Rights was applicable to the states. This was a hard sell, however, given the precedent of Barron v. Baltimore (1833), which had ruled that the Bill of Rights was binding only upon the federal government. According to Black, the Fourteenth Amendment, ratified in 1868, “incorporated” the Bill of Rights to make it binding on the states. Especially the Privileges or Immunities Clause, which says, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Black insisted that “privileges or immunities” encompassed the rights mentioned in the first eight amendments to the Constitution. He never achieved the support of other justices for this view, and from the ’30s to the ’50s it was pretty much just the First Amendment that was binding on the states (thanks to Gitlow v. New York (1925)). His crusade paid off in the long run, though. In the ’60s under Earl Warren, the Court made almost all guarantees of the Bill of Rights binding on the states. Gideon v. Wainright (1963) did it for the Sixth Amendment, Mapp v. Ohio (1961) did it for the Fourth Amendment. Malloy v. Hogan (1964) did it for the Fifth Amendment. If the Court rejected Black’s theory of total incorporation, the end result was mighty damn close to what Black had crusaded for. Today, the only parts of the first eight amendments that haven’t been extended to the states are the Third and Seventh Amendments, the grand jury clause of the Fifth Amendment, and the Eighth Amendment’s protection against excessive bail. I count Black’s crusade a success in this regard, and a very important one.
Voting Rights. Black was an adamant proponent of the “one man, one vote” principle, believing in electoral reforms of universal suffrage, proportional representation, and the elimination of plural voting and gerrymandering. He wrote for the 7-2 majority in Wesberry v. Sanders (1964), holding that the Constitution required congressional districts in any state to be approximately equal in population. He also joined the 8-1 ruling in Reynolds v. Sims (1964), which extended the same requirement to state legislative districts on the basis of the Equal Protection Clause.

— At his worst: Internment of Japanese Americans. The greatest stain on Black’s career was his opinion for the 6-3 majority in Korematsu v. United States (1943), which ruled that the internment of Japanese Americans during World War II was permissible. Robert Jackson was one of three dissenters (see #3 above), rightly arguing against the use of executive power to deprive citizens of their basic rights. Not even national security warrants that, especially when there’s no evidence against those being detained. It’s astonishing that a civil libertarian like Black wrote an opinion like this, but it goes to show how far even the best people fall in times of war.
Free expression, Part 2. Black was a free speech purist — insisting that the First Amendment is “wholly beyond the reach of federal power to abridge” — but he also took a narrow view of what constituted speech. He didn’t consider conduct like flag-burning to be protected. So he wasn’t quite the absolutist he thought he was, and in Tinker v. Des Moines (1969), he dissented against the 7-2 majority, which ruled that in order to regulate speech in the classroom, public school officials had to have a constitutionally valid reason — in other words, that the conduct would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school”. In this case, the five students in Des Moines were simply wearing black armbands in protest of American involvement in the Vietnam War. The Court rightly ruled in favor of them. But Black saw this conduct as falling into the category of “disruptive symbolic speech” (like flag burning), and dissented, saying that such conduct was beyond the purview of the First Amendment.
Separation of church and state, Part 2. As stated above, Black believed strongly in separation between church and state, and in most cases ruled accordingly, but on one significant occasion he made an exception that undermined his own logic. Writing for the majority in Everson v. Board of Education (1947), he ruled that a New Jersey law providing public payment of transportation costs to and from Catholic schools didn’t violate the Establishment Clause. (Jackson correctly insisted that it did violate the clause; see #3 above). It’s worth citing Black in full:

“The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’ That wall must be kept high and impregnable.”

The four dissenters, led by Jackson, agreed with this as spelled out (as who could not?), while pointing out that these very principles led to the invalidation of the New Jersey law that Black was defending. For obviously the funds used here were raised by taxation. Parents paid money to send their kids to private schools and the funds raised by taxation were being used to reimburse them. This goes beyond merely helping the children get to school. It helps them get the very thing they are sent to private school for: religious education. It’s funny how Black got this so wrong.
Substantive due process. Black rejected the idea that courts can establish rights protecting one from government interference, if those rights aren’t specifically mentioned in the Constitution. Most justices (rightly) believe that such protections come from the due process clauses of the Fifth and Fourteenth amendments. Black believed this interpretation was unjustifiably broad, and in his dissent to the 7-2 ruling of Griswold v. Connecticut (1965), he said that because the Constitution doesn’t mention privacy in any of its provisions, the majority had no basis to strike down Connecticut’s Comstock Law which made the sale of contraceptives illegal: “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.” That’s a terrible dissent.

Best Black quote: “A union of government and religion tends to destroy government and degrade religion.”

Honorable mentions

The last three are honorables. There’s much I admire about them, but their faults are deep enough to nearly balance the positives (in the cases of Field and Scalia) or the legacy is somewhat overrated (in the case of Holmes).

7. Stephen Field (1863-1897). Appointed by Abraham Lincoln. His most important opinions were dissents, so ringing and profound that they showed the real potential in bucking against the majority. Written well, dissents appealed to the wisdom of a future day, when later rulings might correct present errors. Field famously dissented in The Slaughterhouse Cases (1897), which ruled that the Due Process Clause of the Fourteenth Amendment protected only privileges and immunities pertaining to federal citizenship, not state citizenship. Thanks to that ruling, a Louisiana law that put a thousand butchers out of business was upheld. Field said that the Court’s ruling effectively rendered the Fourteenth Amendment a “vain and idle enactment”. In this he was like John Marshall Harlan (see #4 above) and Hugo Black (#6 above), calling for the extension of basic rights to the state governments as much as the federal. They would all be vindicated by the end of the 1960s. But if Field was stellar on the subject of due process, he was overboard on the subject of freedom to contract. His laissez-faire economics (for which I have sympathies) was too laissez-faire and helped make possible the Lochner era of 1905-1937. Best quote: “The assault on capital is the stepping-stone to others, larger and more sweeping, till our political contests will become a war of the poor against the rich.”

8. Antonin Scalia (1986-2016). Appointed by Ronald Reagan. He was the catalyst for a much needed return to originalism and textualism that had been lost during the Warren years, and he was the first justice who made me think hard about the role of the Supreme Court when I began dabbling in the ’90s. I found a transcript of the oral arguments of Texas v. Johnson (1989) — the famous flag burning case — and read it many times over, struck by how Scalia ended up joining hands with the liberals to make a 5-4 ruling that it was okay to burn the American flag. He would later write opinions like Brown v. Entertainment Merchants Association (2011), ruling that violent video games have First Amendment protection, and the government cannot enforce parental consent when it comes to video games. Also surprisingly, he dissented in Hamdi v. Rumsfeld (2004), a terrible ruling that upheld the detainment of Yaser Hamdi, an American citizen, as an enemy combatant (Scalia said that Hamdi had to be either charged with a crime or freed right away). I wish Scalia had applied his originalism more consistently, and that he hadn’t made awful rulings favoring big corporations, but I can’t deny his important contributions. And when a liberal like Elena Kagan (see #5 above) acknowledges that “we’re all originalists now, thanks to Scalia”… well, that’s saying quite a lot. Best quote: “The judge who always likes the results he reaches is a bad judge.”

9. Oliver Wendell Holmes (1902-1932). Appointed by Theodore Roosevelt. Holmes is a giant, and for me he looms larger than John Marshall and Earl Warren who were too activist. For Holmes, judicial restraint was imperative, so much that he said: “If my fellow citizens want to go to Hell, then I will help them. It’s my job.” That might be my favorite quote from any SCOTUS justice. And yet there’s something about Holmes’ stature that seems overblown. I don’t know. As I comb through his writings, no opinion on its own suggests a towering greatness. It’s rather the cumulative force of his opinions, and his insane bestseller The Common Law (1881), that gave him that. I can’t leave him off the list with a clean conscience, so he’s the last honorable mention. Best quote: “If my fellow citizens want to go to Hell, then I will help them. It’s my job.”

And Nine Black Robes were gifted to men, who above all else desire power

Now for some fun. I’ve sometimes wondered if Tolkien’s Nazgul were inspired by the highest court in America: nine elderlies in black robes given supreme power. As my last post shows, justices invested with that kind of legal authority can land results so evil that Sauron may as well be in charge. But if that’s true, who are the Nazgul of the Supreme Court?

This is what I came up with:

1. Murazor the Witch-King: William Rehnquist (1972-2005)
2. Khamul the Easterling: Roger Taney (1836-1864)
3. Dwar the Dog-Lord: Samuel Alito (2006-present)
4. Indur the God-King: John Rutledge (1790-1791, 1795)
5. Akhorahil the Storm-King: James McReynolds (1914-1941)
6. Hoarmurath the Ice-King: Henry Billings Brown (1891-1906)
7. Adunaphael the Silent: Amy Coney Barrett (2020-present)
8. Ren the Insane: Henry Baldwin (1830-1844)
9. Uvatha the Horseman: Brett Kavanaugh (2018-present)

In assigning justices to Nazgul roles, I’m obviously being tongue in cheek, though not entirely. This isn’t my official list of the “nine worst justices” in American history, but many of them would indeed make the cut if I ever did such a list. To make this list, the justice had/has to be either very bad or moderately bad, and share a Nazgul’s characteristics, however artificially. Sometimes I even drew on things the justice said or did prior to joining the Court. (For an official list I would stick exclusively to what the justice did on the Court in his or her capacity as a justice.) So with that in mind, enjoy, and click on the images to see them more clearly.

1. Murazor the Witch-King: William Rehnquist (1972-2005). Appointed by Richard Nixon. For the Witch-King I needed a Chief Justice with evil jurisprudence, and who came from the cold north. Wisconsin man William Rehnquist is the uncontested candidate. His judicial philosophy was result-oriented, activist, and authoritarian — everything you don’t want in a justice. He was no friend to liberty, equality, and human rights. As a law clerk, he had written privately to Justice Robert Jackson, saying that Plessy v. Ferguson (1896) was correct at the time, still correct now, and should be reaffirmed; when questioned about it during his confirmation hearings, he lied, claiming that it was Jackson who said this. Rehnquist was a political conservative but not a judicial conservative — unlike Antonin Scalia, who was both, and could go against his own politics when the Constitution demanded it. That’s why, for example, in Texas v. Johnson (1989), Rehnquist said that people shouldn’t have the right to burn the American flag. While Scalia personally hated flag-burners, he joined the liberals for a 5-4 ruling which defended flag-burning and the First Amendment. Rehnquist wrote or joined opinions that scaled back protections given to criminal defendants; dismantled school desegregation orders; and loosened the barrier between church and state. For this he gets the honor of being the Witch-King: the Lord of the Nazgul-Justices.

2. Khamul the Easterling: Roger Taney (1836-1864). Appointed by Andrew Jackson. For the Second of the Nine, I needed a real son of a bitch from the east, and that would be Roger Taney from Maryland. History will always remember him for authoring the worst ruling of all time, Dred Scott v. Sandford (1857), which said that Congress could not grant citizenship to slaves or their descendants. But Taney was bad in general, as he took his vision from the man who appointed him. As Chief Justice he became an exponent of Jacksonian “democracy”: the spoils system, manifest destiny, anti-banking, and universal suffrage for white males. While nominally in favor of the underdog, Andrew Jackson personified everything the old-school Jeffersonians feared in the new frontier politics: non-accountability, demagoguery, contempt for liberty (despite the rhetoric for “rights of the common man”), and rank appeal to the uneducated. Where the Marshall Court had broad views of congressional power, Taney’s Court did not, and gave undue privilege to the executive. Taney richly earns his stripes as Khamul, the Second of the Nine. Watch for him at Sauron’s mountain in Mirkwood Forest.

3. Dwar the Dog-Lord: Samuel Alito (2006-present). Appointed by George W. Bush. For Dwar I needed a justice with anger issues, and I didn’t have to think twice. Samuel Alito is renowned for his anger, and it’s easy for me to imagine him as a neo-Dwar, nursing hatreds that go back to his childhood, and now as an adult using his influence and power to fight back at the “world”, as he sees it, to address his goddamn grievances at the expense of everyone else’s rights. He has trampled on the First Amendment as a lone dissenter, in United States v. Stevens (2010) and Snyder v. Phelps (2011). He has reduced unions and legitimated freeloading in Janus v. AFSCME (2018), while quipping with a straight face, “Nonunion members are not free riders at all, they are captive riders.” He overthrew Roe v. Wade in Dobbs v. Women’s Health Organization (2022). Roe was an admittedly bad ruling (and who knows, maybe Dobbs will eventually produce more Kansas furies and better legislative results), but there is no doubt in my mind that Alito was hell-bent on overthrowing Roe for personal as much as legal reasons. His nickname “Scalito” is thoroughly unearned, as he is nothing like Scalia or Thomas. He is un-originalist to a fault. Watch for him at the Teeth of Mordor, where he trains the most vicious hounds of Middle-Earth.

4. Indur the God-King: John Rutledge (1790-1791, 1795). Appointed by George Washington. Indur Dawndeath, also known as the God-King Ji Amaav, ruled territory in southern Middle-Earth where slavery was the way of life, disappeared and kept coming back in various incarnations (Jim Amaav I, II, III, and IV). Rutledge was like that, a South Carolina man owning sixty slaves, acting the deity as he pleased, leaving the court in 1791 without ever having heard a single case. He then returned to the Supreme Court in 1795 — this time as Chief Justice — but as before, not staying seated for more than a year. He did enough damage during that short stint, taking it upon himself to publicly denounce George Washington’s Jay Treaty with Britain, even though the treaty averted a costly war that would probably have defeated America. (For Ji Amaav, war, war, and war was the only reason to live.) Rutledge went so far as to say “I would rather the President should die than sign that treaty”. That offended the hell out of people, and by the time of his formal nomination to the Court in December 1795, Rutledge’s reputation was a shambles. The Senate refused to confirm his appointment, and he responded by trying to kill himself — jumping off a wharf into Charleston Harbor. He was rescued by two slaves, which he absolutely didn’t deserve; as an attorney he had defended individuals who mercilessly abused their slaves, and he had gone out of his way to persuade the Constitutional Convention to not abolish slavery. What can be said about Rutledge? He spat in the eye of peace, said that his president (one of the greatest ever) deserved to die, never took his judicial mandate seriously, and like any god-emperor said and did as he damn well pleased.

5. Akhorahil the Storm-King: James McReynolds (1914-1941). Appointed by Woodrow Wilson. The Storm-King was a nasty piece of work. He beat and raped his sister-wife almost every day, and killed castle servants who displeased him in the slightest. Justice James McReynolds didn’t do things like that, but I’m sure he would have if he thought he could get away with it. Chief Justice Taft described him as “selfish to the last degree and fuller of prejudice than any man I have ever known”. Taft wasn’t exaggerating. McReynolds wouldn’t accept Jews, blacks, women, smokers, or drinkers as law clerks. When Louis Brandeis (the first Jew on the Supreme Court, and in my view the best justice of all time) ever spoke, McReynolds would leave the room. Likewise, when the Jewish justice Benjamin Cardozo delivered an opinion from the bench, McReynolds would hold a brief or record in front of his face. He refused to sign any opinions that were authored by Brandeis or Cardozo, regardless of their merits. Nor would he speak to some of the liberal justices. He made misogynistic comments in front of women. He dissented in Steward Machine v. Davis (1937), which upheld the Social Security Act. There was other New Deal legislation that he opposed fairly enough, but he was far too pro-Lochner to retain any credibility in a world that saw the need for unions and labor standards to maintain a minimum of human decency. He was a true piece of shit, and no one you’d want to break bread with, anymore than you’d want to visit the Storm-King’s castle.

6. Hoarmurath the Ice-King: Henry Billings Brown (1891-1906). Appointed by Benjamin Harrison. Hoarmurath comes from the wintry forested northeast corner of Middle-Earth, and so here I needed a justice from my home region of New England. Henry Billings Brown grew up in Massachusetts and Connecticut, and is famous for writing the abominable Plessy v. Ferguson (1896), in which he ruled that separate facilities for black and white people are fine, as long as they are “equal” — thoroughly oblivious to the fact that “separate but equal” is an oxymoron. He joined other atrocious rulings, such as Lochner v. New York (1905), which said that employees can work as many hours as their employer wants them to. On top of those, he wrote the rulings for two Insular Cases, in particular Downes v. Bidwell (1901), which held that the Constitution doesn’t necessarily apply in American Territories like Puerto Rico, and citizens there cannot expect constitutional rights. After he retired, he went on a crusade against women’s suffrage, giving speeches on why women should not vote and instead adhere to their proper ordained roles. This makes him a perfect fit for the Sixth of the Nine. Hoarmurath was born and reared in a matriarchal culture, and it was he who brought the matriarchs to their knees, supplanting it with his reign of terror. (He killed his mother, the last Matriarch of the Urdar, and sent pieces of her body to every surrounding forest announcing the new way of things.) Look for him in the arctic-cold forest of Dír.

7. Adunaphael the Silent: Amy Coney Barrett (2020-present). Appointed by Donald Trump. For the female Nazgul my options were limited: Sandra O’Connor, Ruth Ginsburg, Sonia Sotomayor, Elena Kagan, and Amy Coney Barrett. It had to be either Sotomayor or Barrett (O’Connor was a very good justice, as was Ginsburg, and Kagan is excellent), but Sotomayor is hardly silent. Barrett, however, is indeed a “silent justice” if there ever was one. In the two years she has been on the court she hasn’t distinguished herself — hasn’t written a single thing that stands out as praiseworthy — and consistently keeps a low profile. She often writes nothing at all, and when she does, she barely bothers to explain herself, unlike other justices who defend their opinions with verve. Some have her pegged as a politically conservative loyalist who operates under the guise of judicial originalism, and I suspect that may well be the case. A Neil Gorsuch she is definitely not, nor even an Antonin Scalia, for whom she professes respect. Watch for her in southern Mordor, where she works her evil mischief.

8. Ren the Insane: Henry Baldwin (1830-1844). Appointed by Andrew Jackson. For Ren I needed a crazy justice with contempt for other peoples, and the one who really fits the bill is Henry Baldwin. Baldwin insisted that juries respect the legality of slavery, and he was the lone dissent in United States v. The Amistad (1841), which ruled that 36 kidnapped African adults and children who were on board the ship had to be freed. Baldwin had none of it, insisting that as a matter of constitutional law, slaves are property, not people. He was also the lone dissent years before, in the landmark Worcester v. Georgia (1832), which ruled that states have no jurisdiction in Indian Country. Baldwin had none of that either; he read the Constitution as implying that the national existence of the Indian tribes was subject to the power of the states. He had the reputation of being an incoherent jurist — shockingly so, at times — and had mental health problems during his tenure on the Court. Look for him on the grassland plains of Chey Sart, where he commits countless genocides.

9. Uvatha the Horseman: Brett Kavanaugh (2018-present). Appointed by Donald Trump. Uvatha is the messenger boy for the other Ringwraiths, constantly galloping between Mordor and Mirkwood. His conquests and dominions aren’t nearly as impressive as those of the other eight, though you’d never dare tell him that, given his explosive temper. For this Nazgul I needed a justice full of himself, who doesn’t realize there’s less to him than meets the eye. Brett Kavanaugh fits the bill. He’s so despised that an assassination attempt was made on him, and he has written exactly one good opinion (out of 77 opinions to date): Manhattan Community Access Corp. v. Halleck (2019), ruling that a private corporation operating public access channels is not a governmental actor subject to the First Amendment; and thus the corporation was within its rights to suspend contributors from using the station’s public services and facilities. Even if we don’t approve corporations like Facebook and Youtube trying to police their functional equivalent of a digital town hall (these big techs exercise more control over the public discourse than any government ever dreamed of having), we should acknowledge their right to do so. Aside from this ruling, Kavanaugh has written mostly garbage. He makes not serious arguments, but noise — a lot like Uvatha the Horseman, who shrieks loud enough to split the heavens asunder.

Next post: The Supreme Court Paladins

The Worst Supreme Court Rulings

When SCOTUS screws the pooch, it goes the full nine. Not literally; there’s usually at least one dissenting justice to rub the majority’s noses in their idiocy. But some rulings are so bad that one wonders if America would be better off without the process of judicial review.

The case of Marbury v. Madison (1803) established judicial review: the power of the federal courts to declare legislative and executive acts unconstitutional. Some scholars say this was the worst Supreme Court ruling of all time — that it gave nine justices far more power than the founders intended, and that we should return to the 13-year period of 1789-1802, when each branch of government formed its own opinions on the constitutionality of laws.

In his book The Case Against the Supreme Court (2014), Erwin Chemerinsky doesn’t go quite that far. He argues that the Supreme Court has done more harm than good, even during its best periods, yet he doesn’t want to abolish judicial review. “One reason I part company with scholars who propose eliminating judicial review is that I believe the Supreme Court can be significantly improved. As I look back at the terrible mistakes made by the Court, I realize they were not inevitable. In virtually every case that I have criticized, there was a dissent. Those dissents could have been the majority opinions.”

Chemerinsky suggests a variety of things to improve the Court. For example, justices should have 18-year terms instead of life tenure. There should be a merit selection of justices, like the way the Alaska Supreme Court appoints judges to its Court of Appeals. Alaska has had some questionable governors like Sarah Palin, but the judges on the Alaska courts don’t necessarily reflect the politics of the governor, and the decisions rendered by these judges tend to be very high quality. It has to do with how the Alaskan Judicial Council nominates candidates before sending them to the governor for approval. Says Chemerinsky:

“There is nothing in the U.S. Constitution that prevents the president from creating a merit-selection panel for judicial vacancies on the Supreme Court and the federal courts and then promising to pick an individual from the names forwarded to him. President Jimmy Carter (who never got to select a justice for the Supreme Court) did exactly this for federal court of appeals vacancies, and the results were stunning.”

Whether the Court’s power should be diminished or its infrastructure reformed (like Chemerinsky, I say the latter), it’s clear that the issue keeps getting hotter. Here’s a look back at what I consider to be the Court’s worst rulings. It’s stunning how some of the best justices have written or joined such awful opinions.


1. Dred Scott v. Sanford Congress cannot grant citizenship to slaves or their descendants (7-2) 1857 Slavery
2. Buck v. Bell Compulsory sterilization of the unfit, including the intellectually disabled, is permissible (8-1) 1927 Eugenics
3. Korematsu v. United States
The internment of Japanese Americans during World War II is permissible (6-3) 1944 Internment
4. Barron v. Baltimore The Bill of Rights applies only to the federal government, not the state governments (9-0) 1833 Bill of Rights
5. Schenk/Frohwerk/Debs/Abrams v. United States Criticizing U.S. involvement in World War I is a criminal offense; criticizing the draft is a criminal offense (9-0, 9-0, 9-0, 7-2) 1919 Free Speech
6. Citizens United v. Federal Election Commission It is a violation of free speech to restrict corporations and unions from unlimited political spending (5-4) 2010 Democracy
7. United States v. Miller / Smith v. Maryland People who voluntarily give information to third parties (banks, phone companies, doctors, internet service providers) have no reasonable expectation of privacy in that information (7-2, 5-3) 1976, 1979 Property Rights
8. Plessy v. Ferguson Racial segregation laws don’t violate the Constitution as long as the facilities for each race are equal in quality (7-1) 1896 Racial Segregation
9. Bowers v. Hardwick Laws that make sodomy illegal are permissible (5-4) 1986 Homosexuality
10. AT&T Mobility LLC v. Concepcion/ American Express v. Italian Colors Restaurant
States must enforce arbitration agreements even if the agreement requires that consumer complaints be arbitrated individually instead of on a class-action basis (5-4, 5-3) 2011, 2013 Corporate Liability
11. Roe v. Wade
The Due Process Clause of the Fourteenth Amendment provides a right to privacy that protects a pregnant woman’s liberty to abort her fetus (7-2) 1973 Abortion


1. Dred Scott v. Sanford (1857)

The issue: Slavery
The ruling (7-2): Congress cannot grant citizenship to slaves or their descendants

It’s a predictable and perhaps boring choice for the top slot, but it deserves its reputation. It relied on racist doctrine spelled out in the ugliest terms — that blacks were “beings of an inferior order, altogether unfit to associate with the white race, and so far inferior that they had no rights which the white man was bound to respect”. It played a key role in precipitating the Civil War. The Kansas-Nebraska Act (1854) had already repealed the Missouri Compromise’s prohibition of slavery in the territories west of Missouri and north of the specified line, and now the Supreme Court said that prohibiting slavery in any territory was unconstitutional. But what about its judicial merits? The legal reasoning, aside from the repugnant morality that drove it and the disaster that came from it?

The background is well known. Scott was a slave in Missouri, owned by John Emerson, and he was taken by Emerson to the free state of Illinois. After Emerson died, his estate was taken over by John Sandford, who lived in New York. Scott sued Sandford in federal court, claiming that his residence in Illinois made him a free person. When the Court ruled against him, it arrived at two legal conclusions: (1) Dred Scott could not sue in federal court because blacks, whether slave or free, were not citizens under the Constitution; (2) Congress lacked constitutional authority to enact the Missouri Compromise of 1820 prohibiting slavery in any territory, since it had the effect of taking of property from slave owners.

With regards to (1), the Constitution did not require this conclusion. According to scholar Robert Burt:

“Holding that the Constitution regarded slaves as property and committed Congress to protect masters’ property rights as such, Taney gave a definitive answer to a question that the framers did not resolve. Taney’s error was not that the framers gave a different answer so that the document contradicted him. It was instead that the document contradicted itself on this question. Taney is clearly correct that the fugitive slave clause recognized masters’ property rights to slaves. And yet the Constitution nowhere says this explicitly. Indeed, the word ‘slave’ never appears as such in the document. This omission was not a casual oversight. It was a calculated choice by the framers. There were many provisions in the Constitution that dealt with an obviously protected the institution of slavery. But the word was never used because, as James Madison stated in the convention debates, it would be ‘wrong to admit in the Constitution the idea that there could be property in men’. Taney was thus wrong, though at the same time he was also right, that the Constitution acknowledged property rights in slaves.”

In essence, the question of black citizenship and slaves being property was the very question that needed resolution. The Court could have resolved the long-standing ambiguity by defining “citizens” to include slaves. That would have reinforced the spirit of the Constitution and Declaration of Independence. But Taney and the majority went the odious route, declaring an entire group of people to be chattels, and saying that the Court couldn’t grant citizenship to slaves or their descendants (since that would be a taking of property from slave owners without due process or just compensation). According to Taney, the Court simply lacked the power to alter the legal status of black people by granting them state citizenship.

But on that assumption, the Court didn’t even need to address whether or not (2) the Missouri Compromise was unconstitutional. (Once a Court concludes that it lacks jurisdiction, the case should be simply dismissed.) Taney did so anyway, ruling that it was unconstitutional — since Congress’s eliminating of slavery in territories north of the specified line had the effect of taking of property from slave owners. Thus any federal law that tried to limit slavery was invalid if it had the effect of freeing a single slave; it amounted to robbery.

The two dissenters in the case — Benjamin Curtis and John McLean — argued that overturning the Missouri Compromise was an illegitimate move, and Curtis also said that the idea that blacks could not be citizens was both historically and legally baseless. They were right. The Court’s hands were not tied as Taney claimed. The justices could have ruled, with Constitutional integrity, that slaves were U.S. citizens. Because they didn’t — and because they went out of their way to put all their chips on the side of slavery — I follow those who regard this as the worst Supreme Court decision of all time.

2. Buck v. Bell (1927)

The issue: Eugenics
The ruling (8-1): Compulsory sterilization of the unfit, including the intellectually disabled, is permissible

Oliver Wendell Holmes was no Roger Taney. He was one of the greatest Supreme Court justices of all time. And yet the following words came from his pen:

“It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.”

There’s an evil side to me that actually agrees with this. Mass stupidity does make me wonder (on my bad days) if we would be better off by denying idiots and assholes the right to breed. But I’m being tongue in cheek. Eugenics is obviously monstrous. Compulsory vaccination, yes — and I agree with the Court’s decision in Jacobson v. Massachusetts (1905), which gave states the authority to enforce vaccination of its citizens — but to make an equivalence between forced vaccination and sterilization is off the scales.

To be fair, eugenics was widely accepted in the early 20th century (1907-1939), and indeed Harvard University itself was promoting it. You can hardly fault presidents like Harding and justices like Holmes too much for following what the best scholars and experts were saying on the subject. By the time the eugenics movement had reached its high point in 1927 (the year of Buck v. Bell), the medical establishment was fully on board, and the courts were upholding forced sterilizations of the “mentally defective” left and right. Buck v. Bell legitimated that trend, and by 1935 more than 20,000 forced sterilizations had occurred (most of them in California). In the case of Carrie Buck, she was deemed “feebleminded”, though she was not even mildly retarded. Her crime was that she had grown up in poverty, been taken in by a foster family, raped by one of its members, and then blamed for being raped as she had shamed the family. For this she was deemed “unfit” for reproducing.

It’s hard to believe that such a Nazi-esque practice has occurred in America, and even harder that the Supreme Court rejected arguments that forced sterilization violated the Eighth Amendment (cruel and unusual punishment), and the Fourteenth Amendment (due process). In that sense it’s like the Dred Scott case, and the question of black people qualifying as citizens. For that reason I place Buck v. Bell at #2.

3. Korematsu v. United States (1944)

The issue: Internment
The ruling (6-3): The internment of Japanese Americans during World War II is permissible

Justice Hugo Black, one of the greatest civil libertarians of all time, wrote the following to deny the most basic civil liberties to Japanese Americans:

“Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when, under conditions of modern warfare, our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger… Fred Korematsu was not interned because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily.”

In other words, the internment of Japanese Americans wasn’t a racist policy, but it was a racist policy. The government used ethnicity alone as a basis to predict who was a threat to national security. It was sweepingly inclusive: all Japanese Americans, without exception, were evacuated and interred because a few might be disloyal. (It turned out that there was no evidence of a threat from any Japanese Americans, but this ruling was horrible regardless of that.) It was also strangely under-inclusive: German Americans and Italian Americans were rarely detained during the war. “Japs” were the targets, pure and simple.

And while the internment of Japanese Americans was nothing akin to what the Jews suffered in Europe, it was no mere inconvenience. The Japanese Americans were forced to sell their homes and personal belongings before moving to the camps. They were quartered in camps or barracks without running water or cooking facilities — sometimes even horse stalls. Internment cost them their livelihoods.

Justices Owen Roberts and Robert Jackson dissented in the case of Korematsu, acknowledging the racism in the majority’s ruling without using the word, but Frank Murphy’s dissent was blunt and unforgiving: “I dissent from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting, but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States.” When a great civil libertarian (Hugo Black) and the most flaming liberal justice of all time (William Douglas) need to be scolded like this, it says something about how far we fall during times of war, when xenophobic fears bring out the worst in us. The vile ruling of Korematsu richly earns its place at #3.

4. Barron v. Baltimore (1833)

The issue: The Bill of Rights
The ruling (9-0): The Bill of Rights applies only to the federal government, not the state governments

I haven’t seen Barron on any worst rulings lists, which surprises me. The legendary John Marshall wrote the opinion, commanding a unanimous vote, that the Bill of Rights didn’t apply to state governments, despite the fact that many provisions of the Bill of Rights don’t limit themselves to the federal government. Thanks to this ruling, there was a miscarriage of justice for decades. States often didn’t provide counsel for those accused of crimes. States punished those who invoked their privilege against self-recrimination. States sentenced people to death without an attorney being provided. Some states even had official state churches. States didn’t have to respect free speech.

The reframing of states rights came with the post Civil War amendments (13th, 14th, and 15th). Indeed, the Constitution was effectively changed between 1865-1870, limiting what state governments could do, especially by the Fourteenth Amendment — which says that due process applies to state governments no less than the federal. But because of the entrenched precedent of Barron v. Baltimore, these new amendments became largely a dead letter. Even by the mid-1870s, United States v. Cruikshank (1876) still held that the First and Second Amendments didn’t apply to state governments.

The greatest advocate for incorporating the Bill of Rights into the Due Process Clause was Justice John Marshall Harlan (who served on the Court from 1877-1911). Harlan’s position became known as the doctrine of incorporation, but it would be a long time before the Court imposed that doctrine on the states. Gitlow v. New York (1925) did it for the First Amendment. Powell v. Alabama (1932) did it for the Sixth Amendment (in cases of capital crimes), and Gideon v. Wainright (1963) did it for the Sixth Amendment (for all criminal cases). Mapp v. Ohio (1961) did it for the Fourth Amendment. Malloy v. Hogan (1964) did it for the Fifth Amendment. In other words, it took nearly a full century after establishing the Fourteenth Amendment (1868) for all of the Bill of Rights to apply to the states. If not for Barron v. Baltimore, that incorporation would have likely happened much sooner.

We take our rights for granted, often forgetting (if we ever knew) that the Bill of Rights was toothless for a long period. During the 19th and early 20th centuries, it was small consolation to say that the federal government had to respect your basic rights, while state and local governments — the ones that affect you on a daily basis — could oppress you. Barron v. Baltimore didn’t do Americans any favors, to say the least, and it probably deserves the #1 slot on this list. But I place it at #4 because Dred Scott, Buck, and Korematsu are so despicably vile.

5. Schenk/Frohwerk/Debs/Abrams v. United States (1919)

The issue: Free speech
The ruling (9-0, 9-0, 9-0, 7-2): Criticizing U.S. involvement in World War I is a criminal offense; criticizing the draft is a criminal offense

The period of World War I was the worst time in America for anyone’s civil liberties. Under Woodrow Wilson conscription was resurrected from the Civil War via the Selective Service Act of 1917, even though the Constitution doesn’t authorize a military draft, and the Thirteenth Amendment explicitly prohibits involuntary service. (The act has never been repealed, and to this day American men are required to register for the draft.) The Espionage Act of 1917 made protests against the draft illegal, as well as criticism of American allies. The Sedition Act of 1918 made any speech, spoken or in print, illegal if it was critical of the war effort or the aims of the government. Wilson used the post office and Justice Department to suppress free speech, and ordered the War Department to censor all telegraph and telephone traffic. He fined and imprisoned thousands for criticizing the war.

This is the background for a flurry of Supreme Court cases that stunningly (and unanimously) upheld the president’s will. Schenck involved two people distributing leaflets saying that the draft violated the Thirteenth Amendment as a form of involuntary servitude; they were arrested and thrown in jail. Frohwerk involved a newspaper publisher who ran anti-war articles; he was imprisoned for ten years. Debs involved a socialist party leader who vocally opposed the war effort; he too got ten years. Those three cases came early in 1919, and the Court upheld their sentences each time, 9-0, ruling that the president was not acting unconstitutionally in suppressing free speech. Criticizing the war effort or the draft was a federal crime, said the majority, because during times of crisis, civil rights that would otherwise hold do not apply.

The justice who wrote the ruling in each of the three cases was — believe it or not — the great Oliver Wendell Holmes, and one of the justices who joined Holmes’ unanimous ruling was none other than Louis Brandeis. In the 1920s Brandeis would become the famous defender of the First Amendment, first in Gitlow v. New York (1925), which made free speech a state right as much as a federal one (see #4 above), and then in Whitney v. California (1927), in which Brandeis (joined by Holmes) dissented from the majority, advocating what has become famously known as the counterspeech doctrine (the appropriate response to offensive speech is more and better speech, not censorship). How could Holmes and Brandeis, legendary champions of liberty and free speech, have ruled as they did in Schenk, Frohwerk, and Debs?

The answer seems to be that war brings out the worst in us, and seduces even the most passionate defenders of liberty. We saw this in the case of Korematsu v. United States (1944) (see #3 above), where another famous civil libertarian, Hugo Black, upheld the government’s decision to intern Japanese Americans who had done no wrong. Just as Black stumbled during the second world war, Holmes and Brandeis stumbled during the first.

Though not entirely. Holmes and Brandeis did an amazing about-face at the end of the year in the case of Abrams. (Schenk, Frohwerk, and Debs were decided in March 1919, and Abrams in November 1919.) The case of Abrams involved Russian immigrants who circulated leaflets criticizing America’s war effort. They got twenty years in prison, and the Court relied on Schenk, Frohwerk, and Debs to uphold the convictions. This time, however, the ruling was 7-2. Holmes and Brandeis dissented. Holmes said that he saw no contradiction between his dissent in Abrams and his majority rulings in the previous three cases, but he was transparently full of shit. The cases were all absolutely identical. Holmes was just saving face. Scholars are in wide agreement that between March and November, Holmes and Brandeis changed their minds, realizing they had been dead wrong to uphold the suppression of free speech.

6. Citizens United v. Federal Election Commission (2010)

The issue: Democracy
The ruling (5-4): It is a violation of free speech to restrict corporations and unions from unlimited political spending

This ruling has changed U.S. elections on a fundamental level. The 5-4 conservative majority ruled that to restrict corporations, labor unions, and other profitable organizations from political spending violates their free speech rights. Now, obviously the First Amendment never protected the spending of money in an election campaign as a form of protected speech. Nor was that amendment — or any of the Bill of Rights — designed to protect corporations. But that didn’t stop the Court from handing down this asinine ruling. Thanks to them, the cost of running for elected office will often increase, and the additional money thrown into the pot will sometimes determine the outcome of the elections.

The premise that spending money is pure speech is absurd. There is First Amendment protection for conduct that communicates, but the Supreme Court has long said that such conduct is much more subject to government regulation than ‘pure speech’. Money in elections facilitates speech, but many things that facilitate speech (like education) are not Constitutional rights. Money is property, not speech, and property rights don’t have the same protection as the right to say as you please.

More to the point, the Court’s premise that corporations should have the same speech rights as individuals is even more ridiculous, as Justice Stevens said in his dissent:

“In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.”

Stevens then concluded by saying the majority’s ruling in Citizens United is nothing less than a “rejection of the common sense of the American people”. Erwin Chemerinsky says that this case should put to rest the constant conservative attack on judicial activism: “By any measure, Citizens United was stunning in its judicial activism.” As I always remind people, liberal justices don’t have a monopoly on judicial activism. The Roberts court has proven itself to contain activist conservatives in some cases, and Citizens United is Exhibit A in this regard.

If we can’t regulate money in politics, then we’ll become not a democracy, but a plutocracy. This is easily the worst Supreme Court ruling that has been handed down in my lifetime, and for that it earns its place at #6.

7. United States v. Miller (1976); Smith v. Maryland (1979)

The issue: Property rights
The ruling (7-2, 5-3): People who voluntarily give information to third parties have no reasonable expectation of privacy in that information

This pair of rulings established the terrible third-party doctrine. It was bad enough in the 70s and 80s, and only got worse with the rise of the internet and cell phones. The doctrine states that information provided voluntarily to a third-party isn’t covered by expectation of privacy, and the government can obtain such information without a warrant. (The case of Miller involved bank records; Smith involved telephone records.) This gave the government easy access to vast amounts of information about people — their phone contacts, their banking records, their education files, the websites they visit, who they email, and so on.

The doctrine rests on the one hundred percent crazy premise that people don’t expect their third-party records to be private. But third parties makes promises all the time to maintain the privacy of the information they take. If your bank or doctor promises you confidentiality, you expect them to keep their promise. And if they breach confidentiality, they can be sued under the tort of breach of confidentiality.

To date, Miller and Smith have not been overturned. Some people think they were overturned in Carpenter v. United States (2018), but that ruling was very narrow and applied to cell-phone data only — and by actually appealing to the premises of Miller and Smith that are so problematic. Neil Gorsuch dissented in Carpenter for the milk-and-water reasoning that left the heart of the problem unresolved:

“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 in Carpenter, and the third-party doctrine ruled unconstitutional for everything — bank records, medical records, email servers — not just cell phones.

8. Plessy v. Ferguson (1896)

The issue: Racism
The ruling (7-1): Racial segregation laws don’t violate the Constitution as long as the facilities for each race are equal in quality

The lone dissent to Plessy came from a man who had once been a slaveholder: John Marshall Harlan. He swore during the Civil War that he would resign from the army if Lincoln signed the Emancipation Proclamation, but later became a fervent critic of slavery and prejudice. He was the first justice to earn a law degree, and when he joined the Court he swiftly earned his reputation as “The Great Dissenter” — especially for cases that restricted civil liberties. He advocated (in vain) that the Bill of Rights be incorporated into the Due Process Clause, and thus applied to state and local governments (see #4 above). He insisted (in vain) that the residents of U.S. Territories in the Philippines, Puerto Rico, and Guam be entitled to the full Constitutional rights of American citizens. And he dissented (in vain) against the terrible ruling of Plessy, which said that racially segregated public facilities were fine, as long as they were “equal”.

Obviously the doctrine of “separate but equal” is an oxymoron, and Harlan blasted the majority accordingly:

“Everyone knows that the statute in question had its origin in the purpose, not so much to exclude white people from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. In view of the constitution, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.”

Common sense today, but it would take almost six decades for Brown v. Board of Education (1954) to strike down segregation and call out the “separate but equal” doctrine for the bullshit that it was. Harlan the ex-slave owner was a man way ahead of his time.

9. Bowers v. Hardwick (1986)

The issue: Homosexuality
The ruling (5-4): Laws that make sodomy illegal are valid

Even for the ’80s (which was basically the ’50s all over again when it came to homosexuality), I still find this case hard to believe. In Georgia a police officer went into a man’s home (Michael Hardwick) to serve him a warrant to appear in court for drinking in public. The officer found Hardwick engaging in consensual oral sex with another man, and arrested him on the spot for sodomy. Hardwick sued Michael Bowers, the attorney general of Georgia, in a federal court, and won his case, but the state of Georgia took it to the Supreme Court and was the ultimate victor.

The Court ruled that state laws classifying homosexual sex as illegal sodomy were valid because there was no constitutionally protected right to engage in homosexual sex. Byron White (a justice I have much respect for) wrote for the majority, saying that the Constitution didn’t confer “a fundamental right to engage in homosexual sodomy”. In a concurring opinion, Chief Justice Warren Burger cited the 18th-century English jurist William Blackstone, who had condemned homosexuality as worse than rape and “a crime not fit to be named”. Burger said that “to hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”

All of this judicial bigotry came as a serious legal blow to the gay community and it would be over a decade before proper redresses were made. Georgia’s anti-sodomy statute was repealed in 1998, and the Supreme Court finally did in Lawrence v. Texas (2003) what they should have done in this case — by declaring a Texas anti-sodomy statute unconstitutional, ruling that homosexual sodomy is part of the right of adults to engage in private sexual activity.

10. AT&T Mobility LLC v. Concepcion (2011); American Express v. Italian Colors Restaurant (2013)

The issue: Corporate liability
The ruling (5-4, 5-3): States must enforce arbitration agreements even if the agreement requires that consumer complaints be arbitrated individually instead of on a class-action basis

Lawmakers designed class actions to protect individuals from being cheated by big businesses. This pair of rulings shielded corporations from class actions and gave them a license to engage in fraud. Antonin Scalia (a justice I respect) wrote for the majority in each case. In AT&T Mobility, Vincent and Liza Concepcion sued the cell phone company for deceptive advertising — falsely claiming that their wireless plan included free cell phones — for which they were entitled a $30 rebate. The lawsuit became a class action, since no one in their right mind sues as an individual for a paltry amount of $30.

Scalia argued that (1) the California law allowing class actions is preempted by federal law and that arbitration was required under the Federal Arbitration Act of 1925; and that (2) the Federal Arbitration Act requires that claims be arbitrated on an individual basis and that class arbitration is not allowed. Scalia was dead wrong. For one (1), arbitration was not required in this case at all, since the Act specifically states that arbitration clauses are not to be enforced when state law would not do so; and (2) nowhere, in any case, does the Act say or imply that claims must be arbitrated on an individual basis, or that class arbitration is not allowed.

Breyer dissented: “Where does the majority get its contrary idea — that individual, rather than class, arbitration is a fundamental attribute of arbitration?” Obviously without class actions, minor frauds would never be remedied. No lawyer would represent a case to recover a lousy $30. This is precisely why class-action lawsuits exist — when large numbers of people each lose a small amount of money and none is likely to bring an individual claim.

Two years later came the American Express case. Scalia wrote again for the majority, saying that an arbitration clause must be enforced, even when the effect will be to grant the company immunity from any wrongdoing. He was wrong again. Even though in this case the contract between American Express and the restaurant required arbitration, and between individuals (not class arbitration), there is a long standing principle under the Federal Arbitration Act that arbitration clauses are not to be enforced if they prevent “effective vindication” of a claim. But the majority refused to allow the exception to apply where it obviously does apply. Kagan blasted the majority in her dissent, arguing that this was the ultimate betrayal, creating the power of big business to enter into agreements, and then keeping themselves from being held liable.

Class action lawsuits may seem trivial compared to slavery, eugenics, internment, the Bill of Rights, free speech, property rights, etc., but I find this pair of rulings foul in the extreme. The majority in each case (they were the same five: Scalia, Roberts, Alito, Thomas, and Kennedy) construed the Federal Arbitration Act to protect corporations in a way that not only opposed the Congressional intent behind the law, but by blatantly ignoring what the law said about not enforcing arbitration clauses. Scalia said that he was concerned about the “terrorizing effect” of class action. He obviously wasn’t concerned about the terrorizing effect of big businesses that are now shielded, thanks to his opinions, from accountability.

11. Roe v. Wade (1973)

The issue: Abortion
The ruling (7-2): The Due Process Clause of the Fourteenth Amendment provides a right to privacy that protects a pregnant woman’s liberty to abort her fetus

Some of my readers will do a double-take at this one. “Roe? Surely he means Dobbs.” I’m not wild about Dobbs, but Roe was always the problem that made Dobbs inevitable. In hindsight, I’m surprised it took forty-nine years.

In pegging Roe as one of the worst Supreme Court rulings of all time, I judge not out of hostility to abortion (I’m pro-choice as they come), but out of profound regret that Roe (a) focused on the wrong constitutional issue (privacy), and then (b) used that faulty element to make a judicially activist fiat, which ended up (c) putting the brakes on a trajectory in American consensus favoring abortion. In this I follow the late Ruth Ginsburg.

Pro-choice advocate Tom Flynn has also criticized Roe as an overreaching fiat that settled the abortion in an unstable and undesirable way:

“By enforcing a preemptive victory for those in favor of abortion rights, it brought the grass-roots debate about the subject to a premature end. The important questions, such as ‘When does a fetus become a human person?’ were never really thrashed out. So we arrive at today’s situation, where abortion rights exist only by court order because advocates never got the chance to build a broad-based constituency for them.”

Prior to Roe, the trajectory toward abortion acceptance was clear. Sixteen states had liberalized their abortion statutes. The American Medical Association had reversed its policies, shedding its strict anti-abortion skin and adopting strong pro-choice guidelines. If not for Roe, many states would have established liberal abortion policies. Roe‘s overreach ignited religious-right activism, and when right-wingers are out in droves to “defend the most innocent lives from murder”, it’s hard to claim the moral high ground, especially when the pro-choice case rests lamely on one’s “right to privacy” (which is how Roe was decided) and one’s “right to choose” (to choose murder? asks the anti-abortionist). Without Roe progressives could have finished their task in educating people as to why abortion is not just “my business” and “my choice”, but actually morally superior in a world of unwanted pregnancies, poverty, rape, and unnecessary suffering.

My hope is that Dobbs will make this task possible, and it’s not an unreasonable expectation, even in today’s polarized climate of the alt-right and woke left. Polling shows that there is little support in America for an abortion ban, especially if  it doesn’t make exceptions for rape and incest. 80% of Americans want to keep abortion legal, either entirely (32%) or with some restrictions (48%), while only 18% want it banned entirely. My fear is that a good portion of that 18% will be in the legislature come this November, when the Republicans win the mid-terms, but my greater hope is that people’s voices will be heard, and that we will eventually have minimal abortion rights codified in federal law, on top of whatever the states allow.

In responding to the fury over Dobbs, Andrew Sullivan had this to say:

Dobbs will send the abortion issue back from a single court to democratic debate and discussion – where it is in every other western country. Even the most progressive countries regulate abortion through the democratic process. In Germany, it’s illegal after 12 weeks of pregnancy — more restrictive than the case of Dobbs that bars abortion after 15 weeks. European countries where the legal cutoff is even more restrictive: Austria, Spain, Greece, Italy, France, Belgium and Switzerland. Abortion enshrined as a constitutional right? Not even in super-progressive Canada. The United States, in other words, has been an outlier in the past and, with Roe reversed, it will return to a democratic politics of abortion, in line with most of the Western world. Abortion, if we wanted, could actually be an issue that restores health to a polarized polity by forcing us to come to various forms of compromise over an issue we’ve debated entirely in the abstract until now. We can no longer punt it.

States can pursue different legal regimes, from the very permissive to the very restrictive, and the results can be weighed up. Remember federalism? This is a near-perfect reflection of its essential role in keeping this country in one piece. And, in my view, all of this actually calls the cheap, moralizing bluff of the religious right. Now they actually have to enforce and defend draconian bans — and see popular revulsion grow, unless they too can come up with a compromise. Leftists, if they could only snap out of their disdain for democracy, can make a powerful case for moderation on this issue against right-extremism. To do that, of course, they will have to back some restrictions on abortion in some states — which some seem very reluctant to do — and even allow some diversity of opinion within their own ranks.

So let’s stop the hyperventilation and get back to democracy. Persuade people, if you can. Get them out to vote. Stop demonizing those you disagree with and compromise with them in office, however difficult that may be. What Roe did was kickstart the extreme cultural polarization that has defined and blighted the last few decades of American politics. Maybe the end of Roe can mark the beginning of a return to living together, and negotiating a way to make that bearable.”

Maybe, is the key word in that last sentence. As I said, I fear a GOP-dominated Congress that won’t feel compelled to compromise or pay much attention to their constituency. But I can see it going the other way too. Regardless, I have come to see Roe v. Wade as a bad ruling: terrible jurisprudence that poisoned our abortion politics.