Two Points on Affirmative Action

Yesterday was the big affirmative action argument at the Supreme Court, with Fisher v. University of Texas being argued for the second time. It's long been suspected that the case could bring about the end of race-based affirmative action in America, anywhere within the ambit of the Fourteenth Amendment's "state action doctrine" at least. Not surprisingly, the oral arguments were rather high-profile, and some remarks by Justice Scalia have become especially controversial. I just have a couple of points I'd like to make, both about Scalia's comments and about those of one of his colleagues.

First, concerning Scalia, a discussion of whose remarks and the theory behind them you can find here. He was, in a rather clumsy way, invoking so-called "mismatch" theory, the idea that affirmative action ends up putting black students in schools that are too advanced for them. A sophisticated version of this analysis might focus on the fact that, as a result of unequal policies at various lower levels of the American education system, black people are in general not prepared as well for the rigors of elite universities. Scalia, of course, did not make the sophisticated version; his remarks seemed rather to suggest that black people are actually just not as smart as white people, and will therefore be overwhelmed by going to white people schools. 

One thing to say about this is that it's not true, as the Vox explainer makes clear. Anothre thing to say about it is that it's racist. But I'd like to go a little further on that last point: in a lot of ways, Scalia's remarks, and to a certain extent the broader "mismatch theory" on which they're based, were channeling the basic logic of educational segregation. Of course, the actual logic of segregation was that it was bad for black people and that this was good because white people should be kept in a position of social supremacy over black people. But the avowed logic, the "it's good for everyone" logic, would have been a lot like this. Black people, for whatever reason, whether their innate talents or a legacy of admittedly unfortunate discrimination, just aren't prepared to compete with white people on an equal basis. It wouldn't be fair to them to push everyone into integrated schools. They need separate but equal.

This isn't to say that Scalia favors segregation (though honestly, who among us really doubts that if Scalia had been around in 1954 he would've been condemning Brown v. Board of Education as a lawless judicial usurpation?). It's just to say that some of the logic and rhetoric behind the anti-affirmative action movement can very plausibly be seen as a slightly watered-down version of the arguments against racial integration in the first place.

My other comment concerns an offhanded remark from the Chief Justice. The supposed benefit of affirmative action, since just improving the status of the African-American community is apparently not good enough, is diversity, and specifically the idea that diversity on campus will be good for everyone. (Obviously, affirmative action is only okay if it benefits white people.) One of the ways in which the state of Texas was arguing that the diversity fostered by affirmative action was good for everyone was about the dynamic within individual classrooms. John Roberts was skeptical of this idea, and at one point asked the lawyer for the state, "What unique perspective does a minority student bring to a physics class?"

Mr. Chief Justice, may I humbly submit that a minority student brings to a physics class the perspective that black and Hispanic people are also, y'know, people, and might actually be smart, or have something to say about physics? A "perspective" that is too often lacking? Along with its close cousin, the "perspective" that women are also people and might actually be smart or have something to say about physics; lord knows that one's been all too absent from the classroom for ages. I've never had the opportunity to experience it directly, but my sister has, and my impression is that that feeling of being not welcome does an awful lot to discourage everyone other than white men from even trying to participate, or pursue a career in these fields. That probably has an awful lot to do with why the historically black colleges are so much better at producing black scientists. They are, to use the cliched term, a "safe space" for black people to pursue science. And unfortunately, an awful lot of science classrooms just aren't safe, in that way, because there are just so goddamn few black people or Hispanics or women or whatever already there.

You might think that, in something like math or physics, there would be no such thing as the "black perspective" or the "female perspective." You might especially think that if you really didn't have much sense of how to empathize with the plight of the oppressed. And in a way, you would be right. But it's a funny thing about science: insight can come from anyone. Even if there's no "black perspective" or "female perspective," an individual black person or woman might turn out to have an insight that could change the world, or at least be kind of interesting. And if the world is set up in such a way that they're all strongly discouraged from even bothering to try to contribute, that insight might be buried forever. Sort of like how there isn't a black way to hit a baseball, but Jackie Robinson was still damn good at it. And so was Josh Gibson, it's just that he never got the benefit of someone willing to say, hey, maybe we should give these guys a chance.

Another Inevitable Result of the Great Inversion

So one thing that's making the rounds today is a poll showing an ever-increasing number of people saying they wouldn't like it if their child married someone of the opposite political party. This of course shows how terrible Americans are, how acrimonious our partisan divides, how tribal our politics, etc. Because you see, in 1960, 4% of Democrats and 5% of Republicans said this. In 2008 it was 20% of Democrats and 27% of Republicans. Now it's 33% of Democrats and a whopping 49% of Republicans. People are becoming that much more ideologically intolerant, I guess.

Or not. We don't know how ideologically intolerant people were in 1960. Not from this survey data at least. Because, as I detailed in my previous post, back in 1960 party identification correlated only weakly with ideology. More to the point, there was a considerable amount of ideological overlap between the two parties. A Democrat and a Republican from Massachusetts had an awful lot more in common with each other than that Democrat would have with a Democrat from South Carolina. Indeed, it's quite likely that, at least if you go back a little further, the Massachusetts Democrat would have had more in common with the South Carolina Republican than with his southern co-partisan.

So if you had the strong feeling that you didn't want your son or daughter marrying someone whose ideology you found hateful, it just wouldn't make a lot of sense therefore to decide you didn't want them marrying someone of the opposite party. You would presumably want to be discriminating among cross-partisans, just as you would need to be discriminating among co-partisans. These days, though, if someone puts an R after their name it gives me a pretty good idea of what they're all about, or at least what they're willing to tolerate. So whether you like the practice or not, it just plain makes a lot more sense to disfavor members of the opposite party, for your children or for yourself.

Donald Trump is the Inevitable Result of the Great Inversion's Completion

The latest CNN poll shows Donald Trump, Ben Carson, and Ted Cruz as the three medalists (right now) in the Republican nomination. That's two not-actual-politicians who've spent years cultivating support among the right-wing fringes of society, plus one actual Senator practically every member of whose own party hates his guts. The three of them together are getting 66% of the primary vote right now. That's two-thirds of Republican voters, planning right now to vote for one of the three craziest candidates in the race. If Marco Rubio were to consolidate the Christie, Bush, Fiorina, Kasich, and Paul supporters, he'd be at a whopping 25%. There's a real inmates-running-the-asylum feeling here. And I know why.

The big story of American political history, well, since the Civil War at least, is what I like to call the Great Inversion. In 1890, there were two political parties, each consisting of a sharply-drawn and entirely coherent faction. One party represented the northeast and the Pacific coast; the other was for the most part based in the South. You'll note that every word of those two sentences would be the same if I replaced the year with 2015. The only difference, of course, is which was the Democrats and which the Republicans. During the interim the two parties switched places, Democrats shifting from the party of John C. Calhoun to that of Barack Obama, while the Republicans went from the party of Lincoln to the party of, well... evidently Donald Trump. And all through the middle of that time period, things were messy.

Giving Constitutional Argument a Bad Name

So apparently Erwin Chemerinsky goes around maintaining that the text and history of the Constitution don't suggest that a woman can be President. This is called giving constitutional argument a bad name. This outrages me so that I thought I'd just give a quick run-down of different ways to approach this problem from various modal angles.

On Hillary Clinton, Wall Street, and 9/11

So, in what might have been the single most memorable moment of the debate (other than that time when I was genuinely shocked to hear that Sanders actually wants to let the states run his single-payer health care program, like, actually), Bernie Sanders impugned Hillary Clinton's integrity over her donations from Wall Street (despite his protestations that he did no such thing) and then Hillary responded by invoking 9/11. It was pretty cringe-worthy. In no way is this post meant to deny that. What this post is meant to do, however, is suggest that Hillary has at least a very plausible argument for why those campaign contributions shouldn't be held against her the way Sanders wants them to be.

Let's start with getting at what Hillary was actually trying to say, or at least the coherent argument behind her (again, admittedly) facepalm-level 9/11 framing. The donations from Wall Street are on the record, and they almost entirely date from her tenure as Senator from New York. Sanders' hypothesis is that the bankers gave her this money because they know that, no matter how tough she might talk on financial regulation, she won't actually do it. Hillary's suggestion to the contrary is that these were essentially donations of gratitude for her service to the state and city in the wake of 9/11. That's... that's very plausible, right? Especially bearing in mind that when we say "Wall Street donations," we don't just mean donations from the corporations themselves, or even from their executives. Donations from any of their employees count for this purpose. And it sounds pretty plausible to me to think that a lot of Wall Street bankers might have donated to any and every politician who played a meaningful role in the 9/11 rebuilding efforts. It might not be true that that's what motivated the donations, but it's a valid and on-point argument to make.

And really, she didn't even need to get that specific. She was a Senator from New York! I have a feeling that anyone in that position is going to get a lot of donations from Wall Street. I'm sure Chuck Schumer has a long trail of such donations to his name. You donate even to candidates who are relatively speaking not on your side, especially because New York is a solid blue state with little hope of electing Republicans to the Senate. And, sure, you're probably hoping for some measure of access and influence, but, contra what the moderator said, candidates aren't actually indebted to their donors. Again, it's genuinely possible that Hillary went around to various Wall Street potential contributors and said, give me some money and I'll keep an eye out for your interests going forward. That would be bad! But it's also genuinely possible that a bunch of Wall Street bankers gave her money just because she was the only game in town, and she didn't outright reject their donations.

This sort of ties in with another dimension of this whole thing. She was Senator from New York. All the financial types from Wall Street were among her constituents. There are many valid theories of representation on which it would have been proper for her to promote Wall Street's interests, insofar as they were New York's interests, as against the rest of the country. This would have to be within reason, of course; politicians shouldn't support the interests of every scumbag who happens to live in their jurisdiction. But we don't think there's anything weird about Senators from Iowa promoting corn interests or whatever. It's natural, if slightly unsavory.

The question is whether this works for or against Hillary. And that depends, I think, on whether we think that a person who has once favored a certain interest because they represented that region will always be beholden to that interest, even if they now represent a broader constituency. I tend to think the answer here is "no." Kirsten Gillibrand, Hillary's successor in the Senate, is an interesting example. She used to be a Representative from a reasonably conservative district in upstate New York, and her record in the House was reasonably moderate. That led people to be concerned that she wouldn't be as liberal as a Democratic Senator from New York ought to be. But in fact, she's been great! Because now she's not representing a constituency that requires her to be more moderate. By analogy, even if Hillary did take Wall Street contributions, and aye, even if she did take relatively pro-Wall Street stances when she was Senator from New York, that doesn't mean she would do so as President, representing the whole nation.

Now, Sanders and his supporters could try to argue it the other way. That, a candidate's once having been willing to pander to a local interest, we should always view them with suspicion on that issue. But I really don't think he wants to open up that can of worms. Because he's confessed, more or less candidly, that his relatively moderate record on guns was largely a pander to his rural Vermont constituents. Which would look an awful lot like Hillary's purported record on financial regulation--if we grant the assumption that Hillary has been soft on financial regulation historically. If we get into playing this game, it's just not at all clear that Sanders is categorically more pure than Clinton. And that's not even getting into all the companies whose employees he's received donations from over the years, a list which is less than wholly devoid of what we might think of as villains. The sum totals are a lot lower 'cause he represented Vermont, which has about as many people in it as like a city block in Manhattan, but the logic would seem to apply reasonably well.

There's also an additional level as concerns Hillary: she's a lawyer. She went to Yale Law School. (Woohoo!) She knows a lot of people in the world of law, which has a lot of overlap with the world of finance. A lot of these people probably gave to her campaign because they know her, and (perhaps unlike their bosses or the corporate entities for which they work) they honestly don't care that much about the public policy dimensions of politics.

The bottom line is that there are an awful lot of genuinely good reasons to think that Clinton's past Wall Street donations do not mean that she will be in any way beholden to the financial industry if she becomes President. Again, it might in fact be the case that she would be beholden to them. But there are good reasons for thinking otherwise, and it's basically a matter of contestable fact. And while, again, I agree that her invocation of 9/11 was extremely poorly done, there was an argument at the heart of those remarks, one that fits into the basic pattern of the more general arguments for why we shouldn't be troubled by her donations. So yes, it's totally fair game to call her out for her heavy-handed, Giuliani-esque flag-wrapping, but it's wrong to pivot from that to simply assuming that she is in fact vaguely corrupt in the was Sanders was insinuating.

Meet the (2016) Mets

Well. That sucked. I mean, first it was awesome, and then it sucked. That's true of the whole year, and also of each individual game. Good lord, has a team ever lost a World Series where it led every single game before? And four of them after the seventh inning? Jeez those Royals are obnoxious to play against. For many of the same reasons that, for a neutral fan, they're a really cool team and a great story. But... jeez. Break up the Royals, man.

Anyway, National League Champions and all, and at least this time our losing didn't mean the Yankees won. (In fact, the Mets were playing baseball 26 days later than the Yankees were, woohoo! Which is presumably a record, actually, since the playoffs were shorter in 1986.) But now the Wheel of Time turns and seasons come and pass; 2015 is over and the 2016 season, in the form of the off-season leading up to it, is upon us. So let's take a look at the 2016 New York Mets as they stand now, and some thoughts of mine about what should be done to make sure we get more meaningful October baseball last year.

On Matt Harvey and Steroids

Steroids! They're bad, right? They're "performance-enhancing drugs," and the people who use PEDs are cheaters who should be suspended for lengthy periods of time, possibly given lifetime bans, and certainly not voted into the Hall of Fame even if they did flat-out goofy things at the plate like getting on base more than half the time over a four-year span while drawing more intentional walks than strikeouts. (Yeah.)

But... why?

Because, y'know, "performance-enhancing drug" doesn't really narrow it down. Here's a performance-enhancing drug: water. Athletes who consume H2O on a regular basis will perform considerably better than those who don't, on account of those other guys being, y'know, dead. Maybe you say water isn't a drug, but "drug" actually has a remarkably broad definition: it's basically any chemical substance that has a physiological effect on you. Water definitely has one of those! And if that seems a rather trivial example, consider something like the Gatorade found in clubhouses, which is pretty deliberately chemically engineered to enhance performance as much as possible. I'm pretty sure they advertise about that, electrolytes and such. We want our athletes consuming chemical substances that are designed to enhance their performance. They're supposed to want to be good, after all. So what demarcates a "PED" as such?

There is, of course, an answer: a PED of the sort we like to ban is bad for you. There aren't a lot of downsides to drinking water. As far as I know there aren't major downsides to the electrolytes in Gatorade. There are, however, serious downsides to anabolic steroids, and other PEDs. These sorts of drugs essentially give players the opportunity to trade their own health for a performance enhancement. Perhaps in the abstract if each individual player could make that decision in a vacuum we might, in a nice, non-paternalistic way, let them, but of course the world doesn't work like that. There's a ton of pressure on players to be the best that they can, both because they want their teams to succeed blah blah blah and because, y'know, it gets them paid. And so in a world with a whole bunch of drugs offering health/performance trade-offs, we worry, sensibly, that everyone is going to be pressured into making those trade-offs, and we don't like that. It's sort of like how each individual worker has an incentive to offer to work for less than the other guy: it's individually rational but collectively disastrous. So we have minimum wage laws and PED bans designed to prevent these pressures from forcing everyone to give away their own welfare in an effort to out-compete the other guy.

So that's it, right? Competition is all very well and good and everyone should try to be the best, but you're not allowed to trade your own physical well-being for an edge on the field?

Rubbish. Of course you are. Hell, you're supposed to. We valorize people who do this, if they do it the right way.

Intent and Utley

So. The Mets just lost the second game of the National League Championship Series to the Los Angeles Dodgers. The critical moment of the game came in the 7th inning. The Mets led 2-1, but the Dodgers had a runner at second when Chase Utley came in to pinch-hit against Noah Syndergaard. Syndergaard was clearly tiring, and Utley managed to get just enough bat on a low change-up to line it over Daniel Murphy's head into right field. Fortunately the runner from second had to hold up to make sure it wasn't caught, and so didn't score. Then Terry Collins brought in Bartolo Colon to relieve Syndergaard, and he induced a hard ground ball up the middle from Corey Seager. Murphy gloved it and flipped to Ruben Tejada, a little off-line. Tejada had to reach back for the ball as he was shuffling over to the second base bag, and then as he was spinning around to throw the ball to first Utley slammed into him, knocking him to the ground and, it transpired, breaking his fibula. Meanwhile, since the double play hadn't been completed, the runner from third scored, and the game was tied at 2.

Ensued a truly bizarre sequence of events. While Tejada was lying on the ground in agony, Dodgers manager Don Mattingly came out and challenged the out call at second, on the grounds that Tejada hadn't touched the bag. Which, I think, he hadn't. But first of all it should've been ruled a neighborhood play, and hence not subject to review; MLB's claim that the throw pulled Tejada off the bag, and hence was reviewable, is nonsense 'cause Tejada caught the ball while he was still headed toward the bag. "Pulled off the bag" clearly implies that you are on the bag, and then an errant throw forces you to come off said bag. Second, I feel like you shouldn't be allowed to challenge on a play where your player seriously injured an opposing player. Of course, totally predictably, Adrian Gonzalez then hit a two-run double, and then Justin Turner drove him in for good measure, making it 5-2 Dodgers. That was all the scoring in the game.

My point in this post is not about what the correct disposition of the ruling on the play should have been. (Because that's obvious: it was interference, and should have been ruled an automatic double play, inning over, Mets still leading. That's not homerism; the announcers on MLB Network were saying the same thing.) Rather, I want to talk about intent. Because Chase Utley, after the game, said that he had no intent to injure Tejada, and his manager said the same thing. But you see, I'm a law student, so I know a little something about intent. The criminal law deals with different varieties of intent all the time. And if you use the criminal law framework to judge Utley, he doesn't come out looking good.

On Yoenis Cespedes and the MVP

So. .312/.357/.675. 36 runs driven, and 33 scored, in over 36 games. 14 homers, three triples, and nine doubles over that time. Four stolen bases, never caught stealing (for what that's worth). Mostly while playing center field, and providing dynamic defense in center or in left. That's what Yoenis Cespedes has done since coming to the New York Mets. Oh, and since they acquired him (including one game after the trade but before Cespedes got to the team) the Mets are 26 and 11. They've surged from two game behind the Washington Nationals to seven games up on them, including going 6-0 against the Nationals themselves. Before they got Cespedes, Baseball Prospectus gave the Mets just a 26.8% chance of seeing the Division series; now (not even including tonight's win) that's up to 94.6%. And Cespedes has been everywhere. He had a home run and also a run-scoring double in Monday's game, hit a big two-out, bases-clearing double in last night's game to get the Mets all the way back from a 7-1 deficit to trailing by just a single run (and would later score the tying run), and tonight he absolutely crushed a hanging slider off Drew Storen for a two-run shot to give the Mets a lead they would not relinquish in the 8th.

It's got people, at least Mets people, talking about Yoenis Cespedes for National League Most Valuable Player. Which, y'know. He wasn't in the National League on July 30th. Gary Cohen was saying after tonight's game that he had been thinking over the Cespedes-for-MVP chatter prior to the game and was skeptical, but then Cespedes was the hero yet again, and at some point you just have to wonder. Especially since the guy who's having the absolutely bonkers season, hitting .336/.467/.657 including a heroic if futile 10-total-bases effort tonight against the Mets, is Bryce Harper, who plays for the Washington Nationals, who have just suffered a miserable collapse. Harper is unambigously the best player in baseball this year (his full-season line is better than Cespedes's line with just with the Mets), but sometimes best players in baseball don't win the MVP if their team disappoints. So that makes you start to wonder whether there's a window for a non-traditional candidacy from Yoenis. And for what it's worth, his whole-season stats are MVP-worthy, if divided between two leagues. Including his numbers with the Tigers Cespedes is hitting .298/.333/.554 with 32 homers, 37 doubles, 5 triples (for 74 total extra-base hits), 95 runs scored, and 97 runs driven in. FanGraphs credits Cespedes with 2.6 Wins Above Replacement with the Mets so far, and 6.6 WAR on the season. That's a very MVP pace; indeed, his Mets pace is at peak Ruth/Bonds levels.

Now, this is not necessarily the only kind of argument one could make, and there's certainly plenty of reason to think that past years' MVP voting practices were quite flawed, but it's interesting, I think, to look at other players who've done something like what Cespedes is up to. Here are three examples from the last decade-plus:

Tiger 2000 >>> Jordan 2015

One of the announcers on the early coverage of the last round of the PGA Championship suggested that if Jordan Spieth were to win, for his third major championship of the year, he would have had the best year ever. Ahem. This is ridiculous. Here's what Spieth has done so far this year. He's won four tournaments, two of them majors, the others both relatively minor tournaments (the Valspar Championship and the John Deere Classic). He's finished second three times, third once, and in the top 10 thirteen times overall out of 20 tournaments. He's missed two cuts, one of them at the Players Championship, and has finished outside the top 25 four times in all. Now, that's a really, really great season.

But in 2000, Tiger Woods won, including three consecutive majors, nine total tournaments. He won his three majors by a combined 23 shots, compared to the 5 by which Spieth won his first two (and he doesn't look to add more than another couple today, if he does win). Overall Tiger won those nine tournaments by a combined margin of 46 shots, including three wins by at least 8 shots; both of Spieth's non-major wins were in playoffs, so he's got a combined margin of victory of just 5. Also, Tiger missed zero cuts; in fact, he didn't once finish outside the top 25! Only three times did he miss the top 10, compared to Spieth's seven (and counting). He led the Tour in GIR%, holes per eagle, birdies per round, scoring average (adjusted or otherwise), total driving, ball-striking, all-around ranking, par-3 scoring average, par-4 scoring average, par-5 scoring average, birdie percentage on par 4s and on par 5s, bounce-back, birdie conversion percentage, par breaker percentage, scoring average in rounds 1, 2, and 3, front and back nine scoring average, total eagles, lowest round, and, of course, the official money list. He was also World #1, by an enormous margin. Like, practically a 3-1 margin. Also he finished second in driving distance, putts per GIR, and final round scoring average, and was third in scrambling. His all-around ranking (the sum of his ranks in eight key statistics) was 40% lower than the second-place finisher, David Duval.

Spieth, meanwhile, leads the Tour in the following statistics, of those that existed in 2000: birdie average, scoring average (actual and adjusted), putts per GIR, one-putt percentage, putts per round, putts per round in round 2, lowest round, par breaker percentage, round 2 scoring average, back 9 scoring average, scoring average and birdie percentage on par 4s, lowest average, and, of course, the money list. That's a lot! But it's not as much as Tiger; in fact, Tiger led every single one of those stats except for the putting stats (and he was second in putts per GIR, the best putting stat that existed back in 2000). Meanwhile, Spieth is 55th in GIR%, 42nd in total driving (including 76th in distance and 85th in accuracy), 25th in par-3 scoring, 20th in par-5 scoring. Oh, and he's third in all-around ranking, with a figure about 30% above Will Wilcox's leading figure. (What?!)

The point is that, obviously, Jordan Spieth is a great player, and is having a great year, but he isn't coming close to dominating the Tour, either in terms of performance or in terms of statistics, the way Tiger did. If we're talking best years ever, and we're excluding Bobby Jones's 1930 for some reason and don't consider Hogan's 1953, or any of the years when he or Byron Nelson or whoever won double digits of tournaments, then there just isn't any question. Tiger's 2000 was the best year anyone has ever had, and I daresay it will continue to be for a long, long time.

Update on the Bartolo Colon Saberhagenometer

It's, uh, not going well. In our last update, which was also the first update, Bartolo Colon had five wins on the season against just one walk. Since then, though, he's got a 5-10 record and has walked 13 batters, dropping him to 10 wins and 14 walks on the season. His Saberhagen score is, thus, -4. Now, he's closed that gap a little bit recently, with no walks in his last four starts, one of which he won. And if he were to pitch really really well the rest of the way it wouldn't be crazy to see him climb back toward positive territory here. But it's really not very likely. If you want a Saberhagen, you really can't afford three-walk games, or back-to-back multi-walk games, or five starts in a row with a walk. Bartolo's had all three (and none of them overlapped). So, it's not looking good.

However! Five of his walks have been of the intentional variety, and in a sense it's not really fair to penalize him for them. In a sense it is, as it was his pitching that created the need to issue the walk, but they also don't represent his inability to throw strikes or anything like that. So if we define the Modified Saberhagen, defined as Wins minus (Walks minus Intentional Walks), then Colon is still at +1, and has a much more reasonable shot at it. Interestingly, Saberhagen had no intentional walks in 1994, so his Modified Saberhagen score was identical to his normal Saberhagen score at +1. Of course, the Modified Saberhagen isn't really as impressive as the proper Saberhagen, but it's still got some validity.

It's a bit trickier to get a sense of who else has pulled off the Modified Saberhagen, since the "unintentional walks" stat often isn't kept as its own thing. I was able to make a rough stab at it using some custom FanGraphs leaderboards, though, which reveal two other completed seasons that just barely pulled it off: 2005 Carlos Silva (9 W, 9 BB, 2 IBB) and 2014 Phil Hughes (16 W, 16 BB, 1 IBB). Then there's 1997 Greg Maddux, who won 19 games and walked 20 batters, but six of those were intentional, giving him a Modified Saberhagen of +5! As much as all the other Saberhageners put together, counting 2015 Bartolo Colon. Maddux finished second in the Cy Young Award voting that year, to Pedro Martinez's last season with the Expos, and deservedly so, but only because peak Pedro was insane.

Now, this list only includes players who qualified for the ERA title and who played at a time when they keep track of intentional walks. So there may be others who have pulled off the Modified Saberhagen who don't show up here. (I could check for those with fewer innings, but that would just be more work so I'm not going to.) I think it's pretty clear that the Modified Saberhagen is orders of magnitude less impressive than the proper one, even if Saberhagen himself didn't care about the difference. Still, at least Colon's season isn't entirely lost.

The Connecticut Supreme Court is Right: Prospective Abolition of the Death Penalty is Cruel and Unusual

In 2012, the Connecticut legislature abolished the death penalty. Today, the Connecticut Supreme Court held that the death penalty violated the state constitution. You may be wondering how both of those sentences can be true (and no, they didn't reinstate it during the past three years). The answer is that the 2012 abolition was prospective; that is, it did not apply to those who had already been convicted and sentenced to death. The court's ruling, then, was that actually carrying out the death sentences that have already been imposed on Connecticut's 11 death row inmates would be (state-)unconstitutional. More specifically they held that executions would violate the due process provisions of the Connecticut constitution, which are understood to contain a ban on cruel and unusual punishments. Now, there's nothing especially remarkable about the idea that capital punishment is cruel and unusual. But the court's reasoning was, at least in part, new and interesting, and I quite like the move they make.

The basic puzzle of what, at the federal level, we call Eighth Amendment jurisprudence is determining what the second part of "cruel and unusual" means. Well, that's the puzzle if we reject the Scalia-esque "originalist"* notion that the phrase "cruel and unusual punishments" is just a shorthand for a discrete list of punishments considered cruel and unusual in 1791. Which we do. So the question then becomes, okay, we have a sense of what a "cruel" punishment is, but how to measure its unusuality? Do we just count the states? By raw number of jurisdictions, or by population? Do foreign countries count, and if so which ones? How quickly do new trends away from the use of a certain punishment become incorporated into the Constitution? Are public opinion polls relevant? All of this arises primarily in the federal context, wherein the U.S. Supreme Court is interpreting the Eighth Amendment as it applies to the federal government directly and to the states as incorporated into the Fourteenth Amendment. But analogous issues could arise when a state court interprets an analogous provision of the state constitution. How do the other 49 states get counted for that purpose? Do they play the same role as in federal Eighth Amendment analysis, or are they more like foreign nations? After all, they are external to the individual state. But within a given state a punishment won't be "common" or "unusual," it will either be provided for by state law or it won't be; internal counting becomes binary. The whole thing is rather a mess.**


The neat thing about this Connecticut case, though, is that it doesn't have to bother with that whole issue. Because what they say, at least in part, is that we know executing these condemned prisoners would be cruel and unusual because the Connecticut legislature has already said so. They abolished the death penalty! Because they thought it was cruel! Making it, thereafter, not to be found within the state of Connecticut. At all. Which is rather on the unusual side. This is brilliant, and, I think, surely right. Is it not truly anomalous, truly unusual, for a state to inflict a punishment which it has already abolished? Is there not something singularly cruel about saying to a handful of unlucky people, we now think it's wrong to punish anyone as we have determined to punish you, but we will so punish you nonetheless? It's, like, sick.*** It almost has a somewhat bill-of-attainder feel to it, i.e., "we will not impose capital punishment (except on these eleven specific individuals)."

One interesting thing, though, is the dynamic if the rule against prospective abolition (or rather, the rule that any purported prospective abolition must in fact be retroactive as well) became firmly established. Because presumably this would discourage any state that was considering a prospective abolition from doing so--assuming, of course, that there really wouldn't be the appetite for retroactive abolition in that state. So while in principle I might like it if the U.S. Supreme Court held that a state which has prospectively abolished the death penalty cannot carry out executions going forward (again, assuming they're not gonna just do the right thing and hold the whole thing unconstitutional), there might be some interesting prudential reasons not to do that, but rather to hope that the courts of each prospective-abolitionist state will surprise their legislatures with a ruling like this one out of Connecticut. Except that many state courts might come out the other way, and if not then at some point legislatures might wise up anyway. There's sort of an interesting game theory dynamic to the whole thing.

But the basic point is that this is a very clever and well-reasoned decision, and of course a humane and decent one. Also it makes me happy because it was a state law decision and therefore cannot be overruled by the federal courts. Hooray for state constitutional law!


*Asterisk meant to note that Scalia is by no means the exclusive and authoritative oracle of originalism, and other originalists, like Steven Calabresi, might not endorse his approach.
**Of course, this is one of the reasons why I like Justice William Brennan's approach from Furman v. Georgia, which understands "unusual" not to mean "rare" or "infrequent" but to mean "strange" or "weird." Thus he held capital punishment to be cruel and unusual because we long ago abandoned all other forms of corporal punishment, making execution qualitatively unlike any other punishment currently in use within America. Of course, this qualitative determination becomes a matter for the reasoned judgment of judges, rather than imposing any external/objective constraints on judges, but hopefully the paragraph above demonstrates that the quantitative approach is so ill-defined that it doesn't really constrain judges either. Also, y'know, the idea that we need to be constraining judges is itself wrong-headed, but that's sort of a broader point.
***Of course, this isn't the only context in which laws are passed reducing the available punishments for certain crimes on a prospective basis. Recently, for instance, both the federal government and many states have reduced sentences for various drug crimes, but have not automatically released every drug criminal who had already served more than the new maximum sentence for their crime. This feels less appalling, though, and I think the reason why must be found in Brennan's qualitative approach. Connecticut divested itself of the power to impose an entire class of punishment, except for a handful of unlucky souls. By contrast, reducing prison sentences for drug crimes does not strip the state of its power to imprison people. There is also the singular quality of executions, that they are carried out at a specific time subsequent to their imposition. Indeed actually carrying out an execution is commonly understood to be a distinct decision, separate from the decision to impose the sentence; hence, there is something singularly ill-seeming about making the decision to carry out an execution when the state can no longer make the decision to impose such a sentence. I would imagine, however, that other prospective abolitions of whole categories of punishment would raise similar issues.

Never Forget! Republicans Are the Party of States' Rights (Except Their Right to Regulate Corporations)

So the House of Representatives just passed a bill that would prohibit states from requiring the labeling of genetically modified food. I mention this not so much for anything about the merits (as to which, my best impression is that there's no good reason to think GMOs are problematic, but also I don't see any real harm in labeling them; if people want to be idiots that's sort of their business and it doesn't feel right to trick them into doing what you think is best for them) but because of the constitutional politics of it. Because, y'know. The operative words of the bill are "prohibit states." Which is not a very states' rights-y thing to do. To be clear: this is absolutely constitutional. Congress has the power to regulate interstate commerce and to preempt any state laws contrary to its own regulations. That isn't, or at least shouldn't be, in controversy. But anyone who really believed in the political values of federalism, in the modern, pro-state sense of that word, would oppose this bill.

But of course, the people who passed it are precisely the ones who like to go on and on about states' rights. So the next time any Republican talks about how, I dunno, the Voting Rights Act or whatever violates states' rights, just remind them of the time that they passed a bill that would literally remove the states' right to protect their citizens from what they perceived as a potentially threatening or deceptive trade practice. The main state's right they care about is the right to discriminate; if there's a conflict with corporate rights, federalism is going to lose every time.

That Confederate Flag at the South Carolina Capitol is Unconstitutional

And all the streets named for Confederate generals, too.

Unconstitutional, you say? Surely not; how does a state flying some ol' flag violate anyone's constitutional rights? The answer is simple: it's about what it expresses, namely white supremacy. (People try to deny that. They have about the same success as people who try to deny global warming, evolution, or that the earth is round.) So now let's ask: are state governments allowed to express white supremacy? No! That's an easy one. Imagine if the South Carolina state legislature passed a resolution declaring the white race superior to the Negro race (and all the other ones), and that society ought to be run as a racial caste system with whites at the top and Negroes at the bottom. This wouldn't deprive any black people of any material goods or tangible rights, and yet I don't think it's all that radical to say that this would be unconstitutional. Or maybe it is, I don't know. But it seems obvious to me. I think the Fourteenth Amendment requires all states not merely to treat all of their citizens as equals but to believe that all of their citizens are equals. In practice this means they're not allowed to do anything that signifies or evinces a belief in the inferiority of some citizens, even if that thing has no tangible, non-expressive effects. And, y'know, I think it's about as safe to say that flying the Confederate flag in front of your state capitol expresses a belief in the inferiority of African-Americans as it is to say that imposing a scheme of comprehensive racial segregation expresses that belief. Hence the unconstitutionality thing. If someone wanted to sue South Carolina in federal court seeking an injunction ordering them to take the flag down, I would say without much doubt that the injunction should issue.

And the same is true in principle of all the Confederate-named streets. The only tricky part is that it's not as clear, like, at what point the street names become an endorsement of white supremacy. Calling U.S. Route 1 the "Jefferson Davis Highway" throughout much of the South is a pretty clear violation, but surely any ol' Davis St. or whatever isn't. And is the rule that there can never be any streets clearly named for prominent Confederate figures, or just that there shouldn't be too many of them? I dunno, and trying to adjudicate these sorts of claims might be a morass into which the courts would be wise not to venture, given the minimal tangible stakes. But the principle of the thing is the same. Any state "celebration" of its white supremacist history, and especially of its Confederate history, that does not in any way acknowledge and repudiate the deep evil of the Confederacy and of the ideology to which it was dedicated is itself a tacit expression of white supremacy and is hence unconstitutional.

It Isn't, or Shouldn't Be, the NFL's Job to Punish Crimes

So apparently the official talking point in the Boston sports world about the four-game suspension of Patriots quarterback Tom Brady for what seems to have been his role in actually seriously cheating, at least in the AFC championship game last year right before the Patriots' Super Bowl win (and possibly, like, for many years prior) is that it's an outrage that Brady was suspended for twice as long as Ray Rice was for his domestic abuse. And like, so, the thing is, my instinct about Brady is that the suspension is an outrage, in that it should've been for a whole season. And so the Ray Rice comparison line annoys me, because I basically agree that the Ray Rice thing was handled disgracefully and that he got off awfully light. Certainly the point that, y'know, abusing footballs shouldn't be seen as worse than abusing women or whatever is an accurate one. But like, I dunno... I kind of feel like it isn't, or shouldn't be, the NFL's job to punish crimes? Like, domestic abuse is an offense against the victim and an offense against the state; it's not an offense against the National Football League, and cheating at football in the semifinal game of the NFL playoffs is. We wouldn't want the U.S. government, or the government of Massachusetts, to punish Brady for his cheating at football, I don't think, because it's not that kind of offense.

In my Criminal Law class we discussed at one point the idea of "shaming penalties," where instead of directly, like, punishing the (typically low-level) offender, e.g. by imprisoning or even fining them, but rather just basically publicizes their offense. There's a sense that these punishments manage to be less cruel than, say, incarceration, while still being unpleasant enough to be a deterrent (indeed, perhaps more of one) and maybe even, if done right, having some rehabilitative effects. One line of criticism is that they're humiliating, to which the defenders rather powerfully respond, have you seen our prisons? But another line of attack is that there's something a bit disturbing about where exactly the punishment comes from in these shaming punishments. It comes from everyone in the community. In the most troubling cases, the government seems pretty explicitly to be trying to foster a mob mentality that will enlist the public to carry out the sentence, basically, by basically making the offender persona non grata in that community. And this is kind of troubling. It's almost, like, an embrace of the lynch mob by the government, or at least it can approximate that. Obviously imprisonment often leads to that same kind of informal social sanction afterward, but I kind of think that it shouldn't, or at least not insofar as those sanctions are meant as sanctions rather than as sensible precautions against a potentially dangerous or untrustworthy person. I tend to think that we should let the state punish people, and then once it's had its say, we should welcome people back into society as full citizens, though without turning a blind eye to any dangers they may represent.

Which brings us back to Brady and Ray Rice. Like, it really, really shouldn't be the NFL's job to punish Ray Rice. And people who do bad things, including beat their girlfriends which is a very bad thing, shouldn't just stop being able to be part of society. The idea that sports leagues should have the policy that people who've committed crimes of a certain level should never be allowed to participate in them strikes me as a terrible one. The problem is that this all takes place in the shadow of the well-known fact that the state isn't doing it's effing job with regard to domestic violence, so basically if the NFL doesn't punish Ray Rice, no one will. And in certain ways the NFL is even in a better position to punish him than the state is, because it doesn't need to hear the victim testify, it doesn't need to get proof beyond a reasonable doubt, it can just say, hey, we saw the video, we know what we think went down, we're gonna suspend his ass. But that's a huge problem! For those of us who believe in the ideals of the criminal justice system, and of innocent until proven guilty and the like, the idea that when someone is known to have done a bad thing, this should be handled by having anyone in society who has power over them and who isn't bound by the Bill of Rights should just punish them any way they can, it's, like, it's really problematic, and it really does kind of feel like mob justice.

Now, that doesn't really point to a solution, since it's not like the general unenforcement of domestic violence laws is gonna change any time soon, and I'm not really saying that I think the NFL shouldn't be allowed to discipline its players for their off-field misdeeds. But it's wrong, I think, to reason from the fact that domestic violence is worse than cheating at football to the conclusion that the relative lengths of the Brady and Rice suspensions say something so terrible about the NFL's priorities. The NFL isn't in the business of outlawing domestic violence. It is in the business of making sure dudes don't cheat at football.* One of these things is much, much more its responsibility than the other, and that's not something wrong with the world. That's something right with the world! The NFL shouldn't just decide that, because domestic violence is so bad, it's going to assume as much responsibility for punishing and deterring it as it does for cheating at football, no more than any one of us has the right to go out and become a vigilante.

So, I'm sorry Boston, but pointing at Ray Rice doesn't give you a great argument for why Tom Brady is being treated unfairly.



*Well, arguably it is. Or at least it should be.

White Male Victimization Makes Sense If You Think White Men Are Superior

Jonathan Chait has a nice little post slashing to tiny little bits the assertion by one Joseph Epstein that Barack Obama and, if she is elected, Hillary Clinton would be "affirmative-action Presidents." He notes that Epstein educes precisely zero evidence that Obama or Clinton are unqualified on the merits to be President, or especially that they are uniquely so in American history. Moreover, he notes that the period when Epstein thinks Presidents were chosen purely on the basis of merit just happened to produce 43 white men in a row, the last of whom was the son of a different President. Epstein's argument that these 43 men were elected because of their "intrinsic qualities" rather than on the basis of "accidents of [their] birth" is flatly absurd. Chait goes on to note that the general thrust of the piece, viz. that white men have become a "subaltern class," is hard to square with the fact that today's elite is still overwhelmingly comprised of white men. All of this is true.

Unless, of course, you believe that white men are categorically superior to people who aren't white men. Which, y'know, used to be a pretty mainstream position. "White supremacy" is not just the belief that white people ought to subjugate non-white people; it's the belief that white people are better than non-white people. Now, this belief is what we might, if we were being polite, call "demonstrably false," and if we were not being polite we might call "crazy." But that doesn't mean plenty of people don't still believe it. And if you have this belief, and the analogous, equally crazy belief vis-a-vis women (and mind you, the belief in its truest form isn't just that most white men are superior on the merits to most non-whites or non-men, it's that there's a categorical distinction between white men and others in terms of merit*), then the fact that any of the social elite aren't white men is evidence of a great big problem. Specifically it means that they must have attained their position through "social justice" and "victimization" politics, not through merit, because it is impossible that they have merit. If you believe in white supremacy as an axiomatic principle of reality, then Barack Obama is not, cannot be a counterexample that disproves white supremacy. He is still an inferior black person, and therefore something must be wrong with any system that allows him to be President. And when that system elected 43 white guys in a row beforehand, that was it functioning well, and on the basis of merit, since all the merit resides with the white guys.

So any time someone talks about how Obama or Clinton don't really deserve to be President, and are just "affirmative action" candidates, they're tipping you off to the fact that they are a good old-fashioned, totally unreconstructed bigot who really, truly believes that white men are superior to everyone else. Nice of them to let us know, really.



*Specifically the kind of merit that's required for things like holding public office or otherwise wielding power in society. Women are perfectly meritorious, for some things; those things just aren't being President, or anything remotely resembling being President. (...is what the crazy bigots, think, of course.)

Introducing the Bartolo Colon Saberhagenometer

In 1994, Bret Saberhagen, of the New York Metropolitan Baseball Club, did something rather impressive, something no one had done since 1919: he had more wins than walks. In 24 starts, he went 14-4 (the season was, you recall, strike-shortened), and allowed a meager 13 walks. No one who's thrown enough innings to qualify for the ERA title has done that since the deadball era. Two of the three people who did it between 1901 and 1919 were Christy Mathewson. A few relievers have done it in the interim, and plenty of people who didn't pitch a full season or anything like it, but no one with at least 65 innings pitched. Of course, Saberhagen's feat is slightly tainted by the strike, since he didn't get to keep it up over a full season, but that wasn't his fault.

Anyway, the point is, Bartolo Colon. He just won his fifth game of the season, out of six starts (the other being a rather tough loss because the Mets' offense got atrocious for a while there). In his first start, on Opening Day, he walked a dude. He hasn't made that mistake again. So, yeah, that's 1 walk, 5 wins. So I am hereby introducing the Saberhagenometer, a statistic defined as Wins Minus Walks. Bartolo Colon 2015 is the all-time leader in the statistic, at +4. (Well, okay, Christy Mathewson put up a +4 season in 1913, with 25 wins against just 21 walks, Dick Hall was +4 in 61.1 innings over 32 relief appearances at 10 and 6, and Deacon Phillippe was actually +5 in 1910 in 121.2 innings over 8 starts and 23 relief appearances, but he's bloody well close enough.) And like, I dunno, it seems like he could keep it up. He really gives off the impression of simply having decided that walking people is a bad idea, so he's not gonna do it. So this will be something to keep an eye on over the course of the season. And if he does get it done, the fact that the only two to do it in the modern era will both have been New York Mets is just pretty damn cool.

Oh, also, Matt Harvey is currently at +1 on the Saberhagenometer at 5 W, 4 BB, as is Michael Pineda of that other New York team at 3/2. That doesn't seem like nearly enough of a cushion, although since Matt Harvey is going to go 33-0 this year I guess he's got a chance.

Of Course Gangs Can Come Together More Easily Than the Parties

So I was just watching tonight's Nightly Show with Larry Wilmore and the panel (Dana Perino, Lewis Black, and some I think comedian that I didn't recognizing) were talking about a number of things but one of them was the truce between the different Baltimore gangs. And the way they were talking about this was, like, isn't it absurd how these gangs can come together but the Democrats and Republicans can't. And I was just thinking about how fundamentally wrong an understanding of politics such talk reveals. Because, like, of course! Lewis Black was saying something about how, like, these gangs, they want to kill each other, literally kill each other, and the Democrats and Republicans are just talking ideology, or whatever. But that's the thing: wanting to kill one another is way less insoluble a conflict than genuine ideological disagreement. The Crypts and the Bloods or whatever don't have any very serious disagreements about what the world should be like, except that one of them thinks the Crypts should be in power and the other think the Bloods should. They're just rivals, each striving for the same position and hence coming into (violent) conflict with one another. Democrats and Republicans, on the other hand, have the genuine moral belief that the things the other side wants to do with power, should they achieve it, would be terrible things that would make the world a much worse place. And so the truth is that it's a hell of a lot easier to compromise over an actual blood feud (or whatever exactly the divisions between gangs are) than over an ideological disagreement, especially when there's some sense of a common higher good that comes along. Like, all the different gangs are made up of people with a fairly similar political worldview, viz. the basically liberal view of race in America, and so when the city they've been fighting over suddenly gets caught up in this broader battle about race in America, well, suddenly their little struggle for power doesn't seem so important anymore, and they'll all agree on this. The Crypts think it's more important to work toward racial peace and justice than to fight for control of Baltimore, and the Bloods don't respond by being like, "oh hey, that's an opening for us to take over Baltimore!", they respond by joining in! But Democrats and Republicans cannot do this, because they do not agree about fundamental moral principles. Like, what could conceivably come along that was at such a higher level and involved issues where there isn't partisan disagreement? If, I dunno, aliens appeared and tried to invade us? Yeah, that might create partisan unity, on the issue of, let's not get conquered by aliens. That's pretty much the closest analogy to what's going on in Baltimore. And the thing is, this is not a problem. This is the nature of ideological politics, which is way better and more sensible than non-ideological politics given that, y'know, politics is important and people have different fundamental beliefs and hence if politics isn't the forum in which for those beliefs to clash something weird and probably terrible is going on (e.g., massive disenfranchisement of the underclasses or whatever). Politics where the only thing at stake is which faction gets to enjoy being in power, we've seen that. That was the Gilded Age. They call it that for a reason: it was terrible. Its politics, in particular, was terrible. Going back to that would be terrible. Now, maybe it would be nice if our society didn't feature such stark divisions along fundamental moral lines, if there were more broad consensus and solidarity about basic values and political cleavages were just about implementing those values. But why should we expect to see that? I would expect/hope that it's easier to get consensus about empirical questions, i.e., about what policies will effectuate which values, than on the values questions themselves, especially if we're stipulating the lack of the kind of major values divides that can produce divisions in empirical beliefs through motivated reasoning. Also there's always gonna be a tendency for the politics in any given place to "zoom in" on however much fundamental disagreement there is in a given society, I think. (E.g., there stop being overtly pro-slavery people, but even though the spectrum on racial issues gets narrower after that it doesn't get less contentious because the position of, say, no slavery but yes segregation stops getting coded as moderate and maybe an ally of the egalitarians and starts being coded, properly, as The Enemy, and of course people with that position suddenly start coding the egalitarians as The Enemy in return.)

Basically, politics is all about fundamental moral divisions, and those divisions are categorically less easy to overcome than a simple "we want to kill each other" sort of feud. That's natural, and anyone who doesn't instinctively see the obviousness of the Bloods and the Crypts being more reconcilable than the Democrats and the Republicans doesn't understand politics.

A Constitutional Right Deferred

As best I can tell, there were two conversations going on at the Supreme Court in today's oral arguments about gay marriage. One was on the actual merits of the issue: does the Constitution permit state marriage laws which exclude same-sex couples? And... there doesn't seem to be that much doubt that the Court thinks it does not allow this. I mean, somewhere between three and four members of the Court clearly think that it does allow this, but it doesn't seem like Anthony Kennedy, whose vote will definitely be crucial, had really any patience for the purported arguments in favor of the exclusionary state laws. He said something, for instance, about how the states' focus on the need to foster child-rearing was an interesting argument that, unfortunately, rested on totally untrue factual premises. It's really pretty clear that there aren't five votes right now to uphold these laws.

But there was also the other conversation: is the time right to declare these laws unconstitutional? This has been a popular theme in discussion about gay marriage, whether it's appropriate for the judiciary to step in and take the issue out of the hands of the democratic process. Or, alternately, at what point in the process of increasing social acceptance of homosexuality the courts should step in. A too-early ruling, the thought is, would fail to garner widespread acceptance and might spark a backlash. On this view, the courts should only declare anti-gay marriage laws unconstitutional once we can fairly say that the national conversation on the issue has concluded with a verdict in favor of marriage equality, such that all the courts are doing is enforcing that newly-forged national consensus on a few recalcitrant states.

What nonsense.

The Mets Should Use d'Arnaud and Plawecki as a Catching Tandem

What with Travis d'Arnaud's recent hand injury, Kevin Plawecki, one of the Mets' top prospects, just made his MLB debut. The typical way to think about the d'Arnaud/Plawecki relationship is that they're competing for the same job: the Mets' starting catcher. They both seem like they're probably good enough to be starting catchers in the big leagues, so presumably one of them will get traded at some point and they'll both have starting jobs, but only one of them will have it with the Mets. I don't think that's the right way for the Mets to handle things, at least not yet. Plawecki is going to get at least about a month's audition as the Mets' starting catcher now. Let's assume he plays pretty well, like someone who definitely doesn't just deserve to be sent back down to the Minors once the team has an alternative. What I think the Mets should do in that case is use d'Arnaud and Plawecki as a catching tandem, where neither is really the "backup." Probably you'd want to give d'Arnaud somewhat more playing time than Plawecki, just because he's probably a somewhat better player right now, but it should be more like 60/40 than 80/20. Hopefully the team would also have someone else on it who could function as an emergency catcher, thus allowing them to use whichever of Plawecki and d'Arnaud didn't start on a given day as a pinch-hitter without risking having no one to play catcher should the other get injured.

The advantage of a catching tandem is basically that you don't force anyone to be an everyday catcher. Being an everyday catcher is probably a pretty bad idea: Mike Piazza has said in his recent autobiography that he wishes someone had forced him to play catcher a lot less during his early years in the big leagues, because of how it wore him down over the course of his career. By giving d'Arnaud, say, four starts a week and Plawecki three, the Mets could keep them both fresh and minimize the wear and tear on them. That would probably benefit both players in the long run, and might also benefit the Mets if they get to the playoffs. Now, there are reasons why teams don't usually do this. There's a sense that it's a "waste" to use someone good enough to be a starting player as a backup, rather than trading them for pieces of equal value. You're also going to deprive your better catcher of playing time, which might be bad for their morale. Free agent catchers are unlikely to want to take a lesser salary in return for playing only 75% as often, and teams aren't likely to want to pay full starting catcher prices for someone to play just 75% of a full workload. And they certainly won't want to pay two different people decent-sized salaries for the same position.

But all of these problems don't apply to the Mets. d'Arnaud and Plawecki are roughly speaking as good as one another, with maybe Travis being slightly better due mostly to greater power potential, so you don't lose much by shifting some of his playing time to Plawecki. The team doesn't have any major holes that need plugging through trade, and the farm system is well-stocked, so there's no great harm in "wasting" these resources rather than trading them. Plawecki and d'Arnaud are both pre-arbitration playing for the league minimum, so it's not costly to have two solid catchers on the roster. Actually it might keep long-term costs down, by spreading out the counting stats between the two players rather than letting one of them accumulate more impressive numbers for arbitration. Oh, and also: d'Arnaud and Plawecki are said to be good friends, which would probably do a lot to mitigate the potential morale problems. The situation is, in other words, a perfect storm for using a tandem at catcher. And this would allow the Mets to ditch the replacement-level Anthony Recker, to keep their potentially All-Star caliber catcher d'Arnaud better rested, and to add one quality hitter to their bench (assuming the presence of an emergency catcher, possibly Eric Campbell). I don't really see much in the way of downside.

Assuming, that is, that Plawecki can hit at this level.

Yes, People Are Bad. They Should Become Less Bad.

So apparently there's some group trying to argue that the rise of humanity is somehow good for the rest of the planet. Or at least they're saying stuff like that (under the hashtag #GoodAnthropocene, apparently) in the context of a political document seemingly arguing in favor of increased reliance on natural gas and nuclear power (and maybe also solar), and also some stuff about using urbanization and various other supposedly modern/postmodern trends to keep human civilization thriving while reducing the "footprint" of said civilization on the environment. The headline of the Slate article in the link above describes the group as being against "people are bad" environmentalism; certainly their hashtag supports that description. But, like, if they think they're arguing that people haven't been bad, they don't really seem to be. According to the Slate article, they trumpet, basically, the awesomeness of human civilization in itself (for humans that is): "[l]ife expectancy is on the rise, infectious disease risk has plummeted, natural disasters kill fewer people, and abject poverty is on the decline." But they also acknowledge that "those gains have not come without sacrifice: We’re losing species at an incredible rate, and climate change could add ever more stress on human and natural systems." Which sounds like it adds up to, human civilization has been pretty sweet for the humans and pretty terrible for everyone else. Which is about my view, and also sounds exactly like the "people are bad" view. I mean I guess you could distinguish between people who think it was worth it and people who think it wasn't, but that's kind of a boring issue, being just about how we characterize the past rather than what we do going forward.

And on that front, isn't the answer obvious? We're not going to tear down human civilization. Maybe that's regrettable, maybe it's not, but there's nothing to be done about it. So all we can do is our level best to mitigate the damage that human civilization inflicts upon the rest of the world. Or, to put it another way, people should become less bad, as much less bad as they can manage. Maybe as these people seem to suggest, we'll be able to make human civilization genuinely harmonious with nature, or maybe we'll only be able to make it very slightly less bad. Maybe, that is to say, people are incurably bad, or maybe they're not. But surely we must try, whether or not we will eventually fail, and whether or not at the outset of the attempt we think we will fail. What's the alternative? Throw up our hands in despair? Abandon caring about the non-human part of the world, and the horrors inflicted upon it by human civilization? Abandon human civilization, which, as noted above, ain't gonna happen? There is no alternative. If we're doomed to be bad for the world, we must at the very least struggle against that doom to the utmost.

Oh, and if we're gonna try to make human civilization more harmoniously compatible with nature and our fellow species, maaybe we should stop torturing and slaughtering billions upon billions of animals per year just because we think their flesh tastes nice? Just a thought.

Why Death Is Different

The central problem of capital punishment law, or at least of capital punishment doctrine, is the tension between the demand for rational, consistent sentencing free from arbitrariness or bias on the one hand and individualized sentencing on the other hand. The former idea was the basis for the Furman v. Georgia decision that briefly instituted a national moratorium on capital punishment, and the idea in that case was that it was simply unacceptable that, of the large number of people out there convicted of capital offenses, only a small number were chosen to die and there didn't seem to be any apparent acceptable reason why these people, and not those other people who committed the exact same crime, ought to die. There were of course readily apparent unacceptable reasons, namely that if you were poor or black you were probably one of the ones who "ought" to die. The Court didn't really grapple with those issues, but it did say that arbitrary imposition of the death penalty was unacceptable, and that something must be done to limit the ability of sentencing juries (for it is juries, not judges, doing the sentencing in most every capital scheme these days*). However, the Court has also held that a capital sentencing scheme must allow the jury the essentially unlimited ability to exercise mercy: that is to say, to look at the particular defendant as an individual and decide that, despite their crimes, they do not deserve to die. There is of course a problem here, and as Justice Blackmun observed in his dissent from the denial of certiorari in Callins v. Collins, in which he wrote his famous "From this day forward I no longer shall tinker with the machinery of death" line, the end result has just been to subject a (slightly) smaller number of people to the same kind of arbitrary sentencing that was at issue in Furman.

One natural response to that whole discussion is to say, well, how is this problem in any way peculiar to capital cases? Doesn't the tension between the demands for consistency and for individualized mercy manifest itself in any kind of criminal case? What's different, in other words, about death? And I've never had a great answer to that. I mean, there are obvious reasons why the death penalty is different in general, mostly the irreversibility of a wrongly imposed sentence. But I think I only just realized why death is different specifically as regards this specific little paradox. And the reason, I think, is a line that a number of different death penalty advocates use; a quick search shows it being used by Bryan Stevenson and by Helen Prejean:

Each of us is more than the worst thing we've ever done.

And I submit that this incredibly powerful idea is simply not relevant in non-capital cases. It is always true. The criminal is always more than just the crime, no matter what the crime. But that doesn't mean they shouldn't be punished for the crime. Except when the punishment in question is their total destruction. Then this idea becomes relevant in a big way. And it makes us feel the need to ask of each capital defendant, well, how much more? The way the penalty phase of most capital trials proceeds these days, I believe, is basically that the defendant tries to show the jury something in them that's worth saving, to show the jury that they are meaningfully more than the worst thing they've ever done. Whereas, say, a proper psychopathic serial killer may really just not be appreciably more than all the murders they've committed, and is hence seen as not worth saving.

And so the demand for sentencing to be individual really is peculiar to capital cases. In every other kind of case we're happy, more or less, to just say, y'know what, you did the crime, so you have to do the time, no matter how much of a worthwhile person you might otherwise be. But we can't quite bring ourselves to say that when we're talking about killing the person. But that kind of thinking is just anathema to what our legal system is supposed to be. This isn't to say that the same issues of racial bias don't find ways to manifest themselves at the lower levels of criminal cases; they surely do. But it's not just racial bias that's wrong with capital sentencing: it's the feeling that, of the set of people who committed certain crimes formally denoted the "worst of the worst" (although that designation is basically a joke given that most jurisdictions include felony murder), some are being executed and others aren't basically just on the basis of whether the jury likes them or not. That kind of stops feeling like the rule of law, and it only does so because we (rightly) can't bring ourselves to kill someone who has anything worth saving in them, even if they may have committed terrible, terrible crimes. Because we recognize, on some level, that people are—or at least can be—more than the worst thing they've ever done.

And that's why death is different (in this regard).


*In a few places judges can "override" a jury's verdict. In even fewer places that can include overriding a life imprisonment verdict and having the judge himself impose a death sentence.

What Kind of God Is This

I'm doing the last set of readings for my Capital Punishment class, one chunk of which is about innocence, that is to say, about the process of getting people out of prison and out from under a death sentence on the grounds that they actually didn't commit the crime. And some of the readings are about the case of Anthony Ray Hinton, recently exonerated off of Alabama's death row after nearly three decades. Hinton was surprisingly honest about how angry he was, saying, for instance:

"The State of Alabama let me down tremendously. I have no respect for the prosecutors, the judges. And I say that not with malice in my heart. I say it because they took 30 years from me."

And:

"When the very people that you've been taught to believe in, the police, the D.A., these are the people that are supposed to stand for justice, and when you know that they lied to you, it's hard for you to have trust in anybody."

Pretty, y'know, reasonable, right? I share his sentiments, basically, though I've never suffered from the problems he's talking about. But then there's this:

"I've got to forgive. I lived in hell for 30 years, so I don't want to die and go to hell. So I've got to forgive. I don't have a choice."

And can I just say, f*ck that. That is so effing messed up. I mean, look, some people find it therapeutic or whatever to forgive those who have wronged them; certainly there's something to be said for not carrying your anger around with you forever. But, like, the people in question do not on the merits deserve forgiveness (at least, unless any of them have fessed up and admitted that they made a mistake, as the original prosecutor in another one of these cases did). They did something that was not so different from a murder, when you think about it, in robbing a person of the ability to pursue any happiness at all for the better part of his adult life and probably making it damned difficult for him to do so even after he's been released.

And the idea is that God, the Almighty and Benevolent, will punish Hinton with an eternity of damnation and torment if he does not forgive these people? That's just... that's just sick. Whatever there can be said for forgiveness, I think it just cannot be something that anyone gets to demand of you. Forgiveness is an act of grace, a fact which I believe is a big part of Christian theology.* And this is worse than just the various prosecutors and judges and the like demanding forgiveness from Hinton as of right. The idea here is that failing to forgive in Hinton's situation would be a sin, an offense not against those who wronged him but against the sovereign, so to speak. What kind of sovereign makes that a crime? What kind of sovereign turns to the victim of such a horrid injustice and says, look matey, if you don't find it in your heart to forgive your oppressors, I will consider that an offense against me and I will punish you for it, harshly? Like, what the hell? A god who demanded such of his subjects would not deserve words like "benevolent," to my mind; no, he would deserve words like "tyrant." Certainly he would not deserve our allegiance, let alone our love; perhaps our obedience, simply through raw brute-force deterrence, but that's not a very awe-inspiring figure.

Fortunately, the god in question (almost certainly) does not exist. But the people who propagate the idea of that god do exist. And really it's them I'm angry at. Anthony Ray Hinton should not be required to forgive the judges and prosecutors who robbed him of the better part of his life on pain of damnation; that's obvious. But equally, Anthony Ray Hinton should not be led to believe that he has to forgive those judges and prosecutors on pain of damnation. They don't necessarily have as much to answer for as the judges and prosecutors themselves, but the people who lead other people to believe in a tyrant god like this have an awful lot to answer for.



*Okay, yes, there is or at least has been a big split over whether salvation is a matter of grace or a matter of doing good works. But I'd say that the latter camp basically doesn't believe that salvation is a matter of forgiveness, of god's forgiving people for their sins, but rather sort of a matter of weighing a person's sins against their good works and seeing which predominates. I think. But don't really ask me, it's really not my area.

Moral Certainty and the Constitution

Criminal defendants are innocent until proven guilty beyond a reasonable doubt. That's the standard formulation, the modern one at least. The idea is pretty simple: criminal convictions carry severe penalties, usually imprisonment, these days for lengthy terms, and so if there's doubt as to whether or not the defendant is guilty, we shouldn't impose those penalties on them. Except that there's always some doubt about everything, so we limit it to reasonable doubt. Makes sense. Another version of the same idea, which I believe may have been used in criminal cases in the old days, is the idea of proof "to a moral certainty." Moral certainty is an old idea that seems to have been inspired as a defense against, like, philosophical skepticism. The idea is, well, okay, yes, we never really know anything absolutely for certain, but we can know things to a degree of certainty that's enough to act on. Moral certainty is basically, I would think, that degree of certainty upon which it is morally acceptable/defensible/correct to act. And of course, this standard will be more or less strict depending on the action being contemplated. Sometimes we might think it correct to act on little more than just a hunch or a suspicion, because it's not that bad if we're wrong, or because it could be very bad if we don't act and should have. In, say, the criminal law context, however, we really don't want to convict someone who doesn't deserve it, for the reasons given above, and so it takes a lot of proof to prove guilt to a moral certainty. It's all one standard, but the work it does varies by context.

I've just been reading McCleskey v. Kemp for my Capital Punishment class. That's the case where the Supreme Court rejected a challenge to the Georgia death penalty as racially discriminatory and hence a violation of the Equal Protection Clause despite an incredibly sophisticated statistical study demonstrating that death-eligible killers whose victims were white got the death penalty a lot more often than those whose victims were black. The Court was basically applying standard (twisted) Equal Protection doctrine, which holds (under the Washington v. Davis standard) that a challenge under the Equal Protection Clause bears the burden of demonstrating intentional discrimination on the basis of race or some other improper factor. Merely showing that a policy has a "disparate impact," i.e. that it's worse for black people/women/etc. than for whites/men/etc., is not enough, although a sufficiently stark disparity can be circumstantial evidence of discriminatory intent. So in McCleskey, the Court says that this study shows only the risk that race may infect capital sentencing decisions, not that any given sentence was the product of intentional racial discrimination. After all, the authors of the study conceded that they cannot prove "to a moral certainty" that race influenced any particular case.

And when I read that phrase, I just had to think, like, what does moral certainty require in this case? I mean, I actually think that the idea of moral certainty ought to doom the death penalty altogether,* but let's set that aside. The Court was asked in this case to set aside McCleskey's death sentence as having been improperly influenced by race. If McCleskey is wrong and his sentence was totally race-free, but the Court found for him anyway, well, horror of horrors, he would spend the rest of his life in jail. That's, I mean, if we consider that a by-hypothesis fair jury thought he should hang, then I guess that's not a great result, but certainly, Warren McCleskey's being imprisoned rather than executed isn't in any way repugnant to our fundamental laws or principles of justice. If, on the other hand, he was right, and his sentence was discriminatory, but the Court didn't act, well then, a black man would be executed for the specific crime of killing a white person. And that is a constitutional abomination. And so it seems to me that this is a case where the "moral certainty" standard is very low. In fact I think the "moral certainty" standard should basically be on the other side, that unless we could say to a moral certainty that race was not the deciding factor in McCleskey's case we should grant him his reprieve.

And this, I think, should hold true across constitutional law generally. People often say that our Constitution, with its multiple veto points between the bicameralism-and-presentment legislative system, the President's pardon and prosecutorial discretion powers, judicial review, etc., is designed to minimize the amount of legislating that goes on, that it is inherently biased in favor of government inaction. As Akhil Amar I think rightly notes, however, the system is not really designed to prevent any laws from passing but to prevent unconstitutional laws from passing: everyone gets a chance to disapprove a law if they think it's unconstitutional. And if we buy that understanding of the Constitution's overarching priorities, then shouldn't we have a general rule that we won't accept the risk of a constitutional violation? We already do this in places: the Miranda rule, for instance, is a clear case where the constitutional violation is not interrogating a suspect without having first informed them of their rights, it's tricking someone into confessing who doesn't know that they have a right not to, and we can't know that this isn't happening unless we provide a warning. There are other examples, but there are also lots of places where we take the opposite approach, where the Court in essence seems to view the wrongful exercise of judicial review as this terrible tragedy that we must be so very careful to avoid. But that just seems backwards. The tragedy is letting constitutional violations happen right under our noses, when we know that they might be happening, just because we can't be sure that they are. We should err, in other words, on the side of not violating the Constitution, and judges are supposed to play their part in making sure that we do.^

This is, I think, one of the strongest forms of my problem with modern equal protection doctrine and the Washington v. Davis standard: discrimination on the basis of race is, like, the greatest constitutional evil there is. It's America's original sin, we literally fought a war that culminated in a series of amendments designed to eradicate it, and the only thing that lets us even pretend to be a decent country is that beginning in 1954 we actually started trying to live up to those amendments. So why the bloody hell is the burden on the challenger to prove that there was intentional racial discrimination? Maybe some of the time when policies have a racially disparate impact it will be completely innocent, but like, so what? If we assume ad arguendo that there's this vast swath of racially disparate things governments do where we just can't tell whether or not they have discriminatory purpose, shouldn't we just not do any of those things? Like, even when we're wrong, I'm not too cut up about having governments no longer do things that disparately hurt black people. If that is the cost of my false positives, and the cost of false negatives is allowing deliberate racial discrimination to proceed, like, even under the Washington v. Davis theory that the Constitution only forbids the latter, shouldn't we still be willing to swallow an awful lot of false positives to avoid false negatives? Now, I actually think we can be somewhat more, ahem, discriminating between different disparate-impact policies, and sort out which ones are okay and which ones aren't (basically by putting stronger and stronger burdens on the government to justify its policy choices as the disparities grow wider), but the prime directive of our equal protection doctrine has just got to be making sure that, as far as is possible, we not let organs of the American government do racially discriminatory things.

And in general that we not allow constitutional violations to happen. We, the American people acting through our federal and state governments, don't have to do things. We could not do things. And so, I think, we shouldn't require moral certainty, in any very stringent sense, before courts will stop us from doing things in the name of the Constitution; rather, we should demand moral certainty that our actions are constitutional before we do them. And courts should be similarly hesitant to allow any government action, particularly action that deprives any person of life, liberty, or property, to proceed if they cannot satisfy themselves that it is constitutional. Perhaps there should be some prudential exceptions to that rule, where the practical consequences of inaction in a field of constitutional uncertainty will be truly dire, or--if this is a thing--where the potential violations feel somewhat de minimis. And the rule isn't that all legislation must prove its constitutionality beyond a reasonable doubt, as we mean that in the criminal context. But the judicial attitude should be one of vigilance, of caution not toward wielding the awesome power of constitutional review but toward failing to wield that power when the Constitution's defense required it.




*Once we admit that there's any possibility of wrongful convictions, which at this point is on par with admitting that the earth is round, then, well, we just don't have to execute people; even in cases with the most overwhelming proof of guilt of the most reprehensible crimes, we can just lock people up, presumptively forever, but then retain the ability to at least partially fix our mistakes if it turns out we made one.
^Of course, judges aren't the only ones with this responsibility; in at least some senses, legislatures have primary responsibilities for not passing unconstitutional laws in the first place. This doesn't mean, however, that legislatures should decline to pass any law that they worry the courts will invalidate; doing so would result in a gap between those laws that the courts actually do think are unconstitutional and those that the legislature can actually pass, which would be a needless limitation on the people's ability to self-govern. Rather it means that a legislature should obviously not pass any law which it itself believes to be unconstitutional, and (zooming in one level) legislators oughtn't vote for laws they think are unconstitutional. That includes laws that the courts would predictably uphold!

Things I Didn't Know About Murder

Apparently the original meaning of the English word "murder" was a secret killing. Like, a killing where there are no witnesses, perhaps prototypically during the middle of the night. "There's been a murder!" then, is said when someone discovers a body, with the murderer nowhere in sight. Just, like, killing someone in the middle of the street in broad daylight was not part of the definition, no matter how "premediated" or however much "malice aforethought," the terms of art that form the standard modern definition. And apparently the reason why this was the original meaning of the word came from, like, Norse/Germanic culture, where such open killings weren't considered especially shameful. Oh, you'd be subject to the weregild, the price a killer had to pay to their victim's family (which, of course, varied as a matter of law with the relative statuses of the victim and the killer), and perhaps you might start a blood feud, but you weren't viewed as having committed a real crime. (It kind of sounds like murder, secret killing, was seen as an offense against the state and hence covered by the criminal laws, whereas ordinary killing was just a private offense and hence subject to something more like civil law.)

I never knew that before, and I wonder how much path dependence there's been in the way we define "murder" as a subset of homicides. That old value system, wherein just killing someone in the street wasn't shameful/wasn't an offense against the state, is long dead, but the law still views cold-blooded, deliberate, planned killings as worse than impulsive or impassioned ones, and many definitions still explicitly include murder by poison, say, as a form of first-degree murder. How much of that is the baleful influence of the barbaric culture from which we got the literal word murder? I wonder.

Big Government Revisited

A while ago I announced on this blog that I Hate "Big Government." Specifically, in that post I argued against the usage of the phrase "big government" to refer to a government specifically defined as having a large budget, compared to its country's economy, e.g. when Medicare, a large federal spending program financed by ordinary taxes, is attacked as being a form of "big government." To me, the phrase is meant to conjure up visions of George Orwell's 1984 and a big surveillance state that has infringed the liberties of its subjects, but general taxes, I argued, don't really infringe on people's liberty very much (setting aside the question of whether they're economically desirable) and once the government has its hands on the money, well, it can spend it however it wants without violating anyone's liberties. And I still think that's basically correct, but I recently gained a deeper appreciation of what the "big government (a.k.a. big budget)" complaint is. The thing is, it's not about the tax side of the equation, it's about the spending side.

Regarding the Braves

The Atlanta Braves had a rather dramatic off-season, and it laid the team's priorities bare: they don't care at all about putting a good team on the field in the 2015 season, or in the 2016 season. They do care about putting a good team on the field in 2017, and thereafter. And honestly, many of their moves have been savvy ones, within that framework: they've shed a lot of talent for the 2015-16 seasons (Jason Heyward, Justin Upton, Evan Gattis, and now Craig Kimbrel) while stockpiling a lot of future value and increasing their flexibility going forward. (They also signed Nick Markakis to a four-year deal, which is a little weird but shouldn't be any crippling difficulty in 2017-18 anyway.) One possible criticism of their off-season would be that they didn't get good enough value out of their deals; for instance, many thought the return in the Jason Heyward trade was just too light. Another possible criticism would be this kind of rebuild is just generally improper: that it's a betrayal of the fans and/or the players to deliberately spend a couple of years slashing payroll below capacity and, therefore, sucking. I'm not especially interested in either of those criticisms, honestly: as to the former, who can say?, and as to the latter, I think a genuine, Andrew Mellon-style, liquidationist rebuild, wherein the team accepts being truly terrible for a few seasons while trying to build a strong organization for the future, can be the right thing to do in certain circumstances. So, especially since it results in the Mets' chief rival over the course of my lifetime being terrible for the next couple of years, I would normally not have any great problem with what the Braves are doing.

Except that it's so racist.

Because, you see, the Braves were not forced into this rebuild. This wasn't a situation where the team had drained its farm system and saddled itself with bad contracts to aging veterans and was on a path that would lead to perpetual awfulness without a rebuild. The Braves weren't great last year, tying for second place with the Mets with 79 wins, and their farm system, even prior to the supplementation it's received over the off-season, was not what you'd call barren, though also perhaps not one of the top systems in the league. Certainly the team had some problems, but going into this off-season they could quite plausibly have done the usual thing and tried to make their 2015 team a potential contender without harming the organization's long-term prospects. The thinking was that they would probably pick one of Upton or Heyward to extend long-term and trade the other, striking that delicate balance between preserving current assets and using some of those assets to replenish the pipeline. That would've been a conventional off-season for the Atlanta Braves. In other words, nothing about the baseball end of things forced them to decide that 2015 wins and 2016 wins don't matter.

No, the reason why 2015 and 2016 wins don't matter is that for those years, they'll still be stuck in their current stadium, Turner Field. It opened in 1997 (I'm practically old enough to remember!), but will be replaced before it can reach 20 years of age, and the team will move from the city proper of Atlanta to the Cobb County suburbs. A little thing about Atlanta proper versus Cobb County: the former has way more black people in it. The decision to get this new stadium build has been subject to enough criticism along racial grounds as is. I can't help but feeling like that is just compounded by their really quite flagrant declaration that they don't care about their two remaining years in the city, that they have made the completely discretionary decision to sacrifice those years that they may be better in their debut season before their new rich, white audience.

It's hard not to root for their scheme to fail--even if I weren't a Mets fan.

State Judges Should Ground Their Rulings in Their State's Constitution

It always feels a bit weird to me when a state Supreme Court has held that some law or practice of that state is unconstitutional, and then the U.S. Supreme Court reverses. Like, I dunno. If a state legislature refrained from passing a law because it thought the law violated the federal Constitution, but the federal courts disagreed with this conclusion, they wouldn't be able to force the state into passing the law. Why, from the federal government's perspective, should it matter which officials within the state government decide that the state is not going to have a certain law, because they erroneously believe it to be unconstitutional? It feels like forcing the state to do something it doesn't want to do, which is just weird. Of course, I get that this logic doesn't really hold, among other things because someone will have appealed the case to the Supreme Court, either the state government itself (in which case it's not quite right to say that, as far as the feds are concerned, the state doesn't want to enforce the law) or a private party whose success in some lawsuit depends upon that state law's being valid. That person is entitled to their judgment unless the federal Constitution says otherwise. So, I get it. The federal courts are allowed to reverse state court decisions interpreting the federal Constitution, even when that means vacating a judgment voiding a law of their own state.

But... why would a state court ever allow one of its judgments to suffer this fate? Because the thing is, just as state courts have no authority to interpret the federal Constitution contrary to how the federal courts interpret it, so too do the federal courts have no authority to interpret state constitutions contrary to how the state courts have interpreted them. And I believe that almost every state constitution has general language in it similar to the Due Process and Equal Protection Clauses of the Fourteenth Amendment, which are responsible for the overwhelming majority of the unconstitutionality of state laws. (Technically much of that burden should fall on the Privileges or Immunities Clause, but as a doctrinal matter it doesn't so that's beside the point for this purpose.) So, therefore, if I were a state supreme court and I were drafting an opinion striking down some state law because I thought it contrary to the federal Constitution, I know what I'd do, every single time: I would include a bit of language saying that, oh yeah, the analogous language in my state's own constitution commands the same result. Because, you see, the federal courts can't touch that holding. So even if they think I'm wrong about the federal constitutional issues, they can't actually reverse my judgment and reinstate the law. Hell, if I include one paragraph making clear that I've read my holding into the state constitution as well, the government (or whoever) can't even appeal to the federal courts, because the case would be moot! It would totally immunize my judgments (of this sort) against federal reversal.

I'm reminded of this by seeing a dissenting judge in a Georgia case about racially discriminatory peremptory strikes in the selection of juries argue for a similar tactic. Except there, the federal law had already been established, so the court would just have been saying, "well, yes, the federal Constitution doesn't require this, the Supreme Court has said so and we're bound by that, but we think the Georgia Constitution does." Quite rightly, he admits that Supreme Court doctrine limiting the application of the rule against such discriminatory strikes is binding on the Georgia court, but as he points out, there is absolutely nothing wrong with interpreting the state's own constitutional guarantees to go beyond the federally-mandated "floor." Just so: when the federal courts decide that a certain state practice is unconstitutional, that's the end of things, but when they decide a practice is constitutional, state courts are still allowed to have their own say, and they may do so in ways that no federal court can touch. Even of nothing more motivates the state judges than a belief that the federal courts are wrong, and should be interpreting the federal Constitution differently! State judges have essentially plenary power to effectively nullify any federal constitutional decision upholding state practice. And that's good--this isn't like ordinary nullification, where a state tries to nullify a federal law or do something that the federal courts say does violate the federal Constitution, because there's nothing in federal law requiring the states to do things the Supreme Court says aren't unconstitutional.

So why don't we see state courts using this tactic more often?