A junk science problem in law enforcement, criminal justice and American society

From The Death of Expertise

by Tom Nichols

A ProPublica article by investigative journalist Brett Murphy discusses some bizarre junk science that the journalist calls “911 call analysis.” This supposedly science based “technology” sometimes subverts justice and the criminal justice system. Sometimes it gets innocent people wrongly convicted of crimes where actual reliable evidence would not be sufficient to establish criminal liability to a jury. The article points to a shocking kind corruption in the American criminal justice system. 

It also exemplifies a much more serious problem in American society. Namely, far too many adult Americans distrust science and experts. Crackpots, grifters, demagogues and other talented liars have become far more trusted than one would think possible in an educated, modern society.

Murphy stumbled across this story by accident, initially not believing it was a real thing. He was wrong. That said, 911 call analysis probably does not apply to rich, powerful or elite people or corporations because they have the attorney firepower to pry this bullshit from the claws of corrupted prosecutors. Poor people probably usually do not have the resources to defend themselves from this horror. Not sure how this impacts the middle class.

ProPublica writes:

Tracy Harpster, a deputy police chief from suburban Dayton, Ohio, was hunting for praise. He had a business to promote: a miracle method to determine when 911 callers are actually guilty of the crimes they are reporting. “I know what a guilty father, mother or boyfriend sounds like,” he once said.

Harpster tells police and prosecutors around the country that they can do the same. Such linguistic detection is possible, he claims, if you know how to analyze callers’ speech patterns — their tone of voice, their pauses, their word choice, even their grammar. Stripped of its context, a misplaced word as innocuous as “hi” or “please” or “somebody” can reveal a murderer on the phone.

So far, researchers who have tried to corroborate Harpster’s claims have failed. The experts most familiar with his work warn that it shouldn’t be used to lock people up.

Prosecutors know it’s junk science too. But that hasn’t stopped some from promoting his methods and even deploying 911 call analysis in court to win convictions.

“Of course this line of research is not ‘recognized’ as a science in our state,” Askey wrote, explaining that she had sidestepped hearings that would have been required to assess the method’s legitimacy. She said she disguised 911 call analysis in court by “getting creative … without calling it ‘science.’”

“I was confident that if a jury could hear this information and this research,” she added, “they would be as convinced as I was of the defendant's guilt.”

What Askey didn’t say in her endorsement was this: She had once tried using Harpster’s methods against Russ Faria, a man wrongfully convicted of killing his wife. At trial, Askey played a recording of Faria’s frantic 911 call for the jury and put a dispatch supervisor on the stand to testify that it sounded staged. Lawyers objected but the judge let the testimony in. Faria was convicted and sentenced to life in prison.

After he successfully appealed, Askey prosecuted him again — and again called the supervisor to testify about all the reasons she thought Faria was guilty based on his word choice and demeanor during the 911 call. It was Harpster’s “analytical class,” the supervisor said, that taught her “to evaluate a call to see what the outcome would be.”

This judge wouldn’t allow her to continue and cut the testimony short. Faria was acquitted. He’d spent three and a half years in prison for a murder he didn’t commit.

None of this bothered Harpster, who needed fresh kudos to repackage as marketing material and for a chapter in an upcoming book. “We don’t have to say it was overturned,” he told Askey when soliciting the endorsement. “Hook me up. … Make it sing!”

Once again, deceit and customer ignorance are 

the best friends of a grifter 

I first stumbled on 911 call analysis while reporting on a police department in northern Louisiana. At the time, it didn’t sound plausible even as a one-off gambit, let alone something pervasive that law enforcement nationwide had embraced as legitimate.

I was wrong. People who call 911 don’t know it, but detectives and prosecutors are listening in, ready to assign guilt based on the words they hear. For the past decade, Harpster has traveled the country quietly sowing his methods into the justice system case by case, city by city, charging up to $3,500 for his eight-hour class, which is typically paid for with tax dollars. Hundreds in law enforcement have bought into the obscure program and I had a rare opportunity to track, in real time, how the chief architect was selling it.  

The program has little online presence. Searches for 911 call analysis in national court dockets come up virtually empty too. A public defender in Virginia said, “I have never heard of any of that claptrap in my jurisdiction.” Dozens of other defense attorneys had similar reactions. One thought the premise sounded as arbitrary as medieval trials by fire, when those suspected of crimes were judged by how well they could walk over burning coals or hold hot irons.

Could it be true that Harpster, a man with no scientific background and next to no previous homicide investigation experience, had successfully sold the modern equivalent [of a medieval trial by fire] to law enforcement across the U.S. almost without notice?  

First, I put together a list of agencies that had recently hosted him. In the months that followed, I sent more than 80 open records requests and interviewed some 120 people. Thousands of emails, police reports and other documents led to a web of thousands more in new states. When agencies refused to turn over public records, ProPublica’s lawyers threatened litigation and in one case sued.  

After he left the FBI Academy that winter, Harpster enrolled at the University of Cincinnati to pursue a graduate degree in criminal justice. For his master’s thesis, he collected 100 recordings of 911 calls — half of the callers had been found guilty of something and the other half hadn’t. Harpster believed he could analyze these calls for clues.

Based on patterns he heard in the tapes, Harpster said he was able to identify certain indicators that correlated with guilt and others with innocence. For instance, “Huh?” in response to a dispatcher’s question is an indicator of guilt in Harpster’s system. So is an isolated “please.” He identified 20 such indicators and then counted how often they appeared in his sample of guilty calls.

Using that same sample of recordings, Harpster, Adams and an FBI behavioral scientist named John Jarvis set out to publish a study in 2008. But even before their work was published in a peer-reviewed journal as an “exploratory analysis” — a common qualifier meant to invite more research — police departments around the country learned about it.

That’s because the FBI sent a version of the study directly to them in a bulletin, which was not labeled exploratory. It included contact information for Harpster and Adams. The publication, which the bureau says typically has a readership of 200,000 but is not supposed to be an endorsement, had immediate impact. “It was required reading by our detective and communications personnel,” a police chief in Illinois told Harpster.

 The article is long and goes into many details about this bizarre stupidity and the shocking gullibility of police and prosecutors. What the FBI was thinking, if anything, is anyone’s guess. This is the kind of crap that happens when people are ignorant and/or distrustful about science and prone to mental corruption. The corruption here is the intense bias that law enforcement and prosecutors have to lock people up. They latch onto anything that gets the conviction.

Apparently, in law enforcement, there are less incentive for getting justice right, than for just locking them up, guilty or not. At least that is how this information makes it look. Both police and prosecutors are guilty of this outrageous travesty. Even TV is biased the same way. Shows like Law & Order puts the cops and prosecutors on a pedestal, while ignoring defense attorneys or making them look sleazy and/or corrupt.

This mental rot in law enforcement mirrors the bigger problem in American society. Specifically, far too many Americans reject and/or attack sound science and the messengers when the science or message (fact and attendant truth) is inconvenient. 

Shucks, one can’t trust law enforcement or the FBI to be honest, competent or rational. What a mess.

From The Death of Expertise

by Tom Nichols

Actually, for politics too many people hold convenient truths to be

true and patriotic, while inconvenient ones are evil

Democratic Party, liberal and/or socialist lies

Climate change wars: An update

In America’s endless climate change wars, the federal government has been mostly stymied in efforts to deal with the issue. A big part of this dismal reality is radical right, brass knuckles capitalism dogma backed by hundreds of millions of dollars to feed an anti-climate change propaganda Leviathan. That propaganda beast has mostly succeeded in keeping levels of pollution high and regulation low to non-existent. Along with the carbon energy and chemical sectors, the Republican Party is the main denier of climate change, climate science and inconvenient climate facts, truths and reasoning.

In what appears to be a bit of solidly good news, the NYT writes about an interesting capitalist movement that is stirring among some huge corporations. Some corporate giants appear to be actually genuinely concerned about reducing carbon pollution and climate change. The NYT writes:

Clean Energy Quest Pits Google Against Utilities

Google says its goals for carbon-free power are impeded by state-regulated utilities, particularly in the Southeast, that lack a competitive market.

It was the sort of dry panel discussion that occurs at hundreds of industry conferences every year — until a Google representative decided it was time to unleash.

“This is personal for me,” Jamey Goldin, an energy regulation lawyer at Google, told those attending a May conference in Atlanta on renewable energy in the Southeast. He said he had grown up on a ridge overlooking Plant Bowen, a coal-fired power plant northwest of Atlanta owned by Georgia Power, the dominant electricity utility in the state, and then directed his comments at a lobbyist for the utility’s parent company, also on the panel: “Y’all got a lot of coal running up there, a lot of smoke going up in the air.”

Overturning the system that puts nearly all power generation in the Southeast in the hands of utilities like Georgia Power would “get a lot more renewable energy online and a lot of that dirty power offline,” Mr. Goldin added.

But the outburst was more than personal. It was part of a far-reaching campaign by Google to power its operations with increasing amounts of electricity from wind, solar and other generating sources that do not emit carbon.

Google, Meta, Microsoft and Apple, among others, have made eliminating their carbon emissions a prominent corporate goal — and have set not-too-distant deadlines to get there. Google wants to buy enough carbon-free electricity to power all its data centers and campuses around the world without interruption by the end of this decade.

The corporate quest to rapidly secure vast new amounts of renewable energy faces big challenges, however — not least in the Southeast, one of the country’s fastest-growing regions. And Google’s battle in the region, where it has a major concentration of data centers, raises a question that applies to the energy transition everywhere: Is what’s good for a few companies good for all?

At the heart of their campaign, Google and its tech giant allies want to dismantle a decades-old regulatory system in the Southeast that allows a handful of utilities to generate and sell the region’s electricity — and replace it with a market in which many companies can compete to do so.

What gives one pause about whether this really is good news or not is the context in which this story in playing out. Although Google may actually want a more competitive energy market in the Southeast, it’s unclear what that would mean for consumers. It could be worse than what is there now.

Consider Texas. In the name of infallible capitalist free markets running wild and butt naked, i.e., unregulated, that rabid hater of government and regulation decided to deregulate its electricity sector. What did those wild, butt naked electricity markets deliver compared to consumers who opted to stay with regulated electricity? ‘Deregulated consumers’ got (i) higher costs, (ii) a crappy, poorly maintained grid, (iii) less reliable electricity, (iv) crushing brass knuckles capitalist price spikes at peak demand times, and as an added bonus, (v) dozens of people frozen to death after a big winter storm. Yes, deregulated electricity cost consumers more in Texas than regulated electricity in Texas. That is what an unregulated ‘competitive’ capitalist market in Texas delivered. 

Those darned tyrannical socialist-communist regulations are an unspeakable horror (because they tends to be pro-consumer and that usually gets in the way of profits).

So if Google gets what it wants, consumers might get shafted. But maybe less carbon pollution would result. Given capitalist absence of social conscience, hate of regulation and the profit-above-all moral imperative, consumers could very well get shafted in the brave new world. That assumes there will be a brave new world, which is an open question. The pro-pollution forces with their propaganda Leviathan are going to fight this tooth, claw, dirty tricks, lies and poison daggers.

News bits: Republican Party support of sleaze for power, etc.

Republican Party moral rot on display

We all remember the outrageous lies that Republican congressman-elect George Santos relied on to deceive New Jersey voters into voting him into congress. The NYT writes about GOP leadership complicity in making Santos’ lies a smashing success with no repercussions from the morally rotted, fascist Republican Party:

G.O.P. Leadership Remains Silent Over 

George Santos’s Falsehoods

The muted response from party leaders suggested that so far they were prepared to mete out little, if any, punishment to the congressman-elect

The muted response from party leaders suggested that so far they were prepared to mete out little, if any, punishment to an incoming lawmaker who, while deceiving voters, flipped an open seat formerly held by a Democrat and helped Republicans secure their razor-thin House majority.

House Republicans, led by Representative Kevin McCarthy of California, have consistently closed ranks around members of their party facing scrutiny for a litany of misdeeds, including candidates who rallied at the Capitol on Jan. 6 and sitting lawmakers who appeared at a white nationalist conference. In Mr. Santos’s case, they likely have even less political incentive to take action. .... If Republican leaders demanded Mr. Santos resign — and he did so — it would prompt a special election in a swing seat, a potential blow to Republicans’ already precarious majority.

Questions: Is it unreasonable to believe that the next term of the House will be illegitimate because of the profound mendacity that Republican politicians and the GOP routinely engage in and/or defend? Should criminality, lies and deceit be completely irrelevant to elections and power, which is how the Republican Party mostly treats them?

Supreme Court takes over immigration policy:

Democrats may benefit a little 

The Supreme Court has stepped in and taken power over immigration policy from the legislative and executive branches. The WaPo writes about the court imposing Title 42 border policy without congressional or presidential input:

Supreme Court leaves in place Title 42 border policy for now

The Trump-era policy allows quick expulsion of migrants from U.S. borders without the chance to seek asylum

The Supreme Court on Tuesday blocked the Biden administration’s plans to end a pandemic-era policy allowing the quick expulsion of migrants from U.S. borders without the opportunity to seek asylum, as officials warned of a crisis along the southern border.

A federal judge had ruled that the Trump-era policy, known as Title 42, should expire last week, but the court’s action extends a pause Chief Justice John G. Roberts Jr. imposed to give the high court more time to weigh the issue.

In Tuesday’s order, five conservative justices sided with Republican officials in 19 states, including Texas and Arizona, who sought to maintain Title 42, which has been used to expel migrants more than 2 million times since it was implemented in March 2020.

In effect, the Supreme Court’s action keeps the status quo in place by blocking the district judge’s order until the court can consider the dispute in late February. But the court said it will consider only whether the objecting states have the legal standing to intervene.

While the majority did not provide reasoning, which is common in emergency requests, dissenting Justice Neil M. Gorsuch said the order would “effectively require the federal government to continue enforcing the Title 42 orders indefinitely.”

This action is in accord with an argument that a few legal scholars are raising that the Christofascist Republican Supreme Court is draining power away from both the legislative branch and the executive branch. In essence, the court is making itself into a unitary power without oversight or accountability. 

In this situation, Republicans keeping Title 42 in place could temporarily help the Democrats in public opinion in view of how divisive immigration policy is. Democratic Party policy on immigration arguably is incoherent and in chaos. That makes immigration policy a powerful weapon for highly effective Republican demagoguery. It is an issue that drains a lot of political capital and power from Democrats. That is why when Democrats try to work immigration compromises with the GOP, the GOP keeps refusing. Dealing with immigration policy in good faith would take a major propaganda weapon away from the GOP. It cannot afford to lose that issue for its vast demagoguery machine.

The rule of law is mostly toothless and democracy 

is grave at risk because of it: An example

The Guardian writes:

Arizona judge declines to sanction Kari Lake 

for lawsuit challenging election

“There is no doubt that each side believes firmly in its position with great conviction,” he wrote. “The fact that Plaintiff failed to meet the burden of clear and convincing evidence required for each element of [Arizona statute] does not equate to a finding that her claims were, or were not, groundless and presented in bad faith.”

While he declined to order sanctions, Thompson did order Lake to pay Hobbs about $33,000 to cover some legal costs in the case. Maricopa county and Hobbs had requested about $695,000 in costs from her.

Lake, who lost the race by about 17,000 votes, was one of the most prominent spreaders of election misinformation in the 2022 campaign.

Once again, the issue of intent is front and center. Once again intent shields a miscreant. The issue of the near-impossibility of providing enough evidence to establish legal liability is crystal clear. The issue of non-provability of culpable intent constitutes what I believe is one of the greatest weaknesses in American democracy. Bad intent by elites, rich people and big corporations just cannot be proven in most contested situations. That is probably the case ~99.99% of the time, i.e., 9,999 times out of 10,000. All smart traitors and white collar criminals know this. They exploit it professionally and ruthlessly. 

The most important thing is to maintain

plausible deniability

In her lawsuit, Lake did not have evidence of any election or vote fraud. Literally no evidence. That is why the judge had to throw out her case challenging her 2022 election result. 

But, based on how this judge saw it, about the only thing that might (or might not) have led the judge to impose sanctions is if Lake admitted under oath that she knew she had no grounds for a lawsuit but filed one anyway. For a seasoned traitor like Lake, there is less than a snowball’s chance in hell of that happening. Fascist traitors like Lake know how to stay out of hot water with dumb judges who willingly go along with the American farce called the rule of law.

Shocking news: A Republican liar admits to lying, & some non-shocking news.

From the Incredible Things Files:

George Santos caves in to revelations of truth

The NYT writes:

Ending a weeklong silence, Representative-elect George Santos admitted on Monday to a sizable list of falsehoods about his professional background, educational history and property ownership. But he said he was determined to take the oath of office on Jan. 3 and join the House majority.

Mr. Santos, a New York Republican who was elected in November to represent parts of northern Long Island and northeast Queens, confirmed some of the key findings of a New York Times investigation into his background, but sought to minimize the misrepresentations.

“My sins here are embellishing my résumé,” Mr. Santos told The New York Post in one of several interviews he gave on Monday.

Mr. Santos admitted to lying about graduating from college and making misleading claims that he worked for Citigroup or Goldman Sachs. He once said he had a family-owned real estate portfolio of 13 properties; on Monday, he admitted he was not a landlord. 

Mr. Santos, the first openly gay Republican to win a House seat as a non-incumbent, also acknowledged owing thousands in unpaid rent and a yearslong marriage he had never disclosed. 

“I dated women in the past. I married a woman. It’s personal stuff,” he said to The Post, adding that he was “OK with my sexuality. People change.”  

Mr. Santos also firmly denied committing a crime anywhere in the world, even though The Times had uncovered Brazilian court records showing that Mr. Santos had been charged with fraud as a young man after he was caught writing checks with a stolen checkbook.

“I am not a criminal here — not here or in Brazil or any jurisdiction in the world,” he told The Post. “Absolutely not. That didn’t happen.”  

“I never claimed to be Jewish,” Mr. Santos told The Post. “I am Catholic. Because I learned my maternal family had a Jewish background I said I was ‘Jew-ish.’”

So, it is OK to take the oath of office because all that poor, persecuted Santos did was embellishing his résumé and just doing personal stuff. You know, personal stuff sort of like what Bill Clinton did while on office and got impeached for. And, he is Jew-ish, not Jewish.

For some context on the morality of what merely embellishing a résumé and other lies amount to:

The social incentives to deceit are at present very powerful; the controls often weak. Many individuals feel caught up in practices they cannot change. It would be wishful thinking, therefore, to expect individuals to bring about major changes in the collective practices of deceit by themselves. Public and private institutions, with their enormous power to affect personal choice, must help alter the existing pressures and incentives. ..... Trust and integrity are precious resources, easily squandered, hard to regain. They can thrive only on a foundation of respect for veracity.

For some context on how bad deceit by politicians can be:

“[Johnson repeatedly told the American people] ‘the first responsibility, the only real issue in this campaign, the only thing you ought to be concerned about at all, is: Who can best keep the peace?’ The stratagem succeeded; the election was won; the war escalated. .... President Johnson thus denied the electorate of any chance to give or refuse consent to the escalation of the war in Vietnam. Believing they had voted for the candidate of peace, American citizens were, within months, deeply embroiled in one of the cruelest wars in their history. Deception of this kind strikes at the very essence of democratic government.”

Q: Is it reasonable to argue that when a politician deceives people and they act, e.g., vote, on the basis of that deceit that the politician has taken away the power of people to make decisions on the basis of facts, truths and/or sound reasoning?

Jeez, that was a juicy one for sure.

Some welcome common sense about guns

A NYT opinion piece by San Jose, CA mayor Sam Licarrdo comments:

Recent mass shootings have spurred renewed calls from President Biden for a national assault weapons ban. Sensibly so. But for even the most ardent gun control advocates, it’s hard not to ask whether, in a nation with an estimated 400 million firearms, restrictions on new gun purchases accomplish too little without something more.

Amid the rising tide of firearms, reducing gun deaths and injuries requires new solutions. In San Jose, Calif., where I am mayor, we’ve embarked on two approaches untried in any other city or state: We’re imposing an annual fee on gun-owning residents and investing the revenues in violence prevention efforts. And on Jan. 1, the city will begin requiring gun owners to carry liability insurance to compensate victims harmed by the negligent or reckless use of a firearm.

In San Jose, the nation’s 10th-largest city, more than 200 people are killed or injured by gunfire every year. Not all of that harm results from the actions of criminals. Over a recent six-year period, 42 percent of San Jose’s gun deaths and injuries resulted from unintentional shootings or shootings whose circumstances were unknown, while suicide attempts accounted for another 15 percent. Suicide exacts an even more lethal toll nationally, accounting for 54 percent of gun fatalities. So much of that suffering is preventable.

Many studies have shown that the mere presence of a gun in a home makes a host of perilous circumstances much more lethal. A domestic violence victim faces five times the risk of being killed if the abuser has access to a gun, for example, and the odds of suicide in a home with access to a firearm are more than three times that in other homes.  

.... beginning next year, San Jose will require gun owners to pay an annual fee — the amount is still to be determined — which a nonprofit foundation will invest in evidence-based violence prevention programs directed at gun-owning families. This policy won’t magically halt mass shootings or suicides, but it will provide a better chance to get help to troubled adults and teenagers before they pick up their guns.  

Of course, in the realm of gun regulation, no good deed goes unlitigated. Three groups sued San Jose after the ordinance imposing the fee and insurance requirement passed. A Federal District Court declined their pleas for an injunction to stop the ordinance from taking effect, finding no unconstitutional burden on Second Amendment rights when “there are no means by which a San Jose gun owner may be deprived of his or her firearm.”

Finally, someone has caught on to the idea of making gun owners pay for at least some of the social and economic damage their guns inflict. This is decades overdue. But better late than never.

The scumbag and his tax cheating

A DC Report (left bias, high fact accuracy) by tax expert David Cay Johnston has checked out his tax returns:

Trump’s Brazen Tax Cheating Revealed

Trump Took Tax Losses He Knew Were Fraudulent

Donald Trump knowingly committed dozens of brazen tax frauds during the six years when he ran for office and was President, my analysis of the Congressional report on his tax returns and other documents shows. This explains why he fought all the way to the Supreme Court in a failed effort to keep his tax information secret.

One technique he used at least 26 times between 2015 and 2020 was as simple as it was flagrant. Trump filed sole proprietor reports, known as Schedule C, that showed huge business expenses despite having zero revenue. That created losses which Trump used to offset his income from work and investments, thus lowering his income taxes. Additional Schedule Cs had expenses exactly equal to revenues while only a few showed profits.

What Trump did again and again and again—taking expenses for businesses with no revenue—is so simple that jurors should have no trouble understanding the issues were Trump to be indicted by a federal or New York state grand jury.  

Trump knew this was unlawful because he lost two trials over his 1984 income taxes in which he did the exact same thing, a story I broke in June 2016. Both judges, in scathing opinions, ruled that Trump committed civil tax fraud.

That Trump persisted in using the same fraudulent technique in six years of recent tax returns is powerful evidence of mens rea or criminal intent. This device is not Trump’s most lucrative tax cheating technique, but it is the easiest for jurors to understand should Trump be indicted on tax charges.  

It may shock you to learn that there are legal ways to turn the burden of income taxes into a source of profit. Still, every sophisticated tax accountant and lawyer knows how business owners, especially real estate operators like Trump, can do this legally. As a leading Manhattan tax lawyer told me years ago: “If you’re big in real estate and pay any income tax, you should sue your tax lawyer for malpractice.”

Workers and pensioners are excluded from the rules that let rich business people and landlords convert the burden of income taxes into the joy of financial gains.

Is this a real possibility?

Nah, couldn’t be, could it?

Nah, not possible!

Regarding originalism and the Supreme Court

An example of originalism: Abortion

The New Yorker writes:

This was a year that was split into before and after—the dividing line being when the Supreme Court overruled Roe v. Wade. Following the shocking leak of the draft opinion in Dobbs v. Jackson Women’s Health Organization, on May 2nd, we fully entered the era of conservative dominance, with aggressive rulings on abortion, guns, and religion. Doubts about the Court’s legitimacy reached a fever pitch, and its unpopularity hit alarming lows. Soul-searching about the Court and the rule of law has rarely been as cynical or as fundamental. Law professors asked one another, “What do we say to students now?,” with many questioning the distinction between law and politics, or even the Court’s final authority to interpret the Constitution—which the Court first claimed for itself about two hundred years ago. 

The Justices appeared to understand that they are presiding over a historic decline in public trust, as several of them have made public remarks insisting on the importance of the Court’s retaining its legitimacy. “Everybody in this country is free to disagree with our decisions,” Justice Samuel Alito, who wrote the Dobbs majority opinion, said. But he warned that someone “crosses an important line when they say that the Court is acting in a way that is illegitimate.”  

When the Court returned for its new term in the fall, the Justices dove into another set of blockbuster cases, on affirmative action, voting rights, and religious liberty. But cracks have emerged in the commitment to originalism that conservatives wielded last term to tie the meaning of the Constitution to “history and traditions” from periods when women couldn’t vote and segregation was the law. Liberal Justices made us wonder whether we’re all supposed to be originalists now—or strategically pretend to be. Take, for example, this term’s debates about the meaning of the Fourteenth Amendment. In a case asking whether Alabama created enough majority-Black electoral districts to comply with the Voting Rights Act, and whether the use of race in districting violates the Fourteenth Amendment, Justice Ketanji Brown Jackson refused to cede originalism to conservatives, instead describing it as “our normal assessment of the Constitution.” 

Professing to have “drilled down” and looked at “the history and traditions of the Constitution, at what the Framers thought about,” Jackson, in one of her first hearings as a Justice, lectured counsel extensively on how the original meaning of equal protection was not race-neutral, since “the Framers themselves adopted the equal-protection clause . . . in a race-conscious way.” (Jackson explained that “the entire point of the amendment was to secure rights of the freed former slaves”—which is clearly correct but likely to be ignored by conservative originalists.)

Thought 1: Two thoughts come to mind here. One is that it feels like Sam Alito is making a direct threat against anyone who asserts that the court is acting in ways that are illegitimate. That is fascism, plain and simple. And for the record, the Supreme Court is acting in ways that are illegitimate. Come get me Sammy boy, you blowhard fascist! 

Thought 2: The other though is more serious, at least for now, i.e., until the hyper-radical Alito comes and hunts me down and starts blazing away with his AR-15. I think that Justice Brown Jackson and the Dems on the court make a deadly serious tactical and legal mistake by trying to fight for control of narratives about originalism, and how it applies to modern court cases. I’ve argued here multiple times that originalism is a modern day radical right mirage. There is no such thing as originalism. 

Why? Because until the ends of their lives, the people who drafted the Constitution and Bill of Rights were locked in bitter disputes about the nature and scope of government and how power was to be distributed. From what I have seen, credible scholars keep saying there can be no original intent because there was bitter, never-resolved fundamental disagreements. The core documents meant different things to different drafters and ratifiers. 

By conceding the existence of non-existent originalism, Brown Jackson and the Dems legitimize something that cannot rationally be legitimate. Originalism can be the means to overthrow democracy and kill government. That is what it was devised by radical right, government and civil liberties-hating legal scholars to do. Just look at the Dobbs decision that killed the federal right to an abortion. Most radical right commentators appear to hail Dobbs as a major victory for originalism, for example:

An Originalist Victory

The Supreme Court’s Dobbs ruling is a tremendous success for the constitutional theory around which conservatives rallied for nearly half a century.

Roe v. Wade and Planned Parenthood v. Casey are no more. Like Plessy v. Ferguson before them, Roe and Casey were constitutionally and morally indefensible from the day they were decided, yet they endured for generations, becoming the foundation of a mass political movement that did all it could to prevent their overruling.

Dobbs was built on a radical right judge-made “history and traditions” test. That test allowed radical right judges (mostly Alito) to cherry pick through history to arrive at the rationale they used to get rid of Roe and the federal abortion right. By arguing about originalism, the Dems play into the hands of the Christofascist judges. IMHO, that is a very big mistake.

A criticism of originalism and textualism

An NYT opinion piece opined in 2017:

Textualism says that when interpreting the Constitution, judges should confine themselves to the words of the Constitution. Originalism says that if the words are at all unclear, then judges need to consult historical sources to determine their meaning at the time of ratification, and the correct application of these words to new cases should clearly follow.

But Justice Scalia failed to realize that textualism is actually self-undermining. Nowhere does the Constitution explicitly state that textualism, no less originalism or any other method, is the correct theory of constitutional interpretation. Justice Scalia also failed to realize — or at least admit — that textualism and originalism rarely determine a unique outcome for constitutional questions.

The meanings of many words and phrases in the Constitution are not at all obvious. Examples include “right,” “unreasonable,” “probable cause,” “due process,” “excessive,” “cruel and unusual” and “equal protection.” Even if we could find clear definitions of these terms in a dictionary, current or historical, applying these definitions to cases that the founders did not anticipate only expands the range of ambiguity (and therefore interpretive possibilities).

The founders would no doubt sympathize. Because they used flexible, open-ended language like “cruel and unusual” without explaining exactly what they meant, it seems clear that they were deliberately inviting future generations to interpret and reinterpret these words — the very opposite of what textualists and originalists propose.

The founders were not dummies; they knew that society would evolve in unforeseeable ways — morally, socially, politically, technologically — and that this inexorable evolution might well bring about unforeseeable applications of the same words. For example, instead of using the imprecise phrase “cruel and unusual” to lock in any particular punishment (like the death penalty), it stands to reason that they meant it to lock out whatever punishments future generations deemed unconscionable. So true originalism — genuinely following the founders’ intent — requires us moderns to interpret constitutional language in light of our own, not their, moral and linguistic norms.

The ambiguity in the Constitution reflects the intent of the drafters to allow for moral, social, political and technological change to factor into how court cases. Nothing in the constitution says that constitutional interpretation requires originalism or textualism. 

An 2009 criticism of originalism

Law professor Mitchell Berman (U. Penn Law School) wrote this in a short criticism (the full 96 page review article is here):

Originalism is Bunk 

Contemporary originalists disagree about many things: which feature of the Constitution’s original character demands fidelity (framers’ intent, ratifiers’ understanding, or public meaning); why such fidelity is required; and whether this interpretive obligation binds judges alone or citizens, legislators, and executive officials too. But on one dimension of potential variability—the dimension of strength—originalists are mostly united: They believe that those who follow some aspect of a provision’s original character must give that original aspect priority over all other considerations (with a possible exception for continued adherence to non-originalist judicial precedents [note that deference to precedent has been blown to smithereens by the modern Christofascist Supreme Court]). That is, when the original meaning (or intent, etc.) is adequately discernible, the interpreter must follow it. This is the thesis that self-professed originalists maintain and that their critics (the non-originalists) deny.

Non-originalists have challenged this thesis on varied wholesale grounds, which include: that the target of the originalist search is undiscoverable or nonexistent [Germaine’s main argument]; that originalism is self-refuting because the framers intended that the Constitution not be interpreted in an originalist vein; and that originalism yields bad outcomes.

.... arguments are [in originalism’s defense] of two broad types—hard and soft. Originalism is “hard” when grounded on reasons that purport to render it (in some sense) inescapably true; it is “soft” when predicated on contingent and contestable weighings of its costs and benefits relative to other interpretive approaches. That is, hard arguments seek to show that originalism reflects some sort of conceptual truth or follows logically from premises the interlocutor already can be expected to accept; soft arguments aim to persuade others to revise their judgments of value or their empirical or predictive assessments. The most common hard arguments contend that originalism is entailed either by intentionalism or by binding constitutionalism. Soft arguments claim that originalist interpretation best serves diverse values like democracy and the rule of law. I seek to show that the hard arguments for originalism are false and that the soft arguments are implausible.

Q: Is it unreasonable to argue, and I do argue it, that originalism is just one of a number of smoke screens that brass knuckles capitalist Christofascist federal judges to impose their radical Republican Party dogmas on American society? 

News bits: Public access to federal court decisions, etc.

Federal courts oppose free public 

access to court documents 

Taxpayers pay to maintain court infrastructure and personnel. For years, defenders of the public interest have been trying to get easy free public access to federal court papers. For years, arrogant anti-public interest federal courts have fight hard against free public access. Court tactics now includes fabricating blatant lies about the burdens to provide public access. Techdirt writes:

Free PACER Would Pretty Much Be Free, Says CBO, 

Undercutting Federal Judiciary’s Ridiculous $2 Billion Estimate

For years, attempts have been made to make access to federal court records free. To date, not one of these efforts have been successful. The federal judiciary likes its antiquated cash cow, raking in PACER fees meant to improve and free up (as in “free”) document access and redistributing the profit amongst itself, (illegally) blowing the funds on big screen TVs and furniture for those working at or with access to federal courthouses.

While PACER limps on in its pre-Web 1.0 state, millions of Americans are either unable or unwilling to pay librarian rates for the (lol) reproduction of PDFs at the absurd rate of $0.10/page. This page fee applies to searches (whether or not they’re successful) and docket listings, the latter of which only displays pixels on a screen.

Lawsuits and legislation have, so far, failed to give Americans free access to documents they’ve already paid for once with their tax dollars. The federal judiciary has been the main roadblock to free access, claiming (without facts in evidence) that this paywall is a necessary evil — the only thing keeping the US judiciary system from being repo’ed by… well, that’s not entirely clear.

A bill that sailed through the House following this hilarious display of bad faith by the US court system quoted the Congressional Budget Office (CBO), which generated an estimate even lower than the $2 million/year originally stated by legislators.

On net, CBO estimates that enacting H.R 8235 would increase the deficit by $9 million over the 2021-2030 period.

A net loss of less than $1 million per year. So much for the billions claimed by the federal judiciary system.  

As Joe Patrice notes for his article on these findings for Above the Law, the system that’s supposed to serve the public always seems far more interested in serving itself. And if that means charging for things no one in the private sector charges for these days, so be it.

Hosting a document database in 2001 was a costly endeavor. Today, Google gives you that kind of storage for opening a Gmail account. The idea that it cost the court massive amounts of money to maintain PACER was either a lie or a symptom of the courts trying to keep an antiquated system afloat rather than transitioning to a modern approach. Or a bit of both. Or a bit of both and a vested interest in a slush fund.

Federal courts prefer to operate in as much secrecy as possible, "for obvious reasons." Secrecy includes the process used to make decisions in cases. The problem with the "obvious reasons" defense of opacity is that the courts have never stated what those reasons are. As discussed here before, people have been asking for transparency at least since the early 1970s. Courts just ignore it and stonewall. A reasonable interpretation is that the courts are too incompetent, biased and political for most federal judges' comfort. 

The health cost of being a Republican

The Atlantic writes:

How Many Republicans Died Because the GOP Turned Against Vaccines?

Party leaders are unquestionably complicit in the premature deaths of their own supporters.

You can find anti-vaxxers in every corner of the country. But by far the single group of adults most likely to be unvaccinated is Republicans: 37 percent of Republicans are still unvaccinated or only partially vaccinated, compared with 9 percent of Democrats.

.... [Researchers] chose to analyze data from Florida and Ohio from before and after vaccines were available. Looking at the period before the vaccine, researchers found a 1.6 percentage-point difference in excess death rate among Republicans and Democrats, with a higher rate among Republicans. But after vaccines became available, that gap widened dramatically to 10.4 percentage points, again with a higher Republican excess death rate. ....

What’s most concerning about all of this is that partisan disparities in death rates were also apparent before COVID. People living in Republican jurisdictions have been at a health disadvantage for more than 20 years. From 2001 to 2019, the death rate in Democratic counties decreased by 22 percent, according to a recent study; in Republican counties, it declined by only 11 percent. In the same time period, the political gap in death rates increased sixfold.

From the Well, duh! Files:

Wall Street is rigged for wealth to flow to the wealthy

Citing an analysis that PBS broadcast in 2013, Wall Street on Parade wrote: 

If you work for 50 years and receive the typical long-term return of 7 percent on your 401(k) plan and your fees are 2 percent, almost two-thirds of your account will go to Wall Street. This was the bombshell dropped by Frontline’s Martin Smith in this Tuesday evening’s PBS program, The Retirement Gamble.

This is not so much a gamble as a certainty: under a 2 percent 401(k) fee structure, almost two-thirds of your working life will go toward paying obscene compensation to Wall Street; a little over one-third will benefit your family – and that’s before paying taxes on withdrawals to Uncle Sam.

To put it another way – you work for Wall Street. You are their slave, their lackey and as long as their toadies dominate in Congress, nothing is going to change on the legislative front to stop the looting. 

In an update a few days ago, Wall Street on Parade wrote:

The Chairman of the Securities and Exchange Commission, Gary Gensler, announced in June that he was going to tackle the structure of the U.S. stock market – ostensibly to make it fairer to the little guy. His plans were released last Wednesday in a mountain of paper that even Wall Street veterans are having difficulty digesting. (See here, here, here, here, and here.)

While the overall thrust of the proposed changes appears to be to provide more transparency to order execution, the proposals fail to address key structural issues that have allowed the U.S. stock market to operate as an institutionalized wealth transfer system — moving vast sums of money from the pockets of average Americans to the richest one percent.

The New York Stock Exchange was at one time the most respected stock exchange in the world. It’s now become a pay-to-play venue for hedge funds, high frequency traders and Wall Street mega banks. In 2014 we found a Google cache of a promotional piece the NYSE had directed at high frequency traders. It boasts that it is offering a “fully managed co-location space next to NYSE Euronext’s US trading engines in the new state-of-the-art data center.” The NYSE says it is for “High frequency and proprietary trading firms, hedge funds and others who need high-speed market access for a competitive edge.”  

Lewis wrote for the paperback version of “Flash Boys,” released in 2015, Lewis puts a dollar figure on the cost to public pensions managed by just one money manager:

“In 2014, this giant money manager bought and sold roughly $80 billion in U.S. stocks. The teachers and firefighters and other middle-class investors whose pensions they managed were collectively paying a tax of roughly $240 million a year for the benefit of interacting with high-frequency traders in unfair markets.” 

Another area that seriously undermines the credibility of U.S. markets are the Dark Pools operated by the mega banks on Wall Street. The SEC is allowing the trading units of these banks – which have been charged with colluding on prices with each other in the past – to trade each other’s stocks in the dark as well as to make thousands of dark trades each week in the stock of their very own bank. (See our report: Wall Street Banks Are Trading in Their Own Company’s Stock: How Is This Legal?)

One scam is to locate internet servers close to NYSE servers. Those servers get trade data and information from NYSE servers before other servers farther away can get the same information. That short time lag, about 0.2 second [1], is enough time to execute stock trades before the public can become aware of the same information and act on it. That information imbalance is the “competitive edge” that high frequency or high speed traders need to game the system. Elizabeth Warren criticized the practice like this: 

Traders have good days and bad days. Some days they make good trades and they make lots of money and some days they have bad trades and they lose a lot of money. But high frequency traders have only good days.

In its recent IPO filing, the high frequency trading firm, Virtu, reported that it had been trading for 1,238 days and it had made money on 1,237 of those days…The question is that high frequency trading firms aren’t making money by taking on risks. They’re making money by charging a very small fee to investors.

What do those investors pay a small fee for? Information that no one else has access to. That is why just about every day is a good day for people who can pay to play the high speed trading game. For context, what does a 0.2 second time advantage provide to the US economy? Does it create wealth, or does it merely transfer it from average people and groups to wealthy businesses and elite investors? 

These issues apparently are significantly bipartisan. Both neoliberal Democrats and brass knuckles capitalist Republicans have built and defended this system of large-scale theft from the public to a few elites and corporations. Both congress and Wall Street are corrupt pay-to-play institutions that usually work more for the wealthy than for the public interest.

Footnote: 

1. The Week elaborated on the co-location of NYSE servers with private interest servers:

Does co-location increase speed?

Yes. The physical proximity to the exchange server reduces the time from when a firm’s buy or sell order is entered and when it’s executed. “By co-locating,” says Adam Afshar of Hyde Park Global, a high-speed trading firm, “we are able to take 21 milliseconds off our trades. In the past, 21 milliseconds was a trivial matter. Now it’s a pivotal matter.” Several academic studies have found that shaving even one millisecond off every trade can be worth $100 million a year to a large, high-speed trading firm.