De Civitate

Actually no Dobbs today. It’s all Whole Women’s Health up in here.

NOTE: This post was originally published at my Substack. The footnote links go there instead of to the bottom of the page.

I dashed this off in about an hour after whatever happened today in Dobbs v. Jackson and/or Whole Woman’s Health v. Jackson (different Jacksons, mind!). Didn’t really check for typos, certainly didn’t bother with many links. That might be is a theme of my Dobbs coverage this year.

Even though I wrote this update quick, I spent most of the day trying to figure out the Court’s opinion in Whole Woman’s Health v. Jackson.

I mean, not really, the opinion itself was easy enough to read, it’s written in English, and the issues discussed are straightforward if you’ve been following the case, but what the decision’s effect is going to be, and why it was so emotional… this was not so clear.

In Whole Women’s Health, an abortion clinic1 determined that Texas’s SB.8 law (which forbids anyone from assisting in an abortion once the child has a heartbeat) violates the legal rights of Texas mothers to abort their offspring. Normally, when the state passes an unconstitutional law, you have two choices:

• Violate the law, wait for someone to enforce the law, then sue whoever’s enforcing it. This is the traditional approach, and it is often the only approach possible. The downside of this approach is that, if you lose the lawsuit, guess what, you’ve broken the law and now you’re going to be punished for it. Yikes. Are you sure you’re going to win that lawsuit?
• Don’t violate the law. Pre-emptively sue to stop the law going into effect. You can’t sue the state directly, because the Eleventh Amendment says you can’t sue states. But, the Supreme Court held in a (somewhat, ah, creative) 1908 case called Ex Parte Young, you can sue state officials who are responsible for enforcing the law—usually the attorney general—and the courts can then order the attorney general not to enforce the law. Upside: it’s much much easier to sue states for violating the Constitution (which they routinely do, let’s face it). Downside: it’s a semi-nonsensical constitutional hack. (Brought to you by Chief Justice Melville Fuller, who also helped give you Plessy and Lochner! What a guy!)

Texas’s SB.8 was extra-sneaky about this. It banned assistance with heartbeat abortions… but it also banned any state officials from enforcing the law in any way. Instead, the law could only be enforced by private citizens bringing private lawsuits. This was intended to get around Ex Parte Young and prevent pre-enforcement challenge.

Then, Texas loaded up just a ton of one-sided courtroom advantages for any private citizens who did bring lawsuits, awarding them money for winning (but not costing them anything if they lost); creating new, extra-strict interpretations of federal abortion precedents; allowing defendants to be sued multiple times by multiple plaintiffs for the same abortion; and so on. The law makes it very easy for plaintiffs to sue abortion providers, but very hard for abortion providers to defend the suits (and very easy for them to go bankrupt even if they win the suit). The purpose of this was to make abortionists think very, very hard about taking the risk of violating the law, even if they’re 95% sure they’ll ultimately win.

In short, Texas attempted to outlaw heartbeat abortions in Texas. They could have done this much more simply (by passing a law saying “heartbeat abortions are illegal and you’ll go to jail if you perform one”), except Texas had to bypass the Supreme Court’s decisions in Roe v. Wade and Planned Parenthood v. Casey, which both say quite clearly that Texas cannot outlaw heartbeat abortions without violating the Constitution. (Those cases are, of course, nonsense, but a lot of the nonsense the Supreme Court emits is nevertheless considered binding law, and Roe/Casey are no exception.) The bizarre structure of the Texas law is intended to prevent judicial review. It is fair to say that Texas attempted nullification of Roe/Casey—except, unlike John C. Calhoun (who simply asserted state power to ignore federal law), Texas attempted to nullify Roe/Casey the legal way, by carefully tiptoeing around the judiciary’s jurisdiction. This was brilliant, novel, life-saving on a large scale, and quite dangerous to our constitutional order as it currently exists.

“Dangerous?! How?!” Well, imagine the State of New York wanted to cancel all public Catholic Masses in New York City indefinitely. This shouldn’t be hard to imagine; they did exactly that just last year, on what certainly, to me, looked increasingly like a pretext about public health, and their rules were such that (had they been upheld), as far as I know, some churches would still be closed today. Last year, the Catholic Church sued the Governor (not the state, you can’t sue a state) to stop enforcement of this law, and they won an emergency injunction. But suppose New York had used something like SB.8 instead: they don’t directly order any churches closed, but they instead make a rule that anyone who facilitates a Mass (the priest, the organist, the extraordinary ministers, the bishop, everyone) can be sued by any private person. And then New York puts its thumb on the scales by creating one-sided attorney fees, generous rules about venue selection, multiple lawsuits, and so forth. According to the logic of the Texas law, there’s nothing the federal court systems can do about this! This structure doesn’t just target the abortion “right”; it could be used to effectively destroy black-letter constitutional rights as well!

Whole Women’s Health (and most other Texas abortion clinics) were not willing to risk the stacked deck of a post-enforcement challenge on this one. So they instead suspended their abortion operations and then sued… well, they sued, like, a whole lotta people. They sued the attorney general, they sued a random state-court judge (even though Ex Parte Young says specifically you can’t sue state judges), they sued a random state-court clerk, they sued a private pro-life guy named Mr. Dickson (even though Dickson signed an affidavit insisting he had no plans to bring an SB.8 lawsuit), and they sued a bunch of officials involved in state medical licensing.

After oral arguments in Whole Women’s Health v. Jackson, I was pretty convinced that the Supremes were convinced of the danger and were going to puncture Texas’s balloon. I said that the Supremes were going to find some way to let the abortionists sue someone over this law. I didn’t know how they were going to do it without mangling Ex Parte Young, but I was pretty sure they would. And, once that happened, I said, it would be over pretty quick for SB.8, because SB.8’s whole trick is avoiding judicial review. Once it gets judicially reviewed, Roe/Casey kill it dead, fast!

And, on the face of it, it looks as though I was right. The decision handed down today was technically an 8-1 decision, in which the Supreme Court (Justice Gorsuch writing for the majority) agreed that, due to what amounts to a logical error in SB.8’s no-official-enforcement text, the abortion clinic could sue a handful of state licensing officials. (Justice Thomas dissented, maintaining that, sorry, pre-enforcement challenge of this law is simply impossible.) For what it’s worth2, I’m inclined to agree with Gorsuch, partly because his argument sounds right and partly because he’s such a stickler for particulars, even moreso than Thomas.

But the Supremes then split angrily about whether the Attorney General and state-court clerk could be sued under Ex Parte Young. (Roberts and the 3 progressives said “yes,” losing 5-4.) The three progressives would have gone further, striking down SB.8 in its entirety right here, right now, making whatever expansion to Ex Parte Young might be necessary. (Justice Sotomayor’s dissent is somewhat unclear on this point.)

I’ve been trying to wrap my head around that anger. Chief Justice Roberts is furious. Of course, he’s always furious when Gorsuch writes, they hate each other, but both dissents neglect the customary “I respectfully dissent” or even the less-respectful “I dissent,” and Roberts’ language in his closing is (by Roberts standards) jalapeno hot. At this point, I wouldn’t be stunned to see him retire this term in order to let President Biden replace him, because that’s how fed up Roberts seems to be with his right flank.3 But why be mad? They all agreed that the lawsuit can proceed! The rest is details!

Maybe not. (This is what held me up all day.) What exactly is going to happen when this decision goes allllll the way back down to the district court?

The district court judge in this case, Judge R. Pitman, is a solidly progressive Obama appointee, so I think this is straightforward (disclaimer – I am not a lawyer, just a nerd): Whole Women’s Health will proceed with the lawsuit against the licensing executives. Judge Pitman, exercising judicial review, will find SB.8 violates Roe/Casey, which it does. Roe/Casey are constitutional law decisions from a higher court that he has no choice but to obey. So he will enter a declaratory judgment stating, for the record, that the U.S. federal court system considers SB.8 unconstitutional and unenforceable. Then, building on the declaratory judgment, he will issue an injunction order against the licensing officials. The licensing officials will be directly barred from doing anything to enforce SB.8, and everyone else in the state will be put on notice that SB.8 is unenforceable in federal court. That should be sufficient for abortionists to resume aborting, once again shielded from justice by Roe/Casey.

Importantly, a judge cannot just enter a declaratory judgment for funsies; it has to actually do something in a live case within the court’s legitimate jurisdiction. That’s why it’s so important that the licensing officials can be sued. If they couldn’t be sued, then (according to the Supreme Court), nobody could be sued, and then there would be no case within the court’s jurisdiction, and no excuse to enter a declaratory judgment.

Here’s why I’m not so sure that’s going to be enough to let the abortionists get back to aborting: the declaratory judgment isn’t generally supposed to reach beyond the particulars of the parties before them. So Judge Pitman can draw whatever legal conclusions he needs to draw about the constitutionality of SB.8’s, insofar as it impacts state licensure, because the only defendants in the case are licensing executives. That should be enough to allow Pitman to write a judgment that shields medical doctors, nurses, and so forth from prosecution under SB.84.

But SB.8 applies to everyone who assists a heartbeat abortion (except the mother). The abortionist who does the abortion might be shielded, but what about the abortion clinic receptionist? That’s not a licensed job. What about the volunteer clinic escorts out front? What about the clinic janitor? All these people may be liable under SB.8, and SB.8 makes it very painful and expensive to find out in a court of law. Can Judge Pitman write a ruling that covers all those people under the shield of Roe/Casey as well? Can abortion clinics operate without all those people? And will whatever ruling Pitman writes survive the scrutiny of the Fifth Circuit Court of Appeals, which is where the case goes after Pitman? (Note well: the Fifth Circuit is currently the most conservative court in the country, and has defended SB.8 in ways that even I didn’t expect at the outset of this case.)

I have no idea what the answers to these questions are. I am not a lawyer, and I have virtually no understanding of the procedural mechanics down at this level of detail. Josh Blackman thinks he knows, and he is literally the only person I found today, left or right, who talked about these mechanics in any kind of detail. Blackman thinks abortions will not resume on the strength of this ruling alone. Based on the vague but intense anger from left-wing legal commentators like Mystal, Millhiser, Vladeck, and Sacks, I think they agree. (That being said, a related lawsuit proceeding in Texas state—not federal—courts might eventually do the trick, regardless of what the federal courts do.)

If the U.S. Supreme Court (or at least Roberts and the progressives) don’t think this order is enough to grant effective relief to the abortionists in this case, that could explain their anger. It would make this decision something of a bait-and-switch, perhaps even a political ploy to avoid bad headlines.5

But they don’t seem to think that. Roberts6 and Sotomayor7 both say that they expect the district court to enter adequate “relief” for the abortionists. I don’t think they would have said this if they’d thought otherwise.

So whence the fury?

Here’s what I think this case is really, actually about. I don’t think it’s (directly) about abortion, and, deep down, I don’t even think this is about the procedural rules that govern the courts. I think this case has exposed a fault line on the Supreme Court that hasn’t been discussed seriously in living memory. I think this case is about judicial supremacy.8

There are two schools of thought on what role our judiciary plays in the federal scheme of government. I will call them the departmentalist view and the supremacist view.

Judicial departmentalists believe that the role of the judiciary is to decide cases and controversies that come before it. Which cases and controversies are those? They are defined in the Constitution:

In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.

In all the other Cases… the supreme Court shall have appellate Jurisdiction… with such Exceptions, and under such Regulations as the Congress shall make.

So the Supreme Court can decide cases and controversies if they involve ambassadors, states, or public ministers, and any other cases where adverse parties interpret the law differently and Congress authorizes them to decide.9

For the departmentalists, the opinions of the Supreme Court and its interpretations of the Constitution are absolutely binding… within that sphere. Congress has made that sphere pretty big… but the departmentalists believe they cannot reach beyond that sphere and decide cases and controversies outside it. They rest their view on John Marshall’s opinion that “[i]f the judicial power extended to every question under the constitution” or “to every question under the laws and treaties of the United States,” then “[t]he division of power [among the branches of Government] could exist no longer, and the other departments would be swallowed up by the judiciary.”

For the supremacists, the judicial branch is the Constitution’s designated guardian of… the Constitution. They see the judiciary as the final backstop. Its mission? To protect the legal rights of all persons under U.S. jurisdiction from all other constitutional actors—even if it means bringing Congress, the President, or a sovereign State to heel. In order to accomplish this mission, the supremacists hold that the Court’s power of judicial review extends exactly as far as it needs to extend in order to vindicate the Constitution and protect all citizens. If Congress didn’t grant sufficient jurisdiction, then that’s just so much the worse for Congress, because the judiciary is an independent branch with independent authority to defend the law, and it’s not afraid to use it. They rest their opinion on the views of John Marshall: “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Indeed, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.”

You will notice that both schools derive their contradictory conclusions from Chief Justice John Marshall. Oh, dear. Michael Stokes Paulsen tries to referee the competing claims about Marshall in the single most important article I’ve ever read, “The Irrepressible Myth of Marbury.”

Both schools have eminent supporters. Abraham Lincoln was a determined departmentalist. Stephen A. Douglas was a supremacist. That was what the famous Lincoln-Douglas debates were about. They were arguing over a Supreme Court decision you may have heard of: Dred Scott v. Sandford. Douglas (and the South) believed Congress had to obey Dred Scott and allow slavery in the federal territories, because the Supreme Court was the Supreme exponent of the Constitution. Lincoln (and the North) believed that the Dred Scott decision affected Mr. Dred Scott and Mr. Sandford, but did not bind Congress. Lincoln vowed that, if elected, he would ignore Dred Scott’s order to allow slavery in the territories. The South (which believed in judicial supremacy) believed the North was abandoning the Constitution, so they seceded. In other words, this debate caused the Civil War.

Weirdly, the North won the war but lost the debate. Judicial supremacy became the dominant way of thinking in the 20th century. Earl Warren was perhaps its apotheosis, but the idea pervaded both the Left and the Right. Judicial supremacy was definitely what you were taught in school. The Supreme Court endorsed it outright in an important precedent called Cooper v. Aaron (1958).

Whole Women’s Health v. Jackson, seems to me to come down to a simple issue: Congress has not granted the judicial branch the authority to resolve this dispute, because Texas engineered its law specifically to thwart Congress’s prior grants of appellate authority.

One half of the court, led by Gorsuch, adopts the departmentalist view: this law may be violating our court’s precedents, but Texas has successfully dodged our jurisdiction, except for one little technicality. And yes, Texas could fix that technicality in the future. And yes, this One Weird Trick could be used by other states, against other constitutional rights—but we are limited by what Congress has authorized us to do, so if some Justices or Texans want the Court to have the power to review this case, then they gotta go to Congress and ask Congress to grant it. (Gorsuch says this on p17 of his slip opinion.)

The other half, led by Roberts, adopts the supremacist view: Texas has successfully dodged our precedents, but we are guarantors of the Constitution. We have both the right and the duty to extend our own jurisdiction—as we have done before, in Ex Parte Young—far enough that we will be able to defend the rights of all American citizens, whether it’s abortion rights or gun rights or religious rights. Justice Sotomayor even concludes her opinion by giving me the perfect wrap-up to this blog post lionizing the judicial supremacist decision in Cooper v. Aaron:

In its finest moments, this Court has ensured that constitutional rights “can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes . . . whether attempted ‘ingeniously or ingenuously.’” Cooper v. Aaron (1958) Today’s fractured Court evinces no such courage. While the Court properly holds that this suit may proceed against the licensing officials, it errs gravely in foreclosing relief against state-court officials and the state attorney general. By so doing, the Court leaves all manner of constitutional rights more vulnerable than ever before, to the great detriment of our Constitution and our Republic.

If the idea of judicial supremacy loses steam at the Supreme Court, it will transform the relationship between our three branches of government in ways we can’t really begin to predict. Obviously it would spell the end for major judicial supremacist decisions like Roe/Casey. It could even doom Griswold or Pierce v. Society10, and that possibility had already heightened tensions. But today’s decision in Whole Women’s Health put the justices in direct confrontation over the meaning of Marbury v. Madison. Nobody saw that coming even a year ago. And very few people seem to recognize that it’s even happening now.11

That, I think, might explain the level of alarm and anger in the dissenting opinions… especially for John Roberts, who with each passing day seems to fancy himself less an umpire, more a philosopher-king, and who would not thrive as the mere head of a co-equal branch.12

1

Fun fact: same clinic as the one that sued in the Supreme Court’s odious 2016 Hellerstedt decision.

2

Very, very little, because it hinges on particulars of the Texas Health and Safety Code that I neither know nor understand.

3

A GOP-nominated SCOTUS justice retiring specifically to let a Democrat replace him would still be very surprising. All I mean is that the chances have gone up from 0.000% to 0.9% or 1%.

4

Depending on the particulars of the Texas Health and Safety code that I still neither know nor understand.

5

If so, it seems to have succeeded! This decision was not even the most-read story in the Politics section of today’s Minneapolis Star Tribune. I haven’t seen the physical St. Paul Pioneer Press yet, but I couldn’t find it on their website home page, so I’m guessing it’s not on A1.

6

“Given the ongoing chilling effect of the state law, the District Court should resolve this litigation and enter appropriate relief without delay.” (p2, Roberts concur/dissent)

7

“I trust the District Court will act expeditiously to enter much-needed relief.” (p2, Sotomayor concur/dissent)

8

I would like it on the record that I posted on Reddit that this case was about judicial supremacy before Josh Blackman posted about it on Reason (twice! he did another while I was writing this post!). I agree with him, it’s actually a little creepy how he came up with the same Lincoln parallels I did, but I didn’t steal this from him. (On the other hand, I totally did steal the stuff about the declaratory judgment from him.)

9

Other courts, like the circuit courts of appeals, have zero constitutionally-guaranteed jurisdiction. Their jurisdiction is whatever Congress says, and no more. (At least, on the departmentalist view.)

10

…and if it weren’t so late at night I’d probably even be able to come up with a judicial supremacist case that isn’t also a substantive due process case!

11

See footnote #5, regarding newspapers. And see if you can find a newspaper story that mentions Marshall, Marbury, supremacy, Congress, the All Writs Act, or Cooper. They’re only seeing the tip of the iceberg, the distracting abortion shiny.

12

I remind the reader again that I used to love John Roberts—even after the Right turned on him.

“I roll 1d634.” “That’ll be a critical hit.” “YES!” “…by covid.” “Crap.”

NOTE: This post was originally published at my Substack. The footnote links go there instead of to the bottom of the page.

sigh

This post started as an opinion piece, but then, like too many De Civitate posts, it quickly degenerated into research. Alas, tonight, you will get only facts. Blergh!

This research is inspired by a claim I have seen floating around: “covid has a 99.7% survival rate for those under 50.” (I’ve cleverly put that claim in quote marks to boost my SEO.) Interesting! And plausible! If true, it means that, if you’re infected with covid, your odds of dying are 1 in 333.

So is it true? Let’s take a look.

Doing the Math

First things first, we’ll get the provisional COVID-19 death totals, stratified by age, and we’ll filter to the national totals, both sexes, cumulative death totals only. This data is as of December 1st, 2021.

This data comes from death certificates. It is “provisional” because death certificates take several weeks to arrive at the CDC, so the past few weeks of data will be off by some small factor. Note that the number of both deaths and covid deaths will go up (not down) as that data becomes final.

The only1 interesting column here is COVID-19 Deaths simpliciter. This is the number of death certificates the CDC received where COVID-19 (ICD U07.1) was listed as a cause of death.

Next, we’ll get the national population estimates, also stratified by age group. This data is from 2019, just a few weeks before the pandemic reached our shores2, which makes it our best available baseline.

Now we can calculate what percentage of each age group have died of covid… but that isn’t very useful, because we don’t know what percentage of each age group have been infected by covid so far. We need to get an estimate of how many cases there have been in each age group.

Fortunately, we have some pretty decent data on that. The CDC reports that, as of December 1st, there had been 48,628,497 officially reported cases in the United States.

However, we know that’s an undercount, because some people get sick with covid and do not get tested. No test = no official report. For much of the pandemic, we just had to guess how often these “missed cases” happened. Lots of people came up with very plausible guesses, including me, but they were guesses. Fortunately, earlier this year, there was a really neat study that searched well over a million samples of donor blood for covid antibodies, and managed to come up with pretty solid estimates of how many Americans had actually had covid. As it turned out, we were catching about half of all covid cases (which is a lot more than I had guessed). The study found that there were roughly 2.1 actual cases of covid for each officially reported case of covid, and, having read the study, I think they’re likely pretty close to spot-on—and I assume the number hasn’t changed significantly since May, when their study was conducted.

So that means the total number of covid cases in the United States as of December 1st is 48,628,497 x 2.1 = 102,119,843.7 (estimated). About 30% of Americans have had covid, with many of those cases being entirely asymptomatic. Sounds about right.

We’re getting close, I promise. (Please, some sympathy for your scrivener: you’ve only been reading this for five minutes, but I’ve been beavering away at it since 9:45.)

Now that we know how many cases there have been total, we need to figure out how many cases there have been in each age group, so we can calculate appropriate infection fatality rates for each of them. Unfortunately, that data doesn’t seem to exist. Fortunately, it seems fairly simple to derive!

The CDC tells me that pretty much everyone in the population has an even chance of catching covid. Older people have a higher chance of dying of covid, but everyone can catch it. That means most age groups will have a proportional amount of the total covid cases. 12.5% of Americans are 55-64 years old, so we would expect them to have caught 12.5% of the total covid cases.

The exception, according to the CDC, is children under 5, who are significantly less likely to catch covid. The CDC doesn’t say exactly how much less likely (and they require medical attention so rarely it’s probably quite hard to determine), but I assumed that children under 5 are half as likely to catch covid.3 Then I reweighted my population percentages accordingly.

Now we have everything we need: for each age group, we have good estimates for the total number of covid cases and the total number of covid deaths. Divide deaths by cases to derive the Infection Fatality Rate—your odds of dying if you contract the virus, all else being equal. And that’s what this whole post is about!

The Results

[UPDATE: In a subsequent post, I added odds based on obesity.]

Satisfyingly, this is pretty consistent with the Robert Verity IFR estimates I’ve used for much of the pandemic, as well as with other estimates I’ve seen subsequently.

Substack isn’t giving me a good way to post tabular data4, so I’ll share the whole thing in a Google Sheet. (There’s some neat stuff in there about population structure as well.)

If you are an average 32-year-old, and you catch covid, your odds of dying of it are about 1 in 1800. If you are an average 70-year-old, and you catch covid, your odds of dying of it are around 1 in 60. And so forth. Overall, covid-19 appears to have a survival rate of around 99.2%!

What about the claim at the start, that covid has a 99.7% survival rate for those under 50? That claim appears to be wrong… because it’s too low! I don’t have an age band for 0-49, but the 0-54 age band has a combined total survival rate of 99.88%; odds of death are 1 in 857.

Maybe those sound like small numbers to you.

Here are some other numbers, then, for perspective.

The catastrophic flu pandemic of 1918 had a survival rate of ~98% (estimates vary a lot). If everyone in America catches covid (which will likely happen in the coming months and years), and 99.2% of us survive, we’ll be left with 2.5 million dead to bury. That’s a lotta stiffs. In all American wars ever, combined, only 1.3 million soldiers have died (and only half of those died in combat).

Yes, lots of our covid deaths will be very old people, who didn’t have many years left to live anyway. But lots won’t be:

I really don’t like how many 45-65 year olds die in this chart. That’s an unusual amount of mortality for people who haven’t even reached retirement age.

Those numbers for people my age (25-34) are nothing to sniff at, either.

The National Safety Council shares some interesting factoids with us about some other odds:

Now, do I spend my days worrying about choking to death (odds 1 in 2,535)? Certainly not. If a maitre d’ told me I had to do a Heimlich Maneuver Drill every time he passed by the table, or he wouldn’t serve me the dinner I ordered, I’d tell him to go pound sand. The benefit is not worth the cost.

On the other hand, I do know the Heimlich Maneuver. Learned it in Boy Scouts, never regretted it. My parents also made sure I knew how to swim, reducing my odds of death by drowning (odds 1 in 1,128). And my house has smoke detectors, in order to reduce the risk of death by fire (odds 1 in 1,547). My car has seatbelts. I’ll bet you have all those things, too.

While none of these are common causes of death, none of them are quite rare, either. It’s reasonable to take small precautions against these unlikely events. Relatively small investments of my time, effort, and money are worthwhile if they substantially reduce my chances of death. Of course, a smoke detector doesn’t eliminate my chance of dying in a fire. I could get caught in a fire at someone else’s house, or my smoke alarm might not go off. It happens. But it reduces my chances of death enough that I think every house should have a smoke detector.

Death by covid-19 is not common for my age group, but it’s not quite rare, either (odds 1 in 1,771, assuming everyone gets it). Covid deaths are only truly rare among children under 14.

Existing covid-19 vaccines appear to improve my odds of surviving covid (even Delta) by roughly a factor of ten. Three billion people have taken at least one dose of the vaccines over the past twenty-one months, with no epidemic of vaccine-related permanent injuries, which seems to prove they are reasonably safe. Moreover, the vaccinated continue to be underrepresented in hospitals, which seems to prove that the vaccines are also reasonably effective. That is why I got vaccinated, and why I have recommended my healthy, adult5 friends and families get vaccinated as well.

That last paragraph verges dangerously close on opinion, though, and probably deserves to be fully unpacked in another post.

Until then, please enjoy knowing your Official De Civitate Covid Odds.

1

All the other columns show how often COVID-19 was comorbid with pneumonia and/or influenza. Those columns are listed only because, in mid-2020, many covid skeptics argued that the CDC death counts were dramatically inflated, because they allegedly included people who died “with covid, not of covid.” These skeptics asked to see how many “covid” deaths were actually just old people who were dying of the flu. (Remember, in mid-2020, many people still believed covid would kill fewer Americans than the annual flu!) The CDC obliged these skeptics and started posting the flu data in June. I think these were reasonable questions to ask and that the CDC’s decision to answer them was wise.

But this data is not very illuminating for our purposes. It is exceptionally unsurprising that many people who die of covid-19, which causes often-fatal pneumonia, end up with death certificates that say “patient died of covid-19 and pneumonia.”

2

The covid epidemic in the United States began in the second or third week of January 2020. Its initial introduction was from China, although (over the next several months) it would be re-introduced many more times, from all over the world (especially Europe). How do we know this? Phylogenetics!

Covid is constantly mutating very slightly, spinning off thousands and thousands and thousands of tiny variants. Only a handful of these are “variants of interest” like Delta and Omicron, which have actual evolutionary advantages… but all of these variants have their own unique fingerprints. This means you can construct a shockingly detailed “family tree” for the virus. You can see which virus strains were descended from which earlier virus strains… and you can trace the movement of those virus strains around the world, at least in the territories with decent genetic surveillance of disease.

On January 15th, 2020, a traveler to Wuhan returned to Washington state. There was no quarantine in place at the time. CNN was not even talking about the “novel coronavirus,” although we’d had ample warning—and even more warning if we’d listened to Chinese whistleblowers instead of taking the Chinese Communist Party’s word for it. They were out there, on Twitter, quietly getting retweets from right-wing paranoiacs. I know because I was watching them!

Anyway. America’s Patient Zero, aka “WA1/2020” got sick and went to the doctor’s on January 19th. We finished his test on January 21st, confirming his covid case. WA1/2020 wasn’t the only person to bring covid back to the U.S. from overseas in those early days, but, in most cases, we detected and quarantined them before they could spread it. We know this worked because those strains died out; they were never seen again, and no descendants were ever found.

Unfortunately, we discovered on February 29th that we had not actually contained WA1/2020’s case, which entered the general population of Seattle. We might have contained covid at that point if we had closed off all international travel and immediately deployed the military to seal the borders of the State of Washington, but it was probably too late. That outbreak spread across the country and—with help from other, later quarantine failures, which seeded the virus in several other places—the American covid pandemic had begun.

We know that WA1/2020 was the first to bring it to the United States, because we can tie all the strains to specific locations at specific dates, and the strains that later blew up in the US were still evolving elsewhere as of January 15th. If any covid reached the United States before January 15th, it died off before it could start spreading, because, if it had survived, we would see it in this phylogenetic family tree.

China’s claim that covid was circulating in Italy and France as early as 2018 is implausible, because we can trace every strain, from every place in the world, back to a cluster that emerged in Wuhan in late 2019. China’s story would require the novel coronavirus to infect people in Europe in 2018, luckily evade genetic detection, and then completely die off every single place in the world—simultaneously, for no reason—before suddenly re-erupting in Wuhan, China in fall 2019. The simpler explanation is far more compelling: the virus evolved in Wuhan, and infected its first human victim, in Wuhan, in fall 2019.

3

This is a small educated guess… but it’s a guess, and you are free to cast all kinds of doubt on it.

Nevertheless, five-year-olds are a small enough portion of our population, with such a tiny number of the covid deaths, that it really doesn’t matter very much. Adjust it however you like, with whatever guess makes you feel better. It will change your final estimates of infection fatality by only a tiny fraction in either direction. (Yes, I did check.)

4

But I will forgive you, Substack, because I am loving your footnote engine.

5

It’s a way closer call for kids.

Trying to have their cake and call it undemocratic, too.

NOTE: This post was originally published at my Substack. The footnote links go there instead of to the bottom of the page.

Editor’s Note: I’m sorry everything I’m writing this week seems to be about abortion law, but… what else could I be talking about this week? Omicron is boring.

Stephen Colbert last night observed that Roe/Casey is likely to be overturned, then complained:

Well, I don’t want to get too technical, but… what’s the word… we don’t live in a democracy. Five of the nine justices were appointed by presidents who lost the popular vote; the last three confirmed by a Republican Senate who now represent 41 million fewer Americans than the Democrats. In fact, Republican senators haven’t represented a majority of the U.S. population since 1996. A lot has changed since 1996. Back then, the Oscar for Best Supporting Actor went to Kevin Spacey—and the Best Director was Mel Gibson.

Alright, let’s carry this line of thinking through to the end. Suppose Americans were allowed to vote directly on abortion policy, via referendum. Would they come up with Roe v. Wade or Planned Parenthood v. Casey? No, not even close. The Mississippi law at issue in Dobbs v. Jackson (which bans abortion after 15 weeks) directly violates Roe/Casey… but it’s supported by 53% of those who offered an opinion in a poll of nationwide adults, and certainly has much stronger democratic support in Mississippi itself. (Note that likely voters are consistently even more pro-life than “adults” as a whole.) This is consistent with a generation of polling showing strong support for second-trimester, pre-viability abortion bans, and even surprisingly robust support for heartbeat laws (although heartbeats laws don’t yet have nationwide plurality support).1

That’s exactly why the state of Mississippi and the pro-life movement are using Dobbs to demand that the Supreme Court return abortion law to the ordinary democratic process. The pro-democracy side in Dobbs is the anti-abortion side.

Colbert is right that three justices on the Supreme Court were appointed by Presidents who lost the popular vote for President. (Colbert says five justices, but he’s mistaken.2) The Supreme Court is, of course, by design, an undemocratic institution. That is why originalist-textualism has to work so hard to restrain the judiciary from usurping the powers of actual democratic institutions. What the Court did in Roe and (even more explicitly) in Casey is a perfect example of that usurpation. If you support democratic control of abortion policy,3 then you side with Mississippi and its democratically-popular, democratically-passed law.

Colbert never acknowledges that he’s against democracy here. I don’t think this is out of malice. I don’t even think it’s because it would ruin his argument. (Although it is pretty funny that his argument boils down to, “I think the problem with an inherently undemocratic institution supporting democratic decision-making is that it didn’t come to that decision democratically enough.”) I think Colbert is genuinely incapable of recognizing that he’s opposed to democracy here. He just assumes that whatever policies seem fundamentally important to him are “democratic” and other policies—even those supported by clear majorities of the demos—are somehow not “democratic.”

Yesterday, I drew an analogy between Dobbs and Brexit, where some center-leftists seemed to be having trouble processing the evidence about what was likely to happen because they simply couldn’t fit the possibility into their worldviews. Today, a new analogy: left-wing professed support for an undemocratic outcome in Dobbs (all in the name of “democracy”) reminds me of left-wing opposition to the government of Viktor Orbán in Hungary; they keep calling him an “autocrat” who is a “threat to democracy,” even though Orbán’s very peculiar flavor of “autocracy” involves him winning free and fair elections in every voting district in his nation and then using his democratically-elected supermajorities to implement exactly the policies he campaigned on. (See also Poland’s Law-and-Justice party.)

Stephen Colbert’s confusion is certainly not limited to Stephen Colbert. That’s the only reason I bring it up; there’s no reason or even excuse to give the kowtowing, downward-punching Colbert attention otherwise. (The only late night host who remembers what he’s doing out there is Jimmy Fallon, and I’m sorry he had the bad luck to take over Johnny Carson’s desk just as the Trump years were heating up.) You can see this deep conviction that Roe v. Wade is somehow democratic everywhere on the Left right now. It’s weird, but, because of the way our media influences mainstream thought, you can’t see it at all… until, suddenly it clicks, and then you see it all the time.

This is also not the only line of confusion I’ve noticed on the Left this week. A different school of thought on Dobbs v. Jackson recognizes the judiciary as fundamentally undemocratic… and so rejects the legitimacy of the judiciary altogether. Ryan Cooper wrote a piece last year calling on Democrats to simply ignore the Supreme Court from now on, at least whenever the Court made decisions the Democrats didn’t agree with. This piece got re-upped after the Dobbs oral arguments and I was surprised to see one or two of my left-wing Facebook friends echoing its arguments.

Now, I’ve questioned judicial supremacy plenty of times. I, too, used to oppose judicial review entirely. I changed my mind in Spring 2010 when I took a class on the Civil War and the Constitution with Michael Stokes Paulsen—a class that was the closest thing I’ve ever had to a conversion experience—but I still came out of it firmly committed to departmentalism, the view that each branch of government is the final arbiter of constitutional meaning within its own sphere. (In effect, this still leaves the Supreme Court with a lot of power, but not an absolute power to rewrite laws as they see fit; see, for example, Justice Gorsuch’s dissent in Barr v. Amer. Assoc. of Political Consultants.) I am, in short, not entirely deaf to Mr. Cooper’s argument.

But, again, consider what this argument would mean for Roe/Casey. Both were, putatively, exercises of judicial review. They struck down democratically passed laws. If you are so mad about the Supreme Court’s likely decision in the near future to junk Roe/Casey that you simply ignore the judiciary altogether (as Cooper and my Facebook friends are inclined to do)… then Roe/Casey, in effect, go away anyway. States will just pass laws like Mississippi’s, regulating or banning abortion according to the will of their voters’ elected representatives, and it will be exactly the same as if the Left had just accepted the Court’s ruling in the first place. Of course, it’s possible that the federal government could pass a federal law mandating abortion rights everywhere, but states would simply contend that the federal government has no power to pass that law, they’d ignore it, and uh-oh.

Another favorite solution on the Left is to pack the Supreme Court with left-wing justices. Congress has the power to increase the number of Supreme Court justices at any time (reducing the number is harder, because sitting justices must be allowed to serve for life), so the idea here is simple: the current Court has a 6-3 conservative majority. Add 4 justices, maybe 5 to be safe, have Biden nominate and confirm them all, and now the Court has an 8-6 progressive majority that can uphold Roe v. Wade and reverse Citizens United and so forth! But this, too, is a double-edged sword. Unless Democrats believe Republicans will never hold a trifecta again (babe, both parties get a trifecta about once a decade under our current polarization, and adding D.C. as a state isn’t going to prevent that4), Republicans will respond next time they’re in power by adding 4 or 5 conservative justices, who will re-reverse Roe/Casey, and ‘round and ‘round we’ll go. As a practical matter, this solution (in the long run) is identical to simply ignoring the Supreme Court as Ryan Cooper suggests, because nothing the Court says will ever matter for more than a few years. Once again, Mississippi is gonna get its 15-week abortion law in place, no sweat.

The weirdest arguments I’ve seen are from people who combine one of these lines of argument with anti-originalist, legal-realist arguments that the Constitution’s meaning is whatever the justices want it to be. For example (based on, but not direct quotes from, real conversations I’ve had/seen this week):

Progressive: “The Supreme Court must uphold abortion as a fundamental right.”

Me: “But the Constitution provides neither an explicit nor implicit right to abortion. It’s absurd to suggest it is a fundamental right the Constitution protects.”

Progressive: “The Constitution is whatever five justices say it is. They can sustain this right if they want.”

Me: “If that were true, and the justices were no longer bound by the rule of law but rather could decree whatever they wanted… then don’t you think 5 or 6 justices on the Supreme Court, all of whom seem to be personally pro-life, would simply announce that abortion is unconstitutional and ban abortion everywhere in the nation? Honestly, they’ve got a better textual argument for that than the pro-choicers have for Roe/Casey, and you’ve just told me text doesn’t even matter.”

Progressive: “The states could simply ignore the Court’s ruling. Judicial review isn’t in the Constitution, either! ‘Justice Roberts has made him decision; now let him enforce it!’”

Me: “Okay, so is the Constitution whatever the Supreme Court says or not? Because if everyone can ignore the Supreme Court, it doesn’t actually have any say in the Constitution.”

Progressive: “Minoritarian rule must end!”

Me: “But I didn’t say anything about—”

Progressive: “What you refuse to understand is that Republicans are a threat to democracy!”

Me: “Yes, okay, fair, but you don’t seem to be particularly interested in democ—”

Progressive has left the chat.

If I may speculate on the psychology of my friends on the other side for a minute: I think what we’re seeing here, across all these confused arguments, is a cognitive dissonance hangover.

For an unbroken span of 78 years, from the day West Coast Hotel v. Parrish was handed down to the day Obergefell v. Hodges was decided, the Supreme Court of the United States was pretty reliably two things:

• A strong supporter of preferred progressive policy outcomes, including some really genuinely good outcomes (Brown v. Board, Brandenburg v. Ohio, Loving v. Virginia, etc.).
• Wildly anti-democratic and unconstrained by any limiting principle whatsoever, even the text of the Constitution.

In other words, for 78 years (less so for the final 15 years, but not much less), the Supreme Court acted more or less like a nine-member autocracy. It genuinely did decide what the laws ought to be, then constructed or hand-waved a legal rationale that justified its conclusions. A meekly compliant political system submitted itself to those conclusions (including the Court’s own conclusion that the Court’s decisions were final), which were binding across the land. This flatly tyrannical system of government established much of what progressives love about modern America.

But another thing progressives love about America, really a lot, is democracy and the popular vote. This has become especially true in recent years, as progressives have faced growing, asymmetrical structural hurdles to the popular will in elections for President, Senate, and House—but progressives have always prided themselves on being the “party of the people,” to an extent that conservatism, by mood, never really has.

This obviously created some difficulties. If you are a big lover of the “popular will”, some cognitive dissonance must arise when you abolish hundreds of democratically-passed, popular laws by fiat of nine old white guys in dark robes. That’s true whether your cause is bad (abolishing popular, life-saving abortion restrictions in Roe) or undeniably good (abolishing popular, but entirely evil, anti-miscegenation laws in Loving). In order to cope with the cognitive dissonance, you need to develop ways of thinking about the situation that avoid triggering it.

The progressive movement developed several doctrines that, whatever their intellectual merits, helped with the cognitive dissonance issue. One was the legal realist movement, which argued that there’s no such thing as the rule of law (only good public policy), so all judges are inherently politicians, and their job is (like other politicians) to impose their preferred policies. This movement turned the courts into a kind of super-legislature, in the minds of many leftists.

Another key dissonance-defusing doctrine: progressives internalized the idea that the anti-democratic Supreme Court was actually a cornerstone of democratic institutions, because only an anti-democratic institution could protect unpopular rights against the “tyranny of the majority.” This is true (which is why the Founders didn’t create a democracy at all). However, 20th-century progressives stopped believing that the “unpopular rights” the Supreme Court exists to protect are the unpopular rights enumerated by the Constitution. (Indeed, some enumerated rights, like the entire Second Amendment and large chunks of the First, were effectively read out of the Constitution by their view.) Instead, progressives came to believe that the Supreme Court existed to protect a list of “unpopular rights” that were just whatever policies progressives happened to like, from unregulated sex acts to school finance, recast as “rights.” This view of the Constitution is the entire basis of Heidi Schreck’s very popular one-woman show, “What the Constitution Means To Me,” which premiered on Broadway, is now on national tour, and is available free on Amazon Prime. It’s worth watching, simply to see infinite cognitive dissonance on display: to Ms. Schreck’s dissonant way of thinking, most of the reason to keep the Constitution, the very heart of democracy, is the undemocratic system where the Supreme Court hands down progressive policy victories without the possibility of veto.

These perspectives about the Supreme Court worked for 78 years. They allowed progressives to think of themselves as champions of the People, while also supporting the Supreme Court as a (tyrannical) “backstop” for when the People occasionally “got it wrong.”

But then, after a concerted 45-year effort, plus a strange 5-year transition period of growing conservative power, conservatives took full control of the Supreme Court in the fall of 2020, when Justice Amy Coney Barrett was confirmed.

Under conservative control of the Supreme Court, none of the progressive ways of rationalizing the Court make sense anymore. They still expect it to provide major political victories for outcomes the Left can’t achieve through the political process, because that “backstop” has become an essential part of how the Left understands the American system of government. But it isn’t going to do that anymore, both because the Court no longer supports those outcomes and because the Supreme Court has become self-consciously less autocratic and more democratic. (Increasing democratic accountability through Constitutional mechanisms is the fundamental purpose of originalist-textualism, which developed as a principled alternative to left-wing legal realism.)

At a party last year, I off-handedly mentioned a recent Supreme Court decision in order to make a non-political joke. A left-leaning friend of mine said, ruefully, “Man, the Supreme Court. Remember when we didn’t have to worry about them all the time?” It took him a moment—and a long, wry stare from me—to realize that conservatives have been worrying about the Supreme Court every day since long before either one of us was born, and that the Supreme Court has been the chief political concern of my entire life. It had simply not occurred to him.

For him, the Supreme Court once had a place in the American political constellation, a place that long predated his birth. Like a distant God, it oversaw democracy from on high, only occasionally giving a gentle nudge in the “right” direction. Now it’s like the stars have all crashed. Who’s going to be the backstop now? What if the Supreme Court now serves as a backstop for—gasp—the other side’s preferred policy outcomes? (Is anything else even possible, for someone who believes in the legal realist view?) What undemocratic institution will protect democracy from “bad” democratic outcomes now? Can I blame my left-wing friends for feeling disoriented?

The result is that we get all these conflicting arguments about the Court: the Court is being undemocratic because it is restoring democracy to abortion policy. The Court has infinite power, but can be ignored when it is wrong, because it has no power. The Court is illegitimate, because Mitch McConnell’s Senate Republicans and President Trump used their constitutional powers to… confirm justices they thought would do a good job and reject nominees they thought would do a bad job. And so on.

In this article, I’ve talked specifically about how the Left’s cognitive dissonance about democracy is confusing their response to the very democratic possibility that Roe/Casey will be overturned, because that’s the topic du jour and also I’m obsessed with it. But you can see the same thing on all kinds of issues. For example, ask a left-winger about the Supreme Court’s decision to leave the democratic process of redistricting in the hands of democracy (which allows partisan gerrymandering under the democratically-set rules of most states) because the democratic process has never formally assigned the Supreme Court the power to police gerrymandering. Very often, this pro-democratic decision is portrayed as a threat to “democracy” which must be corrected by some anti-democratic authority that loves “democracy” more than democracy—but what? (Most frequently, a packed Supreme Court with a fresh progressive majority, though I’m starting to see arguments that the “Republican form of government” clause can be enforced by unilateral executive military action.)

Of course, I am psychologizing about my political opponents. This is a very dangerous activity, both because it is often mistaken (mind-reading is hard) and because it has a tendency to make one arrogant and unwilling to listen to the other side. All my psychologizing may be wrong. Even if it is right, a psychological explanation for why someone offers a specific argument is not a refutation of that argument. We still have to listen to the Left’s legal arguments and engage with them on their own terms. Some of my friends on the Left are even managing to avoid these pitfalls and simply making straightforward (if absurd) arguments that abortion is actually a genuine right grounded in the text of the Constitution. But perhaps thinking about how this all must feel from the left-wing perspective will help us respond to some of their more baffling pro-Roe arguments over the next few months.

I close with a warning:

The conservative movement never developed any of this cognitive dissonance, because the conservative movement spent this entire 78-year period fighting both the Supreme Court’s arbitrary exercise of power and the idea that the will of the people is best expressed through unmediated democracy. Conservatives are far more comfortable dropping phrases like “black-robed tyrants” than progressives, because we have never viewed them as a priestly caste. When conservatives were developing originalist-textualism as a response to left-wing legal realism, the idea that conservatives might actually someday be able to wield autocratic “legal realism” power in the courts themselves was so outlandish that the possibility wasn’t even mooted.

However, now that conservatives are becoming more populist, and have taken control of the judiciary for at least the time being, we must be careful not to fall into this trap ourselves. The Court will never be a bastion of populism, and must always protect unpopular rights against democratic inclinations. At the same time, we must take care that the unpopular rights it protects are the ones we have actually assigned through the democratic process of constitutional amendment, not rights we made up out of thin air (or even rights firmly grounded in natural-law theory but unratified by our Constitution) simply because our policy goals demand it.

Fortunately, we have mostly installed textualists who are genuinely committed to a principle of self-restraint, which helps, but I worry sometimes when I read Justice Alito fulminating about one thing or another, and far more when I see Sen. Hawley raging against Bostock on the Senate floor (in the name of populism!) because textualism didn’t deliver him his desired policy win.

1

But if clear majorities of Americans support abortion restrictions that directly violate Roe/Casey, how do we explain polls — like the one Colbert points to — that show overwhelming support for Roe v. Wade?

Simple: the vast majority of Americans do not have the slightest idea what Roe v. Wade actually held, and have even less idea that Casey is actually the law of the land right now. Four out of ten Americans in 2013 reported that they did not know Roe v. Wade was about abortion; 7% thought it was a school desegregation decision, 5% a death penalty case; 5% called it an environmental protection decision, and 20% forthrightly admitted they had no idea. Young people and Democrats were the two groups least likely to know Roe was about abortion (fewer than half of young people knew this), so their influence has likely grown.

Polls asking Americans what specifically Roe actually held about abortion are even more dismal. (I can’t dig up my citation for this, but I assume it at least sounds pretty plausible, given the poll I just described.)

Roe isn’t popular; Roe is unknown.

2

Justices Alito and Roberts were appointed by President G.W. Bush in 2005. That was during President Dubya’s second term of office, which Bush won with a popular vote total of 51-48.

3

Note how carefully I’m avoiding committing myself to the proposition that I support democratic control over abortion policy.

4

Critics of Republican “minoritarian rule” often make the point that the Republicans have won two recent presidential elections despite losing the popular vote—in one case incredibly narrowly—that Republican senators have not as a whole represented a majority of the U.S. population in quite a long while, and that Republicans enjoy structural advantages in the House that make it easier for them to win. All fair critiques, especially if you believe both houses of Congress and the presidency ought to be democratic! (I do not.) But what these critics rarely note is that Republican structural advantages in the House are rarely decisive. Republicans have controlled the House—the most populist, responsive directly-elected part of our federal government—for most of the past 30 years because they have won the national popular vote in most of the elections for the past 30 years.

Republican popular wins: 1994, 1998, 2000, 2002, 2004, 2010, 2014, 2016. Popular losses where Democrats got control: 2006, 2008, 2018, 2020. Popular losses where Republicans retained control anyway: 1996, 2012. My point is not that those popular-losses-where-Republicans-retained-control-anyway are fine; my point is that Republicans are quite capable of winning popular elections, and often do!

NOTE: This post was originally published at my Substack.

---

Whenever big news breaks in either of 2021’s Supreme Court abortion cases—Dobbs v. Jackson or Women’s Health v. Jackson, and no they’re not the same Jackson—I dash off a quick update. I don’t really check for typos and I rarely add links, because I know you just want to know what’s going on, instead of waiting my usual three days to make it long and pretty.

Well! That… went really well. As well as anyone on the pro-life side had any right to expect, anyway. (Here’s the transcript.)

In my last update, I set some guideposts for how the oral arguments might go, and I said we could learn a lot from which justices push for a “compromise” decision that upholds the Mississippi 15-week abortion ban but somehow saves Roe/Casey. If the right-wing justices (Alito/Gorsuch/Thomas) are talking compromise, it likely means the Mississippi law is on the ropes, and the right is fighting to save what it can. If the left-wing justices (Kagan/Breyer/Sotomayor) are talking compromise, then it likely means Roe/Casey is on the ropes, and the left is fighting to save what it can. But my default expectation was that the court’s center (Barrett/Kavanaugh/Roberts) would be talking compromise and trying to sound out whether some compromise would be workable, while the left and right sides of the court would proxy-debate each other about stare decisis for an hour.

Continue reading →

Let’s set some expectations

NOTE: This post was originally published on my Substack.

Whenever big news breaks in either of 2021’s Supreme Court abortion cases—Dobbs v. Jackson or Women’s Health v. Jackson, and no they’re not the same Jackson—I dash off a quick update. I don’t really check for typos and I rarely add links, because I know you just want to know what’s going on, instead of waiting my usual three days to make it long and pretty.

Okay, it turns out I couldn’t keep myself from doing a Dobbs update before orals actually start. After oral arguments today, I think everyone (on all sides!) is going to be panicked, or at least in a tizzy. So let’s set some expectations now and then you can come back after orals and, like the Foundation admiring Hari Seldon, take solace in my precognition. Or, if I get this completely wrong, you can come back and, like the Foundation admiring Hari Seldon at the end of Foundation and Empire, panic.

Continue reading →