Introducing SCOTUS Map

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Victoria Kwan and I have been working on a few projects for the past few months. One of our more recent efforts is SCOTUS Map. (SCOTUS stands for “Supreme Court of the United States.”)

This map, based entirely on Victoria’s research (and my rudimentary knowledge of HTML, CSS, and JavaScript), displays where the current and retired Supreme Court justices are speaking throughout the summer and into the fall.

The map includes details on each event itself, the venue, registration information, and (eventually) post-event recaps. The right-hand sidebar lists all events, both past and future, in chronological order. SCOTUS Map will be continually updated as new events are announced, and we plan on creating new iterations of it for each successive Court term (and recess).

The map is permanently available at http://scotus.victoriakwan.com/pages/scotusmap. (Visiting http://scotus.jaypinho.com/pages/scotusmap will take you to the exact same page as well.) Please note that it is best viewed on a desktop computer, as tablets and especially mobile phones tend to squeeze the dimensions a bit.

We invite you to take a look. If there are any events involving Supreme Court justices that we haven’t yet added, please let us know by tweeting at @SCOTUSMap or by sending us an email.

Finally, keep checking back here, as we have other projects in the works that we think you’ll enjoy (especially if you happen to be a legal nerd).

Thank you!

Jay

Squaring The Circle

“Any resemblance to actual persons, living or dead, events, or locales is entirely coincidental.”

This boilerplate disclaimer, inserted amidst various other notices on the copyright page of Dave Eggers’ latest novel, is superfluous: nothing in The Circle resembles reality in any way whatsoever.

This book administers a cudgel to the English language, among other ignominies, and, as with all such tragedies, the reader is left with only two options: remain a complicit bystander or stand firm against literary massacre.

I choose the latter. Some books are so terrible that only a review warning away potential readers has the power to absolve oneself of the guilt and self-loathing that accompany the book’s completion.

The Circle is a disaster. It is, on its face, a cautionary tale of the consequences of over-sharing and voluntary self-surveillance in the digital era, but its concerns are so explicitly belabored, its storytelling so juvenile, its characters so obviously proxies for authorial obsession, that the fictional universe is inevitably compromised in favor of absurdist dystopia.

Here, numbers — and everything else — have no meaning. Eggers tosses them around like grains of sand, wholly detached from any sort of significance. (Case in point: employees of the Circle — a thinly-disguised hybrid edition of Facebook, Google, and Twitter — actually count the grains of sand in the Sahara. It takes three weeks.) In one excruciatingly long paragraph, Eggers channels an Excel spreadsheet by quoting 40 separate numbers in mind-numbing fashion:

The total number of stats she was tracking was only 41. There was her aggregate customer service score, which was at 97. There was her last score, which was 99. There was the average of her pod, which was at 96. There was the number of queries handled that day thus far, 221, and the number of queries handled by that time yesterday, 219, and the number handled by her on average, 220, and by the pod’s other members: 198.

If there were even an inkling of a rationale for this numerical inundation, The Circle could have been at least minimally readable. But even the most disinterested reader cannot match Dave Eggers’ apathy for his own figures. In an unsurprising oversight, Eggers describes Mae’s “six weeks she’d been transparent” on page 309, then “the three weeks Mae had been transparent” on the subsequent page.

The raison d’être of the Circle — to vacuum up every conceivable data point on its users in order to better serve advertising and personalized content — is clearly borrowed from contemporary social networks. But this is where the similarities end. Eggers’ heroine, Mae Holland, achieves the Herculean task of appearing more inanimate than the Circle’s villainous algorithms, whose alleged ascendance ostensibly prompted Eggers’ hellscape.

Mae is a human being in only the most technical sense: she has eyes, ears, and a mouth, but virtually everything else suggests a quasi-robotic response to all human interaction coupled with a stunning lack of self-awareness. Mae is essentially a drone, only more predictable and less vulnerable to human emotion.

As the Circle demands ever more of her devotion — in one of the book’s rare highlights, she slowly accumulates workstation computer screens, beginning with two and expanding eventually to nine — Mae rarely betrays any semblance of human resistance, choosing instead to drown her peers’ disapproval in a pool of self-loathing.

If that metaphor sounds overwrought, you’ll have a very difficult time completing The Circle. Which brings me to the eponymous company’s “completion,” the Eggers-ian concept of absolute omniscience that, unfortunately for him, is already comically outdated thanks to Edward Snowden. While Eggers struggles valiantly to elucidate the grave danger of the creeping news feed — a phantom menace that, much like creeping sharia law, dissolves upon closer scrutiny — the nation has moved on to PRISM and XKEYSCORE: apparent mundanities belying great danger, a precise inversion of Eggers.

That is not to say The Circle isn’t terrifying, although certainly not for the reasons intended by its author. I finished the book fearing less for a grim future of autonomous digital overlords and more for the disappearance of the subjunctive tense: “For a moment, the couple watched as Mae maneuvered her way to their barge…as if this was their living room and she their night’s entertainment.”

Elsewhere: “Mercer took a deep breath, and Mae knew he was about to give a speech. If there was a podium before him, he’d be stepping up to it, removing his papers from his sportcoat pocket.”

And again: “He smiled sympathetically at Mae, but with a raised eyebrow, as if there was something about Mae that was perplexing him, something he couldn’t put his finger on.”

It’s almost as if Eggers was not familiar with the English language. In this, at least, he has his creations for company. Remember that ubiquitous movie scene where the bad guy explains his diabolical plan to the horrified hostages before carrying it out? The Circle is a 491-page version of this, right down to the expositional format and preachy condescension.

In one scene, a Circler — novelistic parlance for an employee of the Circle — explains an on-campus sculpture (designed by a literary Ai Weiwei knockoff) to Mae:

I mean, how can the Circle find a way to make the connection between us and our users stronger? To me it’s incredible that this artist, so far away and from such a different world, expressed what was on the minds of all of us here at the Circle? How to do better, do more, reach further, you know? How do we throw our hands through the screen to get closer to the world and everyone in it?

This doesn’t sound like anyone I know, and I work in online advertising. (The dead giveaway: social networks with customer service departments.) The walking dead in Eggers’ universe are categorically immune to warnings of a totalitarian eradication of privacy — their idealistic naiveté thus constituting, to borrow John Oliver’s phrase, “a straw man so large you could burn it in the desert and hold an annoying festival around it.” (Not to mention the fact that Ai, his celebrity-infused dilettantism notwithstanding, became famous for protesting surveillance, not celebrating it.)

Indeed, events of the past week undermined Eggers’ preening concern. Facebook released a study revealing that they had conducted a one-week experiment over two years ago in which approximately 700,000 users were exposed to varying levels of positive and negative posts.

Upon the study’s release, the Internet hordes went wild with speculation and fury. “Facebook and the Ethics of User Manipulation” was one of the kinder headlines. A general consensus coalesced around the idea that involuntary subjection to such an experiment was highly unethical — despite the fact that Facebook’s News Feed is, and has for years been, algorithmically curated based upon criteria that are necessarily highly subjective. Everything on one’s Facebook feed is, to an extent, the result of an experiment.

In short, on many issues we are still closer to much ado about nothing than the other way around. Yet Eggers still inhabits a 1984 world, and his star, Mae Holland, meets an end as self-nullifying as Winston Smith’s: acquiescence to her masters via the betrayal of a lover.

But even in the wake of Snowden’s devastating disclosures, Aldous Huxley’s prophesies ring truer than George Orwell’s. As a social network, the Circle may dull our senses, but it is unlikely to kill us. In fact, Eggers is at his best when conjuring a near-future world in which a frenetic, almost-constant exchange of digital messages — zings, he calls them — drives their senders and receivers into paroxysms of emotional insecurity and self-regret.

This is a society I recognize (as a participant), from the quiet desperation of Like-seeking to the more overt emergence of Internet celebrity as a legitimate vocation. And so I find it truly bizarre that the debate on the vanishing art of the negative book review — recently inflamed by Buzzfeed books editor Isaac Fitzgerald’s categorical disavowal of them — was presaged by Dave Eggers all the way back in the year 2000:

Do not be critics, you people, I beg you. I was a critic and I wish I could take it all back because it came from a smelly and ignorant place in me, and spoke with a voice that was all rage and envy. Do not dismiss a book until you have written one, and do not dismiss a movie until you have made one, and do not dismiss a person until you have met them. It is a fuckload of work to be open-minded and generous and understanding and forgiving and accepting, but Christ, that is what matters. What matters is saying yes.

This is precisely the brand of overly-sensitive claptrap Eggers now decries in his novel, many years later: honesty as a casualty of a status-obsessed generation. So do not listen to 2000 Dave Eggers. Go forth, be a critic. Social networks will not destroy you, nor will punishing book reviews.

The same cannot be said of The Circle.

Ta-Nehisi Coates and “The Case for Reparations”

From the White House on down, the myth holds that fatherhood is the great antidote to all that ails black people. But Billy Brooks Jr. had a father. Trayvon Martin had a father. Jordan Davis had a father. Adhering to middle-class norms has never shielded black people from plunder. Adhering to middle-class norms is what made Ethel Weatherspoon a lucrative target for rapacious speculators. Contract sellers did not target the very poor. They targeted black people who had worked hard enough to save a down payment and dreamed of the emblem of American citizenship—homeownership. It was not a tangle of pathology that put a target on Clyde Ross’s back. It was not a culture of poverty that singled out Mattie Lewis for “the thrill of the chase and the kill.” Some black people always will be twice as good. But they generally find white predation to be thrice as fast.

We invoke the words of Jefferson and Lincoln because they say something about our legacy and our traditions. We do this because we recognize our links to the past—at least when they flatter us. But black history does not flatter American democracy; it chastens it. The popular mocking of reparations as a harebrained scheme authored by wild-eyed lefties and intellectually unserious black nationalists is fear masquerading as laughter. Black nationalists have always perceived something unmentionable about America that integrationists dare not acknowledge—that white supremacy is not merely the work of hotheaded demagogues, or a matter of false consciousness, but a force so fundamental to America that it is difficult to imagine the country without it.

Both of these powerful passages are taken from Ta-Nehisi Coates’ stunningly ambitious new essay, “The Case for Reparations.” The guy is probably best described as our national conscience on race: here, he advocates forcefully for an acknowledgment of centuries of institutionalized, systemic racism in the form of cold, hard cash.

The essay builds slowly: in the first half, I wondered where he was going at times as he dutifully recounted horror stories from the distant past. But as his chronology eventually began to catch up to the present, the contours of his argument became visible and the point is crystallized: American national crimes against African Americans are not past sins for which we owe penance, but an ongoing travesty that continues — in various sinister forms — through today.

To be clear: the essay is a masterpiece. Ta-Nehisi Coates is nothing if not an elegant thinker (a phrase I’ve admittedly stolen from Victoria), and his piece is at once a painful read and a uniquely invigorating one: it confronts the reader with the centuries-long litany of black suffering and then, as if by miracle, presents the (at least partial) solution: reparations.

Which is where “stunningly ambitious” comes in. The only point in the essay at which Coates briefly contemplates an appropriate figure for reparations is here:

Scholars have long discussed methods by which America might make reparations to those on whose labor and exclusion the country was built. In the 1970s, the Yale Law professor Boris Bittker argued in The Case for Black Reparations that a rough price tag for reparations could be determined by multiplying the number of African Americans in the population by the difference in white and black per capita income. That number—$34 billion in 1973, when Bittker wrote his book—could be added to a reparations program each year for a decade or two. Today Charles Ogletree, the Harvard Law School professor, argues for something broader: a program of job training and public works that takes racial justice as its mission but includes the poor of all races.

$34 billion in 1973 dollars is equivalent to $181.56 billion today. If this total were paid out yearly for one decade, the 10-year result would be a $1.82 trillion payout. This is equal to:

These numbers would, of course, be doubled if $181.56 billion were paid out annually over two decades, and not just one.

Suffice it to say, this is not an easy case to make. But if anyone can do it, it’s Coates. (To be clear, he didn’t actually make the case for any specific number, but the above example is the only figure he discussed at all in relation to the American experience. He also discusses West Germany’s reparations to the state of Israel following World War II, which amounted to the relatively minuscule total of $7 billion in current U.S. dollars.)

Although it’s difficult to explain, I find his argument compelling and challenging on the one hand, and almost too easy somehow on the other. I realize that makes basically no sense. But here goes anyway:

There is a certain beauty to the simplicity of his proposal: African American wealth would be doubled in just ten years (in reality, the effect would likely be far greater as some of the initial payments are invested in businesses, financial markets, and so on), significantly shrinking the disparity between white and black Americans. That part makes sense — to me, anyway — and is, while highly debatable, certainly an idea worth discussing. As Freddie deBoer put it (somewhat bluntly), it’s about “using the power of the federal government to redress historical injustice and contemporary inequality by giving black people money.”

On the other hand, there is something truly irreversible about such an enormous sum of money being transferred directly to such a large group of people. Leaving aside the obvious practical questions that would arise as to funding, how to disburse money to mixed-race people and households as well as recent immigrants, and so on, two immediate fears spring to mind:

  • What if it doesn’t work?
  • Couldn’t such a high-profile payment plan backfire if it is substituted for all other efforts at combating African American poverty and social discrimination? Couldn’t it be seen as a panacea?

I’ll address these in reverse order. The latter point is actually an example of a type of reasoning I find absolutely appalling whenever I encounter it in someone else’s writing, so I’d be remiss if I didn’t similarly self-flagellate for bringing it up myself.

And so, to answer my own fear, I must admit that it’s patently ludicrous to base one’s objection to a proposal on the predicted reaction of other people who will also oppose — or, at the very least, remain apathetic to — the proposal as well. If a decade-long payment plan to African Americans results in everyone else collectively turning their backs on the collective plight of their countrymen of color, well, whose fault is that really? What’s more, in even that worst-case scenario, African American wealth would double in ten years, an unalloyed good and certainly preferable to the status quo.

Good, then: we’ve dispatched with that. But the first bullet point concerns me even more. I am truly frightened by the prospect of what would happen if, after ten years — or even five, or three, or one — of scheduled payments to black Americans, little or no discernible socioeconomic impact manifests itself. This could be absolutely catastrophic for the future of African Americans in this country, in a way that dwarfs even their current situation.

Keep in mind that any such effort to substantively welcome black Americans into the national economic sphere inhabited by their white peers would meet vicious, sustained opposition right from the start. (Coates is well aware of this, as is Charles Ogletree, a fact which one can easily deduce from his own different proposal.) Just look at the struggle that the Affordable Care Act — watered-down, battered, and compromised down to a fragment of its idealized version — underwent to get passed, and there wasn’t even an explicit racial component to its redistributive effect.

A very large portion of the country, therefore, would be literally licking its chops and hoping against hope for the policy’s failure — or, in the case of officials in positions of power, actively using their authority to thwart it (as Republican governors are doing now, with regard to Obamacare). Even the slightest indication of anything other than an unequivocally resounding success would produce enormous pressure on politicians to abandon the plan. And if such an end were to come for the program, it would decisively alter the course of African American history for the worse. It’s hard to imagine being able to try anything like it again for at least another half-century or longer.

To answer my own criticism again, even this could be responded to thusly: “So what? Black Americans are already in a desperate position socioeconomically: what could possibly be wrong with giving something else a shot after years of failed policy?” Which is an entirely fair point.

But I can’t help but wonder if there’s a better way of accomplishing the same thing. By “better,” I mean that in the strictly objective sense of resulting in a higher level of income and/or wealth for African Americans after ten years than they would achieve under this hypothetical ten-year program.

So perhaps that’s the whole question: I’m onboard to spend massive amounts of money to improve the socioeconomic standing of African Americans. (I haven’t even addressed my admittedly underdeveloped thoughts on whether such efforts should be explicitly linked to slavery by invoking the term “reparations,” but — like Freddie deBoer — I’m not nearly as interested in debating that side of the coin.) But is Ta-Nehisi Coates’ idea the best way to go about it?

The self-negating FCC

It’s easy to forget that the Republican Party is still capable of the occasional surprise. Its members have grown so accustomed to anti-governmental rhetoric that I’ve lost the raw sense of disbelief that accompanied some of their more absurdist speeches four or five years ago.

And then are moments like today. The Federal Communications Commission voted today to open its proposed net neutrality rules for a four-month period of public comment starting now. The chairman of the Commission, Tom Wheeler (himself a former telecom lobbyist), is pushing for an ersatz version of “net neutrality” in which there are no slow lanes, only fast ones. (If that doesn’t sound logical to you, it’s probably because you’re not an Internet service provider.)

This is bad enough. But there was a nugget in the New York Times article on the day’s events that especially caught my eye:

The two Republican members, who voted against the plan, said that it exceeded the agency’s legal authority, that there had been no evidence of actual harm or deviation from net neutrality principles and that elected members of Congress should decide the issue, not regulatory appointees.

Ajit Pai, the senior Republican on the commission, said all the members shared “some important common ground: namely, a bipartisan consensus in favor of a free and open Internet.”

But, he added, “a dispute this fundamental is not for us, five unelected individuals, to decide. Instead, it should be resolved by the people’s elected representatives, those who choose the direction of government, and those whom the American people can hold accountable for that choice.”

The fifth commissioner, Michael O’Rielly, was the most forceful in his dissent. “The premise for imposing net neutrality rules is fundamentally flawed and rests on a faulty foundation of make-believe statutory authority,” he said.

(Emphases mine.)

Is it just me, or is it patently insane for two of the FCC’s duly-appointed five commissioners — whose self-described mission is to “[regulate] interstate and international communications by radio, television, wire, satellite and cable in all 50 states, the District of Columbia and U.S. territories” — to actively lobby against their own employer’s stated purpose?

It’s one thing for, say, a Treasury Secretary or Federal Reserve chairman to make a judgment call on anti-inflation measures or quantitative easing or liquidity injection. It would be quite another thing entirely for Janet Yellen to abruptly decide that returning to the gold standard is the correct approach, and then proceed to actively sabotage the work of her own central bank. That is what’s happening here with the FCC, and it should be a scandal.

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Donald Rumsfeld: the known unknown

I finally had the opportunity to watch Errol Morris’ latest film, The Unknown Known, last night. In the tradition of Morris’ earlier work on Robert McNamara, The Fog of War, The Unknown Known features a Donald Rumsfeld who speaks directly into the camera, confronting his interviewer and the audience head-on. This he does with the characteristic self-assuredness long associated, for better or (mostly) for worse, with virtually the entire George W. Bush administration.

The film’s title is borrowed from one of Rumsfeld’s most famous statements, initially spoken at a Department of Defense briefing on February 12, 2002:

As we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns — the ones we don’t know we don’t know. And if one looks throughout the history of our country and other free countries, it is the latter category that tend to be the difficult ones.

The title of Errol Morris’ film, then, refers to the omitted fourth category: unknown knowns. Although he chose, in his public briefing, to leave out any references to this final combination, Rumsfeld indeed ruminated on it later on. In an internal memo, or “snowflake,” to his staff in early 2004, Rumsfeld wrote:

There are known knowns. There are known unknowns. There are unknown unknowns. But there are also unknown knowns. That is to say things that you think you know that it turns out you did not.

At Morris’ request, Rumsfeld reads this memo aloud in The Unknown Known, the audio of which was repeated several times throughout the film. Each time I heard it, it grated on me: wasn’t it all backwards? An unknown known isn’t something you think you know that you actually don’t, but vice versa: something you don’t know that you know. Stranger still, Rumsfeld describes it correctly in the film itself, without acknowledging his opposite characterization in the 2004 memo.

Towards the end of the film, after repeatedly teasing the audience with this uncorrected interpretation, Morris finally raises the discrepancy with Rumsfeld. The former defense secretary, after asking Morris to display the text of the memo onscreen, subsequently reads it aloud, slowly, as if listening to the words for the very first time. (Earlier on, he’d told an incredulous Morris that he had yet to read the infamous “torture memos,” citing his lack of legal training as justification.)

Upon completing his recitation of his own memo from a decade before, Rumsfeld pauses for a moment, then says:

Yeah, I think that memo is backwards. I think it is closer to what I said here, than that.

This was, in its own way, the crux of the film. Although Morris neglected to prod Rumsfeld in the aggressive manner of an investigative reporter, “his questions” — to borrow David Denby’s line – “lead the Secretary to nail himself.” Donald Rumsfeld, steward of one of the most disastrous foreign policy eras in American history, swats away a fundamental philosophical error — one with enormous, fatal, and long-lasting implications for the United States, the Middle East, and beyond — with a metaphorical wave of his hand.

It is this very nonchalance that most strikingly contrasts Rumsfeld with McNamara. Where, in The Fog of War, McNamara revealed self-doubt and even regret for his role in the outcome of the Vietnam War, Rumsfeld’s performance is gripping for his utter detachment from the events that followed the Bush administration’s decision to invade Iraq.

It is as if the entire output of his tenure as Defense Secretary were simply an academic experiment he’d conducted in order to satisfy his own intellectual curiosity. (In one portion of the film, Rumsfeld demonstrates his obsession with the minutiae of semantics when he quotes a memo in which he asked his staff for the definition of the word “several.”) The tragic aftermath of his decisions, it necessarily follows, is just as theoretical, a reality thoroughly abstracted from the parallel one in Rumsfeld’s head. When Morris asks him if the United States would have been better off avoiding the Iraq invasion altogether, Rumsfeld replies: “Well, I guess time will tell.”

The statement bears a superficial resemblance to George W. Bush’s repeated assurances that he is comfortable waiting for history to judge his two terms in office. But beware the misleading comparison: it is nothing of the sort. Bush’s trademark is his unwavering belief in himself and his decisions (his memoir is called Decision Points): when he emphasizes his patience in the face of criticism, it is with the self-satisfaction of a man who knows himself to be right and the rest of the world wrong.

Rumsfeld, by contrast, appears not to care one way or another. Right or wrong, he is too concerned by theory and process to let a little thing like consequences trouble his conscience. That those consequences are now, and have long been, the embodiment of a “known known,” leaves one to wonder just what Donald Rumsfeld knows about anything at all.

Is the Electoral College doomed?

I certainly hope so. And so does The New Yorker‘s Hendrik Hertzberg, following New York governor Andrew Cuomo’s signing into law this week of the National Popular Vote Compact, making the state the 11th jurisdiction to do so and nudging the national movement closer to its ultimate goal (now at 61% of total electors needed). Here’s what the law does:

Here’s how it works: Suppose you could get a bunch of states to pledge that once there are enough of them to possess at least two hundred and seventy electoral votes—a majority of the Electoral College—they will thenceforth cast all their electoral votes for whatever candidate gets the most popular votes in the entire country. As soon as that happens, presto change-o: the next time you go to the polls, you’ll be voting in a true national election. No more ten or so battleground states, no more forty or so spectator states, just the United States—all of them, and all of the voters who live in them.

Unless you’ve been following this pretty closely, it will surprise you to learn that, before this week, ten states (counting D.C.) had already signed on. Now it’s eleven, and between them they have a hundred and sixty-five electoral votes—sixty-one per cent of the total needed to bring the compact into effect.

Hertzberg thinks the movement has a fighting chance:

But it’s not just the voters in those spectator states who are ignored. It’s also the politicians, including the state legislators—no matter which party they belong to, no matter whether their state is red or blue, no matter whether the sure winner in their state is the candidate of their party or the other party. Either way, they’re nobodies. The National Popular Vote plan would make them somebodies—and that, perhaps more than the high-minded stuff, is why N.P.V. has a pretty good chance of actually happening.

Nate Silver, meanwhile, is far more skeptical (his headline: “Why a Plan to Circumvent the Electoral College Is Probably Doomed“). He pays special attention to the swing states:

Soon after comes outright swing states, such as Ohio, New Hampshire and Colorado. These states, along with Florida, Virginia, Nevada, Iowa, Wisconsin and Pennsylvania, collectively had a 98.6 percent chance of determining the Electoral College winner in 2012, according to the FiveThirtyEight tipping-point index as it wascalculated on election morning. In other words, these nine states are 70 times more powerful than the other 41 (which collectively had a 1.4 percent chance of determining the winner) combined. That’s part of the reason so many Americans object to the Electoral College. But states whose voters have a disproportionate amount of influence may be in no mood to give it up.

My personal view is that the Electoral College should be abolished (even if that means we’d have to change the name of this website). But based on the signatories to the compact, blue and red states seem to think of it as a zero-sum game. And the purple states, which might otherwise swing the balance, have the least incentive of all to sign on.

I’m onboard. But I wonder how a close national election — especially one that would’ve split the popular and electoral votes under the current rules (such as the 2000 election) — would play out under such a scenario. Would states whose voters selected the candidate that lost nationally grow disillusioned with the new system and revolt, by reverting to the old system and breaking apart the compact?

This leads directly into a second concern: although the movement technically needs only enough states to attain the 270-vote mark, in all likelihood it will need at least one or two additional states as a safety buffer. Without this, any state with sufficient electoral leverage (the bigger the state, the higher the risk) could take the rest of the country hostage by threatening to leave the compact.

I could imagine a situation, unlikely as it may seem, in which such a scenario may result in an even denser concentration of presidential candidates’ attention on one or two states in particular, in an effort to maintain — or vice versa, to abolish — their adherence to the compact, depending on each candidate’s standing in the national polls and in the electoral forecasts.

My instinct is that these unsavory outcomes are worth the risk of attempting to reform the status quo, which is terrible for much of the country.

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Death of a newsman

Like everyone else, I too mourn the impending demise of America’s favorite faux-anchor, Stephen Colbert. (Here I refer to the character; the man will, presumably, live on.) Unlike so many others on late-night TV, Colbert is left oddly without a protégé. Even The Daily Show‘s Jon Stewart — the closest thing Colbert has to a peer these days — returned from a hiatus last summer only to find his replacement, John Oliver, being popularly crowned as his successor. (Oliver now has a new show on HBO, but he’s still my odds-on favorite to return when Stewart eventually bows out.)

Colbert, meanwhile, occupies a rarified air all his own, a Bill O’Reilly facsimile for all of us who despise the real one. Which leads me to wonder, half-seriously, if that’s what all of the handwringing over his departure is about in the first place.

As I’ve written before, the idea of Stewart and Colbert as Heroic Liberals has always been more myth than reality. There is little evidence to suggest that either of them truly desires a progressive transformation of Stateside democracy: a little tax reform here, a little less voter discrimination there, sure. But one rarely gets the sense that the duo’s comedy informs their activism, rather than the other way around.

Indeed, Stewart’s passion has not aged well. He won early accolades for his righteously indignant takedown of CNN’s Crossfire, a program with a premise so stupid that the hapless network couldn’t resist reviving it late last summer. Then in 2010, The New York Times made the dramatic comparison to Edward Murrow after Stewart successfully advocated (with evident feeling) for healthcare funding on behalf of 9/11 first responders.

But where Stewart’s satire cut viciously in the Bush years, his Obama-era humor has begun to feel almost formulaic. In January 2010, Stewart’s timid interview with torture memo author John Yoo was so universally panned that he apologized for his performance the next night. His later conversation with Donald Rumsfeld wasn’t terribly better (“I feel like we’re on the porch drinking lemonade,” Stewart remarked).

Colbert, on the other hand, didn’t initially enjoy the same reputation for edgy confrontation (although his 2006 speech at the absurd spectacle that is the White House Correspondents Dinner remains a masterpiece of the genre). But where Stewart has occasionally been known to throw a knockout punch or two in person (Jim Cramer springs to mind), Colbert’s victims are largely crucified in absentia. In between, he had his head shaved by a U.S. Army general on a base in Iraq.

Two years ago, Steve Almond took a long look at these two comedians and threw up his hands:

Our high-tech jesters serve as smirking adjuncts to the dysfunctional institutions of modern media and politics, from which all their routines derive. Their net effect is almost entirely therapeutic: they congratulate viewers for their fine habits of thought and feeling while remaining careful never to question the corrupt precepts of the status quo too vigorously.

Our lazy embrace of Stewart and Colbert is a testament to our own impoverished comic standards. We have come to accept coy mockery as genuine subversion and snarky mimesis as originality. It would be more accurate to describe our golden age of political comedy as the peak output of a lucrative corporate plantation whose chief export is a cheap and powerful opiate for progressive angst and rage.

His frustrations are certainly valid. But more to the point, it seems to me that Almond’s expectations scooted far away from reality. It’s one thing to excoriate the audiences of Stewart and Colbert for their complacency, and quite another to assume that they share Almond’s progressive ideals. For that matter, it seems even less justifiable to assume the two guys peering into our living rooms from behind their news desks four nights a week are all that different from most of the people staring right back at them — that is to say, mainstream urban America.

If Colbert’s upcoming exodus to late-night network TV feels like a betrayal, it’s a curiously one-sided one. It brings to mind my gradual realization, during my mid-teens, that the inveterate hatred I felt for the New York Yankees was not shared by my idols wearing Red Sox uniforms, who routinely exchanged jokes with Jorge Posada and Derek Jeter as they made their away around the infield diamond and, all too often, later donned the pinstripes themselves. Turns out the Sox and Yankees were not nearly the polar opposites I’d always supposed, and that they had more in common with each other as pro ballplayers than either of them had with me. It seems to be taking all of us a little longer to reach the same realization about our comedians.

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Justice Breyer’s Full Answer on Live Audio at SCOTUS Oral Arguments: Still Conservative with a Small “C”

During the question-and-answer portion of Justice Stephen Breyer’s international law lecture at the Brookings Institution yesterday, an audience member from the Coalition for Court Transparency asked the justice about the possibility of live streaming audio from Supreme Court oral arguments. Justice Breyer gave a nearly six-minute reply which reiterated some of the same arguments he has made against live video in the past, but the answer did contain an interesting new tidbit at the end in which he mentions recent audio “experiments” from the D.C. Circuit.

Michelle Olsen of Appellate Daily published a transcription of the last part of this answer yesterday evening. The following is my transcription of the full question and answer, which I have slightly edited for clarity.

Breyer at Brookings

The relevant question starts at the 2:12:00 mark of the Brookings Institution video.

Audience Member: Alright, this is not a hot political question; it’s a hot legal question. My name is Karl, I’m with the Coalition for Court Transparency.

You referenced five areas [where] American judges might do well to consult foreign sources or foreign legal thought. High courts in Canada and the U.K. and many, many other countries have cameras.

I don’t want to know if you support cameras, because I already know where you stand on cameras in the Supreme Court–but there’s a nice lounge at the Supreme Court where Supreme Court bar members are allowed to listen to live audio. Why don’t we allow the live audio to be transmitted outside the building, to everybody else who might not have the money or means to come to Washington, D.C. and wait in line outside in the cold, [so that they can] listen to such audio?

Justice Breyer’s answer to this question begins at the 2:14:08 mark.

Justice Breyer: Now, to give my unsatisfactory answer to [the question] about cameras in the courtroom under the guise of radio, you have to understand that it’s a pretty tough question, and we’re pretty conservative–with a small “c”–when you start talking about our institution. I mean, we don’t know what would happen if we let cameras in the courtroom. And the risks would be–two [risks], and we don’t know what the answer is. Three [risks], actually.

One risk is that people would begin to think that the oral argument–which is about 5% [of what the Supreme Court does], almost all of our material is submitted in writing–they would begin to think that that was what we’re about. The oral argument! That would be misleading, but not deadly.

What might be worse is that people do relate to people. That’s good. You relate more to your family than you relate to your friends, than you relate to people you don’t know, and people you see you relate to more than people you just hear about, and statistics you relate to not at all. OK. That’s the human condition, and I think it’s probably a good one. But the job of an appellate court–and particularly our court, which is about three levels of appellate courts, or two–is to think about how our decision is affecting the 300 million people who aren’t in the courtroom. They’re not there. But they will possibly be affected by our ruling. And people might, well, just look–to the good guy and the bad guy. And that might have an impact on the effectiveness of the Court.

Or, what is the most obvious thing, and you get privately–opposite advice from different members of the press on this one. [Voices perspective of a SCOTUS justice] “It won’t affect us! I mean, we’re grown up, we hope. And there’s the press there anyway, And why will it affect what questions I ask? I have to watch what I say anyway!” Well, apparently, I don’t. But nonetheless, you have to watch it, it’s public and the press is there, so why would this make a difference? To which some members of the press will say, you just wait ’til you see how you react when you ask a question in good faith on A, and then it’s reported on various shows on television and they show a picture of you. You’ll be pretty careful, and maybe you’ll be careful to stop asking. That might be a public benefit, but nonetheless, you see the point. And you say, go see what happens in the Senate or the House, which perhaps has to respond to public opinion.

But the reason you have a court–the reason we decide constitutional questions–if you go back to Alexander Hamilton, is–why? Because this document [takes out pocket copy of Constitution]… it treats exactly the same way the least popular and the most popular person in the United States. That’s what it’s supposed to be. And by the way, he said, we better give the Court the power to review laws–why? Because if we give the President the power to say whatever he does is constitutional or not, he’ll always say it’s constitutional, and he has enough power already.

Why not give the power to Congress?  After all, they’re elected, and many countries have done that. To which Alexander Hamilton says–he doesn’t say it in these words–he says, what happens when the decision is right but unpopular? He says, I’ll tell you about Congress–they are experts in popularity. He says, believe me, they know popularity. But what will they do when it’s unpopular? So let’s take these judges nobody’s ever heard of–they don’t have the power of the purse, they don’t have the power of the sword–fabulous. They’re weak. And give them the authority. And when it’s unpopular–unpopular and important, and by the way, possibly wrong–I mean, I’ve participated on both sides of 5-4 decisions. Not as many as you think–there may be 20% [of decisions that] are 5-4, 50% are unanimous–but somebody’s wrong in these cases. Alright, so–and that is the question I get from the President of the Supreme Court of Ghana, a woman who is trying to further democracy and civil, human rights in Ghana, and from Ouagadougou [in Burkina Faso], and from countries all over–why do people do what you say?

That’s a pretty good question. And it’s taken us–I say, there’s no answer in this document [the Constitution], and Hamilton didn’t answer it, either. He didn’t know. Nobody knew. It’s two hundred years of history. You want people in your country to follow courts and the rule of law–go out to the villages. Don’t just talk to the lawyers. Don’t just talk to the judges. By the way, there are in our country–contrary to popular belief–309 of the 310 million are not lawyers. Alright? And I say, they’re the ones that had to support sending the troops to Little Rock to enforce integration. They’re the ones that have to decide they will follow decisions that they think are really wrong and really unpopular. And that takes time. But that’s part of our job. And who knows? So I say we’re conservative with a small “c.”

And the radio? I mean, the radio–[unintelligible] they tried that in the D.C. Circuit [which has since September 2013 provided same-day audio for its oral arguments], didn’t hurt anything. Could we experiment with that? Maybe. But that’s not right in front of us. So therefore, that’s [my] not answering [the question].

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As mentioned in the beginning of this post, most of Justice Breyer’s answer, which focuses on insulating the Court from the misconceptions of the public, retreads his previous statements about cameras in the courtroom. In March 2013, in response to questioning from a House Appropriations subcommittee, Breyer mentioned the Court’s conservatism with a small “c” on the issue, the potential distortion by the press, and the self-censoring effects televised arguments could have on the justices’ questioning. He said then: “I’m not ready yet. I mean, I want to see a little bit more of how all this works in practice. I’d give people the power to experiment. I’d try to get studies–not paid for by the press–of how this is working in California, of how it affects public attitudes about the law. I’d like some real objective studies–I know that’s a bore, but that’s where I am at the moment.”

In January 2014, Justice Breyer told an audience at The Washington Center for Internships and Academic Seminars that he suspects it is a matter of when, not if, oral arguments are televised, but worried about the “demonizing and angelizing” of certain members of the Court.

What made yesterday’s answer different (and encouraging for advocates of live streaming) was his begrudging acknowledgment at the end that the D.C. Circuit has adapted its procedures to make oral arguments more accessible to the public, with no harm done to the integrity or the perception of the court. I would not go so far as to call it Breyer’s endorsement of live audio–as Michelle Olsen pointed out, the D.C. Circuit still doesn’t have live audio, only same-day audio, and it’s unclear which of these two practices Justice Breyer’s musings on “experiments” referred to. Given that the Supreme Court currently releases its argument recordings just once a week on Fridays, though, even moving toward same-day audio at One First Street would be a small step in the right direction.