Justice Thomas

Justice Clarence Thomas, 2012

For many years I shocked my students in Administrative (and before that Constitutional) law by offering a partial defense of Justice Clarence Thomas.  Yes, I found his Constitutional views deeply misguided, especially his focus on a contestable view of the so-called original intent of the Constitution-writers or ratifiers at the expense of any subsequent evolution, not least the Reconstruction Amendments.  And I am no fan of rigid formalism. But even so, I suggested, the Thomas project had some virtues of clarity and consistency, unlike that of Justice Scalia who it seemed to me was more likely to make first principles bend to results.  And, mindful of Justice Brennan’s and Justice Marshall’s long refusal to give in to death penalty precedents, I was unwilling to say that ignoring the Court’s earlier decisions was inevitably bad.

That defense has been a bit muted lately as Justice Thomas has changed his mind on some key issues such as Chevron (although, ironically, I’ve never been big fan of the Chevron decision–originally a method to legitimate right-wing interpretations of statutes).

But now, I have come around to thinking that it may be time for Justice Thomas to do the decent thing and resign.  If this ProPublica report, Clarence Thomas Secretly Participated in Koch Network Donor Events, is true, it comes on top of a series of revelations over secret luxury vacations, private jet flights, weird land deals, gifts for a relative’s private school tuition, and the deeply weird story of Justice Thomas financed his $267,230 R.V.

Lurking in the back of all this is the issue of the role of far-right activist and election denier Ginni Thomas, who appears to have benefited from concealed if not laundered payments from right-wing sources,  While one might much prefer for a Justice’s spouse to be above all suspicion like Caesar’s wife, official spouses also need to be free to have views and live lives.  It has gotten harder, over time, though, to buy the idea that the Justice never talks over legal matters with his wife….or his donors.

In a healthy democracy, Congress would be at least investigating whether there are grounds for impeachment here (if not, what exactly would it take)?  In 1969, Justice Fortas resigned when it became known that two years before he joined the Court, Fortas took a secret retainer from the family foundation of a friend and former client subsequently imprisoned for securities violations. The deal provided that in return for unspecified advice, Fortas was to receive $20,000 a year for life. That was enough for Fortas to step down in the face of calls for his impeachment.  From what’s been reported, the Thomas story seems at least comparable.

I have no illusions: Justice Thomas isn’t going anywhere while there is a Democratic President.  And Congress wants to impeach Hunter Biden, or something. But this is just one more sign of an ill democracy.

Posted in Law: The Supremes | Leave a comment

Are You Kidding Me?

Apparently, Twitter–excuse me, X–thinks there’s something potentially dirty here.

Posted in Discourse.net | 1 Comment

An Affair of the Heart

It seems to be about 20 years since I started this blog, and more than three months since I last posted anything here, an unusually long gap for me. So I thought I would try to relate some of what I’ve been up to recently. I don’t tend to post about my personal life, but this will be an exception.

Caroline and I celebrated our 34th wedding anniversary in late June in the summer garden spot that is Houston, Texas, a city I had never visited before and did not especially take to–although I was impressed by the extent of the downtown medical center, and by the huge and varied collection of trilobites in the Museum of Natural History. Our actual anniversary day was unpleasant, and not just because it was Houston during a record-breaking heat wave. Rather than a lazy day culminating in a nice night out, I spent a good chunk of the day unconscious due to a knock-out drug administered by a stranger, and embarked on what turned out to be a two-week hospital stay followed by nasty side-effects.

Or, to be more specific, I spent our wedding anniversary on an operating table having an arterial bypass, subclavian to carotid, which means they go into your left shoulder and move stuff out of the way to improve access to the aortic arch.  That was just an hors d’oeuvre for the main event, which came three days later: a team of surgeons, led by Dr. Joseph Coselli, split my breastbone open like one might a chicken and rooted around inside me for eight hours in order to repair my aortic arch which had become very bloated. While they were at it, they did a double bypass as well and inserted an “elephant trunk” to enable a likely subsequent surgery on my descending aorta.  We’d gone to Houston for the surgery because Dr. Coselli is both pioneer and leading practitioner of the elephant trunk procedure and my doctors thought it certain I would need similar surgery on my descending aorta either very soon or soon. Apparently, my aortic arch has been in a bad way, if nonetheless fairly stable, for several years, but no one told me perhaps because other medical problem crowded it out of the way.

(1) ascending aorta, (2) aortic arch, (3) descending aorta. Copyright © 2016 JHeuser. Licensed under CC BY-SA 3.0,

Before the surgery, Dr. Coselli estimated that the odds of success were, on paper, just over 90%, a number slightly lowered from the norm by the fact that I had scar tissue in the way from my first open-heart surgery thirteen years ago.  Back then I beat the odds when I had an emergency dissection of my aortic valve. (Fifty percent of people whose aorta tears open like this die within an hour or two, and some decent fraction of the others are impaired in various unpleasant ways.  Caroline saved me by dragging me to the local emergency room.) Dr. Coselli’s generous 90% estimate was not as reassuring as he no doubt intended it to be, particularly in light of the lengthy consent form I signed that included a page-long list of potential horrible outcomes–although it should be noted that with a surgeon’s self-assurance Dr. Coselli did say he was very confident it would all be fine.  Nonetheless, I was glad to have signed a DNR order; I don’t ever want to be Terry Schiavo, and I find the prospect of serious mental impairment even more terrifying than blindness.

I woke up in a big room with bright lights in the ceiling.  I was confused.  It seemed I was in fact alive, although with the brightness of the lights I briefly considered hallucination as a possibility, but I wasn’t sure what had happened – was this the first operation or the second? Indeed, to this day I still don’t remember much about waking up from the first one, except being moved around the hospital before and afterwards. In the bright room, I had a tube down my throat, but mercifully by the time I was conscious enough to care they took it out reasonably quickly, and assured me that I had survived the main event.  I suspect I may have had to be told more than once. Nobody seemed happier about it than the anesthesiologist who had a big smile and said successful outcomes like mine made it all worthwhile.  I had to wonder how many of the other sort he experienced. Initially, visiting hours were limited but Caroline made the most of them, despite having to hang around for hours between the sessions.

The operation was not without its side-effects, the two most serious of which were lung-related issues including a horrible painful cough, and what I much later learned my medical chart delicately called “partial paraplegia”.  In plain English, I couldn’t stand up, and couldn’t walk, Everyone assured me it was temporary, and indeed by the time I left St. Luke’s to move to a rehab facility, I could stand and travel short distances with a walker—at the price of real exhaustion. Again, Caroline trudged from our hotel to the hospital and back every day, and spent hours with me whether I was awake or asleep, and regardless of how groggy or grumpy I might be.

I’d been to a rehab facility on Miami Beach after the first open heart surgery in 2010 (couldn’t walk for a period after that one either), and had found it to be a really miserable experience.  The doctors were mostly absent and somewhat cynical.  The nurses were almost without exception burnt-out and unfriendly.  The bright spot was the physical therapists, who I saw for a metered hour and half a day.  They were cheerful, optimistic, goal-oriented.  And thanks to them, by time I went home week later, I could walk a little and, more importantly, drag myself up the stairs to my bedroom once a day.

Fast forward to 2023, and even though people assured me that the staff at St. Luke’s had secured me a place in a great rehab facility just down the street, I was nervous about it.  It turned out, however, that the TIRR Memorial Herman really was a nice place, although it was humbling to be one of the least impaired patients in the place—I will never forget seeing a young woman in a motorized wheelchair who had lost both arms at the elbow and both legs at or above the knees.  She motored by with a brilliant smile for everyone.  Her example ensured that even if I would have wanted to, I would not have dared complain.

Despite the excellence of all levels of staff, it took two more weeks to get me in a shape where I was able to go home, and even then I had to do it in a wheelchair, as I still wasn’t very mobile.  My first trip up our stairs took about 15 minutes, resting after every step.  Within a week or two I cut it down to five minutes. Now I go up and down at almost normal speed, and more than once a day, although I do feel winded at the top.

The lack of mobility had multiple causes.  One thing was my right leg seems to have gotten injured in some way during the surgery, and it still drags to this day, although I’m about to get off the wait list for outpatient rehab here at U.M.  Another was that my long struggle with non-Hodgkins large B cell double-hit lymphoma probably left me weaker than might have been ideal for open-heart surgery.  And, it turns out that it is hard to relearn to walk when you have trouble with your balance because you have no sensation in your feet—neuropathy being a side-effect of several of the anti-cancer regimes I have enjoyed over the past six-plus years.

On the subject of cancer treatments, although neither R-CHOP with a side of debilitating methotrexate, nor autologous stem cell, nor CAR-T, nor Revlimid worked for me (ok, R-CHOP worked for just over a year, and the Revlimid suppressed the lymphoma but it also increasingly suppressed me), so far it appears that the fifth lymphoma treatment is working.  A then-experimental monoclonal antibody mix of Mosunetuzumab and Polatuzumab has given me about a year and a half with “no visible sign of disease”. I’m told by my terrific oncologist, Dr. Alvaro Alencar, that almost all the members of my Phase II study cohort who stayed well this long have so far remained well.  If we make it to two years, we get to call it remission. On the negative side, these various treatments aimed at my B-cells pretty much wiped out my immune system. During peak COVID it was actually almost nice that I did not stand out as the world had reorganized itself for my convenience, including remote work and food delivery.  But even with the Internet, staying in the house does get old eventually, especially as the world is trying to go back to normal. Whether my immune system too will go back to normal remains uncertain.

The most important point of this medical history digression is that the month we spent in hospitals and rehab in Houston was only the last of a more-than-six-year series of medical adventures, itself on the heels of a thirteen-year-old near-death experience characterized by eleven days of induced coma and a long hospitalization followed by a very long recuperation. In the last six plus years I have had numerous, occasionally long, hospitalizations. And even at home I spent large amounts of time completely out of it, or very much limited in what I could do. This left Caroline to do the worrying, and much of the work, for two—more than two if you consider that the load was aggravated by having to take care of me. Along the way I became convinced that it is often harder to be the caregiver than to be the patient.

I am not one much given to epiphanies. But in the early days after waking up in that bright room, as Caroline held my hand, or just sat nearby, I understood more than ever how fortunate I am to be married to such a wonderful person.  I cannot describe what her support has meant, or how grateful I am, or much I love her, so I’m not even going to try. Therein lies the real affair of the heart.

Posted in Personal | 4 Comments

Didn’t Waste Much Time

Fake images from DeSantis Campaign

Click for larger version

Hot on the heels of his official Twitter-disaster campaign announcement, the Ron DeSantis campaign has launch an attack on Donald Trump–for being too chummy with that demon Anthony Fauci.  And what better evidence than pictures of Trump hugging and kissing Fauci?  Pity they didn’t exist. But no problem!  Deepfakes:

A Ron DeSantis presidential campaign video shows three pictures of Donald Trump hugging and kissing Anthony Fauci, all of which seem to be fake images generated by artificial intelligence. One professor told Ars today that there is “no doubt” the ad uses fake AI images.

As reported by AFP yesterday, media forensics experts say the images, which the DeSantis ad passed off as photographs taken during Trump’s presidency, have telltale signs of AI. Even non-experts may notice oddities, such as incomprehensible text on a sign that should say “White House” and “Washington.”

Of course, another giveaway is that then-President Trump and Fauci weren’t really on hugging and kissing term

The Ars Technica link above gives a lot of details as to how one can tell the images are fakes.  No comment from the DeSantis campaign yet, although this is consistent with an m.o., part of which seeks to take advantage of the old adage that the ‘truth is still putting on its boots while a lie speeds around the world’.  (I used to think the original was coined by Mark Twain, but it seems not…)


Posted in 2024 Election | 5 Comments

A 2024 Freedom Agenda (ver. 0.1)

FDR Memorial Copyright © 2002. Some rights reserved CC BY-SA 3.0.

President Biden has trailed the idea of a Freedom Agenda as the central theme of his re-election campaign. (“The freedom for women to make their own health-care decisions, the freedom for our children to be safe from gun violence, the freedom to vote and have your vote counted. For seniors to live with dignity, and to give every American the freedom that comes with a fair shot at building a good life.”) It of course harkens back to FDR’s Four Freedoms (“the freedom of speech, the freedom of worship, the freedom from want, and the freedom from fear”).

What would a Bidenish Freedom Agenda look like if I were designing it for the 2024 campaign? Here’s my first very tentative stab at a draft.  It’s not as pithy as FDRs!

Political Freedom

  • Freedom to vote. End political gerrymanders. Require states to enact policies that provide sufficient polling places and times to ensure fair geographic access, allocate resources designed to cut waiting times at polls, and set times to vote that fall outside working hours. Stronger rules, at least for ballots with federal elections, designed to minimize partisan meddling with vote counting and reporting.
  • Freedom from tyranny. Protection against tyrants foreign and domestic. We need to be vigilant against domestic militias and other insurrectionists. We should continue our support for Ukraine and Taiwan lest we embolden their neighboring tyrants. Meanwhile, we should reduce our support for autocrats who abuse their people, and support pro-democracy movements, whenever strategically possible.

Personal Autonomy and Empowerment

  • Freedom to control your own body. National legislation to overturn state laws telling people what they can do with their bodies, notably most forced birth legislation, and also most limits on what parents can do in directing their children’s care.
  • Freedom to breathe. A strong clean air and clean water environmental agenda.  Seek to remove the vast majority of man-made toxic–and especially carcinogenic and hazards to reproduction–out of our air, water, and food. Revisie our public health system to prepare for the next pandemic, so we don’t have to be afraid of each other’s breath.
  • Freedom to learn. Public college should return to its history of being very low cost, or maybe even free.  We could start with community college and the first two years of a four-year degree in state college. Plus,
    • Freedom to read. Stop  book-banning in schools based on parental vetoes that extend beyond their own children, while still leaving space for educators to select age-appropriate books for curricula and school libraries.
    • Freedom to know. Stop textbook censors who are blocking mention of historical facts such as race discrimination, civil rights, and the Holocaust.
  • Freedom to age in dignity. Solve the social security funding crisis even if it means new revenue source including removing the cap on social security taxes. Do  not require people to work until they are older to retire, nor to survive on less when they do.

Economic Freedom

  • Freedom to compete. Revive strong anti-trust enforcement, and re-tool it for new digital markets. Market power is too concentrated in a large number of industries. Part of this is the rise of network industries, and the so-called ‘winner-take-all’ economy but a lot of it is just due to lax anti-trust enforcement. When competition falls to monopolies, capitalism looses its dynamism, and owners and managers of dominant firms accrete more wealth and power than is healthy for society along with the ability to acquire (and sometimes choke off) innovative potential competitors.  At its worst we get ‘too big to fail’ firms that can extort government support with insufficient consequences for management and shareholders when the firms make bad decisions.
  • Freedom to organize. Revise state and federal laws to remove anti-union bias, including so-called right-to-work laws. It’s clear that unions do more for wage equity than any other single thing.

Missing from the above is something about global warming.  “Freedom from roasting” doesn’t sound quite right….but “Freedom from climate change” or “Freedom from Carbon” sounds like a pipe dream.

Not on ver 0.1 of the list but maybe belongs on it: Freedom to travel   Gun control. Better policing, which protects the innocent while not committing violence on them; probably this will require setting up new kinds of paramedics and social workers to take on dealing with people whose primary issues are due to illness and other factors.

Important issues that may not lend themselves to this treatment.

  1. Taxation/deficit issues in the shadow of inflation.
  2. Immigration reform.
  3. Basic structural reform of the national government:
    1. Ethics rules and term limits for the Supreme Court;
    2. Restructuring the Senate so it more closely reflects the national population — currently most states have smaller populations than LA County alone, but they each have two Senators.  Something is wrong there. but ‘freedom from the dead hand of the past’ is not a good slogan…..
Posted in 2024 Election | 6 Comments

Elections Have Consequences Dept.

So far, the major consequence of electing two new somewhat anti-establishment commissioners to the five-person Coral Gables Commission is that the Mayor of Coral Gables, their chief target, is acting kinda grumpy (or worse).  A motion to fire the City Manager (we have a weak-Mayor system, so the City Manager is the most powerful official in the City) failed 3-2.

I lost confidence in the manager when I read about the secret attempt to put a Wawa and gas station across from Carver Elementary, and his intervention in a zoning application by a private developer.  After a long period of thinking he was great, I’ve also started to wonder about the Chief of Police.  But don’t expect any movement on either front until someone peels off a third vote on the Commission.  Of course, the next Mayoral election is now less than two years away.

Is there an anti-establishment candidate in the wings?

Posted in Coral Gables | Comments Off on Elections Have Consequences Dept.