Several bloggers took issue with my too-clever fun-poking at Chief Justice Rehnquist. I wrote:

Newdow said that was becasue atheists don't get elected to public office. The gallery applauded. Rehnquist threatened to clear the gallery.
In other words:

R: There was no dissent.
N: That is because the dissenters were blocked out.
Audience: (Applause)
R: Hush! If there is any more dissent, those dissenters will be expelled.

As clever as that framing is, I don't know if Baude is precisely correct to suggest that the audience be considered dissenters. I sympathize with the Chief Justice, who certainly made the correct call. Courts are not sports stadiums, and they are not place for cheering, cat-calling, or audience heckling.

That kind of audience participation has the detrimental effect of giving the impression that cases are like baseball games, with a particular lawyer's skill or dexterity deciding the issue. Such an idea runs counter to the belief that courts genuinely seek to decide cases according to the law. My concern is that, if widely adopted, a baseball theory of law could have a detrimental effect on public perception of the validity of laws.

I am vaguely depressed by the fact that we are merely the 9th entry for "university of chicago blog"

I posted this over at De Novo and my solo blog the other day, but it got enough reaction, and my argument is poorly-reasoned and easily-refutable enough that I thought I'd share it over here too. :)

Book Review
Trading Up: The New American Luxury, by Michael J. Silverstein and Neil Fiske

The authors of "Trading Up" should be forced to "Trade Down" and go live in a housing project for a couple of years. The book is a well-researched, well-written, nauseating celebration of the wasteful and overindulgent consumer culture in America. Victoria's Secret. Panera Bread. Williams-Sonoma. Belvedere Vodka. What these companies (and more) have in common is that they're of marginally higher quality than their competitors, but through manipulative branding that takes advantage of people's emotional needs and desires, they're able to raise their price points and "rocket" to huge profits off the demand curve.

I don't dispute the book -- I think the authors have done a fantastic job identifying what it is companies like The Cheesecake Factory and Callaway Golf and Samuel Adams beer are doing: making high-quality products, and pitching them as lifestyle choices, as more than just "things you buy" but as part of what gives you an identity and what makes you feel good about your consumption -- but the tone of the book is kind of sickening; it's a celebration of consumer manipulation and of shrewd branding that makes people feel like consumer products can change their lives. "They are my little mechanical buddies;" "They are part of my family" -- these are people talking about their $2,000 Whirlpool washer and dryer. It's disturbing and sad -- but the book uses these quotes to illustrate a success story. Okay -- it is a success story. But not for society, and not for these people who, because of broader societal issues, are left to rely on their appliances for emotional support. Buying a $50 pair of tongs at Williams-Sonoma does not make me happy, and I think if it does make people happy, then we have things to worry about and shouldn't just be applauding Williams-Sonoma on making consumers believe that their neighbors will think less of them if they buy their tongs at K-Mart. I give the book credit for being awfully thought-provoking -- for getting me to think about these issues, and realize that there are certainly products I buy that I could just as easily buy the generic version of and it wouldn't make a difference. Shampoo comes to mind, actually, although it's an awfully negligible expense in the scheme of things -- not that what I buy is such a luxury brand, but still, I could save $2.00 if I bought the CVS bottle next to it, and I'm sure there's a negligible difference if any. But reading this book makes me want to never buy a brand name anything again, and scold people for reaching for the finely milled pet food when Walmart's Ol' Red will do just fine, and actually makes me angry that we live in a world where the thought of consumer products filling emotional needs is lauded and not shamefully disturbing.

Professor Weintraub's obituary can be found here. One of the most vivid memories I have of the U of C is of this gentle but imposing legend shouting, "Miss Plocharczyk!!" with a heavy German accent everyday in Western Civ. I also rather vivdly remember, when scav hunt rolled around, him making the announcement in class, "I will not answer any of your inquiries as to whether I wear boxers or briefs!" His death saddens me the way the death of a grandparent does, as he made one of the most significant contributions to my academic upbringing. It's hard to imagine the University of Chicago without him.

UPDATE: The New York Times notes Professor Weintraub's death here.

Karl Weintraub, beloved Ogre of Western Civ has passed away.

I never had him for class, but he used to reserve the room in Cobb where my Econometrics class met (for the time immediately following) and loom menacingly through the little glass window in the door, wanting to get into the room early.

He will be missed.

Bloggers like to take shots at the New York Times, and from what I can tell these shots are often deserved. But not enough is said about the areas in which the NYT truly, truly excels-- not just in being "the paper of record" (a record which may bear an uncountable collection of slants)-- but the crossword puzzle and the dining section.

The latter was the primary reason my roommate and I used to subscibe to the weekly paper, until some cruel soul started stealing our Wednesday Times early in the morning, which made the whole enterprise not worth it.

Anyway, after an hour of head-scratching labor with co-blogger Amy in a charming cafe on the lower West Side, I was prepared to express my frustration with the New York Times Crossword Puzzles. After another half-hour of labor this morning, I feel nothing but joy. If you have access to Thursday's puzzle (either because you have a crossword puzzle online subscription, or an old paper you haven't finished), go do it.

At Union Square, there's a giant electronic counter. When I saw it Thursday afternoon, it was in the neighborhood of 130000000000000, and rising fast (I tried to calculate how fast it was rising, but quite possibly erroneously). I passed by it late this evening (let's say 33 hours later) and it was now at 210240000000000 (approximately). Does anybody have any clue what it's counting?

UPDATE: Oh! It's a clock! 130 was 1:00... and 210 was 9:02 (military time).

It's nice to see my little-known undergraduate alma mater finally make the big time.

From Political Theory Daily Review, we have a defense of the French ban on headscarves, turbans, and skullcaps, by a member of the commission responsible for the original recommendation. It's well worth reading, especially for anyone who plans on arguing the subject in the future. On this topic, as in many others, it is helpful to remember that, as Mark Kleiman so wonderfully puts it (regarding another issue entirely), "there are patriotic, humanitarian folks who know more than you do about the problem who disagree with you." For this debate, I'd substitute "liberal, tolerant," but it's a big world: you can pretty much pick your adjectives of approval and there'll be people who meet it.

At any rate. This particular apologia didn't convince me (I feel that Jacob Levy and Russell Arben Fox provided solid reasons why the policy is a failure at almost every level), but it served as a helpful goad to thinking about what would cause me to change my mind and support such a ban.

A common argument to make here is the coordination game explanation: French Muslim girls are trapped in a suboptimal convention. If almost everyone else wears the hijab, the pressures of conformity make going along the best response. But if almost nobody did, the pressure to conform would go the other direction. By assumption, the all-wear equilibrium is worse (the person making the argument usually assumes an element of sexism in the headscarf); everyone wins if we can just move away from it to the better, no-wear solution. A law would do that. (If the game were really this simple, of course, a simple, "Okay, tomorrow we all go unveiled" announcement might, too--but let's put this aside.)

But if we examine what this commissioner, Patrick Weil says, it becomes clear that this bit of game theory in no way captures what's really going on. According to him, the impetus for the original inquiry was "the issue of violence in public schools"; apparently, a number of Muslim girls were being coerced by their fellow students into wearing the hijab, with reprisals often forthcoming against those who refused. This was an angle I hadn't much encountered; the issue was often framed as parents versus children, not children against each other. Weil argues:

"it has become clear that in schools where some Muslim girls do wear the headscarf and others do not, there is strong pressure on the latter to “conform”. This daily pressure takes different forms, from insults to violence. In the view of the (mostly male) aggressors, these girls are “bad Muslims”, “whores”, who should follow the example of their sisters who respect Koranic prescriptions."

What causes girls to wear the hijab when they would prefer not to is not simply the hijab-wearing of others, but rather insults and even violence--mostly from their male classmates. We can see the difference by recognizing that even if no other girls were expected to wear hijab, the intimidation from the boys would still push individuals to wear the scarf. It doesn't sound like a coordination problem at all, not even an uneven one that takes into account two groups of girls, one that would like to wear the scarf and a larger (by assumption) group that wouldn't.

The action that causes problems, in short, isn't scarf-wearing at all; it's intimidation, backed up by credible threats of violence. So why is the solution scarf-banning, rather than making schools safe places to express one's preferred interpretation of religious faith? One can try to advance charitable explanations here--perhaps the coercion is subtly done, difficult to detect and punish, while scarf-wearing is easily seen and changed--but it basically comes down to the admission that maintaining a functional public school system that provides this community with an safe environment conducive to learning just isn't an an option on the table. Too expensive, I guess. (Yes, one could probably make criticisms in this vein about the school system in many US inner cities, but that's neither here nor there.)

Instead of tackling the problem, the most visible symptom is papered over--with collateral damage to observant Jews and Sikhs, of course, along with all the girls who wear the headscarf without feeling any intimidation whatsoever. What's most disturbing here is that, if this is an accurate story, the consequences will be much worse than in the uneven coordination story, because nothing has been done to address the failure of the schools and police to protect young girls from coercion.

Weil claims that the "large majority [of Muslims who] do not want to impose the headscarf on their daughters but are also discomfited by any suggestion of infidelity to their religious tradition" are now given a convenient out, the ability to cloak their lack of traditionalism in obedience to the law. But let's think this through a bit. Weil suggests that the following defense be offered: “I was ready to follow your advice [and be traditionalist], but now it is impossible: I cannot disobey the law!” Is this likely to convince a boy who, a few months ago, was preparing to engage in (presumably illegal) violence to enforce traditionalism? Expecting a law condemned by much of the international press and plausibly seen as targeting sacred observances to command respect among a group of criminals is a bit much.

So, what would convince me that the French law was a good idea? First, it would help to have some real evidence about exactly how many girls feel coerced into wearing the hijab. Second, I'd like some evidence about what form this coercion takes, and what measures have been attempted to deal with it directly. If the headscarf issue really were about the young versus the old, fathers against daughters--if French Muslim girls had universally bought into the argument that the hijab represented humiliating patriarchal repression, and donned it only out of dutiful resignation--I could probably support such a ban as less problematic than the invasive social micromanagement required to protect them from all the subtle forms of coercion available to parents.

But even as portrayed by the government's spokesman, that just doesn't seem to be the case. Reading Weil's essay convinced me of one thing: there really is a problem in some French schools that involves the hijab. Unfortunately, this means that the law isn't just an illiberal overreaction to hysteria over increasing pluralism and immigration; it also leaves untouched a deep failure to protect a vulnerable community from serious harm.

The Chicago chapter of the Nathan Hale Foriegn Policy Society will be holding its next meeting on Sunday, April 4th at 7pm. We'll be discussing the media's impact on foreign policy. Once again, the meeting will be at the Cosi across the street from the Art Institute (111 S. Michigan Ave.). Hope to see you there. New members are always welcome.

Matthew A. Baum has written several pieces on this topic. Links to his writings are available here. Suggested either:

Matthew A. Baum, "Circling the Wagons: Soft News and Isolationism in American Public
Opinion," 48(2) International Studies Quarterly (June 2004). Available here.

or

Matthew A. Baum, "Sex, Lies, and War: How Soft News Brings Foreign Policy to the Inattentive Public," 96(1) American Political Science Review 91 (March 2002). Available here.

Matthew T. Harmon, "The Media, Technology, and United States Foreign Policy: A Re-examination of the 'CNN Effect.'" 8(2) Swords & Plowshares (Spring 1999). Available here (pdf download).

The Brooking Institution's discussion on "The Role of the Press in the Anti-Terrorism Campaign" may be found here.

Tom Gjelten, "Professionalism in War Reporting: A Correspondent's View" is available here. The author, a diplomatic correspondent for NPR, prepaired the report for the Carnegie Corporation.

Shaazka Beyerla, "The Middle East's e-War (Net Effect), Foreign Policy (July-
August 2002) is here.

Johanna Neuman, "The Media's Impact on International Affairs, Then and Now," 16.1 SAIS Review 109 (1996), available here.

And finally, on the effects of FOX News: Harold Meyerson, "Fact-Free News," Washington Post, Page A23 (15 October 2003). Available here.

I should have noted this earlier, but only got around to it now. Co-blogger Amanda mentioned that when she was standing in line for Newdow, a gentleman bought a place in line for $100. I asked her whether she would have bought a place in line for $100 if she had arrived too late the night before to be sure to score a seat. No, she said, she could think of prized books of poetry she'd rather blow the money on.

Then I asked her whether she would have sold her place in line for $100. No, she said, she wouldn't.

Economists will recognize this as the psychological "endowment effect". That is, the effect that causes us to refuse to sell things we have, even when we would refuse to buy them if we did not. It drives pure economists nuts, even though it's a part of how we frequently live our lives.

My own suspicion is that the vexing "endowment effect" could be more effectively labelled as a "transaction aversion." Firstly, people just don't like getting into serious monetary transactions (an unacknowledged fact that probably lies behind the failure of many market-based government reforms). Secondly, people take some of their cues about the proper monetary value of an item from the people around them (perhaps because people who are not economists rarely play the "let's put hypothetical prices on everything" game whenever they get bored.

Thus, when a gentleman comes up to try to buy a place in line for $100, my first thought is, "Gosh, is this space really worth $100 to him? Maybe it should be worth a lot to me. Maybe $200." On the other hand, if I learn that a gentleman in line doesn't really want his spot, I immdeiately think, "well maybe I shouldn't either."

I haven't done the work necessary to try to turn this "transaction aversion" into a serious theory or draw useful conclusions from it, but I just thought I'd note that this seems like a good example, and one that probably resonates with plenty of people.

The Invisible Adjunct is bidding the blogosphere (and adjunct world) farewell. Alas.

I’ve found that much of the hard doctrinal work of the law student is in learning to draw lines. What makes something obscene? Is a professorial corporate director whose university depends on donations from his company independent? What, exactly, does the word substantial mean?

I don’t do well with these questions. By the end of even my first year, though, I certainly could recite the various un-resolvable arguments in my sleep – bright lines and factors, the crystal and the mud, the functionalist and the formalist.

But law students aren’t alone in these thankless games of mental gymnastics. Rather, food enthusiasts too can sometimes be left staring at categories without answers. And though the controversies of the food world rarely disturb the august ponderings of the Supreme Court, the questions remain interesting. Late last night, in the company of nothing but a quick soda loaf combining a pound of flour, a few tablespoons of butter, a little sugar and enough buttermilk to make a dry dough, all overspeckled with dark chocolate and baked till it sounds hollow on the bottom, that realization led me directly to the topic for the last food post of my exceedingly pleasant stay here at Crescat Sententia. The great American food pioneer, Richard Olney, once tellingly wrote that “the line dividing a soup from a stew is often infirm”. Infirm though it sometimes is, I’d prefer if we now made an effort to find it – and perhaps enjoyed ourselves in the process.

One Supreme Court justice said of obscenity that he knew it when he saw it. Some stews and soups are the same way – no devious lines or clever tests are necessary to understand that if you boldly sautee chunks of tough beef in butter and oil, and then simmer them gently for a few hours in a strong red wine, and thyme, pearl onion and garlic, with perhaps the faintest tinge of rich double cream at the end, you have a stew. Nor does it need to be said that a light chicken broth, skimmed of fat and made from nothing but a free range bird, a few robust herbs, and a lot of time, is a soup – either eaten just as it is, or perhaps with a few squares of pasta (or if you’re feeling inauthentic, easily available wonton wrappers) stuffed with a mixture of pork, beef, lemon peel and parsley to make tortellini in brodo,

But not all cases fall so obviously into one camp or the other, and “I know it when I see it” is hardly a satisfying test in any case. What of bouillabaisse, the emblematic dish of seafood simmered in flavorful stock and garlic that exists in one form or another across France, whether with potatoes and mussels as in Toulon, or with cuttlefish in Martigues, or most appropriately for someone stuck in New England, with butter, hake, sole, and cod, as along the hardy Atlantic coast? In many ways, the heady, aromatic dish is quite exactly a stew, especially if you’re smart and have a generous hand with the fish, cheap or otherwise. It is, after all, merely the maritime cousin of the beef stew above, and the brother of a white wine chicken stew, one of my favorite weekly meals. But for me, bouillabaisse is a soup – not because it’s insubstantial, but because it demands nothing but crusty bread spread thickly with honest butter as an accompaniment. One reason that stew is stew is because you enjoy both the rich sauce on its own, which incidentally only gets better the next day, but also its slow impregnation of a healthy puddle of some delightful starch– whether butter rich mashed potatoes, or fluffy shards of basmati rice, or any one of the other dozens of possibilities. A stew’s gravy is there both to flavor the meat and to flavor a base- and the unthickened broth of France’s culinary pride does much, but not that.

Stew doesn’t always need to be eaten with starch, though. There must be some other line, and the versatile champion of Eastern Europe, Borscht, straddles it completely. Made meagerly, with more water than beets, with onions and a few carrots all boiled till tender, borsht is clearly a soup- and an excellent soup at that. But made with a few chunks of the cheapest beef, perhaps, or some spicy sausage meatballs, and with substantial servings of fresh beets just scrubbed and halved and then finished with any good sour cream, borscht really is a stew, even without any carb-rich base. The line isn’t the starch in this case – it’s the emphasis of the dish. In the former case, the soup’s taste is in the purple depth of the liquid’s flavor – but the latter relies on its more substantial ingredients. The former, I think, I’d serve to begin a meal – the latter might be the whole meal itself on some incredibly cold night when I have to work, but would rather eat.

Having seen my grandmother fend off appalled accusations from people who would have been entirely sated by one dish served as a stew, but claimed starvation when she called it a soup, I think people would be surprised at how important these lines are sometimes. But even if you’re not convinced, I hope most people would agree with me that pondering these kinds of lines is much more fun than wondering what the Court might be doing. After all, I don’t know what the sordid films the Supreme Court used to watch in its obscenity cases were like, but I do know that the recipes above are delicious – given the choice, I’d say pass me the spoon and the fork. Potter Stewart, wherever he is now, can keep his films, and with my blessing.

He wondered what really kept him alive on terrible Antiterra, with Terra a myth and all art a game, when nothing mattered any more since the day he slapped Valerio's warm bristly cheek; and whence, from what deep well of hope, did he still scoop up a shivering star, when everything had an edge of agony and despair, when another man was in every bedroom with Ada.

Vladimir Nabokov– Ada

From what I've read on Crescat and the NYT, one of Newdow's moreironic moments was in response to C.J.Rehnquist's point that the vote in favor of adopting "under God" was unanimous. Newdow said that was becasue atheists don't get elected to public office. The gallery applauded. Rehnquist threatened to clear the gallery.

In other words:

R: There was no dissent.

N: That is because the dissenters were blocked out.

Audience: (Applause)

R: Hush! If there is any more dissent, those dissenters will be expelled.

When I saw this post on a possible terror strategy, I confess that my first response was not "would it work?" but rather "would this be constitutionally protected crime-facilitating speech, or could Steve's post be banned by the government?"

Anyway, my initial instinct is that the hypothetical assumes away its biggest problems. Having 100 loyal followers who would not break under pressure if caught, and being able to simultaneously contact the mass media, run a website, and elude capture on U.S. soil for over 2 years seems pretty tough to me. And if you had such loyal followers and such an ability to elude capture, you could use it so effectively for personal enrichment that it would be pretty darn tempting to forget terrorism and go into a different line of work.

As Jacob Levy points out, some U of C students spend their spring breaks camping out in front of the Supreme Court (as Amanda Butler did this year, and as both of us did last year (myposts here and here and here).

But some Crescatters are instead spending their time inpleasant dissipation. My co-blogger Amy and I saw The Met's Don Giovanni tonight. It was pretty good-- it's hard to ruin Mozart. Still, I was particularly disappointed that Leporello's voice wasn't very loud, so he was swallowed by the orchestra in the second act while he was pretending to be Don G., and his Catalogo song from the first act (my sentimental favorite) lacked punch. Still, fun.

Tomorrow-- The Brooklyn Museum of Art, and a crusade for the perfect Panama Straw hat for the summer.

I camped out at the Supreme Court last night to hear oral arguments in Newdow (arrived: 11:15pm; 41st in line). Below are my notes from seeing the case. I was much impressed by the job that Newdow did in defending himself.

Mr. Cassidy opened the arguments for the government, arguing that the respondant lacked standing and that a willing recitation of the pledge is patriotic, prt of an unbroken official recognition of the role of religion in our history. He would mainly argue the first point and Solicitor General Ted Olson concentrated on the merits.

The standing argument focused on whether the Supreme Court should defer to the lower courts' determination that Newdow could bring his complaint, and what sort of standing he should have.

O'Connor was rather harsh on Cassidy here. She seemed almost as though she thought he was wasting their time as she pressed: the SC routinely defers on standing and moves on to the merits, why is this any different? Cassidy tried to reframe the proper deference as not interferring with the custodial mother's interests.

Souter and Cassidy then went back and forth on Newdow's proper legal relation to his daughter. Souter emphasized that Newdow wasn't bringing his case under "next friend," but as the father: under state law, the custodial parent (this girl's mother) has the right to cast the final decision on morals, religion, and education, but the father still has an interest in seeing that his child isn't subjugated to an unconstitutional religious preference; he maintains his right to raise this claim even though state law does not even allow him to control the absence or attendance of his daughter at school. Cassidy gave an answer something about the best interest of the child standard, to which Souter replied that he was answering as though he were asking a "next friends" case.

Stevens noted that the lower judges allowed Newdow to continue the litigation, and asked if he could have maintained the lawsuit if it weren't in the best interest of the child. The mother objected and complained, but she never asked the court to order Newdow to discontinue the litigation. Olson also harped on the affidavits from the mother on the effect on the daughter "of being thrust into the constitutional vortex" (oi, metaphysical spaces) and on the irony that Newdow's brief is full of references to what's good for the child. When Newdow's turn to argue came, he tried to argue that the lawsuit was indeed in his daughter's interest, but it's not an intuitive claim to grasp.

When Jehovah's Witness schoolchildren say that reciting the pledge violates their religious beliefs, at least today, it garners an understanding sympathy; when the father brings the suit on behalf of his daughter, who has unknown religious beliefs but is in the custody of her fundamentalist Christian mother, it's easier to think that being used as a pawn by her parents (of good or poor intention) and probably being teased some about it at school is a greater harm than the words "under God". Newdow suggested that she could proudly say that her father fought for her constitutional rights, but I don't know that that statement is very effective against elementary or middle school taunting.

Mr. Olson took over for the government. He argued briefly on the standing, noting that a California domestic court with specialized expertise and continual standing had said the father could not direct the child's education. He explained to Kennedy that there were also prudential standing issues at stake because recognizing standing here would disrupt the trial courts' handling of the case, and the appeals court doesn't have much ability to review family courts' handlings of parental relations.

From that he turned to the merits: the Supreme Court has repeatedly said ([here he dropped a verbal footnote --ed] and in the sense of Seminole Tribe, what it's said is more than dicta, an explanation of the holding) that the Pledge is a ceremonial reference to "God" in a solemn public occasion. Since "under God" was introduced in 1954, fourteen justices have indicated that the pledge is ceremonial, not religious (not prayer, not the 10 Commandments, not an evolution case).

He gave the first distiction from Lee v. Weisman: the Pledge there was said at the same time as the prayer was being uttered. He tried to minimize coercion claims by pointing out that the state can and will excuse from the classroom children whose parents disagree with the Pledge. This should not, however, be used in arguments that the Pledge is a prayer. West Virginia v. Barnett dealt with the simple concern of swearing an oath.

Stevens asked if the Pledge had the same meaning today as it did when "under God" was first inserted. Olson: "yes and no." For yes: the phrase acknowledges the religious basisof the framers of the constitution who believed that the right to revolt and and the right to invest power in the people came from a religious source. For no: thanks to the ceremonial repetition, a resonable observer would understand that this is not an invocation. He replied to Ginsburg that the government has a stronger case now than it would have had in 1954. He relied on the findings of the 2002 Congressional hearings to say that the pledge is no longer religious, even if it once were.

Throughout the argument, Ginsburg seemed troubled by slippery slope questions and unconvinced by coercion claims. She asked, fairly rhetorically, what would the offended people find wrong with just remaining mute during "under God," and allowing children to take part in the pledge without saying any words.

Olson concluded by saying that the pledge is not the same as "one nation under Jesus." The Virginia Bill of Religious Freedom contained the phrase "the Holy Author." In his biographical notes, Thomas Jefferson said a motion to ammend that to "the Holy Author Lord Jesus" was defeated becasue it was meant to apply to Jews, Hindus, Mohammadians, and infidels. The establishment clause does not prohibit acknowledging the founders' religious heritage.

Newdow rose and began in a libertarian vein that would have pleased many on this blog: talk of government agents funded by taxdollar money. (mostly verbatim): I am an atheist. Every day my daughter is asked to stand up, place her hand over her heart, and say her father is wrong.

Kennedy broke in rather calmly, saying standing isn't just a silly rule concocted by lawyers. The comon sense core of the rule of standing says that when you act the courts to step in, the person who brings the suit should be the person who takes the public fall for that action, but here, the daugther isn't bringing the suit. For reasons not entirely clear to me, Kennedy doubted that the daugther even had standing (perhaps because her mother has direction over her education and religious upbringing?); he seemed only slightly more convinced that Newdow had standing (or willing to let that question lie), and broke in throughout the case to stop Newdow whenever he argued too much from his daugther's perspective.

O'Connor noted that the daughter had a right not to participate. Lee v. Weisman, where participation was coerced, was a prayer. Newdow wasn't convinced that the Pledge isn't a prayer, and cited (quoted?) post 9/11 Bush on the value of the Pledge as a civic requirement, suggesting that the President conceived of the Pledge as a prayer.

Rehnquist tried to argue that "I pledge allegiance to the flag. . . for which it stands" hardly sounds like a prayer, and the ending part is just descriptive. Newdow dobted that the children would recognize that "under God" is a reference to the founder's history. In reply to O'Connor's point again that no one is forcing his daugther to actually repeat those words, Newdow objected to the government's putting the idea in his daugther's mind that there is an "under God."

She countered again that there are many references to God in our daily life: we opened our court today with a reference [I heard that Newdow had originally planned to object to "God save this honorable court," but was talked out of it]. He said that use wasn't an affirmation under the Barnette standard. She asked if he had a problem with "In God we trust?" on money; he replied that using money doesn't affirm what's written on it. Newdow did a very good job on not giving the justices slippery slopes to fall down.

Ginsburg asked, at various points, about other references. After Newdow nixed the phrase "God Bless America", she asked about the song of that title. He referred back to the court's doctrine on context: if it's a song song once a month in the context of one patriotic song sung per day, he has no problem. She also noted that the Supreme Court Bar's certificates say "in the year of our Lord," but you can ask for those words to be omitted. Newdow said a six year old child shouldn't, can't, be asked to make the same determination, by remaining silent, as an atheist member of the Court bar.

O'Connor, Newdow, and Kennedy went back and forth on the distictions between this and Lee v. Weisman: prayer v. pledge, coerced v. required. Newdow noted that putting the 10 Commandments on a wall is not a prayer, but it does violate the establishment clause. No one mentioned that the decoration on the frieze just above the Chief Justice's head is a carving of Moses holding those tablets, identified by the ten roman numerals.

Breyer wasn't convinced that "under God" was a phrase full of much meaning. He cited a conscienous objector case, U.S. v. Seeger, on whether the "God" in the phrase could be as inclusive as the Supreme Being was there. No, said Newdow, for that case was about Seeger's understanding of what occupied the same place in his mind as a Supreme Being, and this case is about the government's understanding of what occupies that kind of space. Breyer replied that "God" is meant to enclose virtually everyone. Newdow replied well: I can't believe that "under God" is so braod as to encompass my belief that there is no God.

Souter tipped his hat a bit. He granted that the Pledge is an affirmation that the republic ought to be under God, but asked Newdow what he made of the claim that God is so diluted her that it is beneath the constitutional radar. No good. Newdow didn't believe anything was beneath the radar of the establishment clause. In Gobitis and Barnette, the government was characterized as saying that the petitioners' complaints that the Pledge did not hurt them was silly, for it did injure them. He wants the same recognition here.

Breyer came back, untroubled by the Pledge but possibly troubled by who might raise a complaint next: our system of the pledge isn't perfect, but children can stand mute and custodial parents can ask for their children to be excused. It will still offend a few, like you (Newdow), but the Pledge still works as a unifer of the country.

Newdow thought that the Pledge, without the phrase, got the nation through WWI, the Great Depression, and WWII just fine. We don't need this divider. Sure, Congress unanimously voted to say the Pledge is just fine as it is, but the lack of dissent just goes to show that atheists can't win public office.

[scattered but noticable CLAPPING in the audience]

Rehnquist (twice as loud as usual): The courtroom will be cleared if there's any more clapping.

Newdow just noted that 8 states still have laws on their books and constitutions that atheists may not hold public office.

(Again Kennedy?) asked the question: do you think that "under God" has the same meaning now as in 1954?" Newdow ducked. "Under God" has enormous significance when 99/99 Senators stand together to take the Pledge, and Bush begins a joint press conference with Putin with mention of this case (ex-Commies are no longer Godless?). In the 1954-era hearings on whether to include the phrase, "God" was referred to as an entity, called the Creator. In response to Kennedy, he said that the Pledge recitations are a form of religious exercise, a separate subset from prayers, but religious nonetheless: that is the plain meaning of "under God." He played with numbers a bit, noting that the ratio of "under God" to the length of the pledge is greater than the ratio of prayer to graduation ceremony in Lee v. Weisman. But that's lagniappe. Why is the phrase "under God" in the pledge is the same as the question asked in Allegheny: why is the creche put in the middle of the staircase in the first place?

Newdow concluded: we need to return to a time where ever person can pledge to "one nation, not divided by religion, with liberty and justice for all."

Cassidy gave a brief rebuttal, focusing on the post-Barnette procedures that schools adopted to ensure that people who did not want to voluntarily recite the Pledge could opt out. He called the Pledge apart of a teaching process, the educational upbringing of the child into civic unity.

Stevens quoted from an amicus brief filed on behalf of Newdow, saying that if the phrase means nothing, children are being asked to take the name of the Lord in vain. Cassidy said no, it's a historical phrase that reinforces our goverment's limited powers.

And so it ended. Punditry among the crowd wondered if the Court would just dismiss it on standing. I went into the arguements not sure how I hoped the Court would rule, but I found Newdow's points convincing. It is hard for me to accept that a phrase has no meaning, or lacks the apparent meaning of the words (although I'm quite willing to grant secondary meanings to the facial one), and I think I would only be convinced by the government's argument if I could believe that "under God" is meaningless. I certainly didn't think of "under God" during those many recitations from elementary school through high school, but I didn't think much of any part of the Pledge then. It was just something I muttered, sometimes with a vague dread that the wrong set of memorized words would escape, and I'd find myself in the midst of the Lord's Prayer or the Girl Scout Promise by mistake.

Breyer doubts that there's harm. Ginsburg worries about the slippery slope of singing God Bless America and minting In God We Trust (in the dissent to the 9th circuit opinion, the judge worries that banning "under God" will mean we'll also have to quit singing the fourth verse of the Star-Spangled Banner. quit?). Souter understands the injury that Newdow feels. Who knows what Thomas thinks, and Scalia was out. Kennedy is questioning the standing issue. Stevens and O'Connor and Rehnquist... eh? O'Connor's more comfortable than most with the maze of current jurisprudence, but she might also be comfortable to adding something else in there. I vaguely call it that they'll uphold the constitutionality of the Pledge.

Finally, the charming gentlemen with whom I chatted in line have asked me to note their kind company. The Supreme Court is one of the better places in DC for meeting people, for most tend to be friendly, gregarious, and bored in line. And if you don't want to camp out and aren't a member of the SC bar, $100 bought a spot in line for one gentleman (co-author of the amicus brief filed by the Buddhists). And thanks to the usher who allowed me to move from a seat where my view of Ginsburg was blocked by a column to a seat next to some of Ted Olson's family.

I make a lot of mistakes while cooking. Sometimes, I admit I get frustrated. It’s incredibly annoying to spend a lot of money (relatively, given my negative $50,000 in annual income) on ingredients I’m really looking forward to eating, and then have them fall apart (usually figuratively, though at least once literally), in my hands. As annoying as mistakes are, however, I always learn from them. Of course, I often learn specific lessons about specific dishes. For example, after some particularly disastrous blueberry muffins, I discovered that replacing butter with half as much oil in baked goods because you’re too lazy to go out and buy butter is definitely a bad idea. Just as often, however, I learn more universal lessons.

1. Ingredients matter : The carrot bread looked especially delectable from outside. Golden brown, obviously crunchy, and especially fragrant. Nor was this a surprise; I had worked really hard on the damned thing, and it deserved to be tasty – I don’t know if any of my readers have tried hand-grating a pound of carrots, but it isn’t the most pleasant of tasks. Because I’m an unrepentant glutton, I wasn’t able to wait for the cake to cool down, but rather took my serrated bread knife to its thick exterior immediately, at which point a flood of cinnamon and nutmeg laced carroty liquid gushed out the side, burned my hand, and incidentally collapsed the entire loaf. You’d think, then, that the lesson I learned from this apparent disaster was patience, both in baking and cutting.

But the reason I remember the great carrot bread debacle of 2004 is that I still enjoyed that loaf. Sure, I wasn’t going to be able to slice and freeze it for snacking throughout the week. Indeed, I ended up with a box of the most appalling Quaker Oat cereal bars, about which I’m still annoyed. But I saved as much of the molten cake as I could, found some relatively convincing vanilla ice cream, and proceeded to make what turned out to be a really delicious sort of bread a la mode. The reason it was still good after all those disastrous mistakes on my part, though, was that I had used only ingredients that taste good on their own. Wholesome butter, fresh carrots, nice eggs, whole rather than ready ground spices, King Arthur’s quality flour – all these things can’t help tasting good. Every time I’m tempted to use low fat cheese or fake sour cream or chemical margarine, experiences like that pumpkin bread waft into my mind. Good ingredients are an insurance policy for the second rate cook.

2. Kitchen Equipment isn’t always a Crock : I used to be rather skeptical about the difference good kitchen equipment made. “Eh”, I said, dismissively of the kitchen weekend warriors flashing their fancy pants All-Clad steel and copper pans, “my collection of standard department store steel and aluminum can take them all on”. Still, I bought a decent sauté pan, made with a particularly thick base and a metal handle – it was a sort of housewarming gift for my arrival in Boston.

I learned to make spaghetti carbonara near the beginning of 1L, with the nice pan. Being one of my favorite dishes, I thought I would make it at home for my family over that Christmas, and whipped out my mom’s old cookware confident it would all work perfectly. I slowly fried the scant cubes of pancetta, releasing their eminently flavorful fat, poured in a little vermouth to deglaze, and then tossed in the pasta, all at high heat with a little knob of butter. Once the pasta was well coated with all these delicious accoutrements, I turned off the heat and added the eggs and imported parmesan that form the base of any carbonara - the idea, of course, is that the steady latent heat in the pan ought to turn the eggs creamy as you frantically turn the noodles in the fatty mixture. It certainly had always worked before.

This time, however, I was left looking at a pan full of badly scrambled eggs, pasta, and bacon. The thin carapace of my mom’s pan had got too hot, which I hadn’t noticed, so the moment I added the eggs to the pan they had given up the ghost entirely. In accordance with the first lesson I mention above, the dish still tasted good – the ingredients were all tasty on their own, and there isn’t anything wrong with scrambled eggs and bacon. But it definitely wasn’t carbonara. Since then, when making that particular dish divorced of my pan, I’ve plumped for the Italian way with it by adding the egg raw after tipping the pasta into a wide and shallow bowl. But until I become a better cook, I’ll leave my usual method here in Boston – for some recipes, I rely on equipment for help.

3. Ignore seasons at your peril: I love strong tastes, whether it be spices, or meats, or butters or drinks. Bland rarely does anything for me. That’s why I’m a big fan of the Italian radicchio, a sort of red tinged chicory relative. At its best, radicchio has an astringent bitter taste, strong enough to be interesting but not overwhelming. Tossed into a soup with broad beans, a chili, parsley, garlic, and the juice of a generous lemon, the leaf makes for a hearty winter meal. Conveniently enough, its season runs from mid-winter to the beginning of spring – just the thing to get an often overwhelmed law student through the worst of a long, dark, couple of months.

But modern supermarkets have made it available year round. Thinking myself clever last summer, I decided to take advantage of this fact to make the soup in the middle of August. Sure, the radicchio might not be at its absolute best, I figured, but it would still be ok, and surely boiling it in the soup would soften its harder edges in any case. It’s not a time consuming or complicated meal to prepare, so in twenty minutes I had settled down at the table with a snowy white slab of my favorite goat’s cheese, which I think goes well with anything involving broad beans, and a large bowl of the steaming, delicious smelling soup. This, I thought, would be a pleasant noontime.

Alas, what I had neglected to notice was that radicchio outside its season is incredibly bitter, unless you get especially lucky. In fact, even to a mouth used to strong flavors, it was almost inedible – just sour and bitter, almost beyond belief. Nor could any of the soup and beans be saved by removing the leaf – summer had so ill treated the European delicacy that it had destroyed everything else in the soup save the chili, which I rescued and ate with the eagerly waiting cheese. I certainly didn’t go hungry, and I’ll still happily eat radicchio in the right season. What I wonder about, though, is all those people who might only have eaten radicchio at the wrong time, and now think they don’t like it. It’s possible that they like radicchio, but the grey, limply flavored shadow of it they ate in ignorance. And often enough, there’s no one to tell people otherwise. No, I don’t envision a return to a pre-industrial world where we eat everything exactly in season, for lack of alternatives. I’m an avowed capitalist, and our present range of choice is what the market has delivered and people demand. But I would like people to promise me that before they exclude a food from their diet, they’ll try the best version of it they can find. Giving something another try has changed my mind more than once, and I hope others think the same.

Via Terry Teachout, I notice this James Lilek attack on an Adam Gopnik piece about Times Square in the New Yorker:

“It’s not filled by media images that supplant the experience of real things.”

Neither is my back yard or toilet bowl or left kidney; lots of things are not filled by media images that supplant the experience of real things. Folks, let me tell you: when you reach a certain level in an organization, you can write things like that, and the copy desk shrugs and says “whatever.” Because it’s Opinion, it’s Creative, it’s the Star Writer on a tear, and you don’t step in to point out the emperor is not only buck-fargin’ naked, he’s wearing white before Memorial Day.

Dear Miss Manners:

I think some in our family don't know dress etiquette. I told my family members that one should not wear white when there is an R in the month. They doubt my knowledge. Do you?

For a moment there she did, Miss Manners must confess.

"Oysters!" she felt like calling out. "You poor soul, you've mistaken your clothes for oysters."

This apparently nonsensical lament refers to the instruction (not issued from the realm of etiquette) that oysters should be eaten only in months that have the letter R in their names, namely September through April. The season for the ban on wearing white shoes (not on anything white; for example, it does not apply to shirts or teeth) is Labor Day through Memorial Day.

She soon realized, however, that the two formulas are pretty close. We're talking about less than a month's difference. If Miss Manners were one to compromise, she would suggest splitting the difference, but unfortunately, she is not.

Mark Bittman has a recipe for delicious-looking spicy chicken soup. As I have a limited number of friends who share my belief that loading painful food onto one's tongue is a really good time, I shall have to pick my dinner companions carefully. And I'd better get my hands on some good chipotles.

The Associated Press has this story noting that the pledge of allegiance case was argued in the Supreme Court today. The story also notes:

Dozens of people camped outside the court on a cold night, bundled in layers and blankets, to be among the first in line to hear the historic case.

I wasn't going to comment on this Ayres-Nalebuff op-ed until I saw this dismissive post by Professor Bainbridge.


The basic problem is that Ayres and Nalebuff argue that it's quite likely that Justice Scalia bought his round-trip ticket fraudulently (since airlines generally forbid buying round-trip tickets when one has no intention to make the round). Juan Non-Volokh posts some thoughts about this, including a possible defense. I'll note as an initial matter that we don't have enough information to confidently condemn Scalia for sure. (Consider the number of pure factual errors in the op-eds surrounding Scalia's decision to recuse).

All that said, it seems to me there's nothing wrong with pointing out when one's political opponents have broken laws, even when those laws are trivial and stupid. This is especially the case when one's political opponents are well-known, well-celebrated, for their belief that the triviality and stupidity of a law has no bearing on its enforceability.

Clearly a prosecutor could find better things to do with his time than go after people who have violated the law by not flying to Louisiana, but if a prosecutor did press the point (or if the airline pressed the point in civil court, perhaps), shouldn't Scalia supporters believe that it's only fair to punish Scalia?

A broader point, which I may expound on later, is that everybody I know (and probably everybody you know) violates laws of some kind or other, probably on a semi-regular basis. This is less the case for your average high-school teenager after the sexual autonomy component of Lawrence v. Texas, but still-- our legal system is only livable because so many violations are never pursued. If Professor Bainbridge wants to properly deal with Ayres and Nalebuff, he could watch carefully for any crimes they may admit to in print.

[And an afterthought-- a friend/co-blogger suggested last night that op-eds and similar journalism rarely serve any purpose other than to state the author's position, and that the reasoning included in an op-ed is mere windowdressing to the real business, where the author says, "I, who you trust, tell you to believe X." The Ayres-Nalebuff op-ed is a counterexample. Before reading it, I was of the opinion that Justice Scalia refuted all accusations of misdoing in his opinion. After reading it, I'm tentatively of the opinion that he's a criminal, if a petty one.]

Tyler Cowen links to the interesting case of somebody who mixed The Beatles and Jay-Z into a new work of art. The copyright implications are, of course, obvious.

Cowen thinks the whole thing might get out of control.

I'm really just writing this post to note that the problem, such as it is, is nothing new. Italy has long tradition of a poem called the cento (which means something about things being stitched together), which has spread to other places. A cento is constructed entirely out of lines and fragments of lines from other poems (generally well-known ones, sometimes ones that share some theme, etc). So if one began by mixing up some lines from Empson, Bishop, and Eliot, one might get a poem that begins:

The pain endures the universe.

Poise of my hands reminded me of

...the art of losing sea girls wreathed by waste.... remains.

The art of losing is the pain, it is the pain.
Oh come, art cannot hurt.
It can, and how!]

Waddling Thunder's First Rule of Library Research: All books of even marginal value are shelved on the top shelf exactly two inches beyond comfortable eye level, or on the very bottom shelf to the far left directly in front of the dubious puddle. There are no other books.

Kieran Healy is visiting Pasadena from Sydney, and underwhelmed by the experience, while there are those (heretics!) in the comments wondering why one would visit Southern California at all. Parts of Pasedena are depressing, I admit, but others are magnificent. To Kieran, I offer the following recommendations.

Old town Pasedena is ok, if you like that sort of thing, but the Descanso Gardens are magnificent, including a veritable forest of camellia bushes, and a formal rose garden. Whenever I fly back home going through Los Angeles, I always like to stop at the Descanso Gardens as a reminder that I am indeed back in the land of perpetual spring. The camellias are probably fading by now, but the roses should be just coming into bloom.

The neighborhood around the garden includes some lovely Arts and Crafts houses, including Gamble House, which is open for tours. Other houses can only be viewed from the outside, and directions for a walking tour are provided in the Gamble House gift shop.

The gardens are the best feature of the Huntington as well. I especially recommend the herb garden and the palm garden, but other places are often nicer in the right season. The art collection I didn't find particularly distinguished, but the manuscripts on display are quite nice.

For a better art musem, I recommend the Norton Simon Museum. The collection isn't large, but what it has is of excellent quality, and well-displayed. Among the paintings not to be missed are Rembrand's hertbreaking portrait of his son, Cranach's Adam and Eve, a beautiful Lorrain and Fragonard, and Impressionist and Modernist works galore.

The Plaza de las Fuentes, across the street from City Hall, is proof that good public architecture is not dead. Around the plaza are a hotel, a church, and several restaurants, and the inner courtyard area is Moorish in style and dominated by running water. And while nobody is going to call the restaurants there (a California Pizza Kitchen and a McCormick and Schmick's) great cuisine, they are both dependably good.

What makes a Southern California city like Pasadena seem less like a real city than a typical Eastern or European one is that these attractions are spread across the city, rather than concentrated in one city center. And instead of banishing the ugly, utilitarian buildings to the periphary (as Paris, for example, does) they are instead interspersed with the gems. It's not a style of city planning I particularly wish to defend, but I will say that the Descanso or the Huntington are peaceful and isolated in a way that Central Park will never be.

It turns out that our mysteriously disappearing bandwidth was caused by two things-- the fact that totalchoicehosting failed to process our bandwidth increase last month (now fixed) and the fact that our archive and front pages are immense. We've cut down the size of the front page from 7 days' worth of posts to 4, and we're planning to cut the size of each archive page. Currently, when you go look at an old post it displays the surrounding week's worth of posts; soon it will only display other posts from the same day, and you'll have to click around a bit to read each individual day.

But I don't know if this is troublesome to readers-- if somehow these changes would greatly inconvenience your reading of the blog, drop me a line and let me know *how* you read Crescat. How often do you scroll back and read a post three days old on the front page? How often do you poke around and read everything on an old archive page?