The 80-20 rule, online commentary and Popehat

The 80-20 "rule" has several variations, like 20 percent of an organization's members do 80 percent of its work or similar.

My adaptation here? If I agree with on on about 80 percent of political philosophy, and that 80 percent for both of us is, in America, at times outside the beaten political, sociological or legal path. we'll probably disagree a lot on the other 20 percent.

Take Ken White, the libertarian-leaning lawyer and former federal prosecutor known as Popehat.

I was curious on his take on end-of-term Supreme Court cases for this year. Specifically, the travel ban, NIFLA (the California anti-abortion clinics) and Janus (the public sector employees' mandatory donations case).

So, I perused his Twitter.

Unfortunately, Popehat loses me at his sixth tweet in a thread that is related to this issue:

/6 NIFLA and Janus are consistent with that trend -- with saying "we're not recognizing new-fangled judge-created exceptions or asterisks to First Amendment protections, even for widely popular policy reasons -- we're applying the same harsh test to everything."

— ThisIsNotNormalHat (@Popehat) June 27, 2018

I responded:

You had me on the first five and lost me here. Contra NIFLA, PPvCasey had the Court agreeing that MDs could be told they had to inform of abortion alts. And Janus overturned on-the-books Abood, which being on the books wasn't new.

— @realDonaldTrump 🌻 (@SocraticGadfly) June 27, 2018

And, that's that.

No, I"m not a lawyer, but a 30-sec teh Google earlier in the day had already led me to the Abood case backgrounding this, after I read the Janus ruling. I know Ken White knows what Abood is, and that it was adjudicated 41 years ago, so how he can claim that Janus's issues at hand were "new-fangled judge-created exceptions or asterisks to First Amendment protections," I don't know, to put it politely. To put it less politely, I call bullshit, Ken. And, in the wake of NIFLA, several online newsmags mentioned the Planned Parenthood vs Casey and SCOTUS saying, yes states could require doctors to talk about abortion alternatives. (More on Abood and the thread of labor history from there to Janus here.)

Ken, if you want to claim Abood was wrongly decided, that's one thing. (I'd still disagree with you, of course.) BUT, that's not what you claimed. Your statement is pretty clear, and in light of Abood — highly wrong. Deal with it.

In a new Tweet, Ken says:

No, I didn't.  I said it was rejecting judicially created exceptions to the First Amendment.  Which was, at least, the pretense for it.  I recognize the argument that it was outcome-focused.

— WeaponizedHat (@Popehat) July 2, 2018

Which, on my reading of the Abood background to Janus, leads me to stand by my take on last week's Tweets. This isn't Ken just projecting himself into the thinking of a majority of the Supreme Court; it's his personal take.

Ken has the invitation already issued to provide more clarity.

On further exchange of Tweets, Ken admits "new-fangled" is vague, but his admission is in a sense that seems to stand by the idea that Janus is de novo in some way, IMO:

I will concede that "new-fangled" is too vague to be useful.  I mean historically recent judicially constructed exceptions generally.

— WeaponizedHat (@Popehat) July 2, 2018

That's my take.

As to whether the big picture is his personal take, or his "projecting" into the thinking of the SCOTUS five, Ken says:

I wasn't making a normative judgment about Janus, as the thread rather explicitly suggested.  You're reading what you want to read into it. When I want to defend Janus, I'll do so explicitly.

— WeaponizedHat (@Popehat) July 2, 2018

To which, I responded:

That's possible. At the same time, per your previous "vague" post ... I'll stand by the idea that it was open interpretation as to whether that was you personally, or you projecting into SCOTUS' group mind. So, per that "vague" ... that too is vague.

— @realDonaldTrump  🌻 (@SocraticGadfly) July 2, 2018

And, I'll stand by that as well.

Plus, Ken, you're a lawyer. Even in a brief Tweet, you know something about clarity and precision in language, as I do as an editor.

And, if you wanted to offer your take, you had time on that thread last week. Or, simply, add one tweet to make clear this was your attempt at mind-reading the Court, but that you didn't personally agree with all of it. After all, you weren't retweeting somebody else. And, you started the thread claiming you were rejecting others' interpretations.

So, this is not just reading the mind of SCOTUS with your interpretation. By rejecting other interpretations, I infer you are saying yours is better. And, thus, not just interpreting but taking a personal stance.

Phrasing it another way, and getting rid of the issue of normative, which can mean several things, whether you intend it as a narrow jurisprudence term or more broadly — I read you as saying Janus (and NIFLA, let's not forget) were correctly ruled, were correctly ruled without this being some new conservative legal onslaught (I'll agree; it was Kennedy being his true self more bluntly) and you presenting WHY you think they were correctly ruled. And, on Janus, you're wrong in light of Abood; in NIFLA, you're wrong in light of Planned Parenthood v Casey.

Or, if I'm more generous one way, less another, your interpretation / mind-reading of the Court is itself a fail. That's because, for the same reasons. Obviously Janus wasn't introducing anything new, nor was NIFLA.

(And, this back-and-forth has given me the second most popular tweet of the last 30 days and another in my top 20). I'll probably do a breakout of this into a separate post. Exactly what it says will depend on what Ken says, or does not, on his blog. That said, he has more true-blue libertarians than him among commenters, who probably love Janus; I've seen "taxation is theft" comments semi-regularly. And had people over there attack me occasionally on my Missouri prof and free speech post which got some publicity off Ken.)

Jeff Toobin also calls out the wrongheaded thinking of the Court on Janus, and with that, either the support for such wrongheaded thinking Ken offers, or that he indulges himself.

Per other comments on Twitter, I held off on this to see if he would actually do a blog post about any of the three cases, since he said his tweets weren't necessarily about his personal take.

And, other than two posts that were briefs about his podcasts, no, his first full post was about Brett Kavanaugh and free speech. And, Ken, you are simply wrong about political money as free speech. (It's also an area where Glenn Greenwald is wrong. Glenn has pronounced himself perturbed or similar by Citizens United but has yet to repudiate it, let along the Buckley decision that started this nonsense.) Political speech is ultimately parallel to advertising, though not exactly the same.

Finally, Ken, judges like Kavanaugh, and constitutional law scriveners like you, engage in "results oriented jurisprudence" just like anybody else. Stop pretending with the slapping of labels on others.