Dinner Table Politics: Best Presidents Edition

With Donald Trump’s approval rating soaring among Republicans and sinking with everyone else, Abby and Jim discuss their picks for the best presidents in history and why Thomas Jefferson left his presidential tenure off his tombstone.

Abby doubts that Jim had the word “jowls” in his vocabulary at the time of Nixon’s resignation, and she also identifies who was the heaviest president (Taft) and the one with the the best tan (Kennedy), and why weight doesn’t necessary correlate with presidential greatness.

Also, who was uglier – Abraham Lincoln or Daniel H. Wells?

Download the latest episode here.

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Dinner Table Politics: Trump, Russian, and How to Pronounce “Magnitsky”

Abby and Jim discuss President Trump’s disastrous summit in Helsinki and why George Will called the Commander-in-Chief a “sad, embarrassing wreck of a man.” That leads to the incredible story of Bill Browder and the 2012 Magnitsky Act, which leads Abby to predict that Melania will likely soon be jumping out of airplanes a la Tom Cruise in Mission Impossible.

Also, is the EU really a foe? Why does the difference between integrative and distributive trade matter? And how is Vladimir Putin’s attempt to get vengeance on Bill Browder like the Battle of Hogwarts?

Download the latest episode here.

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Articles of My Personal Faith

The LDS Church has 13 official Articles of Faith that have been canonized as scripture, and I believe all of them. Over time, I have come to a more comprehensive understanding of my own personal faith, and I have compiled a list of additional things I, personally, believe.

This list is in no way comprehensive and is certainly not infallible. It is also subject to revision, addition, and subtraction as circumstances may warrant. I have resisted the temptation to number them, because they are listed not in order of importance but in the order in which I thought of them.

I believe the Book of Mormon is exactly what it purports to be – not a fraud or “inspired fiction,” but an ancient religious record translated by the gift and power of God. It is the anchor of my testimony and the primary reason that, despite all my frustrations with the LDS Church, I will remain an active and faithful member. 

I believe the Church of Jesus Christ of Latter-day Saints is the theologically truest church on the earth. If I discover a truer church, I will join it, although I don’t anticipate such a church existing. 

I believe other churches teach a great deal of truth, and that a great deal of truth can also be found in schools, in nature, in science, in entertainment, and, really, just about anywhere you look.  

I believe that “whether by mine own voice, or the voice of my servants, it is the same” means that the Lord honors the things he says through his servants, not that everything his servants say is the word of the Lord. 

I believe that Latter-day Saints have an unhealthy aversion to the concept of Christ’s grace, and that has resulted in many Mormons believing that they earn the majority of their salvation, which is wildly incorrect.

I believe the fifteen men who serve in the highest offices of the Church are good and righteous men. I also believe there is a vast overabundance of members qualified to be apostles, and that there are at least fifteen men and women in my own ward alone who are as good and righteous as the fifteen men who serve in the highest offices of the Church. 

I believe I have as much direct access to heaven as Russell M. Nelson does. 

I believe that temples need not be nearly as ornate as they are and that we should spend far less money on them. 

I do not believe that the U.S. Constitution is or will be hanging by a thread, or that the Mormons will be called upon to save it. 

I believe that agency and infallibility are incompatible, which means prophets can make mistakes, sometimes very big ones. 

I believe that the denial of the priesthood and temple blessings to people of African descent was, indeed, a mistake, perhaps the biggest mistake the modern Church has ever made.

I believe the November 2015 policy punishing innocent children of gay parents is the biggest mistake that is currently on the books. 

I believe that there is a great deal of further light and knowledge the Church needs to receive with regard to our LGBT brothers and sisters, and that we are not actively seeking that knowledge with the vigor commensurate with the love we should have for our fellow children of God.

I believe that no question should ever be feared or blithely dismissed, and that it is possible to directly confront the thornier elements of Church history and doctrine and come out with a strengthened testimony on the other side. 

I believe the possibility of the ordination of women ought to receive more careful and prayerful consideration than it has gotten thus far. 

I believe that mixtures of religion and politics are toxic by default. 

I believe the BSA has never had a mandate from heaven and that nearly all of my childhood traumas can somehow be traced back to the Boy Scouts of America. I’m immensely grateful to the Church for finally severing that connection. 

I believe militant atheism is intellectually ridiculous. It’s one thing to doubt the existence of God; it’s another, much dumber thing to be certain no God exists. 

I believe that religion has nothing to fear from science, and that the Old Testament makes no effort to distinguish the literal from the figurative and is therefore useless as any sort of scientific treatise.

I believe that truth exists independent of human interpretation thereof. That includes truth of all kinds – scientific, moral, ethical, spiritual, and musical. 

I believe D&C 121 provides the template for how all authority should be wielded, regardless of whether that authority is sacred or secular.

I believe that “Mormon Doctrine” by Bruce R. McConkie, “The Miracle of Forgiveness” by Spencer W. Kimball, and “For Young Men Only” by Boyd K. Packer were all well-intentioned works that ended up doing far more harm than good. In particular, Elder Packer’s pamphlet, given to me when I was twelve years old and had no earthly clue what he was talking about, severely warped my adolescence by making me afraid of my own body. 

I believe every temple sealing should be directly preceded by a non-temple wedding ceremony that anyone can be invited to attend, because no parent should be denied the right to see their children get married, and alienating an existing family is a terrible way to mark the creation of a new one. 

I believe “Us vs Them” is a terrible way to live your life, regardless of who is “Us” and who is “Them.” 

I believe most sports analogies are directly inspired by Satan. 

I believe people who believe all manner of nonsense should be welcome in the Church, provided they are not actively seeking to tear down the faith of other members.

I believe it is in the best interests of both priesthood leaders and children to have parents present during interviews. 

I believe kindness is a mandatory prerequisite for all of our interactions with other human beings.

I believe that’s all I have for now, but I reserve the right to revise and extend these articles as occasion permits. 

Decency in an Era of Ding Dongs

When my father passed just over two years ago, the media was filled with laudatory tributes to him that brought a great deal of comfort to all of us in the family. The problem was that most of these were posted on websites that included comment sections.

“Don’t read the comments” is the best advice I have ever given that I have never followed myself. Of course I read the comments. And the good news is that, in this instance, the overwhelming majority of them were entirely appropriate condolences. But far too many of them were not. Some people thought his death provided the perfect opportunity to settle old, and now meaningless, political scores, and a handful decided to seize the day by crowing, “Ding, dong, the witch is dead.”

I’m not paraphrasing. That was an actual comment, verbatim. There was no other substance or elaboration, just a terse expression of raw glee that my mother was now a widow and that I had lost my father. And as I stared at that slice of congealed bile for what seemed like forever, I tried to understand the rationale of the person who would say such a thing.

Now I can fully understand having unkind thoughts about public figures when they pass away, as I have had far too many of those myself. But the idea of immediately broadcasting those thoughts to the world at large in forums where the family of the recently deceased can read them is unfathomable to me.

If Mr. Ding Dong had met my mother on the street, would he have had the temerity to repeat his nasty mantra to her face? Would he be willing to come to either of my father’s funeral services, both of which were open to the public, and stand up and burst into song with his Oz-themed hatred?

Well, he didn’t, and neither did anyone else. That suggests that the anonymity of the Internet provides an easy outlet to be ruder than we would ever dare to be in real life. Except anonymity isn’t a mandatory requirement for an online license to be unkind.

I had a neighbor – in Mormonspeak, he was a “member of my ward” – who I knew casually and with whom I sang in the ward choir. He seemed a decent enough fellow, and he was a big fan of Evan McMullin, the independent presidential candidate who ran in 2016 and got 22% of the vote in Utah. He moved out of our neighborhood not long after the election, and I joined an Evan McMullin Facebook group in which I was a lurker while my former neighbor was an active participant.

When the formation of the United Utah Party was publicly announced, my neighbor jumped into the FB group to warn fellow McMullin fans that my new party was dishonestly pretending to be moderate, but he had talked to one of its founding members who had admitted to him that we were really interested in tricking people into accepting huge tax increases to fund vast expansions of touchy-freely social programs.

I jumped in immediately and pointed out that I was likely the founding member he had talked to, and I had never said any such thing, nor had any such idea ever been discussed in behind-the-scenes party conversations. He responded that while it was, indeed, someone other than me who had unwittingly divulged our diabolical agenda, I was still clearly lying to everybody when I denied that this was the UUP’s conspiratorial purpose.

I was flabbergasted. It’s one thing to say you disagree with what the UUP stands for, as that’s an entirely legitimate position to take. It’s quite another to publicly call me a liar with no evidence to back it up.

We exchanged a number of private messages, and he was far less willing to stand by his empty accusations away from the glare of the group spotlight. He finally said, “Look, it’s just politics.” I responded, “No, it’s just rude.” We are no longer Facebook friends, and I’m grateful we’re no longer neighbors. Political discussions do not relieve you of the responsibility to treat other human beings with kindness and respect.

The most recent example of this kind of bad behavior came in my Facebook thread discussing the Brett Kavanaugh Supreme Court nomination. I don’t want to rehash the argument, but I would like to highlight the reaction of one Solomon Kleinsmith, a man I have never met, do not know, and can no longer contact now that he has blocked me on Facebook.

Mr. Kleinsmith is apparently a blogger who claims to have influence over thousands, although I can’t find anything online that he’s written publicly in the past few years. I accepted his friend request during my campaign, and I hadn’t paid any attention to him until he jumped into this thread to offer the following bon mot:

Good lord… I cannot believe I threw several thousand people toward your candidacy in a positive way. I won’t be making that mistake again. If you believe this sort of logic, there is no way you could be trusted with high office.

I was quite startled by this, as I didn’t think I had said anything so far outside the bounds of propriety that it merited this kind of reaction, nor did I realize that I owed so many of the votes I had received to Solomon Kleinsmith. I tried to de-escalate the situation and point out that I was no longer running and had no plans to run again, so that made both our lives easier. I then attempted to redirect the discussion back to ideas instead of insults. But the good Mr. Kleinsmith was having none of it:

Good lord – you really are a politician, aren’t you?… Dishonest politicians like you are so much of what is wrong with our political system… Goodbye, and good riddance to bad rubbish.

I was defriended and blocked immediately thereafter.

All right, so what’s my point?

My point is not that I think we shouldn’t be passionate about politics or that we need to tiptoe around each other when engaging in spirited debate. I very much enjoy vigorous disagreements about ideas with good and wise people who have different opinions than I do. It’s when these disagreements turn into discussions about what a terrible person I am that I lose interest very quickly. When that’s the way it starts to go, I’ll often stipulate from the outset that I’m the worst person who has ever lived, so we can stop wasting time finding evidence for my awfulness and focus on ideas instead.

We live in an era where basic human decency is in increasingly short supply, especially when we enter the political arena. Donald Trump is a symptom of our national indecency disease, but, to mix metaphors, he didn’t start the fire. We have increasingly found excuses to be unkind to each other, when we need to find excuses to be precisely the opposite. If we’re going to dig out of the ad hominem pit in which we find ourselves, we need to listen to each other and find ways to disagree that allow us to pleasantly sit side by side in the ward choir together when the conversation is over.

This is how I intend to conduct myself for the remainder of my time on this earth. Although in the online comments for my obituary, I fully expect one from “S. Kleinsmith” that reads “Ding, dong, the witch is dead.”

Dinner Table Politics: All Things Judiciary

President Trump’s nomination of Brett Kavanaugh to the Supreme Court leads to a discussion of the history of the Supreme Court, as well as Abby’s spontaneous performance of excerpts from the musical “Hamilton” amid scattered Harry Potter references. We also discuss Abe Lincoln playing judicial hardball, FDR’s attempt to pack the court, and why “Borking” is now Abby’s favorite verb.

Download the latest episode here.

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Dinner Table Politics: Fourth of July/Tinfoil Hat Edition

Happy Fourth of July!

Abby and Jim discuss the conspiracy theory that this year’s 4th will be the beginning of a new civil war, as well as a number of other conspiracy theories, both political and non-political, including the one that Jim actually believes.

Hear about Jim’s 3rd grade Watergate-themed Show-and-Tell, as well as Abby’s confidence that Tupac is still out there. Is Anthony Kennedy’s retirement from the Supreme Court a conspiracy, too? And should voting machines make funny noises while you’re in the booth?

Download the latest episode here.

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My favorite Facebook thread ever

The United Utah Party recently launched a petition calling for “humane and reasonable immigration reform,” and the following Facebook thread happened.


Why didn’t you do this under the king Obama time . Didn’t care then did you !!!


The party didn’t exist under “the king Obama time.” And it sounds like you don’t care about this now.


oh yes deport all as soon as the step foot on our land . They want free welfare Obama care which they get as they are released 68% of illegals on welfare and plus Medicade . Let’s take care of Americans that are poor and homeless first and military families !!! You Dems never care about them when you walk over them in Salt lake do you

Since I’m not a Democrat and I’ve never walked over another human being in my life, I’m not qualified to answer your question. I will say that I’m perplexed as to your interest in the UUP, given your clear affinity for the current Republican Party.

I’m sure your not qualified on anything why don’t you worry about the American public first then lets talk about the free loaders the gang member and the children trafficking ting. Get your facts first before you want money. The taxpayers pay out billions every year trying to take care of Clinton’s law mess that Bush and Obama didn’t do anything on

It should be “I’m sure YOU’RE not qualified on anything,” with a period after “anything” to mark the end of the sentence. “Your” and “you’re” are not synonyms. So it appears I’m qualified enough to use proper grammar, if nothing else.

I don’t understand the motivations of someone who dives into a discussion simply to insult people they don’t know. What do you hope to accomplish? And why do you think unkindness is helpful to your case?

You read it just fine I didn’t think I had to right a paper and get a grade on it. You just found out someone didn’t agree with you now you will have your hissy fit and start criticizing nothing of importance!!

I’m not you are the one asking for money with out facts of the true problem!!! And you are the one that got arrogant first with my punctuation

Should be “write” a paper, not “right” a paper. Righting a paper would presumably entail correcting a paper that had been already written.

I see no evidence of a hissy fit on my end, but please know it is not my intent to be insulting or unkind to you. I have no interest in engaging you on the subject of immigration, as it’s clear you have your mind made up and feel well-represented by current policies. My curiosity is to why you felt it necessary to insult people you don’t know in a state where you no longer live on a subject where you are unlikely to change any minds, particularly with such a hostile tone.

Could you point out where I’ve asked you for any money?

I’m a bit of a grammar obsessive, it’s true. I apologize if that comes across as arrogant. Although three exclamation points does seem excessive.

See has I say no facts just criticize on something that doesn’t matter !!!! Yep a liberal sure now we know you enjoy getting money to give to your self . The government has plenty to give to the illegals and take care of the situation!!! Your lucky their is slot of unknowing weak people that falls for fake money organization!!! How much do you keep and how much is given ???? Like my guestion marks

Phony people and organizations make it so hard for true ones that is why !!! yes I just Google about your tiny party from 2017 you will do anything to try and raise money won’t you. Just what I thought.

Your atrocious grammar has rendered you unreadable, and since I don’t have any idea what slot people are, I wish you well as you continue to hurl illiterate insults into the digital void.


Yep my Grammer and your group have alot in common!!!!. But I don’t need money you do HaHaHa



I assure you, madam, that I never do HaHaHa.




You said slot so you did know it was slot !!! Havha get your crying towel out you will need it for your Tiny party as the Google article described you


When reading a statement like, “You said slot do you did know it was slot,” I have to wonder if perhaps you are using some kind of Cyrillic-to-English translation program that has failed you, albeit through no fault of your own.


Man I thought you said you were finish !!!! I’m so glad when something that isnt right is coming out , thank you I have done it !!!!



I would never say I was finish, unless I was under the delusion I was some kind of paint or lacquer. There have been times when I’ve said I was finished, or even that I was Finnish, although I’m actually Scottish by ancestral descent.


I think you have been smelling to many of the fumes then.




And I think all of us, at one time or another, are so glad when something that isnt (sic) right is coming out, thank you I have done it !!!! I mean, that just goes without saying. (Which, of course, makes me wish you hadn’t said it.)

I never smell to fumes. I don’t know how that process would work. How do you smell to something?

You won’t be around long for a tiny group so your wasting your money time on me thank you !



Not Cyrillic, then. Perhaps Jamaican? “Me thank you” would make sense with a Caribbean dialect.

And thank you for your concern for my money time. Time is precious, but money time is especially precious.


So why are you wasting it . You have to fix what Google has on their sight about you for anyone to take your tiny organization seriously





I’m just wasting time, not money time. Big difference. Yuge.

Google’s sight is always a problem, as is Google’s hearing and sense of smell. I wonder what they smell to? Surely there are slot people involved, yes?


I really need to tell FB with people like you we need a shaking head button. Don’t you have a family you should be spending time with, if not trying to raise money or something for your tiny organization???



I do have a family, yes. And now I have to warn them about all the slot people smelling to fumes as Google’s glasses focus on their money time. You have opened our eyes to a great many things. Me thank you.


well I can see why you aren’t with your family ??? You might need help and they would rather let you play on your lectronics trying to raise money for your tiny organization then spend time as a family .



You do realize that your (sic) here too, right? I’m not sure why my engaging with you is a colossal waste of my money time, but you’re (sic) engaging with me is a boon to the slot people in you’re (sic) family. (I don’t mean you have a sick family; I’m sure they’re just as delightful as yourself. “Sic” is an indicator that I recognize that the preceding word is being used incorrectly.)

Maybe it’s the lectronics, which I can only assume are some sort of electronic lectern that slot people use. Which, really, answers a lot of questions I didn’t know I had. Again, me thank you.


I had a great early Dinner with family and friends mine are all raised and doing fine with all their families .I have done all my family duties way past that and have beautiful great-grandchildren. I spent mine time with them.



Could you explain how mine time differs from money time? Is it time spent in mines earning money? Is it therefore possible for time to be both mine time and money time at the same time? If you could check your lectronics and get back to me after the lecture with the slot people ends, that would be smelling to something good. Me thank you in advance.


Well as I say you are a liberal through all this you still haven’t given any facts about your tiny organization or any facts of how much money you keep and how much does your organization spend And I know you won’t get a dime of mine . And sorry but I have two dogs that I care about walking them more then to keep texting a crying liberal that does exactly what you have done tonight. No facts just criticize!!! Bye more crying towels


Grammatically, that should be “Bye, more crying towels.”


Primo Supremo Primer

My last post was all about my philosophy re: Supreme Court justices, but I’m getting a lot of questions about the practical consequences of Justice Kennedy’s retirement.

What does this mean? Who’s going to replace him? What’s going to change? Is this the beginning of the apocalypse?

The TL/DR answers are:

  1. Not as much as you think.
  2. Not Mike Lee.
  3. Not a whole lot.
    and finally,
  4. Not even a little bit.

If you’re satisfied with that four-part summary, look no further. If you want more, then read on…

1. Not as much as you think.
For all the talk about how Kennedy is a huge swing vote, he really isn’t. He votes reliably with the conservative bloc far more often than not, and his blistering Obamacare dissent was as hard right as anything Antonin Scalia ever wrote.  On economic issues, he’s a model of judicial restraint in ways that aren’t likely to make Democrats happy. Kennedy also wrote the majority opinion for Citizens United, which the Left universally despises, and, just recently, he sided with the conservatives upholding Trump’s fascistic travel ban.

True, Kennedy has broken with the conservatives on the two major social issues of our time, notably abortion and gay rights, which is why he’s the one Republican appointee beloved by the Left. But he’s not even particularly reliable on those two issues, either. He wrote the opinion telling the Colorado baker that he didn’t have to bake the damn cake, and he voted with the conservative majority in a recent abortion rights case, National Institute of Family and Life Advocates v. Becerra, which found that pregnancy centers don’t have to tell their patients about options for terminating their pregnancies.

But, yes, it’s likely that Roe v. Wade will see a fresh challenge under the new justice, and for most of the general public, which doesn’t know a penumbra from a porcupine, that’s the only issue that matters. I will address that under item 3. First, I want to point out who the new justice will be, or, more specifically, who it will not be.

2. Not Mike Lee. 
I’ve had several people approach me with concerned looks on their faces asking how I will respond if Trump picks Sen. Mike Lee for the High Court. Lee won his seat by defeating my father, and, while I’m certainly not the most objective observer on the subject, I still think he’s been an embarrassment to the state of Utah as a lousy senator more devoted to ideological purity than constituent service.

That said, I really don’t harbor any personal animus toward the man, and I haven’t pulled out my Mike Lee voodoo doll in years. I think his obsession with the Constitution as a magical talisman is much better suited for the Supreme Court than it is for the U.S. Senate. All told, he’d probably be an entirely adequate justice. There are a number of reasons, however, why he will never get the chance to prove it.

The buzz around Lee is that Trump thinks that since he’s already a senator, the Senate is more likely to confirm one of their own with less contention than they would in confirming someone they don’t know. This is exactly backward. The fact that he’s a politician, not a judge, means he has a 100% political track record, complete with plenty of fodder for advocacy groups to use in attack ads. It also means that moderate Republicans – notably Susan Collins and Lisa Murkowski – have enough familiarity with Lee to breed an appropriate amount of contempt. The wafer-thin Republican majority in the Senate can’t afford any defectors, and Lee has a remarkably Cruz-esque knack for alienating his colleagues.

In addition, Lee has never been a judge, When non-judge Harriet Meyers was nominated by W., her nomination was eventually pulled after Republicans revolted en masse, in part due to her lack of judicial credentials. Lee is also a Mormon and a graduate of BYU Law School, which, although a solid school, is not a member of the rarefied fraternity of Ivy League-level institutions that serve as the bullpen for the judicial big leagues.

And while Lee has proven to be a reliable Trump toadie for the past two years, he had scathing things to say about Candidate Trump, and he refused to endorse The Donald even after he’d won the nomination. Trump is like an elephant in many respects, most of them physical, but the one thing he never forgets is disloyalty.

I don’t know who the pick will be, but it’s going to be the choice of the Federal Society, not Donald Trump, and the Federalist Society is not going to nominate Mike Lee. It won’t matter all that much, because of what is likely to change, namely:

3. Not a whole lot.
A friend of mine on Facebook, after Kennedy announced his retirement, said “You promised me that Roe v. Wade would never be overruled!” That’s not a promise I’m equipped to keep, but I’d still be willing to lay money on that being true. Roe has been repeatedly challenged and even eroded by subsequent decisions, but the core idea that government is constitutionally prohibited from making abortion illegal has endured for 45 years and is likely to endure for at least 45 more and beyond. The longer a precedent is allowed to stand, the more reluctant the Court is to pull it out by the roots.

The other factor in this is Chief Justice John Roberts, who has repeatedly demonstrated his squeamishness at presiding over seismic shifts against stare decisis. His Obamacare dissent was his first salvo in establishing himself as the future Kennedyian swing vote, but he’s fired several since then, including the recent Carpenter v. United States decision requiring law enforcement to get a warrant to pull cell phone records. Roberts sided against Kennedy and the three other conservatives and aligned with the RBG wing. Should Thomas et al try to burn Roe to the ground, it’s likely that Roberts will attempt to broker a less-drastic compromise or oppose such a move altogether.

And while this may be a tangent, it’s important to note that overturning Roe, as unlikely as that outcome is, would not suddenly make abortion illegal. Many states have already passed laws that go way beyond Roe’s protections of abortion rights, and those laws would still stand in the wake of a Roe reversal. States that outlaw abortion entirely would be subject to boycotts a la South Carolina’s bathroom bill, which was eventually repealed in the face of public outrage.

Yes, things may get heated and messy for awhile, but the legislative process is the one designated to deal with that kind of messiness. I firmly believe that one of the reasons this issue remains such a tinder box is that the High Court has denied Americans the right to hammer out appropriate compromises. Eventually, the legal landscape for abortion will more accurately reflect the will of the people than Roe currently does, which would ultimately mean less contention and violence.

Of course, all that presupposes that Roe will be overturned, which, as I say, is an unlikely outcome.

As for gay rights, the idea that gay marriage will become illegal is even less likely than a Roe reversal. I outlined why in a previous post, so allow me to quote myself:

[Obergefell v. Hodges] overturned only part of the Defense of Marriage Act. The other part – the section that states can ignore same-sex marriages performed in other states – is blatantly unconstitutional, since it violates the Full Faith and Credit Clause, which reads as follows:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”

So if one state makes gay marriage legal, every state has to recognize those marriages.

Congress knew this part of DOMA was illegal when they passed it, and President Clinton knew it when he signed it. It was a cynical, craven pandering to an electorate which, at the time, was solidly opposed to gay marriage. (Yes, times have changed.) Clinton even publicly stated that he looked forward to the day when the High Court overturned the unconstitutional law he had signed.

So that’s out there like a Sword of Damocles waiting to fall on anyone who tries to overturn Obergefell. But even if it weren’t, the Court would now be in a position of not just preventing new same-sex marriages, but of nullifying thousands of existing marriages, something even the most conservative members of the Court would be reluctant to do.

All this should reassure those who think this is the beginning of the apocalypse, when in fact, it’s:

4. Not even a little bit.
This is not just because not much is likely to change, but because even if things do change and every decision you like is reversed, all that does is throw contentious issues back into the legislative arena, which is precisely where they belong. And in that unlikely event, the discussion will shift to what the proper role of the SCOTUS ought to be rather than whether or not a decision produces the policies your team likes.

To sum up – social media should spend less time worrying about the Supreme Court and more time complaining about how much Star Wars now sucks.

America’s Referees: Their Emanations and Penumbras

My youngest son played in a youth basketball league this year, and his team’s track record was 0-10. Or maybe it was 0-12. I’m not sure about the second number, but I’m 100% positive about the first. 

This was a particularly difficult experience both for him and for his parents, who had to come up with ways to buoy his spirits every time he lost – and he lost every time. Given how much my son hates to lose, his anger and frustration built exponentially throughout the season, as did his fury at those he considered to be the true villains in this scenario and the architects of his every defeat:

Those stinkin’ refs.

To hear my son tell it, all the referees were engaged in a grand conspiracy against his team, rigging every game to ensure a victory for the other guy. I can’t really blame him. They were an easy scapegoat, and they provided the only way to work around the fact that our team was just deeply and fundamentally lousy.

Still, picking on refs is a national pastime. Refs get cheered when the call benefits the home team and booed when it does not. Hardcore fans rarely, if ever, give a ref credit for a good call that hurts their team. Even so, it’s the referee’s duty to try to be as objective as possible and show no favoritism to one side or the other. A ref is there to make sure everyone’s playing by the rules, not to help one side or the other to win.

What I’ve outlined above, in crude terms, is the way I view the judicial branch of government.

The ideological battle in Washington has calcified into one team versus another. (I wish that were not the case, but that’s another discussion.) I believe that the nine justices of the Supreme Court ought to function not as as players on either ideological team, but as the referees. And a good justice should be willing to uphold laws they personally dislike as long as they abide by the constitutional rules of the game.

As Justice Kennedy retires, the apoplexy on the left demonstrates that this is not how the majority of people see the role of the High Court. Most view it as a sort of above-the-fray superlegislature, where smarter people than the hoi polloi can save us from our own idiotic laws. This is the case not just with leftists, who want the Court to override any legislative attempt to change abortion laws, but with those on the Right who were disappointed that the Court didn’t nullify Obamacare. Everyone wants the ref to make calls that help their team win.

From my perspective, the policy outcome of a judicial decision is largely irrelevant. It is not the Court’s responsibility to make sure the laws do what the justices personally want; it is the Court’s responsibility to call fouls when the laws go out of constitutional bounds.

The late and much-missed Justice Antonin Scalia summarized his philosophy this way in an interview with nymag.com:

[I]f a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional. I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says—Whack! [Pounds his fist.]—STUPID BUT ­CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT ­CONSTITUTIONAL! Whack! ­STUPID BUT ­CONSTITUTIONAL … [Laughs.] And then somebody sent me one.

Scalia has a reputation for being a right-wing firebrand, but to his immense credit, he repeatedly upheld laws that he personally believed were stupid and constitutional, the most prominent being his opinion upholding the right to burn the US flag as a form of protest.

“If I were king,” he once said, “I would not allow people to go about burning the American flag. However, we have a First Amendment, which says that the right of free speech shall not be abridged. … Burning the flag is a form of expression. Speech doesn’t just mean written words or oral words. … Burning a flag is a symbol that expresses an idea.”

In other words, Scalia thought flag burning was “stupid but constitutional,” and, as the ref, made the right call.

This will often result in painful losses for both teams, but the alternative to this approach, in my mind, is much worse. It’s a nine-person oligarchy with lifetime appointments making laws with no accountability. Essentially, it’s a system rigged by refs who get to pick the winners and losers of every game.

This, incidentally, is the main reason I want to see Roe v. Wade overturned. It is not because I’m particularly eager to make abortion illegal, but because that decision is the worst modern precedent of judicial referees making a call solely to benefit their favorite team.

Roe v. Wade decided that there is a constitutional right for a woman to have an abortion in the first two trimesters of her pregnancy. The problem is that the Constitution says nothing whatsoever about abortion, let alone which trimesters are sacrosanct. In order to manufacture a constitutional right to abortion, the justices came up with a bizarre legal rationale that defies any semblance of common sense.

As I understand it, the analogy is one of a lightbulb, pictured below:

(I apologize for not using a more eco-friendly bulb. These are easier to edit in Photoshop.)

This bulb represents rights clearly delineated in the Constitution, like so:

This may be only partially accurate, but the 1965 Griswold v. Connecticut decision established a “right to marital privacy” ensuring the ability to legally obtain contraception. The majority opinion in that case references Amendment 4 protections against unreasonable search and seizure and Amendment 5 protections against self-incrimination, so, while there may be other rights in other precedents, these are the ones I’m putting in my lightbulb.

Anyway, here’s your handy-dandy Constitutional Right lightbulb, which throws off “emanations,” or rays of light, like so:

It just so happens that those emanations constitute rights in and of themselves. One of those rights, it seems, is the Right to Privacy, like so:

Not sure what rights the other emanations are. Given that a lightbulb throws off innumerable emanations, it’s best not to place any heavy objects on this particular analogy, as it’s likely to collapse, even though it was thought up by people far smarter than you are.

Now it turns out that the Right to an Abortion is not, like the Right to Privacy, a direct emanation from the lightbulb. (That would be too easy, apparently.) No, the Right to an Abortion can only be found in the “penumbra” of the emanation.

What’s a penumbra, you ask? Google tells me it’s “the partially shaded outer region of the shadow cast by an opaque object.” Now I’m not sure how an emanation is an opaque object – this analogy really doesn’t hold water  – but the penumbra can be defined as sort of the fuzzy edges of the light as it starts to fade. Or, if you will, the shadowy emanations of the emanations. In any case, with our drawing, if you zoom in, you can find the penumbra’s soft, gentle glow, like so:

And there, if you look hard enough, you can see the constitutional Right to an Abortion, clear as day, hidden in the penumbra of the emanation of the Right to Privacy.

Of course, it’s only a right to an abortion in the first two trimesters and a whole host of technical issues that the Constitution never dreamed of mentioning but which are clear enough if you analyze the emanations of the penumbras and the penumbras of the subsequent emanations down to the microscopic level and anyway this is the outcome we wanted so shut up.

So let’s take a step back and look at the whole picture, with the irrefutable constitutional Right to an Abortion in trimesters 1 and 2 highlighted by the red arrow seen below.

Ta da!

Hopefully, that looks as silly to you as it does to me. Even if it doesn’t, it should scare you into imagining what a judge from the other team could find in any number of emanations or penumbras. What’s to prevent a judge with Trump-like prejudice from finding a new right to shut down critical news outlets, beat up immigrants, or deport all Muslims in some other convoluted emanation and penumbra scenario?

Roe v. Wade is essentially the refs calling the abortion game before it begins.

Most abortion rights supporters have never considered the convoluted legal reasoning behind Roe, but even those that have generally don’t care. This is the policy outcome they wanted, so who cares if the refs had to cheat to get it?  But there are plenty of examples of the Court producing truly terrible outcomes when they decide to become players instead of refs. Dred Scott. Forced sterilization. Japanese internment camps. Separate but equal. Yes, unprincipled refs with unlimited power can get you what you want, but they can do an awful lot of damage, too.

Notice, too, that I’ve said nothing about my own personal position about abortion. I’m merely saying that if you want a constitutional right to an abortion, you should have to amend the Constitution to get it.  Of course, amending the Constitution was deliberately designed to be a difficult process, requiring a supermajority in Congress and the approval of 3/4 of state legislatures. It’s much, much easier to find justices who manufacture rights out of the ether to subvert that process with a literal handful of votes. They do so in the name of a “living Constitution” that can ignore the plain language of the document and be twisted and tortured into meaning whatever a majority on the Court wants it to mean.

“Saying that the Constitution is a living document is the same as saying we don’t have a Constitution,” said economist Walter Williams. “For rules to mean anything, they must be fixed. How many people would like to play me poker and have the rules be ‘living’? Depending on ‘evolving standards,’ maybe my two pair could beat your flush.”

Likewise, my son would have liked “living” rules in all the basketball games he lost, but that would have been far worse in the long run. Whether on the basketball court or the Supreme Court, when the refs cheat, everybody loses. 

Dinner Table Politics: How Government Works

Abby asked that we take a step back from talking about the news of the day and have an in-depth discussion about how constitutional government works. As a result, Schoolhouse Rock gets sung more than a few times, and we discuss executive orders, declaration of war, and the difference between emanations and penumbras – i.e. what they are and why they makes for bad constitutional law.
Plus: Sarah Huckabee Sanders, the travel ban decision, and a very loud dog.

Download this episode here.

Subscribe on iTunes here.

Spewing stuff since 2007