Glenn Loury: “Clarence Thomas and Me.” Two slices:
Justice Clarence Thomas is unquestionably a towering figure in American jurisprudence. As Scott Douglas Gerber, a leading authority on his legal theories, has noted, Thomas’s impact on constitutional law over the last quarter-century has been stunning. His long-standing views have carried the day in major cases. He has stuck to his principles in his three decades on the Court, and it has paid off. Thus, his insistence that the Commerce Clause does not empower the federal government to regulate everything under the sun is now the law. His position that federal agencies should have relatively restricted power is now the law. His view that the Second Amendment means what it says, and that individuals have a fundamental right to carry firearms, is now the law. His conviction that no constitutional right to an abortion exists is now the law. And, perhaps most poignantly, his passionately articulated view that the Fourteenth Amendment’s Equal Protection Clause forbids racial preferences in higher-education admissions decisions is now the law. Indeed, his principled stance that the Court’s job is to discern the original understanding of the constitutional provision at issue in a case has become the Court’s dominant approach. One could even plausibly hold that this is now Justice Thomas’s Supreme Court, not Chief Justice John Roberts’s. Thomas is its longest-serving sitting member, and his legacy will continue well after his time on the bench is over, as many of his former clerks are now federal judges themselves.
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For his part, Thomas seems never to have wavered. No matter how comfortable a life he has, it must require great strength and conviction to endure what he has endured in defense of the very principles that have made him an outcast. The desire for the approval of one’s peers and the tug of individual conscience are sometimes—more often than we would like to admit—at odds. In response to the leftward drift of some of his Supreme Court colleagues, Thomas has reportedly said, “I’m not evolving.” It’s a somewhat arch response to the idea that moving toward the center is a natural process that conservative justices undergo as they spend years debating with their more liberal colleagues. On the one hand, it sounds rigid. An a priori commitment to conservative jurisprudence risks closing Thomas off from arguments that, if he examined them on their merits, might persuade him to change his position. If those really are the better arguments, the more rigorous, more accurate reading of the case and the Constitution, shouldn’t he be willing to concede?
Since, however, you require me, as a condition of further employment, to state my attitude to these “values” that the university is said to share (though I don’t remember a faculty vote endorsing them), let me say that, in general, the statement of EDIB beliefs offered on your website is too vapid to offer any purchase for serious ethical analysis. The university, according to you, espouses an absolute commitment to a set of words that seems to generate positive feelings in your office, and perhaps among administrators generally, but it is not my practice to make judgments based on feelings. In fact, my training as a historian leads me to distrust such feelings as a potential obstacle to clear thinking. I don’t think it’s useful to describe the feelings I experience when particular words and slogans are invoked and how they affect my professional motivations. It might be useful on a psychoanalyst’s couch or in a religious cult, but not in a university.
Let me take, as an example, the popular DEI slogan “Diversity is our strength.” This states as an absolute truth a belief that, at best, can only be conditional. When George Washington decided not to require, as part of the military oath of the Continental Army, a disavowal of transubstantiation (as had been previous practice), he was able to enlist Catholic soldiers from Maryland to fight the British. Diversity was our strength. On the other hand, when the combined forces of Islam, under the command of Maslama ibn Abd al-Malik, besieged Constantinople in 717, diversity was not their strength. At the crisis of the siege, the Christian sailors rowing in the Muslim navy rose in revolt and the amphibious assault broke down.
JetBlue’s $3.8 billion buyout offered Spirit a lifeline. It would have given JetBlue more pilots, airport gates and planes to better compete with the airline giants. The combined company would be the fifth largest U.S. carrier, though its market share (10.5%) would still trail Delta (17.7%), American (17.2%), Southwest (16.9%) and United (16.1%).
The tie-up would have made JetBlue a stronger competitor to the Big Four and thus benefitted most flyers. Frontier Airlines and Allegiant Air would continue to compete in the ultra-low fare space even in Spirit’s absence. It’s hard to see how the merger would harm consumers. Yet President Biden has ordered his antitrust cops to stop mergers no matter their benefits.
My GMU Econ colleague Bryan Caplan asks: “Will Milei make Argentina great again?” A slice:
Turning Argentina, just a cut above Venezuela and Cuba in economic freedom, into a bastion of free-market policies is far less likely. Milei’s party, La Libertad Avanza, has a tiny share of the seats in both houses of the legislature, and all of his allied parties are clearly less libertarian. While Argentina did have much more pro-market policies in the 90s, this was part of the global anti-socialist wave after the Soviet collapse.[ix] Admirers of the neighboring Chilean economy may note that Milei is much more ideologically committed to free-market policies than Pinochet ever was. Like many politicians, he is acting on the adage, “Never let a good crisis go to waste.” But Milei plainly has far less power to remake his country than the Chilean dictator. Optimistically, Milei could close a quarter of the economic policy gap between Argentina and Chile after two four-year terms.
Juliette Sellgren talks with GMU Law’s Adam White about the American judiciary.
Imagine the large bureaucratic apparatus that is needed to decide who gets the semiconductor subsidies, to make sure that these companies comply with labor-union and buy-American requirements and don’t run afoul of the inevitable environmental requirements. Imagine the level of power that must be given to bureaucrats to enable them to decide who, exactly, can export what, precisely, to which countries.
