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Legal scholar tracks down the bizarre origins of the right-wing phrase Justice Kavanaugh used in a new opinion

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- Commentary

Justice Brett Kavanaugh was appointed to the Supreme Court by President Donald Trump for one clear purpose: to fortify the majority of conservative justices than can protect the right-wing agenda through the judicial branch.

And while there’s plenty of evidence to suggest that Kavanaugh will be a dutiful player in this role, there always remains a possibility that a justice will go rogue once appointed and fail to follow the wishes of the party behind his or her nomination. But in a new majority opinion announced on Monday, joined by the other four Republican appointees on the court, Kavanaugh sent a clear signal that he’s a party man to his core.

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The decision came in the case of Manhattan Community Access Corp. v. Halleck, where the court was faced with the question of whether a public access television channel is a state actor and thus bound by the First Amendment. The five conservative justices said the non-profit organization functions as a private actor in its role and is therefore not hampered by the Constitution, while the four liberal justices disagreed.

But legal scholar Michael Dorf of Cornell University, who blogs at Dorf on Law, pointed to one peculiar bit of phrasing Kavanaugh used in authoring the majority opinion that is worth examining:

It is sometimes said that the bigger the government, the smaller the individual. Consistent with the text of the Constitution, the state-action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty. Expanding the state-action doctrine beyond its traditional boundaries would expand governmental control while restricting individual liberty and private enterprise. We decline to do so in this case. [Emphasis mine]

On Twitter, Dorf noted out that the phrase in bold is not obvious, and its origins were left unclear.

“I never heard anyone say this, and the opinion provides no citation, so I Googled it and found the Twitter feed of the Ayn Randian Atlas Society,” he wrote. “But what is the origin of this saying?”

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He continued: “It appears to be an aphorism coined by a libertarian talk show host named Dennis Prager (who originally referred to ‘citizen’ rather than ‘individual’). Various libertarian candidates for office have used the phrase, with or w/o attribution.”

Kavanaugh’s choice to use this phrase with no citation or discussion of its origins suggests two equally troubling possibilities: He was trying to conceal the blatantly right-wing nature of its origins, or he is so steeped in right-wing ideology that he assumes conservative truisms are essentially uncontroversial.

But as Dorf argued, there’s nothing obviously true about this claim; in fact, a little reflection shows that at least a simplistic understanding of the assertion is plainly false.

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“The claim is false insofar as it asserts a linear relationship between the size of government and the ability of individuals to flourish. Ask Hobbes how well individuals do when one shrinks government down to nothing,” he explained. “The claim conflates government’s size and its reach. Govt could be large in terms of taxes or spending/GDP ratio but small in its intrusion on people’s lives. Welfare states need not be and generally have not been totalitarian states.”

The incident demonstrates a larger issue that deeply concerns me about the court. While discussion about the ideological divides on the court is common, I think it’s often underestimated the significant role of the justices’ information diets — where and how they consume news, in particular — affects their world views and rulings. To put it bluntly, I fear that the conservative justices, in addition to having ideological biases just like anyone else, consume Fox News disinformation and related propaganda regularly that gives them a distorted view of the world. This one opinion shows how unsophisticated slogans can fester in the mind and potentially influence major decisions. If the right-leaning justices rely on the cesspool that is conservative media to make their judgments about the world, especially at a time when conservative media is increasingly disconnected from reality, we should be deeply concerned about where the court will take the country.

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Republicans are at each other’s throats about Gordon Sondland’s testimony

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Ambassador Gordon Sondland’s testimony in the impeachment inquiry on Wednesday turned high-profile Republicans against each other.

His remarks sparked explosive reactions from both critics and defenders of President Donald Trump. Sondland detailed extensive evidence that he, in concert with the White House, administration officials, and with the president’s attorney Rudy Giuliani, set up a quid pro quo both with Ukraine both for a meeting with Trump and for military aid in exchange for an announcement about investigations into his political rivals. But Republicans latched on to Sondland’s claim that he didn’t recall ever hearing from Trump directly that military aid was conditioned on an announcement and that late in the process — after the scheme was coming to light — the president denied asking for a “quid pro quo.”

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Ukrainians know all about Trump’s corruption — and even have a special word for it

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When Donald Trump asked his Ukrainian counterpart to investigate his opponent Joe Biden, it wasn’t just political dirt he was trying to import to the U.S., but a whole phenomenon.

It has a name in Ukraine which can be roughly translated as “problem-solving.” A whole class of people who provide that service. The local name for them is a “reshala.”

For example, if your business is being attacked by the government’s security service for no apparent reason, someone will offer you a solution. For a certain fee, of course. (In America, that’s known as a protection racket.)

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Republicans caught flat-footed as Trump’s hand-picked man in Kyiv delivers an unexpected knockout punch

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The impeachment case outlining Donald Trump’s bad behavior in launching a campaign for personal political gain just took a huge, if not a devastating, slam-dunk leap forward.

The revised testimony of Ambassador to the EU Gordon Sondland today made it certain that he led this campaign for extortion against a vulnerably new Ukrainian leader Volodymyr Zelenskyy at the direct order of Trump, Rudy Giuliani and the full team of top administration figures.

From Sondland, the news was that rather than this being some kind of hidden, “irregular” mob-type plot being engineered by a wily Giuliani, the months-long effort was right out there in the open.

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