NOW REPORTING FROM BALTIMORE. An eclectic, iconoclastic, independent, private, non-commercial blog begun in 2010 in support of the federal Meaningful Use REC initiative, and Health IT and Heathcare improvement more broadly. Moving now toward important broader STEM and societal/ethics topics. Formerly known as "The REC Blog." Best viewed with Safari, FireFox, or Chrome.
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Ran into this by way of a tweet this morning. Interesting. Trailer below.
Interesting male-to-female ratio there. Nonetheless, the broad point is taken.
Those TV documentaries you see, and the science experts they feature? Did you know that producers often edit them out of context, and twist their words, to make it seem like they promoted some pop sensationalism instead of the real facts? Science Friction exposes these faux documentaries by name, and gives the scientists a chance to clear the record.
Yeah. The disinfo problem is endemic, goes way beyond science.
I bought "Science Friction" via Amazon Prime. In the middle of it at the moment. Very good. A lot of the complaints about mis/disinfo have been around for decades, but this is a very nice compilation thus far, and includes much recent stuff (e.g., antivax dustups). Also, again, in this regard I would recommend Harry Frankfurter's book On Bullshit.
UPDATE2
Finished "Science Friction." Yeah, very good. Mostly about purveyors of deliberate "disinformation," mostly in connection with disingenuously edited and packaged A/V productions.
OK, "Science Friction." Hmmm... How about an inverse linear "Coefficient of Fiction" metric? Sort of a Pearson-R knockoff (or, more crudely, an ordinal [ranking] measure mimicking the Spearman-Rho stat).
A CoFi™
X-axis horizontal: the higher the "coefficient of fiction," the lower the (Y-axis vertical)—well—"Index of Credibility." 'eh?
THE U.S. SUPREME COURT PLAYS A singular role. In no other major country do judges—independent, esteemed, serving for life—wield so much power. Nowhere else do people wait breathlessly each June for new rulings from nine unelected individuals. It is an anomaly in our democratic system. Its members have no innate authority. The Court has this power because we choose to believe in its status as above and beyond politics.
Over three days in June 2022, the Supreme Court changed America.
It overturned Roe v. Wade, repealing the protection for abortion rights in place for American women for a half century, and putting at risk all other privacy rights. It radically loosened curbs on guns, amid an epidemic of mass shootings. And it hobbled the ability of government agencies to protect public health and safety and stop climate change when the topic is a “major question.” The Court crammed decades of social change into three days…
Waldman, Michael. The Supermajority: How the Supreme Court Divided America (p. 1). Simon & Schuster. Kindle Edition.
Ahhh... the infamous "Bathtub Ring." Looking back from the top of Hoover Dam. I've been there and shot pics there many times during my 21 years living in Las Vegas. The vertical distance from the top of the bathtub ring to the water surface level is now more than 150 feet.
I continue to update an Excel sheet monthly, tracking the water level decline since January 2000.
Interestingly, in the wake of this past winter's repeated severe western watershed blizzards, the Lake Mead water level has risen a bit more than 8 feet across the past two months. Hardly makes a dent in the average annual decline.
Here in Baltimore, while we are not yet formally in drought conditions, our area rainfall is now more than 7 inches below average. And, our sky of late has been an ugly gray-yellow haze, owing to the Canadian wildfires currently ravaging the breadth of that nation from Nova Scotia and Quebec to Manitoba and Alberta Provinces.
Could organizations use artificial intelligence language models such as ChatGPT to induce voters to behave in specific ways?
Sen. Josh Hawley asked OpenAI CEO Sam Altman this question in a May 16, 2023, U.S. Senate hearing on artificial intelligence. Altman replied that he was indeed concerned that some people might use language models to manipulate, persuade and engage in one-on-one interactions with voters.
Altman did not elaborate, but he might have had something like this scenario in mind. Imagine that soon, political technologists develop a machine called Clogger – a political campaign in a black box. Clogger relentlessly pursues just one objective: to maximize the chances that its candidate – the campaign that buys the services of Clogger Inc. – prevails in an election.
While platforms like Facebook, Twitter and YouTube use forms of AI to get users to spend more time on their sites, Clogger’s AI would have a different objective: to change people’s voting behavior.
How Clogger would work
As a political scientist and a legal scholar who study the intersection of technology and democracy, we believe that something like Clogger could use automation to dramatically increase the scale and potentially the effectiveness of behavior manipulation and microtargeting techniques that political campaigns have used since the early 2000s. Just as advertisers use your browsing and social media history to individually target commercial and political ads now, Clogger would pay attention to you – and hundreds of millions of other voters – individually.
It would offer three advances over the current state-of-the-art algorithmic behavior manipulation. First, its language model would generate messages — texts, social media and email, perhaps including images and videos — tailored to you personally. Whereas advertisers strategically place a relatively small number of ads, language models such as ChatGPT can generate countless unique messages for you personally – and millions for others – over the course of a campaign.
Second, Clogger would use a technique called reinforcement learning to generate a succession of messages that become increasingly more likely to change your vote. Reinforcement learning is a machine-learning, trial-and-error approach in which the computer takes actions and gets feedback about which work better in order to learn how to accomplish an objective. Machines that can play Go, Chess and many video games better than any human have used reinforcement learning.
How reinforcement learning works.
Third, over the course of a campaign, Clogger’s messages could evolve in order to take into account your responses to the machine’s prior dispatches and what it has learned about changing others’ minds. Clogger would be able to carry on dynamic “conversations” with you – and millions of other people – over time. Clogger’s messages would be similar to ads that follow you across different websites and social media.
The nature of AI
Three more features – or bugs – are worth noting.
First, the messages that Clogger sends may or may not be political in content. The machine’s only goal is to maximize vote share, and it would likely devise strategies for achieving this goal that no human campaigner would have thought of.
One possibility is sending likely opponent voters information about nonpolitical passions that they have in sports or entertainment to bury the political messaging they receive. Another possibility is sending off-putting messages – for example incontinence advertisements – timed to coincide with opponents’ messaging. And another is manipulating voters’ social media friend groups to give the sense that their social circles support its candidate.
Second, Clogger has no regard for truth. Indeed, it has no way of knowing what is true or false. Language model “hallucinations” are not a problem for this machine because its objective is to change your vote, not to provide accurate information.
The field of explainable AI aims to open the black box of many machine-learning models so people can understand how they work.
Clogocracy
If the Republican presidential campaign were to deploy Clogger in 2024, the Democratic campaign would likely be compelled to respond in kind, perhaps with a similar machine. Call it Dogger. If the campaign managers thought that these machines were effective, the presidential contest might well come down to Clogger vs. Dogger, and the winner would be the client of the more effective machine.
Political scientists and pundits would have much to say about why one or the other AI prevailed, but likely no one would really know. The president will have been elected not because his or her policy proposals or political ideas persuaded more Americans, but because he or she had the more effective AI. The content that won the day would have come from an AI focused solely on victory, with no political ideas of its own, rather than from candidates or parties.
In this very important sense, a machine would have won the election rather than a person. The election would no longer be democratic, even though all of the ordinary activities of democracy – the speeches, the ads, the messages, the voting and the counting of votes – will have occurred.
The AI-elected president could then go one of two ways. He or she could use the mantle of election to pursue Republican or Democratic party policies. But because the party ideas may have had little to do with why people voted the way that they did – Clogger and Dogger don’t care about policy views – the president’s actions would not necessarily reflect the will of the voters. Voters would have been manipulated by the AI rather than freely choosing their political leaders and policies.
Another path is for the president to pursue the messages, behaviors and policies that the machine predicts will maximize the chances of reelection. On this path, the president would have no particular platform or agenda beyond maintaining power. The president’s actions, guided by Clogger, would be those most likely to manipulate voters rather than serve their genuine interests or even the president’s own ideology.
Avoiding Clogocracy
It would be possible to avoid AI election manipulation if candidates, campaigns and consultants all forswore the use of such political AI. We believe that is unlikely. If politically effective black boxes were developed, the temptation to use them would be almost irresistible. Indeed, political consultants might well see using these tools as required by their professional responsibility to help their candidates win. And once one candidate uses such an effective tool, the opponents could hardly be expected to resist by disarming unilaterally.
Enhanced privacy protection would help. Clogger would depend on access to vast amounts of personal data in order to target individuals, craft messages tailored to persuade or manipulate them, and track and retarget them over the course of a campaign. Every bit of that information that companies or policymakers deny the machine would make it less effective.
Strong data privacy laws could help steer AI away from being manipulative.
Another solution lies with elections commissions. They could try to ban or severely regulate these machines. There’s a fierce debate about whether such “replicant” speech, even if it’s political in nature, can be regulated. The U.S.’s extreme free speech tradition leads many leading academics to say it cannot.
But there is no reason to automatically extend the First Amendment’s protection to the product of these machines. The nation might well choose to give machines rights, but that should be a decision grounded in the challenges of today, not the misplaced assumption that James Madison’s views in 1789 were intended to apply to AI.
European Union regulators are moving in this direction. Policymakers revised the European Parliament’s draft of its Artificial Intelligence Act to designate “AI systems to influence voters in campaigns” as “high risk” and subject to regulatory scrutiny.
One constitutionally safer, if smaller, step, already adopted in part by European internet regulators and in California, is to prohibit bots from passing themselves off as people. For example, regulation might require that campaign messages come with disclaimers when the content they contain is generated by machines rather than humans.
This would be like the advertising disclaimer requirements – “Paid for by the Sam Jones for Congress Committee” – but modified to reflect its AI origin: “This AI-generated ad was paid for by the Sam Jones for Congress Committee.” A stronger version could require: “This AI-generated message is being sent to you by the Sam Jones for Congress Committee because Clogger has predicted that doing so will increase your chances of voting for Sam Jones by 0.0002%.” At the very least, we believe voters deserve to know when it is a bot speaking to them, and they should know why, as well.
The possibility of a system like Clogger shows that the path toward human collective disempowerment may not require some superhuman artificial general intelligence. It might just require overeager campaigners and consultants who have powerful new tools that can effectively push millions of people’s many buttons.
Hmmm... looking back nearly a decade (11/16/2013 on this blog):
NYeC 2013 Digital Health Conference Day Two
Day two, final day, actually. Wish they could do a 3-day conference. I think there's certainly enough material.
In the Grand Ballroom, A/V actually managed to fire up some overhead fresnel floods, though the above-stage banks of pars remained dark. Lighting was marginally better. Marginally.
NYeC Executive Director David Whitlinger kicks things off, introducing the day's Keynote Speaker, Obama 2012 Re-election Campaign ("OFA") Director Jim Messina.
The air was thick with anticipation: would he address the obvious question surely on all minds -- what about theHealthCare.govrollout fiasco? We know you're hear to regale us regarding the brilliant Obama 2012 tech smackdown of the hapless Romney-Ryan presidential bid, buthowcan essentially the same people screw up the PPACA launchsomiserably?
He dispensed with it jokingly right up front. He had nothing to do with HealthCare.gov. He would go on to later point out the major problem that is federal procurement. There was no was to simply hand off PPACA HIX to the OFA techies.
Yeah. Weknowthat. But, still, federal procurement is a venerable beast, a long-known quantity. To get blindsided by its HealthCare.gov upshot remains rather inexcusable.
But, not his gig. Not his purpose here.
He did, in fact dazzle us with power of adroitly captured, analyzed, and managed data, and OFA's adept, central use of social media.
Romney-Ryan never knew what hit them. In fact, reports have it that they'd not even prepared concession speeches, so hubristically certain were they of victory on Election Eve. Pride indeed Goeth Before a Fall.
Above, the money shot graph. While Gallup and the other mainstream political media polls showed wildly variable swings in relative Ups/Downs, internal OFA analytics had the President consistentlywayup. Messina said he told the President, as election day drew nigh, that he wassurethat Mr. Obama would be re-elected in an Electoral College blowout, that their finely-tuned Big Data analytics could not be wrong. They could drill right down to the front-door level, precinct by precinct, and capture every available vote. They could ID every Facebook friend and Twitter follower of every Undecided and leverage them for "personal validation" (i.e., you are most amenable to persuasion by your circle of friends).
OFA nailed it. It is a compelling tale. Once NYeC posts the video of Mr. Messina's keynote, I exhort everyone to view it.
What he didn't say, but what had to have been a factor, was a slick Rope-A-Dope element. To mix my metaphors, Romney was playing checkers against a pool shark. The pool parlor hustler always seems to be lucky and just one ball better than you, as he patiently cleans out your wallet (this once happened to me, long ago). OFA was content to work this principle against the poignant Mr. Romney. Fine, let Mrs. Romney measure the White House drapes. Stroke those conceits, actually. Send her the catalogs, gratis…
____
Well, a decade later our data-analytic capabilities are exponentially greater, but the political goals remain the same—win at all costs.
____
A bit over 4 years ago I called attention to this:
As regular readers know, I am firmly on the side of science--specifically the "scientific method(s)," warts and all. But, what about "political discourse," which seems more than ever overpopulated with noisy, demagogic fact-averse partisans and ad hominem rhetorical bomb-tossers? After all, the phrase"political science"is unhappily viewed by many as a contradiction in terms.
Neurotechnology, or devices that let you track your own brain activity, could help you deeply understand your health. But without privacy protections, your innermost thoughts, emotions and desires could be at risk of exploitation, says neurotech and AI ethicist Nita Farahany. She details some of the field's promising potential uses—like tracking and treating diseases from depression to epilepsy—and shares concerns about who collects our brain data and how they plan to use it, ultimately calling for the legal recognition of "cognitive liberty" as we connect our brains and minds to technology.
The Center for AI Safety(CAIS — pronounced 'case') is a San Francisco-based research and field-building nonprofit. We believe that artificial intelligence (AI) has the potential to profoundly benefit the world, provided that we can develop and use it safely. However, in contrast to the dramatic progress in AI, many basic problems in AI safety have yet to be solved. Our mission is to reduce societal-scale risks associated with AI by conducting safety research, building the field of AI safety researchers, and advocating for safety standards.
Is “artificial intelligence” basically “neurotechnology?” One with silicon microcircuits, standing in for biophysical neurons? Are brains simply “computers?”
Leaves me with more questions than answers at this point. I've watched both episodes twice now, and downloaded the transcripts for close study at leisure. Humbled by the cast of participants. Stay tuned...
Your Brain: Perception Deception
PBS Airdate: May 17, 2023
ANIL SETH, PH.D. (University of Sussex): The brain is one of the most complex objects that we know of, in the universe. NARAYANAN “BOBBY” KASTHURI, M.D., PH.D. (University of Chicago, Argonne National Laboratory): There are 10 times more connections in your brain than there are stars in the Milky Way galaxy. So, we literally walk around with about 10,000 galaxies worth of neuronal connections in one of our brains. HEATHER BERLIN, PH.D., M.P.H. (Icahn School of Medicine at Mount Sinai): That vast web of connections creates you, but how? NANCY KANWISHER, PH.D. (Massachusetts Institute of Technology McGovern Institute for Brain Research): Figuring out how the brain implements the mind is a massive challenge. ANIL SETH: It seems as though the world just pours itself into the mind, through the transparent windows of the eyes and the ears and all our other senses. HEATHER BERLIN: But is what we see, hear and feel real? STEPHEN MACKNIK, PH.D (SUNY Downstate Health Sciences University): You might think that the reality outside is actually what you’re perceiving. And the answer is no, it really isn’t…
Your Brain: Who's in Control?
PBS Airdate: May 24, 2023
SUSANA MARTINEZ-CONDE, PH.D. (SUNY Downstate Health Sciences University): The brain is the biggest mystery in science today. THALIA WHEATLEY, PH.D. (Dartmouth College): It’s responsible for all the facets of our personality, everything we think and everything we feel. It makes you you. URI MAOZ, PH.D. (Chapman University): A very large fraction of what’s happening in my brain, I am not aware of at all. HEATHER BERLIN, PH.D., M.D. (Icahn School of Medicine at Mount Sinai): But what exactly is going on in your unconscious brain? What part of your brain is really in charge? CHARLES LIMB, M.D. (University of California, San Francisco): All day long, we’re doing unscripted things that we didn’t know we would be doing. Life is not scripted…
I shot that at the D-Day Cemetery at Omaha Beach, Normandy, France, in 2004. Sobering experience.
My Dad and Uncle Warren survived WWII. They were two of the five Gladd brothers who all served, as did my Mother's adult brothers. Pop left a leg behind on Sicily.
Below, a quick montage I did, using some music scored by my friend composer Nathan Tanouye.
Funny New Yorker cartoon. Yeah, 4 1/2 years after being diagnosed with Parkinson’s, I am exhibiting symptoms of dyskinesia. Relatively minor in my case thus far, but, annoying nonetheless. Messes with my guitar playing.
It is widely expected that by this summer, the United States Supreme Court will overturn long-standing precedents allowing the consideration of race as one factor among many in university admissions. The current legal regime goes back to the Court’s decision (Regents of University of California v. Bakke) in 1978 that banned racial quotas while allowing consideration of race for the purpose of creating a diverse educational environment. Although the law has evolved since then, almost all universities have relied on the Bakke framework to support their strategies to educate a diverse citizenry. If the Court upends those practices, the implications for the scientific enterprise will be far-reaching. It is essential that the process of science continue to become more diverse, equitable, and inclusive. Studies show that the best science is done when teams are diverse. Moreover, the very questions scientists address can change substantially when those scientists come from a variety of racial, ethnic, and other backgrounds.
The upcoming decisions are likely to be disruptive in ways that go far beyond admission practices. Many observers expect the Court to issue a broad ruling that affects student benefits more generally. For example, the Court could prohibit the consideration of race in conferral of scholarships or participation in mentoring, enrichment, or bridge programs—all approaches known to be successful in broadening participation in science. And even if the ruling is a narrow one, the prospect of subsequent lawsuits and confusion about new restrictions likely will have a chilling effect on existing efforts to advance diversity in science. Race-neutral considerations such as socioeconomic status, although important, are insufficient to redress racial inequities. The impact of racism goes well beyond economics.
In response to this new legal environment, it will be critical to continue, within the law, to uphold commitments to diversity in science. The Diversity and the Law project of AAAS (the American Association for the Advancement of Science, the publisher of Science) has developed useful legal guidance, which will be updated in the wake of the rulings. But the scientific community must acknowledge that the programs under pressure from the Court are precisely those designed to help individual students access higher education and succeed in an unwelcoming, sometimes hostile, scientific culture...
The upcoming ruling should be a clarion call to improve the scientific environment itself. The need for systemic cultural change was emphasized earlier this year by the US National Academies report, “Advancing Antiracism, Diversity, Equity, and Inclusion in STEMM Organizations: Beyond Broadening Participation.” Its message is that unless the practice of science becomes more equitable and inclusive, efforts to bring more underrepresented scientists into the field are doomed to founder...
Reforming the culture of science to be more equitable and inclusive is a key priority of the Alfred P. Sloan Foundation and many of our peers. We are making deep investments in graduate education and the professoriate, seeking institutional partners who are already committed to this transformation. The overwhelming response we have seen shows that many scientists are eager for an environment that is more diverse, equitable, and inclusive...
—Adam Falk & Lorelle Espinosa
Lordy. Far-right Florida governor and GOP 2024 POTUS candidate Ron Desantis, recall, recently signed legislation outlawing DEI ("Diversity, Equity, & Inclusion") initiatives in state universities and colleges. Per The NY Times:
Gov. Ron DeSantis signed legislation on Monday that largely banned Florida’s public universities and colleges from spending money on diversity, equity and inclusion initiatives and imposed other measures that could reshape higher education at state schools...
Breaking Reports also have it that the Governor is issuing an Executive Order banning ACTUAL meteorological rainbows from his Sunshine State.
SERIOUSLY?
No, DEI efforts are not "Treasonous Soros-Funded Woke Marxist Plots to Turn All of Our Children Into Gender Dysphoric LGBTQ+ Radicals," irrespective of what the delusional likes of Marjorie Taylor Greene claim.
Diversity, equity and inclusion have become critical components of business success. While these concepts are often viewed through the lens of social justice and morality, there is also a compelling business case for promoting diversity and creating a culture of inclusion in the workplace. From attracting top talent to fostering a more collaborative and creative workplace, the benefits of DEI are clear…
Wealthy entrepreneur GOP Primary ankle-biter candidate Vivek Ramaswamy didn't get the Memo. I will not dignify him with a link. Suffice it to observe that everything he doesn't like is a "Cult"—inclusive of DEI. Mr. Meritocracy Uber Alles.
Scientific research is a social process that occurs over time with many minds contributing. But the public has been taught that scientific insight occurs when old white guys with facial hair get hit on the head with an apple or go running out of bathtubs shouting “Eureka!” That’s not how it works, and it never has been. Rather, scientists work in teams, and those teams share findings with other scientists who often disagree, and then make more refinements. Then those findings are placed in the scientific record for even more scientists to examine and produce further adjustments. Eventually, theories become knowledge. All along the way, these scientists are conspicuously and magnificently human—with all the assets and flaws that humans possess. And that means that who those individuals are, and the backgrounds they bring to their work, have a profound influence on the quality of the end result.
It has somehow become a controversial idea to acknowledge that scientists are actual people. For some, the notion that scientists are subject to human error and frailty weakens science in the public eye. But scientists shouldn’t be afraid to acknowledge their humanity. Individual scientists are always going to make a mistake eventually, and the objective truth that they claim to be espousing is always going to be revised. When this happens, the public understandably loses trust. The solution to this problem is doing the hard work of explaining how scientific consensus is reached—and that this process corrects for the human errors in the long run.
A raging debate has set in over whether the backgrounds and identities of scientists change the outcomes of research. One view is that objective truth is absolute and therefore not subject to human influences. “The science speaks for itself” is usually the mantra in this camp. But the history and philosophy of science argue strongly to the contrary…
Sorry, DEI Deniers. The Defense Rests, Your Honor.
I've been eagerly awaiting this book release for weeks. It did not disappoint one whit. Clear jargon-free prose, great recounting of SCOTUS history (and the broader US judiciary) going back all the way to the Founding, as well as astute and acute analyses of emergent Article III "shadow docket" trends.
Totally a 5-Star read.
“This book began as nothing more than a series of tweets. I’ve always been both professionally and personally interested in some of the more arcane areas of the Supreme Court’s practice, but it wasn’t until the fall of 2017—after the June 2017 travel ban ruling and a series of subsequent Supreme Court orders over that summer—that I started to see the germ of a more focused study of the Court’s evolving behavior through unsigned orders.” [pg 307]
A professor with a Twitter account.
...Judge Kacsmaryk, who has come to national attention in recent weeks as he considers in a separate case whether to issue a nationwide injunction banning the most common form of medication abortion in a lawsuit that could’ve been brought anywhere in the country, but was brought in Amarillo—entirely so that it would be heard by Kacsmaryk (whose anti-abortion views are well known). If all Judge Kacsmaryk did in his Tuesday ruling was deny the DOJ’s motion to change venue in the ESG case, it wouldn’t be much of a story. But in the course of rejecting the DOJ’s arguments, Kacsmaryk decided to come after me—even though I’m not involved in that case in any way.
First, he dismissed the (incontrovertible) evidence of Texas’ behavior as “an amicus brief filed by a professor with a Twitter account.” Leaving aside that the amicus brief to which he’s referring, once again, was filed in a different court in a different case, this clumsy attempt at a burn (lots of professors—and lawyers—have Twitter accounts) never comes close to addressing the substance of my trifling little tweets. If I had posted my data to a more academic site, would it somehow be more compelling?
But in a footnote, he took an even subtler and more personal shot, suggesting that “mercifully,” the late Texas Law Professor Charles Alan Wright “did not live long enough to endure the ‘tweet and repeat’ indignity of the Twittersphere.” Just to make the dig clear, I currently hold the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law. It’s hard to say what exactly Kacsmaryk intended to convey by name-checking the man whose chair I have the honor of holding; no doubt it was meant as another fire-emoji-level burn of me personally. But it’s a remarkably childish and churlish shot for a sitting federal judge to take at a non-party for the sin of amassing accurate data in support of a position he doesn’t like.
Indeed, there’s a lot to say about this passage. Were Professor Wright here, he might note how much of a stickler he was for both judicial decorum and for the importance of preserving the courts’ institutional reputation (he was also an early adopter of new technology; his Twitter account would’ve been lit). Since he’s not, I’ll note what it says about a judge that he’d go out of his way to try to denigrate someone with no direct involvement in a case before him for no other reason than scoring points (on Twitter, one presumes) and auditioning for a promotion in the next Republican administration. You wouldn’t think “I’m owning libs, so I’d make a great appellate judge” would be a persuasive argument, but here we are.
Then there’s the extent to which, again, it’s not actually responsive to any of the data I’ve gathered or the arguments I’ve made against the practice Kacsmaryk is endorsing. There’s the pettiness (to say nothing of the inaccuracy) of the “your chair’s namesake would disapprove” nonsense. But most of all, there’s the sense that this kind of behavior is beneath the dignity of a life-tenured federal judge with the power (at least for the moment) to issue rulings with nationwide implications…
A woman's reproductive decisions are rightfully no one else's business. And, the improper ideological extrajudicial motives ofthisfundamentalist "Christian" judge, Matthew Kacsmaryk, could not be more clear.
Back to Steve Vladeck.
PREFACE History books will teach that the Supreme Court eliminated the constitutional right to abortion on June 24, 2022. That’s when five justices officially overruled Roe v. Wade in a Mississippi case known as Dobbs v. Jackson Women’s Health Organization. Lost in the shadows will be another decision that the Court handed down almost ten months earlier, two minutes before midnight on September 1, 2021. That night, the same five justices who would later form the majority in Dobbs refused to block Texas’s ban on abortions after the sixth week of pregnancy—a point at which many do not yet know they’re even pregnant. Even though the Texas law, known as “SB8,” or the Texas Heartbeat Act, was clearly (and deliberately) inconsistent with Roe, five justices allowed it to go into effect. Justice Samuel Alito’s June 2022 opinion for the majority in Dobbs, which was publicly joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, laid out, in 108 pages, a series of arguments about why the US Constitution should not be understood to protect a right to abortion, and why the Court’s prior decisions recognizing such a right should be overruled. The unsignedi September 2021 order in a dispute known as Whole Woman’s Health v. Jackson, in contrast, which no justice publicly endorsed, spanned just 401 words.
Unlike Dobbs, the cryptic order in Whole Woman’s Health did not expressly overrule the 1973 ruling in Roe that had first recognized abortion as a constitutional right. Instead, the single paragraph penned by the majority offered a technical reason for the Court’s refusal to block Texas’s abortion ban, noting that there were unresolved questions about whether the plaintiffs in that case had sued the right defendants. But for those on the ground in Texas, that was a distinction without a difference. By the morning of September 2, abortion providers across the nation’s second-largest state had largely shut their doors. From then on, most Texans needing abortions who had the means to travel out of state for the procedure did so. For those who couldn’t leave, Roe was a dead letter, effectively if not formally, from the Red River to the Rio Grande.
The Court’s refusal to stop Texas’s law from going into effect was a harbinger of things to come. After all, the same five justices—Thomas, Alito, Gorsuch, Kavanaugh, and Barrett—had used similar unsigned orders to block numerous state COVID restrictions over the previous year. Those decisions had established new—and more expansive—constitutional protections for religious worship compared to precedents. What’s more, many of the orders blocking COVID restrictions had come in cases where it was even less clear than in the Texas dispute that the justices could reach the merits of the constitutional question; indeed, the earlier rulings ran roughshod over some of the very procedural obstacles the majority cited in the Texas case. If the Court was nevertheless justified in intervening in those cases to protect a new understanding of constitutional rights, what did it say about the future of abortion that it wouldn’t intervene to protect an old one?
The paltriness of its legal reasoning notwithstanding, the unsigned order in the Texas case had a monumental impact in the real world. In that respect, it was no outlier. In recent years, the justices have issued a raft of similar orders, many containing even less analysis than the September 2021 ruling in the Texas case, that have produced massive substantive effects. From abortion to asylum; from elections to evictions to executions; from COVID vaccinations to the Clean Water Act; and from redistricting to religious liberty, the Court’s new conservative majority has used obscure procedural orders to shift American jurisprudence definitively to the right… [pp 8-10]
I was riveted by this book, glued to the couch for hour after hour.with my iPad. The text is now awash in Kindle highlighter, bookmarks, and notations. This is an important read.
A professor with a Twitter account.
Dude has cred. Kacsmaryk?
I am certainly no lawyer, much less a ConLaw one. But neither am I some clueless yet opinionated Barstool Barrister always at the shoot-at-the-lip ready to pop off on all things jurisprudential. I spent considerable time in grad school plumbing the opaque depths of various core facets of constitutional law relevant to my thesis topic. Across the ensuing 25 years, my study has routinely continued (hence the topic of this post). The more I learn, the less I sometimes feel I know in the aggregate.
"The title sounds more like a thriller than a legal treatise. The Shadow Docket: How the Supreme Court uses stealth rulings to amass power and undermine the republic" — and the author, University of Texas law professor Stephen Vladeck, admits the term "shadow docket" is evocative.
Vladeck's book, written so it can be understood by the interested non-lawyer, focuses on a part of the court's work that until six or seven years was mainly viewed as pretty boring…
"Are you CRYING?..."
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A great way to spend an hour. These people are certainly fast on their cognitive "feet."
…Two plaintiffs, Kiersten Hogan and Elizabeth Weller, had their water break prematurely, but were both told to wait until they were sick enough to receive abortion care, according to a draft of the suit.
Hogan was allegedly told that if she tried to leave the hospital to seek care elsewhere she could be arrested for trying to kill her baby, according to a draft of the suit. She was kept in the hospital until she went into labor four days later in the hospital bathroom and delivered her son stillborn.
Weller had to wait until she developed an infection before a hospital approved her abortion despite her losing almost all her amniotic fluid, which a pregnancy is not viable without, according to a draft of the suit.
Kylie Beaton and Samantha Casiano said they were both forced to carry nonviable pregnancies to term…
That is obscene.
OFF-TOPIC ERRATUM
While many of us in the U.S. angrily vent ad nauseum over Our Constitutional Right To Not Be Inconvenienced, on Day 452 of Putin's 3-day Conquest of Ukraine...
A twenty-two-year-old Ukrainian sniper, code-named Student, stuffed candy wrappers into his ears before firing a rifle at the Russians’ tree line. He’d been discharged from the hospital two weeks earlier, after being shot in the thigh.
