John William Waterhouse, Diogenes and the Young Women, 1882.
Source: Wikimedia Commons.
This post is about some thoughts I had while and after watching “Kill the Moon,” the seventh episode of the current season of Doctor Who. The episode originally aired on October 4, 2014. (There are spoilers below the fold.)
xkcd for the win:
“People often say that same-sex marriage now is like interracial marriage in the 60s. But in terms of public opinion, same-sex marriage now is like interracial marriage in the 90s, when it had already been legal nationwide for 30 years.”
Image by R. Munroe used under a CC BY-NC 2.5 license.
From Monday’s Marketplace Morning Report:
And in Latin class they used to teach that Gaul, as a whole, is divided into three parts. Hewlett-Packard, it seems, will divide into two…
The program goes on to discuss the announced split of Hewlett-Packard into two separate companies. (The printed story, which goes into a bit more depth than the quick morning radio segment, does not use the Gaul parallel; you can hear it in the Morning Report, starting at the 5:48 mark. I haven’t found any transcripts of the program.)
For those who did not study Latin: “All Gaul is divided into three parts” are the opening words of the Commentaries on the Gallic Wars, Julius Caesar’s memoirs recounting the campaigns of his armies in what what is today France, the Low Countries, western Germany, and southern Britain. Like almost all military memoirs, Caesar’s Commentaries served as propaganda, self-promotion, and self-justification; in part, Caesar was using his accounts of the Roman campaigns in Gaul to advance his political fortunes. For this reason, he wrote them for wide circulation; the Commentaries are written in a very straightforward, uncomplicated Latin, designed to be accessible to common Romans. A side effect of this accessible prose style is that Caesar’s Commentaries have been used as a teaching text for students learning Latin; passages from the Commentaries are often some of the first “real” Latin passages (i.e., written by a real Roman) that students are assigned to translate.*
All of this is of secondary importance to my main point — namely that “Gaul, as a whole, is divided into three parts” is a really weird and strained historical parallel to use as a rhetorical garnish in this context. Caesar was describing a region, using somewhat arbitrary boundaries drawn along geographic and ethno-linguistic lines to break up the region into smaller units for purposes of comparison and more detailed examination. The breakup of Hewlett-Packard is an act of division; a legal entity is about to go through a process of division to form two new legal entities. It’s the difference between a descriptive demarcation and an act of separation.
So, my thoughts wandered to historical parallels that might be less…odd in this context. Say, “Charlemagne’s grandsons divided his empire into three kingdoms.”
Or, since HP is being divided into two new entities (not three), “In 1889, Congress divided the Dakota Territory into the new states of North Dakota and South Dakota.”
Or, if we want to stick with a Roman theme, “The later emperors divided the Roman Empire into the Western Roman Empire and the Eastern Roman Empire.”
I mean, if we’re looking for an historical example of an aging empire dividing itself into two parts that are optimistically expected to be more nimble and better able to confront changing external threats…
* This was more true forty or fifty years ago than today; in former decades, students might spend weeks or months translating Caesar. Today, Latin textbooks and Latin teachers rely upon Caesar quite a bit less; but even so, some passages are still assigned in most second-year or intermediate Latin courses. In the normal progression, a high school student studying Latin would encounter Caesar’s Commentaries in the second year of Latin classes — say, sophomore year of high school or thereabouts. Nowadays, though, Latin students read less Caesar and are more likely to spend a lot of time reading the stupid extended story of Quintus and his family. I’m not sure that’s an improvement.
Image Credits: (1) Map of Gaul by Feitscherg, used under a CC BY-SA 3.0 license. Source: Wikimedia Commons. (2) Boundaries of the Western and Eastern Roman Empires after the death of Theodosius I, AD 395. Map by Geuiwogbil, used under a CC BY-SA 3.0 license. Source: Wikimedia Commons.
The first Monday in October is the traditional start day for the annual term of the United States Supreme Court.
Burt Likko has a very good rundown of some of the cases that are pending before the Court.
The big news, of course, is the Court’s decision to deny all the petitions in the same-sex marriage cases. I cannot recall ever seeing so many people so excited over a denial of cert. The best explanation* for the SCOTUS decision may be that there is no circuit split, and therefore no need to wade into the issue at this time. (There is a ruling from a District Court in Louisiana upholding a SSM ban there, which does buck the trend in the appellate courts so far; but that decision may be overturned by the Fifth Circuit. There is also an anti-SSM ruling from a soon-to-retire trial judge in Roane County, Tennessee; but the continued efficacy of that ruling will hinge on what the Sixth Circuit does in a different case. [See also here.])
Ann Althouse speculates that the Court may be waiting for a circuit split. Also, since every federal appellate court that has heard a case post-Windsor has ruled in favor of SSM, the Court “has reason to believe that condition [i.e., a circuit split] will never occur, and it can preserve its political capital by never weighing in on the subject.”
At the Volokh Conspiracy, Jonathan H. Adler
Most commentators have assumed the Supreme Court would take one or more of these cases and (perhaps) conclusively determine whether the federal Constitution bars states from refusing to recognize same-sex marriages under state law. Yet all seven cases below had come out the same way. In all seven, lower courts struck down the challenged state laws, so there was no circuit split.
Given the lack of a split, I do not think it is at all surprising that the court denied these petitions. … There are several more cases pending in lower courts, including some in which there are reasons to suspect the states will prevail. If so, the court will have a split to resolve, making a grant a sure thing. If not, and same-sex marriage advocates run the table, the court can avoid resolving the issue.
Adam Liptak, writing in the New York Times, had predicted something like this back in February (emphasis added):
Since June, when the Supreme Court ruled that same-sex couples are entitled to equal treatment in at least some settings, federal judges in Oklahoma, Utah and Virginia have struck down laws barring same-sex marriages. In state legislatures and state courts, too, supporters of same-sex marriage have been winning.
“The pace of change has perhaps outstripped the Supreme Court’s preferences, but the momentum is tremendous,” said Suzanne B. Goldberg, a law professor at Columbia.
Rapid changes in public opinion are also playing a part, said Andrew M. Koppelman, a law professor at Northwestern. “It is becoming increasingly clear to judges that if they rule against same-sex marriage their grandchildren will regard them as bigots,” he said.
Still, the justices are often wary of a backlash and might prefer to let the democratic process and lower courts work through contentious social issues before weighing in.
Building on Liptak’s column, Emily Bazelon wrote in May:
What’s amazing is that so far, all the courts have followed the equality move, and the momentum raises a question no one would have dreamed of a year ago: Will gay marriage become the law of the land without the Supreme Court doing anything more?
We’ve arrived here so much faster and more agreeably than anyone could have predicted even a year ago, when the challenges post-Windsor looked like they would split the district courts, take their time wending their way through the appellate process, and maybe arrive back at the Supreme Court in, say, 2017, safely after the next election. Instead, no judge wants to write the opinion denying the benefit of marriage.
Since Liptak and Bazelon published the above pieces, a couple of judges have bucked the trend (see above), but those decisions from trial-level courts are outliers. The momentum is still on the side of the pro-marriage equality forces; the state bans continue to fall, either at the ballot box or in the appellate courts.
Coming back to today: Andrew Sullivan is jubilant, and includes this:
What I also love about this conservative but extraordinary decision from SCOTUS is that it affirms the power of federalism against the alternatives. Marriage equality will not have been prematurely foisted on the country by one single decision; it will have emerged and taken root because it slowly gained democratic legitimacy, from state to state, because the legal and constitutional arguments slowly won in the court of public opinion, and because an experiment in one state, Massachusetts, and then others, helped persuade the sincere skeptics that the consequences were, in fact, the strengthening of families, not their weakening.
Meanwhile, Mother Jones has a map of where SSM is legal now, incorporating the immediate results of today’s SCOTUS non-decision decision.
Howard Bashman, at his How Appealing blog, has a roundup of coverage and opinion on the Court’s decision to deny cert.
* To the extent that any explanation is needed to explain why SCOTUS doesn’t grant cert in any particular case, when the annual percentage of cert grants is on the order of 1%.
Image Credit: Photo by Kjetil Ree. Used under a CC BY-SA 3.0 license. Source: Wikimedia Commons.
Bartolomeo Cavarozzi, St. Jerome Visited by Angels, early 17th Century.
In the Western Churches, September 30 is traditionally the feast day for St. Jerome, the hermit and Biblical scholar.
Jerome is most famous for his Latin translation of the Bible, which remained the dominant and standard translation of the scriptures in Western Christianity for over a millennium after his death in 420. Most artists portray Jerome in his study, a book nearby and usually open in front of him.
Supposedly, Jerome began his translation of the Bible at the urging of Pope Damasus, with whom he corresponded. In subsequent centuries, this relationship became the basis of a belief that Jerome had been a cardinal — even though there is no contemporary basis for this proposition. Thus, he is often portrayed with a cardinal’s hat and/or with the red clothes of a cardinal.
Niccolò Antonio Colantonio, Jerome in his Study, 15th Century.
Joos van Cleve, Jerome in Study, circa 1520-25.
Nate Silver has written a post exploring why, in his view, the polling on the Scottish Independence Referendum last week was off the mark — that is, even the polls predicting a “No” victory predicted that the margin of victory would be substantively narrower than the actual 10-point margin that was the actual result.
I have only a theory: Scotland’s results may have had something to do with the “Shy Tory Factor.” This was the tendency of conservatives (Tories) to outperform their polls during a number of U.K. elections in the 1990s and especially in the U.K. general election of 1992. The idea is that conservatives were less enthusiastic than Labour voters and therefore less likely to declare their support for a conservative government to pollsters. Nevertheless, they turned out to vote.
U.K. pollsters responded to these elections in a variety of ways, including by weighting their results based on voters’ party preference in prior elections. But this may have been a patch that failed to address the underlying issue: Voters are not equally likely to respond to polls; those who are more enthusiastic about an upcoming election are more likely to do so.
This potentially leads to a double-counting of enthusiastic voters if turnout models are not applied carefully.
The problem could become worse as response rates to polls decline. Furthermore, many polls of the Scottish independence referendum were Internet-based, and some of those polls did not use probability sampling, historically the bedrock for demographic weighting. …
At Slate, Dave Weigel thinks that Silver is missing something:
Now, it’s true that if you locked yourself in cryo-freeze nine months ago and expected a “No” win, you’d have been right. Just as you’d have been right if you said “I bet the frontrunner, Mitt Romney, wins the GOP nomination” in 2011, and ignored everything else that happened. If you want to shake your head at the reporters who wrote that “to walk through virtually any Scottish town this week was to be confronted by an apparently unassailable army of people voting Yes,” you can!
But you would have missed a panic that changed the future of 5.4 million Scots. The “No” coalition, composed of the three main British parties, responded to the “Yes” surge by pushing up or amending their own promises for further Scottish devolution. They had been expected to offer some of this stuff in six-odd months, in party manifestos. Instead, they tried to head off a “Yes” win by assuring wavering voters that unemployment programs, some housing programs, and significant taxing powers be devolved to the Scottish parliament. Banks and investors threatened to bolt the country. Ironically, this decision of “yes” or “no” was less binary than the standard U.S. presidential election. When one of our candidates wins, he wins. When the “Yes” campaign got close to winning, the “No” campaign made huge concessions, and this simply wouldn’t have happened had the polls stayed at 60/40 for “No.”