On the Supreme Court and Ricci v. DiStephano

As is the custom, the people of the United States demand a sanitized, irrelevant summary of the Supreme Court decisions, and the media is delighted to offer them little more.

Ricci v. DiStephano is of especial interest, as it involves a decision from an appeals court from which a Supreme Court Justice may be appointed. The opinion of the Court differed in finding but perhaps not in substance from the leanings of the Appeals court.

The debate offered by the moronic spokespersons, principally on the radio, serves us no purpose. The actual point of contention is minuscule. Here is the meat of the matter, from the opinion:

Under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional, disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action... The question, therefore, is whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination.

What is the nature of the test for the strong basis in evidence? Previous case law illustrates that

the Court held that certain government actions to remedy past racial discrimination—actions that are themselves based on race—are constitutional only where there is a “strong basis in evidence” that the remedial actions were necessary... It reasoned that “[e]videntiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees.”...Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations andqualified for promotions. Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of today’s holding the City can avoid disparate-impact liability based onthe strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

Justice Ginsburg objects, joined by the remainder of the minority, about the strong basis in evidence:

In so holding, the Court pretends that “[t]he City rejected the test results solely because the higher scoring candidates were white.” Ante, at 20. That pretension, essential to the Court’s disposition, ignores substantial evidence of multiple flaws in the tests New Haven used. The Court similarly fails to acknowledge thebetter tests used in other cities, which have yielded lessracially skewed outcomes.

Moreover, the Court tore away discretion from the municipality to make its own choices in the selection of the processes, forbidding them to discard the processes if they found them to be substantively inadequate for the City's own purposes. The Federal Standard now offered holds for all of the cities. They have no right to consider whether the disparate impact is due to substantive causes - they must now examine the Court's spoor on the matter, to know if they are permitted to be concerned.

At least Scalia, in concurrence, is honest about the fundamental underpinnings:

Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?

Instead of a more rational approach - that a municipality may be able to demonstrate that it acts in good faith in weighing the provisions of disparate impact against that of equal protection - the Court has now yet again added more judicial minutiae - "conservative legislating from the bench" in exerting Federal judicial power over municipality interests - all the while, insulting the premise from which they derive the capacity. Figures.

PS: As an aside, it is a breath of fresh air that the Court does consider and weighs its opinions in spite of the national prejudice. On the same day, the USSC reversed the Massachusetts Supreme Court in MELENDEZ-DIAZ v. MASSACHUSETTS to insist upon a more expansive interpretation of defendants' rights.

Going by the nose-count: SCALIA, J., delivered the opinion of the Court, in which STEVENS, SOUTER, THOMAS, and GINSBURG, JJ., joined. THOMAS, J., filed a concurring opinion. KENNEDY, J., filed a dissenting opinion, in which ROBERTS, C. J., and BREYER and ALITO, JJ., joined. One's prejudice would dictate that this would be a rather "statist," defendent-antagonistic ruling. It is not. This would be the sort of case which the former AG Gonzales would have a cow over. I hope he still does.

This is, most certainly, judicial activism at its finest. As Kennedy grumps in dissent,

It is remarkable that the Court so confidently disregards a century of jurisprudence. We learn now that we have misinterpreted the Confrontation Clause—hardly an arcane or seldom-used provision of the Constitution—for the first 218 years of its existence..Indeed, as JUSTICE THOMAS warned in his opinion in Davis, the Court’s approach has become “disconnected from historyand unnecessary to prevent abuse.”

The chance that a "conservative" commentator might point this out is, in fact, a snowball's chance in hell.

Chimpanzee Autarchy

Chimpanzees barter.

Economists believe that barter is the ultimate cause of social wealth – and even much of our human culture – yet little is known about the evolution and development of such behavior. It is useful to examine the circumstances under which other species will or will not barter to more fully understand the phenomenon. Chimpanzees (Pan troglodytes) are an interesting test case as they are an intelligent species, closely related to humans, and known to participate in reciprocal interactions and token economies with humans, yet they have not spontaneously developed costly barter. Although chimpanzees do engage in noncostly barter, in which otherwise valueless tokens are exchanged for food, this lack of risk is not typical of human barter. Thus, we systematically examined barter in chimpanzees to ascertain under what circumstances chimpanzees will engage in costly barter of commodities, that is, trading food items for other food items with a human experimenter.

We found that chimpanzees do barter, relinquishing lower value items to obtain higher value items (and not the reverse). However, they do not trade in all beneficial situations, maintaining possession of less preferred items when the relative gains they stand to make are small.

Two potential explanations for this puzzling behavior are that chimpanzees lack ownership norms, and thus have limited opportunity to benefit from the gains of trade; and that chimpanzees’ risk of defection is sufficiently high that large gains must be imminent to justify the risk. Understanding the conditions that support barter in chimpanzees may increase understanding of situations in which humans, too, do not maximize their gains.

Chimpanzee autarky. Brosnan, S. F., Grady, M. F., Lambeth, S. P., Schapiro, S. J., & Beran, M. J. (Language Research Ctr, Georgia State Univ., Atlanta, GA 30303 [sbrosnan@gsu.edu]). PloS ONE, 2008, 3 [1], e1518. <www.plosone.org/doi/pone.0001518>.

Perhaps chimpanzees, too, fear taxes. Pan troglodytes shows us more perhaps than we want to know.

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Mediocrity and its Excesses.

We little recognize that for which we trade our freedoms and abilities, for it is far more evanescent than the concrete benefits. It is easy to define a certain point, by which convergent vectors may be described; but divergent ones, too, point "somewhere." They may not describe a point, but they surely do describe something, indeed.

Consider, for instance, the TSA and the preservation of Homeland Security. We wait for interminable hours in the airports, to be screened and scrutinized. Surely, we can describe why we can do this - but we can only vaguely see why we should not. It is a waste of human time, multiplied by the hundred-thousand. For those who produce little, little is wasted. For those who produce much, a theft of even a few minutes is a theft nonetheless.

In the aggregate, what would the loss be to an economy, if one airline were to eliminate all the screening procedures, operate from its own airports to abstract the risk from the fellow-travelers, and act in the manner of a taxi service? Would it suffer the occasional plane being blown up - and if so, would that be a net financial loss, compared with the thousands of hours of human productivity saved?

That's an extreme example. But how often do we waste excellence in the service of mediocrity, and joyfully so?

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Charley Reese Sings to the Mad Gods.

There are few writers with any sort of comprehension of the world as it stands. Charley Reese is one of them. Regrettably, he has recently retired. I swipe a list from him:

hat follows are a few of the basic premises on which I base my thinking. You might or might not agree with them, but may I suggest that you make a list of your own basic premises. It will help you clarify your thinking.

1. Government is inherently incompetent, and no matter what task it is assigned, it will do it in the most expensive and inefficient way possible.


2. The American government is corrupt from top to bottom.


3. If you rely on the mass media to inform you about your community, state and nation, you will, with rare exceptions, be woefully ignorant of what is really going on.


4. The universal franchise is a bad idea. The notion that the destiny of the nation should be put in the hands of ignoramuses, parasites, boobs, party hacks and idiots is absurd on its face.


5. Public education in America is a failure and is so flawed it cannot be reformed.


6. Not much has changed in the past 5,000 years of human history.

All of that might sound cynical, but it really isn't. True conservatives have argued for years that government, even a benign one, is like a clumsy, retarded giant, and therefore you have to be careful to limit what tasks you assign it.

All this, and now Michael Jackson. It sounds like I have a particular problem with the fellow, but I don't. It's really the mirror he held up to American Society. Here, now, in the middle of a small economic depression which threatens to turn into a huge economic depression, we throw absurd quantities of e-cash into the purchase of 20-year-old recordings of this fellow, who can be heard for free on the Video Appliance, any channel. The only thing holding the Chinese back from stomping us out must be the novel ways we discover to mal-invest. Unemployment insurance, stimulus money, whatever - all floods into the pipeline to pay the creditors who loaned money for the husbandry and upkeep of llamas at this warped boy's estate and ranch, Neverland. Next year, in the soup kitchen line, we can reflect on how much of this capital could have gone, perhaps, towards the means of making of things, rather than feeding our own narcissism, which certainly seems to be regarded in America as Durable Goods. We produced this man-child, and cruelly too, melting even his face like plastic Army Men under the magnifying glass - and then hated what we made, and loved it, too. One of my favorite talk-show hosts has gone nutters over this Tragic Event, comparing it to the last Great Tragedy, the death of Princess Diana. They are merely two examples of the beloved Meme In Our Head who receive daily sacrifices, lares et penates, the house gods of stardom, Jon and Kate, petulant and powerful, living on the shit-Olympus with the Hollywood sign on it. That's what we're all about, America. Gimme a hooyah.

Farting in Hilbert Space

Each and every someone has a blog, and out there, it's the verbal equivalent of pinging Hilbert's cyberspace. There's no "out-there" out there, inanis et vacua.

On Troglodytes and Their Natural Habits.

I note with distinct pleasure on Mike Reed's Flame Warrior site, the definition of the Troglodyte, although I would personally take issue with being defined under the concept of "bigoted narcissism." I rather hope for equitable and well-balanced misanthropy.

American Political Movements

For those unfamiliar with politics in America, I must point out a new phenomenon.

But first an aside. A worthy thing it is, that we have sporting events set aside for persons who, through no fault of their own, but perhaps from birth catastrophes, fetal anoxic distress or chromosomal aneuploidy, are physically fit but mentally infirm.

These competitions are called The Special Olympics. They reward agility, teamwork and health, and are universally delightful to both participants and their loving families. Some of the participants are indeed so impaired that they are unable to distinguish between the Olympics Special and Olympics Regular. Thus, the award on the mantelpiece will be a source of pride, and the coming Vancouver Winter Games in 2010 and the London Summer Games of 2012, will be watched by many "defending champions" with admiration for their "fellow competitors."

For those as decrepit in body as mind, we have Tea Parties. Many of the participants, in fact, believe that they are part of some sort of Political Movement. They will watch the upcoming televised Republican National Convention in a few years bursting with the same sort of pride.

There are, to be sure, just as many dreadfully impaired sorts who are part of the Global Warming Movement - but Global Warming does not offer the shibboleth of abject stupidity as an entrance fee. Indeed, there are many obnoxious dolts who are proponents of Global Warming - but that alone does not suffice for identity with cretinhood.

Tea Partiers, briefly, are those who wish to organize to have everything change, except for the things which they wish to stay the same. That does not suffice for evidence of nincompoopery. The fact that their mathematical skills are so rudimentary as to cast into doubt, say, their ability to make change, is worrisome.

Cut all the taxes. Balance the Budget. Do not touch Defense. Those three tenets are sufficient to create a mathematical univese which cannot be solved.

They also rally around the phrase "No Taxation Without Representation!" which calls into question their ability to parse the sentence. Defend the Constitution and Restore Our Christian Nation, is another paradoxical mandate.

These things are what suffice for American Political Debate. They are not at the complexity of mental gymnatics of the question, say, "Is a slug really a snail, or something different?"

I hope that this suffices as informative for our non-American readership.

The Great American Meme Vacuum

Media events of recent past are acting like the mental equivalent of the Taco Bell™ Threesome® on the Troglodyte. Every time I think I'm done, I get the urge to come back.

The Video appliance in the parlor offers a multi-channel sluice of memes and stereotypes free for the asking, which is why I turn it off most of the time. What it offers is crude, but excusable. People pay advert money for the right to intersperse the woeful flood of solids, as they call it in the sewage industry, with ads. It's the chumps on the other end that give me the freaks.

Americans have rapt eagerness for stories told at the level of the Fairy Tale. Unlike Hanna Schmitz in The Reader, who was merely functionally illiterate but intellectually adult, the American Audience cannot stand a plot-line more complex than a Grimm's Fairy Tale. People must be told from the outset who is Good and who is Bad, in order to incorporate some projection of their existance unto themselves.

Passionate attestation is made on the various sites and the InterSewer that Michael Jackson was not a child molester, he's not, I KNOW he's not, because I know Michael.

I find this creepy beyond words. Michael Jackson© is an industrial product managed by handlers and shown to the public as a performance. All "celebrities" are so. One should never trust the "reality" of things which require press agents to present them. Hollywood is what Hollywood wishes to show. Again, like the Viedo Appliance and the InterSewer, the scary part is not what issues therefrom, but what is eagerly ladled out of the muck-stream.

Americans cannot handle this degree of complexity. They prefer to pretend that their stories are real. The country is sinking under the weight of its own nonsense, and we, as a people, demand answers - which means, we demand things which gratify our own illusions of ourselves, no matter how twisted and sick they may be. It's like giving John Wayne Gacy creds for self-esteem, and being a people-pleaser. Iwww.

Michael Jackson and Healthcare Reform, Continued.

We often complain about the swamp, but never bother to drain it.

Members of the Legal Profession have been chatting energetically about the "Mother of All Suits" regarding Jackson's death.

The comment which tugged at MY heartstrings was:

From the point of a medical malpractice suit, does it even matter? Jackson was allegedly in debt to the tune of over $300 million, though I suspect a forensic accounting may take some time.

If we were all insured by Kindly Uncle Sam, then he could pony up for the loss.

Moral of the Story:

fault (n)

1. (common) Who caused the bad thing to happen? (obsolete)
2. (legal) Whose ass can you sue for it?

e.g. Whose fault was it that I got in an accident when drunk? It's the Highway Department's fault.

Michael Jackson's Death Points Out the Need for Healthcare Reform

Michael Jackson's Death Points Out the Need for Healthcare Reform, for sure. It's only the rich and famous who get ready access to prescription drugs of abuse without any fear of the DEA or the cops trailing your car, and not all of us have a Cuban Maid like Rush Limbaugh to send down to the Denny's with a cigar-box-full of $100 to score for us.

And we need someone for the family to sue when we Fuck Up the Dose and get ourselves killed. Back in the olden days, one had to take the rap for mainlining a hot bag and dying on the can somewhere seedy. And we're scared of needles.

Americans, for sure, are going to get what they want. It's the national credo. And drug use isn't all smoking dope and listening to Jethro Tull and getting insight about reality - it's fucking reality that's driving us off the mesa screaming, and we want Delicious Downers to absorb 47x their weight in Excess Reality.

But we're too chickenshit to go down to FunkyTown to score a bag, better to pick it up in the clean, lighted drive-thru pharmacy, and cop a few of Grandma's Demerol for the cancer pain. Grandma can understand. She feels OUR pain.

On the Tragic Death of Michael Jackson

Michael Jackson is still dead, and the story mandates continuing news coverage of this fact. His original death was not personally noteworthy to bother waking the wife up for. It seems his death involves an ongoing deadness, which the media will keep us up to the minute, about.
To quote the Coroner to the Stars:

As Coroner, I must aver
I thoroughly examined him.
And he's not only merely dead,
He's really, most sincerely dead.

We await a second opinion regarding the question posed from the family, if Michael:

Is morally, ethic'ly
Spiritually, physically
Positively, absolutely
Undeniably and reliably
Dead!

This news can only be a boon to Terry Sanford, although it ruins the celebrity rating of Unnamed Argentine Girlfriend down below the talk-circuit cutoff.

Eugene Robinson wrote a brief and credible epitaph for this fellow, which I found enlightening. I have never been a follower of Mr. Jackson, nor the other members of the now-Jackson-Four, nor have I been struck Medusa-like with the projected image of a sibling's nipple.

America, though, should see the horrible countenance of the pre-dead Michael Jackson as but a mirror into our own being. Michael only wanted to become what we asked him to, Tourettes-like, without the ability to control his own expression. That hideous Roswell alien that he became is only ourselves, mirrored in his own existence.

He was broadly hated as a child-abuser; but what then are we?

On the Joys of Anti-Americanism

Americans have a primitive terror of false accusations, reminiscent of the ancient tribes who fled from the Camera, as though it may steal their Soul. (Such tribes now have iPods and have leaped ahead of our understanding of the world.)

One of the greatest narcissistic wounds we suffer is when we are accused of Anti-Americanism. This sad little moniker is almost without meaning. It resembles, in significance and impact, the phrase "poopyhead" used in kindergarten. It is the American adult equivalent of that phrase, the original having lost its puñaza, its ability to cripple and kill our fragile egos.

Note that the terror which Americans feel towards false accusations, is not paralleled in the matter of true accusations. One of our pre-eminent Radio Fountains of Traditional Values has been busted for a narcotics violation. This does not seem to bother his ditto-followers in the least, however, because the accusation is true. The camera cannot steal one's soul, if one does not have one.

So, in this blog, I risk the accusation of anti-Americanism. A lot of what is wrong with the country lies at the feet of We The People, no matter how much we try to kick THAT dead raccoon over into the neighbors' yard. We screwed up, we deserve the punishment.

The habit is to throw the problem over into the Liberal/Conservative neighbors' yards, and accuse them of all manner of atrocities and misbehavior. There is great exercise to blame Barack Obama for the cataclysm which has happened, the harbinger of the cataclysm which is to come. He merely came in as a member of the chorus in the Last Act. The play's been set for a long time now.

A Brief Introduction and Justification for this Blog.

I generally find blogs to be tiresome, useless, and grandiose demonstrations of self-centered meditation with little to back them up. By and large, I despise them, and have sympathy for those who condemn them universally.

Interspace has no shortage of blogs that are nasty, ill-informed and whiny. In many ways, they re-invent these quintessentially American traditions in cyberspace for all to see, for we are often proud of our sulkiness and ill-temper.

The title comes from a concept for a bumpersticker, which enraptured me not enough to print:

I'm a Brachiating Troglodyte - And I Vote!

I felt compelled to create this as an American Diogenes, in search of any fellows online who are not numbskulls or mindless can-do puppets. I am still cynical about the likelihood of finding any.