A ‘Watershed’ Rule

On today’s podcast, Sarah and David give their predictions on how the Supreme Court might ...

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On today’s podcast, Sarah and David give their predictions on how the Supreme Court might rule next term in Dobbs v. Jackson Women’s Health Organization, the abortion case challenging a Mississippi law that prohibits most abortions after the 15th week of a woman’s pregnancy. Our hosts also chat about Texas’ new pro-life law, Justice Elena Kagan’s spicy dissent in Edwards v. Vannoy, the Mississippi Supreme Court case they talked about earlier this week, the University of North Carolina board of directors’ decision to block tenure for Nikole Hannah-Jones, and mugshots. Plus, they provide some listener wine pairing recommendations for lead fact-checker Alec Dent’s forthcoming cicada eating experience.

Show Notes:

–Dobbs v. Jackson Women’s Health Organization

–June Medical Services LLC v. Russo

–Edwards v. Vannoy

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  1. Avatar photo
    Holly

    Please consider covering the PA Supreme Court appeal regarding use of force by police and how it related to the David Jones shooting in Philadelphia by Officer Pownall. It was the subject of the Philly DA episode this week, but they covered the shooting and not really the appeal.

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  2. Dan Currell

    Have never disagreed with David on something before, but we've got a pretty basic problem with his casual assessment that Hannah-Jones is objectively qualified for the post she's been handed. She's not, and she's not close. It's an insult to the rest of the faculty, whose bios are here:

    http://hussman.unc.edu/directory/faculty

    NHJ's bio is here: https://nikolehannahjones.com/about/

    I chaired Academic Affairs on one college board and was a trustee on another where the full board approved tenure decisions; I appreciate how deferential conventions of governance are in these matters, and I never came close to resisting a tenure decision forwarded by the faculty senate. But I was also never sent a tenure recommendation for someone who:

    *Has no terminal degree (this is a candidacy-killer for most schools, but journalism can be different; nevertheless, Hussman is stacked with Ph.D.s, while having some folks who have only the M.A. that NHJ has)
    *Has never written a book (n. 1)
    *Has never written an academic article
    *Has never taught a full course (am I missing something? I see no evidence of this in her various online biographies)
    *Has written on a variety of topics not particularly scholarly in nature
    *Whose national fame arose when she *edited* a series of contributions by others, and wrote some of her own material, on a project where she had the vision. And - again, setting aside politics - it was a good vision as measured by public impact. Credit to her.

    But this is academia. Nobody gets any points - and I can promise you, a conservative will get no points - for having had a social impact with a non-scholarly series edited in the pages of a newspaper. That will normally earn you sneers from academics if they are forced to pay any attention to you at all.

    These things need to be taken in the context of the institution, which is why the first stop on this story is the Hussman faculty list. For some schools, I would have accepted her tenure recommendation without hesitation because she would be consistent with other tenured faculty. (But you say, am I not a conservative, and wouldn't I have *some* hesitation? Let's be clear, and this gets to the heart of the allegation: conservative trustees, unless they're on the board of Hillsdale or Wheaton, are approving tenure for those with deeply contrary political views in at least 70-80% of relevant instances. So it wouldn't occur to any trustee who's been around the block to care about her ideology.)

    So NHJ would be an asset to the students and of comparable experience with the faculty *for some schools.* But for Hussman? Just run down the current faculty list. Absolutely not. It's an insult to them to bring her on, leapfrogging above them. The closest I can get to a faculty member that's as minimally qualified as her on paper is this guy - but he's published a book, which apparently is quite good, and there's very good evidence that his teaching is appreciated. It's unclear how much Hannah-Jones has ever taught. He has a pretty minor position - they're not making him an endowed chair of anything.

    http://hussman.unc.edu/directory/faculty/paul-cuadros

    The thing one notices from his bio, and which is quite helpful in understanding NHJ's, is just how award-heavy the media industry is. I noticed this some years ago when a friend won a Pulitzer and I thought, my goodness, how did you do that at the age of 28? Then I found out that the media industry gives out more trophies than the Los Feliz Tee Ball League.)

    Back to the core question: was there ideological bias here? Sure there was. If I'm sitting on the board, I'm looking at this and trying to understand how on earth this candidate could have been forwarded through a process that is as unfailingly rigorous, credentialist, and elitist as university tenure review. And there is but one possible conclusion, right?

    Finally, David glides past the fact that the board is the foundational governance mechanism of the school, and it is by convention that boards defer to faculty on matters like this, but if the board has no ultimate say on faculty composition and tenure, then they have ceased to have any fiduciary duty to carry out, since the cost of faculty is the dominant cost of any institution, and tenure represents an indefinite commitment of pretty significant funds. It is critical that the buck stops with the board.

    (n. 1) - Her wikipedia bio says she has a book coming out in Spring of 2020 from Random House, so it's a trade book, but also . . . it's not out.

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    1. Chris Dent

      Thanks for a very detailed assessment of the specific case - I do not know the context in this particular school, but as per my own comment the key is that not everything can be judged on some aspects of CV alone. There may be a question of what aspects of CV matter (can't comment in journalism, know quite a lot in Maths and Engineering), but key point is that seeing CV is of limited use without also knowing assessment criteria and being able to assess in detail the person's outputs against this.

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  3. Chris Dent

    Very interesting discussion about academic tenure, many thanks! This is something I sometimes discuss with colleagues in the US (I am a maths professor in the UK, where we do not have formal tenure any more - the maths bit is important, as ideological disagreements of this kind are probably less common than in some other subjects.)

    A few thoughts...

    In my own experience I have come across more issues which tenure would have made worse than ones where it would have helped - usually difficulties associated with long standing staff not really doing the job, or behaving actively badly. So I am somewhat ambivalent about tenure, but freedom of speech (in the relevant sense) is not such a big issue in Maths.

    However... while mostly people win awards and grants for doing excellent work, there are other routes (being in right area, gettng lucky, being well connected). Thus it's very important that a hiring committee should be able to go against paper qualifications, if it turns out that the person actually is not much good after all - I have been part of some interesting discussions on this in past hiring processes.

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  4. Avatar photo
    Mike Garrett

    I have a question about textualism vs. original public meaning: Doesn't the textualist have to consider the meanings of the words of a text in their original context? Words have meaning that can drift over time and language changes, so doesn't that force all textualists to really adopt original public meaning for analysis? Thanks in advance for clarification.

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    1. Mathew A

      That's where I think Gorsuch got into trouble with Bostock.

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  5. John Townson

    I think David has the NHJ/tenure analysis exactly backward. As a journalist NHJ promoted an objectively false narrative in the 1619 project, then deceptively stealth edited the work when criticized for it. As a journalist , she represents the worst of journalism's current behavior: select and bend the facts to fit your preferred narrative, then dishonestly try to cover up your mistakes. UNC-CH Board was well within it rights to withhold tenure in this prestigious journalism position. That she is even considered for the job under these circumstances offends me. Liberal and conservatives alike should be vocal in their opposition to NHJ because of what she did. The fact that only conservatives are publicly opposing her does make make their case political given the plain facts in this matter.

    I get the felling that David's personal experience with race and the attacks on his family have made it difficult for him to criticize the CRT proponents like NHJ.

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  6. Avatar photo
    Reed Benet

    As a double Ivy grad thought this was funny...

    Politics War Room with James Carville & Al Hunt announce the Ivy League Sphincter Hall of Fame.

    Al and James are joined by Princeton historian Julian Zelizer to look at the evolution of the Republican Party from a party of issues to a party of disinformation and division. Then Al and James announce the first inductees for this very special honor...

    Requirement:

    1. Ivy League grad;
    2. Involved in politics or public life; and
    3. Beyond just a normal jerk.

    And the winners are...

    1. Donald J. Trump (Penn);
    2. Josh Hawley (Yale Law);
    3. Ted Cruz (Princeton and Harvard Law — apologies to Sarah, but he’s a seditionist?);
    4. Laura Ingraham (Dartmouth); and
    5. Alan Dershowitz (Yale Law).

    https://podcasts.apple.com/us/podcast/politics-war-room-with-james-carville-al-hunt/id1484862164?i=1000522494624

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  7. Avatar photo
    Rob W

    My theory about why David can't get Nikole Hannah-Jones's name right is that Hanna Nikole-Jones sounds more natural to those of us who remember Anna Nicole Smith. Who's with me?

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    1. Avatar photo
      John Russell

      I'm with you too

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      Jason Gibson

      Thought the same thing

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  8. Avatar photo
    TJ

    It seems to me that there could be a private citizen who could have a harm with an actual remedy…How about the father for example or the grandmother or grandfather?

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  9. Vitaly

    I do not see how the Mississippi law can be upheld without overturning Casey. If it is OK to ban abortion after 15 weeks, the viability standard is no more... I don't think you can argue (at this time, at least) that a fetus can survive outside the womb at 15 weeks. A more plausible way is to replace the viability standard with the pain standard... but for this more evidence would be needed. If it can be shown that fetus can feel pain at 12 weeks as the law claims you can argue that the state has a compelling interest in guarding against inflicting pain that can be felt.

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    1. Mathew A

      "I do not see how the Mississippi law can be upheld without overturning Casey"

      You just say that banning abortion after 15 weeks isn't an undue burden

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      1. Vitaly

        Yes they could say that. But I think (if I am not mistaken) that undue burden is based on the viability standard. This is I think is the essence of Casey. What I meant is in order to declare that prohibition after 15 weeks is not an undue burden, the Court will have to ditch the viability standard (unless it can be proven that a fetus can survive outside the womb at 15 weeks).
        The point I was making is not that they cannot do it but it would be unlikely. This would just be re-drawing the line without any logical basis. I think a far better way is to say that State Gov't have a legitimate interest in preventing cruelty; so the pain threshold becomes important... but the state needs to prove that it is below 15 weeks. I had not heard of studies that show that but I am sure they are there.

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  10. Avatar photo
    Philbnichols

    Btw, liking the different tab icon for each different TD offering. Niiiiiice. Opens up interesting possibilities.

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