@leeesq I think @trizzlor is correct that Netanyahu's history is relevant, though I agree with you that his critics are probably often not aware of his bragging about undermining Oslo or even necessarily his especially blunt rhetoric.

I think instead that the history that is relevant is that Netanyahu's partisan involvement in American politics isn't a new thing in the least. He's been a regular on Fox News for years, and has always been extremely vocal in his support of American movement conservatives (and thus his opposition to the American left).

What's more, he spent a good chunk of his childhood in the US (ie, he didn't just go to college here), meaning that he doesn't just speak fluent English, he outright sounds like a native English speaker (and specifically one from Philadelphia). That means that when he speaks for an American audience - which is often - his speech is full of all sorts of idioms, hyperbole, adjectives, and adverbs that even someone who speaks excellent textbook English would never say.

All that said, his close ties to American movement conservatism and interest in hyper-partisanship as to American politics is also a big reason why I feared him in a way I never feared Sharon, even when Sharon was viewed as more militant than Netanyahu. I've written a lot over the years about the corrupting effects of involvement with the American two-party system, in which partisan interest groups wind up being influenced by other elements of the party as much or more than they wind up influencing the party itself.

However blunt and militant Sharon may have been, he didn't have the artificial priors to restrict his openness to various options that Netanyahu has. For Sharon, it was about security, period, and in whatever manner he thought would work. For Netanyahu, his vision of "security" is limited by his desire to maintain ties with movement conservatives and, increasingly it seems to me, to maintain and build a coalition of "the Right-wing" in Israel itself. While Sharon - like any Israeli Prime Minister - needed to worry as well about maintaining his governing coalition, I don't think it ever felt like it was that important to him what other parties were in that governing coalition. For quite awhile with Bibi, it's felt like he's more interested in keeping "the Right" together than in achieving any particular outcome.

It's the difference between John McCain and Ted Cruz - McCain is, if anything, more of a hawk than Ted Cruz and would not hesitate to start a war. I don't want him as my President, ever. But he'd at least have a goal in mind and have some flexibility as to how to achieve that goal. Cruz sure seems like he'd reflexively adopt a policy without giving it much more thought than the symbolic value of it and without any real idea of what he'd hope to achieve with it. That's Bibi.

@stillwater @kim Especially on this issue, I'd prefer if we kept the comments limited to things specifically said on this thread and not bring in items from other threads. I can't blame Saul and Lee for responding defensively, whatever disagreements I may have with them here.

I decided to take a closer look at some of the English-language Israeli media and what they were covering on Monday and Tuesday, and you may be right about the radio-show statement itself being a bigger deal in the US than in Israel. Ha'aretz covered it quite a bit, but since they're left-leaning and not widely read within Israel, I probably shouldn't take that with a grain of salt. More interesting for purposes of this theory is that I couldn't find any coverage of the story at all from Hayom, which is a right-leaning paper with a fairly decent sized circulation. (Then again, the Jerusalem Post is covering the story pretty heavily now, even though they didn't cover it much earlier). This is just a small sampling, though, so I don't want to discount the notion that it was specifically the apparent abandonment of the two-state solution that was going on here.

That said, it still looks like it was Bibi's last-minute politicking focused specifically on the Palestinian issue that did the trick for him. That issue was just about all he was pushing the last day of the campaign, and he especially jumped on the late news that, for the first time ever, some of the Arab parties were contemplating supporting the opposition party's candidate for prime minister. He turned the fear-mongering about the Arabs and security questions up way past 11 - his "Arabs are voting in massive numbers" on election day was tamer than some of the stuff he was saying the day before the election in heavily covered speeches and events. He really, really went after the Jewish Home and Yahad vote, and did so quite explicitly. Pretty much nothing that he said (or at least that he was covered saying) had to do with any issue other than the issues of Palestine and "the Arabs," by which he typically was referring to Arab-Israelis, whose loyalty he was openly questioning.

It seems pretty clear, one way or another, that something major happened in the last 36 hours, though - these weren't minor shifts within the right-wing parties. These were massive shifts - Jewish Home's support declined by essentially a third to a half overnight, from a level of support consistent with its then-existing representation in the Knesset (ie, polling support for Jewish Home couldn't be chalked up to mere signalling). The especially interesting thing here is that Yisrael Beitenu's support didn't change at all in the last 36 hours, even as the support for the other two rightwing parties completely collapsed. To be sure, Yisrael Beitenu still lost several seats, but that had been expected for a long time in light of Avigdor Lieberman's personal troubles; I'm more interested in the fact that it performed consistent with the polls, and indeed that every single party performed more or less exactly how the polls predicted except for Likud, Jewish Home, and Yahad.

For Likud, the difference between the polling and the actual results was well beyond the margin of error for every single final poll that was conducted - and in an election where the only group that seems to have increased its turnout in an unpredictable manner was the Israeli Arabs. For Jewish Home, the actual results were at least slightly outside the margin of error or right at the margin of error - again, for every single poll (Yahad's support was always low enough that any decrease in support would have been well within the margin of error, but nonetheless the consistency of the polls is still noteworthy).

I don't think the change can just be chalked up to a sudden fear of a ZU victory - there were several weeks for those fears to start taking shape, and if that's what was going on, the final polls would have at least caught the beginning of this trend.

However, let’s suppose that Netanyahu did not make this speech? Would it mean that Zionist Union would gain more seats and Herzog would be invited to form a coalition government?

Part of the point here is that Zionist Union almost certainly didn't lose any seats because of the speech, so no they wouldn't have gained anything. The point instead is that Likud went from 20-22 seats to 30, thus going from potentially trailing Zionist Union by four to six seats to outright beating them by six seats. If the breakdown was, as one of the last polls predicted, 24 ZU, 20 Likud, 12 JH, and 5 Yahad, then it's quite likely that the President invites Herzog to make the first attempt to form a government - even though ZU would have gotten the exact same number of seats as it ultimately received. At minimum, though, the President (who, it must be emphasized, doesn't like Bibi and would not have done him any unnecessary favors) would have tried to force a unity government in which Bibi's power would have been significantly diluted and in which walking back the one-state speech would have been pretty simple.

It's worth mentioning that the four unabashedly right-wing parties combined only possess 44 seats, and were only projected to possess between 41 and 45 seats, when 60 seats are needed for a majority. Even if you add Shas to that group, you're only at 51 seats. The parties that would automatically be part of any ZU coalition - Yesh Atid and Meretz - combine with the ZU for 40 seats and, under the circumstances, it seemed pretty likely that at least some parts of the Arab Joint List were going to submit Herzog's name for PM, so you're probably at around 44 each at that point. Pretty much no matter what, Kulanu is the kingmaker, and the question is only who gets first crack at cutting a deal with them - unless, of course, the President first forces the ZU and Likud to form a unity government, presumably along with Yesh Atid and Kulanu.

I realize you're skeptical that this many people suddenly switched to Netanyahu overnight, but really it shouldn't be surprising. If the sole reason you're supporting a smaller party - as was almost certainly the case with most JH voters and a good chunk of Yahad voters - is their unique support for a particular position that is largely unrepresented in the other partys, then you're almost certainly going to change your vote is one of the larger parties, with a high probability of actually being in power, openly adopts that position after flirting with it for a long time.

I don't think Tod's concern is with crowdfunding per se, it's with crowdfunding specific stories before doing any work to cover those stories and as a way of deciding which stories to cover. At least arguably, that prejudices how the story will be covered, but more importantly, if adopted as a widespread model for journalism, it could conceivably result in journalists ignoring potentially important stories because of insufficient crowdfunding as compared to less interesting topics that more easily go viral and in which the findings of the story are more easily predetermined (either because they're obvious or because the crowdfunders want something that feeds their ideological biases better).

I'm not sure how much I share Tod's concern, but that's his concern, not crowdfunding per se. My sense is that this type of crowdfunding would only ever make sense for smaller outlets, and even then only for occasional stories that are potential blockbusters that larger outlets are ignoring.

@michael-cain I take that back a bit. On further reflection, it probably doesn't support my theory of what Kennedy's up to here. But it's still an excellent point.

@michael-cain That's an excellent point. Like, outstanding. Not least because it clinches my theory about what Kennedy is up to here.

@j-r I've been critical of the Solicitor General for doing things like this in the past, but here I think their position makes a lot of sense. Taking the weak position here, even if it's the position most likely to command a majority of justices, would mean conceding that a future administration could wipe out the subsidies to the states. And the court is well aware of Chevron deference, which the government also fully briefed and argued as a fallback position - this isn't an issue where the Court really needs to be heavily educated since the Chevron doctrine is such settled law. So in this case, unlike other cases where I've been critical of them for taking overly strong positions, there's just not much reason to push the weaker position, even as there are really strong policy reasons for pushing the more absolutist position.

Don't get me wrong - I completely agree with Scalia that the "absurd results" doctrine doesn't really work here. But I also absolutely understand why the government is pushing it, or something similar to it, as it's primary argument in this case.

@kazzy A 4-4 is a win for the government because the result is that the 4th Circuit's decision stands. However, I'm not sure that this is a complete victory for the government - technically, the decision has no value outside of the 4th Circuit other than as persuasive authority, and other circuits are free to rule differently. Realistically, I think most courts of appeals will follow the 4th Circuit, though, knowing that Justice Kagan has a right not to recuse herself if SCOTUS takes it up for a second hearing.

As for my prediction, I think the government is going to win with at least a 2 vote margin, and potentially 6 or 7-2 or even 8 or 9-0.

Because of that, I think Kagan will recuse herself - there's no reason to participate if her decision is unnecessary, and a recusal avoids her having to explain the discrepancy between her text-driven opinion in Yates and her vote here. As it is, her questioning at oral argument was very context-driven, which is very much at odds with her surprising ode to textualism last week.

I think it's hard to see Roberts going against the government here, and if he's the swing vote, then I'd be somewhat surprised if Kagan actually recuses herself - I don't think she relishes the idea that some circuits will be able to undermine the ACA and disregard the 4th Circuit.

Justice Kennedy's line of questioning about constitutional avoidance is hard to square with the notion of him voting against the government, even if he conceded that it's possible that the question needs to be reached. I'm putting up a post shortly about this line of questioning, which is really interesting. I think he either writes the majority opinion in a decision with 3, 1, or 0 dissents or a concurrence in any other outcome favorable to the government (including a 4-1-4 decision, which would be different from a 4-4 decision in that, despite it's minimal precedential value, would at least be binding in its rejection of the petitioners' interpretation).

I think Alito and Scalia were taken off guard by Kennedy's line of questioning and, when they've had a chance to reflect, are going to see that their responses to that line of questioning painted themselves into a corner they're not going to like. Those responses suggest that they've pretty much conceded that the petitioners' interpretation raises constitutional problems. They said that they can always rewrite the statute and give Congress time to fix the problems with the statute, but I think they're going to find on reflection that this doesn't get them very far - it address the notice argument the solicitor general made (which was a pretty good one), but doesn't address the other federalism issues that Justice Kennedy raised. That means that they're going to have to jump through a lot of uncomfortable hoops to rule for the petitioners - they'd have to both address the federalism issue and rule in the petitioners' favor on that issue, which would somewhat undermine their own federalism jurisprudence in a case where their actual votes were effectively meaningless. They could also, I suppose, rule in petitioners' favor on the interpretation question, but then find that interpretation outright unconstitutional, but that's a terrible strategy for them for several reasons, not least of which is that it would foreclose the possibility of a GOP President adopting a rule using that interpretation in 2017.

Their (including Thomas) easiest out is to rule in favor of the government on constitutional avoidance grounds, along with Kennedy, and hope that Roberts joins them. The other possibility is that they dissent but ignore the constitutional question altogether under the unstated rationale that the issue wasn't before the court.

I think Alito is in a better position to join with Kennedy than Scalia and Thomas given his concurrence in Yates.

So I'm going to predict a 4 or 5-2-2 decision with a majority/plurality of Ginsburg, Sotomayor, Breyer, Kagan, and Roberts, a concurrence by Alito and Kennedy, and a dissent by Scalia and Thomas, though I wouldn't be surprised by anything other than a victory for the petitioners. I could just as easily see a 5-3(or 4)-0 decision in which Kennedy writes the majority opinion joined by the other conservatives on constitutional avoidance grounds, while the liberal wing writes a concurrence on Chevron deference grounds. I could also just as easily see a 5 or 6-0-3 decision in which Kennedy writes the majority opinion and Scalia, Alito, and Thomas dissent, or a 4-1-4 opinion, or even a 3-2-4 opinion, in which he writes a concurrence.

@j-r Y'know, I was just about to write a comment about how the closest parallel I can think of to where Islam is today would be the Thirty Years' War, then I saw you were already on the same wavelength. There's lots of differences, of course, but conceptually it seems pretty close. The biggest difference, though, may be that the actors are largely amorphous movements rather than kingdoms, empires, and micro-states; that makes the problem even more intractable - it's hard for movements to sign meaningful peace treaties, and they can't be permanently killed off on the field of battle. At best they can be forced underground for awhile through repressive, illiberal measures that will eventually come back and haunt you - e.g., Egypt tried for decades to suppress the Muslim Brotherhood, using society-wide repression. The latter resulted in Mubarrak's overthrow, but the former combined with the latter resulted in the MB being the only group sufficiently organized to win elections after the overthrow. Of course, once they came back out in the open and completely mismanaged the country, they were easy to suppress again after they, too, were overthrown, thus repeating the original mistake.

Turning back to the 30 Years' War era analogue, I suppose you could even argue that the US is sort of in the position that the Ottoman Empire was in, except if the Ottomans were generally aligned with the Habsburgs (the House of Saud).

As for ISIS, these guys may be a good parallel: http://en.wikipedia.org/wiki/Lisowczycy
In addition to their cruelty, they were also what spurred the Ottomans to get involved in the conflict: http://en.wikipedia.org/wiki/Polish%E2%80%93Ottoman_War_(1620%E2%80%9321)

@morat20 I'll just add this, quickly - it seems pretty likely to me that the "established by the State" language was mistakenly included and no one picked up on it at the time. But courts aren't typically in the habit of changing the language used in a statute just because there was a mistake.

@morat20 As I said, my sense is that the administration should probably win the case on Chevron deference grounds. As I've read at least some of the briefs now, I'll also say that my sense is that, unlike in past cases where I've been critical of their approach, the Administration took this case seriously in terms of its arguments.

But just because I think the Administration should win and, from what I've read thus far (still woefully incomplete), made the stronger argument, doesn't mean that the Plaintiffs' position is absurd.

There's a couple of problems with relying on legislative intent here. First, legislative intent is pretty much irrelevant no matter which way you slice it, or at least it should be. True, both sides try to use it to bolster their positions, but in the end I don't think it's going to make much difference, nor should it. The reason for that is the fact that even if you believe legislative intent is discernible (count me amongst those who are skeptical that it is, with the exception of official committee reports)*, you ordinarily don't even reach the question of legislative intent unless there's an actual ambiguity.

But since we're in the realm of administrative law, pretty much any ambiguity here means that the Administration should win on Chevron deference grounds. And I increasingly agree that it's ambiguous or at the very least self-contradictory in a way that makes it ambiguous.

However, I can't say that it's a ridiculous argument to say the opposite - the language in the statute is abnormal in its specificity: an "Exchange established by the State under Section 1311." That seems pretty clear in a vacuum, and the Plaintiffs have a pretty good response to the claim that this language has to be interpreted the way the government wants with respect to the section on "qualified individuals." Namely, they respond, applying the Plaintiffs' interpretation to that section does not have nearly the effect that the government says it would, and for several pretty strong reasons. That argument is the government's strongest argument, and the Plaintiffs' rebuttal is pretty direct, even if I think they still fall short.

Context definitely still causes problems for the Plaintiffs' argument, but the thing is that context also undermines the government's argument - usually context requires that language not be read as being superfluous, yet the government's reading effectively says that the language "Exchange established by the State under Section 1311" can be read as no more and no less than just "Exchange," rendering everything that comes thereafter superfluous.

There's a couple of reasons I think the government still should win, though: (1) the Plaintiffs' interpretation would likewise render language of the statute superfluous; (2) the language on which the Plaintiffs hang their hat doesn't explicitly limit subsidies to any particular class of individuals - it just sets forth a formula for subsidies where certain factors are present; and (3) the fact that statute requires states to set up Exchanges using "shall" language, even if it ultimately lets them off the hook for Constitutional reasons, which to me provides significant support for the government's "legal fiction" type argument.

As a side note, one thing I haven't seen addressed in either brief strikes me as being potentially decisive in the government's favor, but since I haven't seen anyone else mention it, maybe I'm missing something here. Basically, the definition on which the Plaintiffs' entire argument hinges - the definition of a "coverage month" - applies by its terms only "For purposes of this subsection." (My emphasis). The language providing the formula for calculating the tax credit/subsidy is contained in the same section but a different subsection. If that's the case, then the term "coverage month" is undefined for purposes of the subsidy, and the IRS is left to its own devices to interpret that phrase, end of story.

On the other hand, there's an argument that I don't see in the Plaintiffs' briefs that would seem stronger than what they argued. Namely, the part of the subsection discussing the formula for calculating the tax credit says that the formula is the "lesser of" the premium paid by the taxpayer when enrolled "through an exchange established by the State under 1311 of the [ACA]" or an amount based on the second-lowest cost silver plan. If the Plaintiffs' interpretation of "exchange established by the Statue under 1311" is at all correct, then this amount would always be zero, but they don't make that argument.

*I've found that when you go outside of official committee reports, it's almost always possible to find something that supports any position that you want. Legislation, particularly legislation that is narrowly passed, is almost always the result of a boatload of horse-trading and compromises (and the ACA is certainly no exception, even if the compromises were almost all intra-party in this case), not to mention cajoling, puffery, and individual salesmanship.

Also, what @chris said in his 2:36 comment.

I'm not at all sure that this is a new phenomenon. To the extent it is, though, I can think of a number of explanations:

1. Large numbers of "local" schools themselves are a relatively recent phenomena. CUNY is probably one of the oldest such schools in existence, if not the oldest, yet it was founded only in 1847. Until probably the 1950s, except in the biggest urban centers, I doubt that there would have been enough of a population with an interest in obtaining a college degree to support "local" colleges of any significance. As such, the desire for a national profile may just be a natural part of the evolution of any "local" college. Indeed, it's worth mentioning that all or almost all of the colleges we think of as being "national" or "regional" probably started out as seemingly "local" institutions before growing, though for population density reasons they may never have truly been commuting schools. If anything, rankings do no more than provide an easy and obvious means for colleges to grow their profile.

2. The explosion of colleges in general. There are 50% more 4 year colleges today than there were 30 years ago, but only about 20 % more high schools. Enrollment has increased by more than that, but the point is that schools can't get by on being the only, or one of the only, "local" schools in a given area, and thus have to be able to provide reasons for students to choose them over one of the other local schools.

3. Online colleges. The main reason to go to a "local" commuter school, other than reputation, is convenience and cost. Online colleges will usually beat a "local" commuter school on both of these fronts. So it becomes doubly important for "local" schools to raise their profile and reputation. What's more, residence schools have an additional advantage over online colleges: the chance to live away from mom and dad. If a school can make the transition to a residence-based school, then, it has another advantage over online colleges. And if you're going to be have a significant residency component, then you may as well try to increase your pool of potential applicants. On the other hand, you could remain a commuter school but add a significant online component, at which point you may as well start trying to take some of the online education pie, too.

4. Getting away from mom and dad is becoming an increasingly important part of college for students, not just in terms of being able to live on-campus, but also in terms of putting some physical space between the students and their parents. I have no data for this, just speculation.

@jaybird FWIW, in the realm of criminal statutes there's already a doctrine that effectively takes the approach you're suggesting. The doctrine is called the "rule of lenity." Essentially, the doctrine holds that if there is any ambiguity whatsoever in a criminal statute, it needs to be construed against the state and in favor of the criminal defendant. That of course leaves open the question of whether something's ambiguous, but if the judges can't agree on how a given criminal statute should be interpreted, in most instances I suspect you'll find that the rule of lenity winds up being the deciding factor. Theoretically, if the question is whether or not the statute is ambiguous, then the judges will at least roughly agree on how the statute is supposed to be interpreted. This doctrine is important and appropriate, and in my view probably isn't invoked enough.

But I'm not thrilled with the idea of expanding this doctrine beyond the criminal realm, though, since it is not at all clear whose interests are at stake in any given such instance, and since, as @brandon-berg points out above, it creates a huge incentive for judges to act in bad faith. Outside the criminal realm, construing an ambiguity against the government is problematic because it's not often going to be clear what "against the government" really means. In the King case, for instance,* it's not at all hard to envision a scenario in which President Romney's Administration took the view that it would be inappropriate to recognize credits for federally-purchased insurance and was sued by someone who was denied their tax credit and thus hit with a bill from the IRS when they filed their taxes on April 14. Interpreting the hypothetical ambiguity "against" the government there would result in precisely the opposite result of interpreting the ambiguity "against" the government now.

Even if, instead of an extension of the rule of lenity, we used the proposal of "any dissent to an interpretation should require the statute to be stricken and redrafted," we still wind up with a situation where the "government's" interest may well be to assert that the statute is ambiguous such that it must effectively be repealed, especially if that statute was signed by a previous administration.

Nor would this only come up in cases of partisan attempts to effectively veto established legislation. It would also come up in cases where the Executive branch took issue with one of the precious few restraints left that Congress has imposed on it. To say the least, an out of control Executive would love to have a situation where getting one judge to disagree with the other judges (whether in favor or against the Executive's interpretation) revokes the restraining statute entirely.

*This should not be regarded as me opining on the merits of the King case, just on whether it's clear that overturning the statute as ambiguous would be "against the government." I haven't read the briefs and haven't followed it closely enough to have any kind of an opinion on the proper interpretation of the law. I will say that the Plaintiffs' argument is far from crazy here, though it seems to me that Chevron deference is broad enough that the Administration should probably win.

@gaelen I wouldn't say they've changed positions on the issue - there have been a group of them working on it for quite some time, most prominently Chuck Colson. IIRC, though not an evangelical, Rep. Frank Wolf, who is quite socially conservative, also pushed the issue for decades prior to his recent retirement.

What's changing is that it's becoming a higher priority issue within the evangelical community, and one that evangelicals are willing to put some real effort into. I've written a lot before about how political coalitions in our two party system are a matter of prioritization of issues and intra-coalition compromises, and that eventually these coalitions become incoherent as some constituents' high priority items are achieved and de facto compromises on lower priority issues start to be masqueraded as if they were matters of principle.

At some point, as this argument I've developed goes, the constituent groups start to ask themselves what good the compromises are doing them for what they actually care about. At some point they start asking what the point of maintaining a coalition and getting power is if they can't actually seek what's really important to them without enfuriating another part of the coalition.

That's what's happening to the GOP right now, as I've been arguing. Part of that is Christian conservatives starting to realize that a lot of what they're now forced to expend their political efforts on (or at least be silent on) in service of the "three legged stool" of conservatism isn't terribly Christian and is actively preventing them from expending efforts on things that really are Christian.

Basically, mercy has always been an important element of Christianity. It's just been an element of Christianity that's been de-prioritized as a political matter for awhile, though Bush II's "compassionate conservatism" sought to change that (and very well may have were it not for 9/11).

@mike-schilling The answer to this line of questioning is, I think, actually quite interesting, and worthy of a full post, though I'm not sure I'll have time to put it together. But I'll try to give an abbreviated response here, because I think it says a lot about how politics have changed in the last 22 years, as well as about legislative processes and probably some other stuff too. Apologies if this meanders beyond the scope of your comment, but there's a lot that's interesting here.

So here goes:

1. RFRA has obviously become a source of huge frustration and annoyance for liberals, while also being a rallying call for conservatives, because of the Hobby Lobby case. But the Sherbert test that it reinstated when it was passed in 1993 was viewed at the time as somewhat of a cornerstone of liberal jurisprudence. That test came about only after several years of Justice Brennan - arguably the greatest liberal jurist of the 20th century - writing beautiful, passionate minority opinions trying to stand up for the rights of religious minorities. He finally won the battle with his Sherbert opinion, which was a testament to diligence and the power of liberal thought. The Employment Division case undid this completely, and was thus something that understandably would have stirred liberals to action to reinstate what was viewed as an important liberal accomplishment.

2. A couple of years after RFRA was passed, there was a 6-3 decision where the SCOTUS ruled that RFRA could not apply to state laws, but only federal laws despite its language due to federalism concerns (RLUIPA still applies to state prisons, though, because it's tied to funding). This severely limited the reinstatement of the Sherbert test, since most of the cases where that test had been previously applied involved state laws, including most of the worst abuses that Justice Brennan was concerned about. In the last couple of years, there have been several states that have tried to institute the equivalent of RFRA through their own legislation. To say that liberals have been unreceptive to these efforts would be an understatement - Arizona was boycotted over its attempt to do so, and liberals were ultimately successful in forcing the GOP governor to veto it.

3. There are obviously reasons why liberals have fought so vociferously against state-level RFRA legislation in recent years - namely, the (accurate) perception that the state-level legislation was aimed at undermining anti-discrimination laws and the (probably inaccurate IMHO) perception that it would have in fact done so, but I mention the above just to show how drastically the politics of religious freedom have changed in the last 22 years - a cornerstone of liberal jurisprudence has become a target of extraordinary liberal ire.

4. In 1993, I'm pretty sure that you'd find that the most devout Christian voters were a swing group in a way that they are not currently, and that this trend would have applied across most Christian sects, with the exceptions probably being Mormons and AME. There were still white Southern Democrats - indeed, we had just elected a pair as President and Vice President - but the GOP was well on its way to building its current massive advantage in this group. That made it important for both parties to try to make this group happy.

5. But to get back to your point, why were Christian groups outraged about a decision that protected an AmerIndian religion when Christians were a majority who dictated policy? The answer is that there is no truly dominant sect of American Christianity, and each sect has its own particular beliefs and practices. With evangelicals, the particular beliefs and practices may not even be "organized" in any meaningful way beyond the individual's personal reading of the Bible. The result is that, while Christianity as a whole may not be likely to be burdened or oppressed by any apparently general laws or rules, any particular sect of Christianity has historically been likely to suffer some kind of burden; often, these burdens have been intentional acts of local government discrimination, as well, as the locally dominant sect seeks to impose its beliefs on the minority sect.

Many, many of the Sherbert era cases involved Seventh Day Adventists (including Sherbert itself), Pentecostals, Jehovah's Witnesses, or Christian Scientists. While by the time of Sherbert it had become less of a problem, many adherents of the country's largest Christian sect - Catholicism - had living memory of anti-Catholic discrimination. And of course Mormons have often run into problems where they are not the locally dominant sect.

So that's why Christians were outraged by the revocation of the Sherbert test, even if it occurred in the context of Amerindian peyote rituals.

The test obviously also provided at least some measure of protection (though not enough in practice as Sherbert was weakened in the years leading up to Employment Division) to non-Christian minority groups, and that protection was, again, a proud achievement in the history of liberal jurisprudence.

So getting rid of Sherbert managed to enfuriate just about everyone. By outright overturning it rather than continuing to chip away at it, Scalia managed to make it a high-profile issue that mobilized religious groups and civil liberty groups across the spectrum. RFRA passed less than three years later, and almost unanimously at that. I'd wager the main reasons it didn't pass more quickly were that (1) international affairs were dominating in Congress at the time, with the fall of the Berlin Wall, the breakup of the USSR, and the First Gulf War; (2) the decision being a potentially useful extra cudgel in the subsequent Thomas confirmation hearings; and (3) the tremendous unpopularity of the decision, which again was written by Scalia, being a useful campaign issue for Clinton's 1992 campaign. RFRA was passed just a month and a half after Clinton took office.

@gaelen I can't say that I blame you for your pessimism on this. I'd say in response that there's one countervailing fact that has recently been emerging that has changed my pessimism into optimism: the rise of evangelical interest and willpower on the issue of prison reform. Conservative evangelicals are, obviously, not the most popular of groups around these parts, and often for good reason. But there really does seem to be some serious passion on the issue of prison reform that has emerged within that segment of the population in recent years. What's more, they're well-funded in a way that the prison guards' union probably can't be - the political might of the prison guards' union tends to be a function of its collective bargaining abilities, and ability to mobilize its membership on narrow issues. They also, increasingly, will have to overcome the issue of rising anti-union sentiment on the Right, which is traditionally the group on which they'd need to rely for support on issues they can frame as law-and-order issues (rather than compensation issues).

But it's probably best for me to frame this as a cautious optimism - your reasons for pessimism are certainly valid and there's no guarantee the aforementioned countervailing force will prevail or even just neutralize your concerns (which is really all I think may be needed).

Thanks for the comment, Burt. One point of slight, but important, clarification, if I may:

If it takes a generation of RLUIPA litigation to get people to realize that prisons have a better shot at actually rehabilitating their inmates when they are afforded a degree of dignity on the inside, that’ll be a substantial silver lining to the warp in the fabric of the law which I fear will result from the repeated, public application of religious exceptions to the laws.

I don't think it's necessary for RLUIPA litigation to get the general population to realize what needs to happen for prisons to function more rehabilitatively. It's certainly possible that could happen, but I think that by the time such a sentiment took hold, the change in prison philosophy would have already been well under way.

My thinking here is that the prison policies that are so problematic tend to be implemented outside of the legislative process. They're typically administrative and executive decisions, often on the individual prison level, with which the public usually does not concern itself. There are exceptions, obviously - Sheriff Joe Arpaio comes to mind - but by and large there isn't much electoral interest in particular prison policies.

Politically, then, changing these policies is not overly difficult (by comparison, changing RFRA and RLUIPA is politically very difficult). Functionally, the obstacle to change is the mindset of prison administrators, as well as the prison guards' unions, the latter of whom are increasingly being neutralized by the small but vocal and growing movement of evangelical prison reformers.

To the extent that the unions and evangelicals cancel each other out, the decisionmaking of prison administrators is going to be heavily influenced by two very powerful forces: (1) their lawyers; and (2) their accountants. Prison administrators have budgets, and litigation is expensive, especially if you can't knock it out at the motion to dismiss stage. It's also time-consuming for the relevant officials if they can't knock it out at that stage.

My wager is that at some point, prison administrators are going to have to ask themselves just how important it is to them that they maintain these types of dehumanizing policies.

Quickly, regarding cases where the government has met its burden under RFRA and RLUIPA, it will be interesting to see what, if anything, the SCOTUS does about this: http://www2.ca3.uscourts.gov/opinarch/133536p.pdf

The 3rd Circuit ruled in favor of the government on substantial burden grounds, but it seems that their reasoning is identical to how they would rule in favor of the government under a least-restrictive means test.

One other, quasi-related thought that makes me optimistic about broad RFRA-style protections: it will force government to make better policy generally by forcing it to show that applying the policy in a given situation actually accomplishes the policy's goal. That means that effectiveness must be the sine quo non by which policy decisions must be made. But that's another post altogether.

That’s odd as i wasnt aware that anyone ever proved that Brown was surrendering when he was shot.

Way to move the goalposts there. Especially seeing as the notion that he was doing something other than surrendering - whether or not Wilson perceived it this way in the moment - requires a belief that Brown would have - after being shot in the car and then running away from Wilson (a fact that literally no one disputes) - decided that his best chance of survival was to stop, turn around, and run at the very person who had just already shot him, and was either still shooting at him or, at minimum, was pointing his gun at him.

To make a claim that someone would act in such an extraordinary fashion - in effect, that Brown knowingly committed suicide-by-cop - requires some serious evidence and proof that's not existent here.

And yet, EVEN STILL, the fact that we don't have a formal factfinding as to exactly what happened simply reiterates the point that the system is fished beyond all usefulness. Had there been an actual trial, we might have gotten that factfinding, or at least something a lot closer to it than what we got. But there wasn't an actual trial. And there wasn't an actual trial because the system is set up to make it highly unlikely that a police officer will ever have to face trial when he shoots or injures someone. Which, again, is pretty much the entire fishing point.

@notme @stillwater That doesn't just prove my point in a weird way. To a large extent, it's the entire fishing point.

What's more, and you, @notme , of all people should know this - what can be proven in court and what actually happened are two very different things. I wouldn't have brought federal civil rights charges, either - proving the additional element of racial animus would have been damned near impossible.

I do think that the prosecutor in the state case had no intention of actually getting an indictment, and, like many people, was skeptical of his motivations from the very beginning. At minimum, it appears that he knowingly introduced indisputably false testimony of at least one witness in Wilson's favor to go in front of the grand jury.

And yet... even if the prosecutor had acted in good faith and gotten an indictment, I was always very clear that it was unlikely that Wilson would get convicted. Again, I was clear about this from Day One.

Which brings us back to the point - that the entire fishing system is set up in a way that allows police officers to act with impunity. That Wilson may have acted within the law is a huge fishing part of the entire complaint!

Thanks for the tips! I'm not familiar with those specific bands, though there's obviously quite a few bands I didn't mention but am familiar with. None of them are, of course, topping any album or singles charts. But it's still good stuff. Rock may be buried in the popular imagination, but it's good to know that there will always be people who keep its spirit alive.

@notme Seeing as a big chunk of the entire fishing point of this whole issue has, from the very fishing beginning, been that the system is rigged to make it damn near impossible to hold cops responsible for their actions, and far too easy for them to claim justification, what, exactly, does the lack of charges/indictment prove?

Point me to the part of the grand jury report where it found that Brown's hands weren't up. How about the part where it found that Brown was, in fact, charging Wilson when Wilson fired the fatal shots, rather than surrendering? Or maybe the part where the grand jury found that Brown initiated the "struggle" at the door to the police car?

I've asked you all of this before when you've insisted that the lack of an indictment means that everyone who thinks Wilson acted wrongly shows that we were wrong about the facts, and you chose to ignore me. I suspect that's because THESE THINGS DON'T EXIST.

The lack of an indictment proves no facts whatsoever other than that there was no indictment. It surely does nothing to address the fact that one of the central complaints, from day one, has been that cops who kill almost never have to face charges, discipline, or serious scrutiny from the judicial system.

@morat20 I'm thinking more along the lines that there are a small number of federally elected officials who openly subscribe to something approaching libertarianism - Justin Amash, to a lesser extent Rand Paul, maybe one or two others. I also suspect that this faction of the GOP can probably garner about 15-20 percent of the primary vote, which would not have been the case 6 or 7 years ago. That doesn't translate into control over policy or even much influence, but it's a far sight larger a role than this brand of libertarianism/fiscal conservatism has ever had within the GOP in the past.

Like I said, the Tea Party movement quite clearly got co-opted by movement conservatives, including in part by the two guys he specifically references in the interview as being Johnny-Come-Latelys.

Point of historical order: The Tea Party has roots going at least as far back as 2003, and it was already gaining steam amongst libertarians and actual fiscal conservatives even before Santelli's rant. Santelli's rant had the effect of bringing movement conservatives in the fold. Their larger numbers meant that they were inevitably going to hijack the movement's focus. I interviewed one of the people who quite arguably started the movement back in 2003: https://ordinary-times.com/blog/2010/01/12/from-tea-to-shining-tea

I don't think his prediction that the movement could avoid co-option came true, obviously, but at the same time it's hard to deny that his variety of libertarianism has gained a lot more sway within the GOP through the Tea Party (coopted as it may have become) than it previously ever had.