Tag: Gorsuch

A World Unsettled: The Supreme Court And The Risks Of Activism

Posted on by Michael Liss

by Michael Liss

January 1, 2024. Happy New Year! Just eleven months and five shopping days before Election 2024. Whether you find it comforting that 2024 also happens to contain an extra day might be the best marker of how Political Seasonal Affective Disorder has impacted you. Personally, I haven’t been sleeping particularly well.

The New Year is often about taking stock, and if I’m counting correctly, this is my 101st essay for 3 Quarks Daily. The majority have been about American history, American politics, and what is ostensibly American law but looks a lot like politics.

Last August, as the 49th anniversary of Richard Nixon’s resignation drew near, I started a series about the chaos of the late 1960s/early 1970s and how Presidents can lose their hold on the White House. That led me back to two men, one famous, the second memorable, who, to this day, in different ways, have had an impact on the way I think.

I will come to Henry Kissinger shortly, but I first want to spend a little time celebrating Walter Kaufmann. This is not the prolific philosopher Walter A. Kaufmann who was a pre-World-War-II expat from Germany, got his PhD at Harvard, and spent most of his career at Princeton. My Walter Kaufmann is Walter H. Kaufmann, who was also a German expat, got his PhD at the New School for Social Research, and, in 1953, published Monarchism in the Weimar Republic. My Dr. Kaufmann liked a cigar, a good story, and a better glass of wine. He also taught at my high school—German to those less linguistically challenged than I was, AP European History to voluble (in English) types like me. Dr. Kaufmann had a certain cool about him, in no small part for having gone to grade school with Werner Klemperer, son of the conductor Otto Klemperer, and, to Dr. K’s enduring dismay, the future Colonel Klink.

Like all good little suburban students, we took AP classes to take AP exams to score high enough to get college credits. Dr. K was a realist, but wanted to teach this subject on his terms. The word went out that no one got higher than a 93, his logic being that no one could know anywhere near 100% of the subject matter. So, if you were in the running for Valedictorian or Salutatorian and/or cared very much about your final class rank, to learn at the feet of Dr. K came with some obvious risks. Read more »



Monday, April 10, 2023

Tribal Waters and The Supreme Court

Posted on by Mark Harvey

by Mark Harvey

After we get back to our country, black clouds will rise and there will be plenty of rain. Corn will grow in abundance and everything [will] look happy. –Barboncito, Navajo Leader, 1868

Barboncito, Navajo Leader, circa 1868

My idea of a fun evening is listening to the oral arguments of a contentious dispute that has reached the Supreme Court. As much as I disagree with some of the justices, I must admit that almost all of them are wickedly sharp at analyzing the issues—the facts and the law—of every case that comes before them. I don’t always get how they arrive at their final votes on cases that seem cut and dried before their probing inquiry. But most of them can flay a poorly presented argument with all the efficiency of a seasoned hunter field-dressing a kill.

So it was with the recent hearing on Arizona v. The Navajo Nation, heard before the court this year on March 20. At stake, in this case, is what responsibility the US government does or doesn’t have in formally assessing the Navajo Nation’s need for water and then developing a plan to meet those needs. The brief on behalf of the Navajo people, Diné as they prefer to be called, puts the case in stark and unmistakable terms: “This case is about this promise of water to this tribe under these treaties, signed after these particular negotiations reflecting this tribe’s understanding. A promise is a promise.”

The promise referred to in the brief refers to a promise made about 150 years ago when the Diné signed a treaty in 1868 with the US Government to establish the Navajo Reservation as a “permanent home” where it sits today. The treaty is only seven pages long and it promises the Diné a permanent home in exchange for giving up their nomadic life, staying within the reservation boundaries, and allowing whites to build railways and forts throughout the reservation as they see fit. A lot of things were left out—like water rights. Read more »