Devastating aftermath of deadly blast in Beirut

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No cops were charged with Breonna Taylor’s death. This is how the system was designed.
Demonstrators gather outside the US Department of Justice before marching to the White House in a call for justice for Breonna Taylor on September 23. | Jahi Chikwendiu/The Washington Post via Getty Images People took to the streets Wednesday night to call out systemic injustice. People across the country are outraged that no police officers were charged with killing Breonna Taylor — but many couldn’t be shocked. Those who felt blindsided by the grand jury’s decision haven’t been paying attention. This year alone, the cries of protesters have made it very clear: You cannot reform a system that is working the way it was designed to. Kentucky Attorney General Daniel Cameron underscored this reality when he delivered the news on Wednesday: “My job, as the special prosecutor in this case, was to put emotions aside and investigate the facts to determine if criminal violations of state law resulted in the loss of Ms. Taylor’s life.” Jon Cherry/Getty Images Kentucky Attorney General Daniel Cameron announces the grand jury’s decision in the shooting death of Breonna Taylor on September 23. In those words, Cameron suggested that the law itself places Taylor’s life below the “duty” of the police officers who entered her property on March 13. The law makes it clear that because the officers were defending themselves, it was justified for Sgt. Jonathan Mattingly to fire his weapon into a Black woman’s apartment six times, while detective Myles Cosgrove simultaneously shot his weapon a whopping 16 times, unleashing the fatal shot that would end Taylor’s life. The police were justified in their actions because the law, and those sworn to uphold the law, made it so. While a criminal indictment in the killing of Taylor might have felt like victory for some, she should not have been killed in the first place. The only justice would be Breonna Taylor still being alive. Brandon Bell/Getty Images Tamika Palmer, Breonna Taylor’s mother, poses for a portrait in front of a mural of her daughter at Jefferson Square park on September 21. For Breonna’s family, and for a society that claims it wants to do better by Black lives, questions linger: How many years behind bars would have been sufficient retribution for Taylor’s life? What would the arrest of Brett Hankison, Mattingly, and Cosgrove really mean for the hundreds of other cops who have taken the lives of other Black people just this year? What would it mean for the families of the victims whose names haven’t risen to national prominence? These are questions America is grappling with as we consider what is justice in a criminal system that has been systemically cruel to Black lives. Breonna Taylor became a meme this year. It was impossible to scroll through social media without seeing an image pegged to the words “Arrest the cops who killed Breonna Taylor.” People plastered her name on T-shirts and counted the days since she had been shot dead. Meanwhile, Tamika Palmer, her mother, traveled around the country to speak on the sanctity of Black lives, and protesters urged lawmakers to defund the Louisville Police Department. People tried to hold all of these interests: The system, working as designed, needs to be dismantled while simultaneously bringing justice for a young Black woman. Arrests may have seemed like a concrete action, but many knew deep down inside they weren’t coming. There was no way to get justice for Breonna because she was already dead. That people took to the streets once more Wednesday from Washington, DC, to Louisville to Portland also seemed inevitable. Protests largely remained nonviolent: In New York, people walked across the Brooklyn Bridge in solidarity and gathered outside the Barclays Center chanting, “What’s her name? Breonna Taylor! Say her name! Breonna Taylor!” In Louisville, where tensions have been high for months awaiting the attorney general’s announcement, hundreds of protesters were arrested and two police officers were shot, sustaining non-life-threatening injuries. Around the country, the mood was anger, sadness, and frustration. That people made space to cry into one another’s arms, chant, “Say Her Name!” and hold up signs calling for ways to rethink policing might be one small glimmer that we’re on our way to thinking bigger. John Minchillo/AP Protesters gather in Louisville, Kentucky, after it was announced that no police officers would be charged with the killing of Breonna Taylor. John Minchillo/AP Police push back protesters in Louisville. John Minchillo/AP Police detain protesters in Louisville. Eduardo Munoz Alvarez/AP Demonstrators march acroos the Williamsburg Bridge in New York City. Natasha Moustache/Getty Images Protesters march in Chicago, Illinois. Michael Ciaglo/Getty Images Demonstrators gather in Denver, Colorado. Michael Ciaglo/Getty Images A woman holds a “Justice for Breonna Taylor” sign in Denver. Drew Angerer/Getty Images Demonstrators march near the White House in DC. Tayfun Coskun/Anadolu Agency via Getty Images Breonna Taylor protestors gathered at the Barclays Center in New York City. Nathan Howard/Getty Images A protester walks toward Portland police in Portland, Oregon. Help keep Vox free for all Millions turn to Vox each month to understand what’s happening in the news, from the coronavirus crisis to a racial reckoning to what is, quite possibly, the most consequential presidential election of our lifetimes. Our mission has never been more vital than it is in this moment: to empower you through understanding. But our distinctive brand of explanatory journalism takes resources. Even when the economy and the news advertising market recovers, your support will be a critical part of sustaining our resource-intensive work. If you have already contributed, thank you. If you haven’t, please consider helping everyone make sense of an increasingly chaotic world: Contribute today from as little as $3.
The legal theories of Amy Coney Barrett, explained
Judge Amy Coney Barrett is sworn in as a judge for the Court of Appeals for the Seventh Circuit. | Julian Velasco An expert explains originalism, the Roberts Court, and what a Justice Barrett might do. With President Trump set to announce his nominee to replace Ruth Bader Ginsburg on the Supreme Court on Saturday, the leading contender, according to reporters close to the White House and betting markets, is Judge Amy Coney Barrett, who sits on the US Court of the Appeals for the Seventh Circuit (based in Chicago) and is also a law professor at Notre Dame. The 48-year-old Barrett was appointed by Trump to the appeals court in 2017, and was also reportedly a finalist for Justice Anthony Kennedy’s seat in 2018. She has been portrayed as a favorite of social conservatives seeking to push against the Supreme Court’s abortion jurisprudence. She is unusual, compared especially to famously (and perhaps strategically) tight-lipped recent nominees like Brett Kavanaugh and Elena Kagan, for her extensive paper trail on questions of constitutional law. As a legal academic, she’s written extensively on what obedience to the original meaning of the Constitution requires of judges and members of Congress; how to reconcile the importance of precedent with allegiance to the Constitution’s original meaning; and how precedent can be used to mediate deep disagreements about the law. As a result, we know more about her jurisprudential beliefs than we’ll know about those of any SCOTUS nominee since, perhaps, Ginsburg. We know she identifies as an originalist who believes that the original public meaning of the Constitution is binding law. But we also know that she is skeptical of the radical libertarian originalist idea that economic regulation is presumptively unconstitutional, and that she believes some Supreme Court decisions that originalists may conclude are incorrectly decided nonetheless stand as “superprecedents” that the Court can abide by. Her legal writing has also prompted heated reactions from detractors. One piece (with fellow law professor John Garvey) on when Catholic judges might be obligated to recuse themselves from death penalty cases, prompted criticism from Senate Democrats during her appeals court confirmation hearings, who suggested Barrett was unable to separate her faith from her jurisprudence (a charge she strongly rejected). Another piece (with late Notre Dame colleague John Copeland Nagle on how members of Congress should incorporate the original meaning of the Constitution into their votes has raised the eyebrowsof some commentators, because it begins by noting that there are originalist arguments (which the paper itself does not accept, except for the sake of argument) to think that West Virginia was invalidly admitted as a state; that the 14th Amendment wasn’t properly ratified; and that paper money is unconstitutional, among other surprising conclusions. To better understand her academic writings, I reached out to Keith Whittington, a professor of politics at Princeton and a leading expert on originalism and constitutional interpretation. I wanted to get a better sense of what it means that Barrett is an originalist, how her variety of originalism works, and how to understand her most prominent academic papers. A transcript, edited for length and clarity, follows. If you want to dig deeper, Whittington teaches a course on constitutional originalism and the syllabus is a great place to start. Dylan Matthews Let’s start very basic: What is originalism? Keith Whittington I think of it simply as a commitment to think that one, the meaning of the text of the Constitution is fixed at the time of its adoption, and two, that that has consequences for how judges ought to adjudicate cases. Then there’s lots of wiggle room as to how much consequence that should have for judges in particular kinds of cases, how exactly do we determine what the meaning of the Constitution is, etc. But [University of Virginia law professor] Larry Solum has characterized those as the two central principles of originalism, and I think that’s right. Dylan Matthews Is it possible to divide the current Supreme Court into originalists and non-originalists? Who would fall in each camp? Keith Whittington I think they all act as originalists to some degree, actually. Many different approaches to thinking about constitutional decision-making would say that there are times when originalist arguments are appropriate, and you ought to pay attention to them. So a case I was just writing about recently, the “faithless electors” case from this last term [about whether Electoral College electors can be required to vote for the presidential candidate who won their state], Elena Kagan wrote the majority, Clarence Thomas writes a concurring opinion, and both those opinions are basically originalist in their structure and design. There are moments when all the justices are willing to draw on that kind of argument. Some see it as more foundational than others and draw on it more exclusively. Thomas is clearly the leader on this front. Since Scalia has left the court, Thomas is the one who is most consistently committed to thinking about historical meaning, and is most emphatic that the justices ought to be thinking about the original meaning of the text and trying to apply it to cases before them. I think it’s too early to say the degree to which Kavanaugh is particularly committed to originalism. Gorsuch certainly has indicated that he thinks it’s important. I think both Alito and Roberts, on the other hand, have indicated that they are a little more pluralistic. Originalism is part of what goes into their decision-making, but it’s not the only consideration they have in mind. They’re similar to previous conservative justices. I think Chief Justice Rehnquist was like that. He sometimes talked about originalism, sometimes it’s important, but also sometimes departed from it and didn’t focus on it very much. All the conservative justices would say it’s important, but they aren’t all equally committed to thinking it’s the primary goal that ought to be driving their opinions. Dylan Matthews Let’s talk about Amy Coney Barrett. She’s a legal academic who has contributed extensively to debates about how originalists should act and rule. Where does she fall on some of those questions? Keith Whittington She’s been pretty vocally committed to originalism as really being the guiding light, more so than some others. She is more explicitly committed to the notion that one ought to be an originalist, and that it is the primary principle for judges, than Roberts is, or than Kavanaugh historically was. In that sense, she’s a little more like Thomas and Gorsuch. She has a clear judicial philosophy, and originalism is at its core. I think it’s less clear to what degree she is a pure textualist the way Gorsuch tends to be, and to what degree she’s willing to think beyond the text as she thinks about original principles. I don’t think she’s really emphasized the kind of narrow textualism that Gorsuch has emphasized. I suspect her originalism is going to look a little different than his version. On the other hand, she has also suggested that judges ought to care more about stare decisis [the doctrine that courts should generally abide by their previous rulings] than Thomas tends to. I think she’s a more moderate figure in that regard than Thomas. She would be trying to navigate precedents that are in conflict or in tension with original meaning, rather than just thinking they ought to be tossed overboard. She clearly is a kind of originalist. She doesn’t look quite like either Gorsuch or Thomas, but she’s probably playing in the same sandbox. Dylan Matthews I’m glad you brought up stare decisis. A paper she wrote with her colleague John Copeland Nagle, “Congressional Originalism,” has caused a bit of concern among critics, in part because she leads with a list of precedents that arguably conflict with the original meaning of the Constitution. Brown v. Board of Education is the most incendiary one, but she mentions arguments that West Virginia was invalidly admitted, that the 14th Amendment wasn’t properly ratified, that paper money is unconstitutional, and so forth. She doesn’t say she thinks they ought to be overruled — and indeed suggests that the point is moot in most cases as these issues would never come before the Court — but I think even putting up the examples has raised hackles. How should people weighing her nomination think about that paper? Keith Whittington I tend not to think it’s terribly significant. To some degree, it is an academic enterprise of trying to think about, “What are the tensions here? What are the implications of adopting a certain theoretical perspective? What are the implications if you think there are tensions between the theory and some of these foundational constitutional decisions thathave been made over time, whether they are things like creating the state of West Virginia or things like Brown v. Board?” For her, that’s just a starting point for then trying to think about how to deal with the fact that there are going to be these tensions. Importantly, her view was not, “you’ve got to go overturn all these decisions,” whether it means getting rid of the state of West Virginia, or whether it means overturning judicial decisions that have been made that are hard to justify on originalist grounds. From her perspective, the question is, “What do you do about the fact that there are, from a theoretical perspective, mistakes that have been made over time?” The answer is not always that you’ve got to run out and correct all the mistakes. Sometimes you have to figure out how to live with those mistakes. Part of what’s interesting about her work is that she’s in part concerned with figuring out how to live with our mistakes. That’s not an easy question, from a theoretical perspective. From a judicial perspective, they often don’t have to confront that very directly. An academic is very interested in trying to say, “Let’s look at the creation of West Virginia or the Brown decision and think through the constitutionality of that and what it means about how the system works.” From a judge’s perspective, that’s not much of a practical problem that’s going to come in front of you. But there might be implications in how you think about those issues that do have more practical consequences for how you behave as a judge. I think her enterprise, of trying to think more practically about what those implications are, is helpful. Dylan Matthews A concrete worry a lot of left-of-center people have about Barrett is that a commitment to originalism puts important precedents — Roe v. Wade is the obvious one, but also the cases establishing a right to same-sex marriage, for instance — at risk of being overturned if she concludes they conflict with the Constitution’s original meaning. Barrett’s willingness to concede that we have to live with some decisions she considers “mistakes” in a theoretical sense is pretty interesting then. Why would an originalist think that? Why doesn’t every originalist act like Thomas in consistently putting precedent second to original meaning? Keith Whittington For at least a couple of reasons. One is a practical political one, that you can’t overturn all the mistakes. But the more you think there are quite dramatic mistakes. the more you need a theory about, “How do you live with those mistakes rather than try to overturn them?” If you think all the mistakes that your theory identifies are actually relatively minor and small, you can more easily imagine getting out there and cleaning them up. The more you think they’re actually big and important, then the more important it becomes to try to figure out a theory that allows you to live with those mistakes and figure out how to move forward given the existence of those mistakes. Originalist theory has moved on this front. It’s increasingly become interested in that question of how many and how significant are the mistakes out there from an originalist perspective? And then how do you deal with them and manage them? Some of the early academic literature in particular was often interested in adopting a fairly revolutionary posture and suggesting there’s lots of big, important, mistaken decisions, and we ought to be trying to correct them all. The more recent literature has really moved away from that, in part because it’s become more practical. It’s not just an academic exercise anymore. The other issue that a lot of originalist scholars are starting to circle around is that judges made all kinds of decisions in the past that they themselves did not try to ground in original meaning. It’s an easy instinct to think all those things are mistaken. But instead, we might start analyzing those more closely and finding, actually, it turns out you can build an originalist argument that gets you to a very similar place. So we ought to be trying to think about to what degrees those precedents can actually be salvaged, can be regrounded on better foundations from an originalist perspective, that might provide better guidance as to what you ought to do in the future, given those precedents, and how we ought to be trying to develop them, how they fit more coherently within the overall constitutional scheme. Dylan Matthews The other paper of hers that’s gotten a lot of popular attention relates to how judges should balance their faith and their rulings. She’s responding in part to William Brennan, a Catholic liberal on the Court who spoke about leaving his faith at the door when acting as a justice, and partially disagreeing with him. What do you make of that piece? Does it imply anything important about her jurisprudence? Keith Whittington My impression of that was that she wants to recognize it as being a problem, and therefore try to figure out how it ought to be reconciled. A lot of people have run with the notion that she’s emphasizing the significance of her religious belief and, likewise, the religious beliefs of other judges and justices. But I think it’s one of these cases where that’s the starting point for her, saying, “It is true that judges have religious beliefs. And those religious beliefs sometimes have implications for the kind of issues that come before the court.” And then the question is how judges ought to deal with that. Certainly her conclusion is not simply that judges ought to therefore impose their religious beliefs. Will you help keep Vox free for all? The United States is in the middle of one of the most consequential presidential elections of our lifetimes. It’s essential that all Americans are able to access clear, concise information on what the outcome of the election could mean for their lives, and the lives of their families and communities. That is our mission at Vox. But our distinctive brand of explanatory journalism takes resources. Even when the economy and the news advertising market recovers, your support will be a critical part of sustaining our resource-intensive work. If you have already contributed, thank you. If you haven’t, please consider helping everyone understand this presidential election: Contribute today from as little as $3.
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