Notes From the Fray Editor:

The Breakfast Table Fray has remained a shining example for all. The Table moved from discussions of the merits of Atkins to broader discussions of the nature of court representation. The Fray moved along with it. Several incisive debates about the nature of contemporary judicial federalism and Dellinger's "rule of three" have ensued. One of the best Frays ever began with Dira Necessitas's supposition that Lithwick would stop her Scalia-bashing—a harmless introduction to a fascinating juridico-psychoanalysis (or psycho-juridical analysis).

Notes From the Fray:

[Dellinger] has the good sense to understand that judicial overreaching is not a liberal or a conservative problem but an institutional one that should be resisted by everyone who has a shred of faith in democracy and, in particular, in the increasingly quaint idea that popular legislatures should make legislative decisions….

There is a longer-term insidious consequence of judicial overreaching, too, that takes the form of executives and legislatures dallying about nearly everything really controversial in the hope -- increasingly realized -- that they will be relieved of the hot potatoes by the courts, especially the SCOTUS.

-- Publius

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I challenge [Lithwick's] shorthand characterization of that Federalism jurisprudence as "efforts at curbing congressional overreaching (often to give powers back to the states)".

That portrays some of the less controversial of the Court's Federalist opinions. But the most controversial and decidedly activist sequence of the Federalist opinions -- their so-called Eleventh Amendment jurisprudence, named for the Amendment that they now admit does not say what they earlier said it says -- has nothing to do with Congressional overreaching. The issue in the cases I was referring to in the quoted paragraphs above (including the case that the Court agreed this morning to hear) and which I believe Dellinger was referring to did not concern federal legislation whose purpose was to usurp for the federal government powers traditionally held by the states. The statutes at issue have broad applicability not just to state governments but to private entities also.

The Court's conservative narrow majority says the Constitution protects states from being subject to such legislation, this notwithstanding their recent acknowledgment that the text of the Constitution actually contains no such protection.

-- Beverly Mann

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Let's apply Dellinger's analysis to Castillo's streak. The reason that the "Latin American record" was noted and celebrated was that it matters enormously to an important group of baseball fans - Latin Americans in their native countries. Prowess in baseball is an important signal to many in those countries that they belong (maybe more important than prowess in soccer, because the Dominican Republic et al. have great success in placing players in the best professional baseball league). That's why people in Latin American countries know which Latin American players have the most career hits, career wins, the best batting average, etc. Until they stop paying attention to the success of Latin American players compared to other Latin American players, then it's reasonable for baseball to do so, even under Dellinger's analysis.

Besides, it's good marketing.

-- randy khan

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(7/25)

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