Monday, January 31, 2022
Noah Isenberg - We'll Always Have Casablanca - Notes
Sunday, January 30, 2022
GUEST ESSAY
Stephen Breyer Was the Right Justice for the Wrong Age
Ms. Greenhouse, a winner of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer for 12 years, until last month.
Two misfortunes have befallen Stephen G. Breyer during his long Supreme Court career. One, which became apparent about halfway through his nearly 28-year tenure, was that it was his fate to be the quintessential Enlightenment man in an increasingly unenlightened era at the court. The second happened during this past year: the demand from the left that he step down and open his seat for President Biden to fill.
Justice Breyer’s belief in the power of facts, evidence and expertise was out of step in a postfactual age. The protections of the Voting Rights Act were no longer necessary in the South? The Constitution’s framers meant to give the populace an individual right to own a gun? Or, more recently, the federal agency charged with protecting American workers was likely powerless to protect the workplace from a deadly pandemic?
Really? Of course, Justice Breyer was on the losing side.
To my second point, it’s not that requests for him to step down were unreasonable. It’s that they became so vociferous, so belittling, really. It’s as if this distinguished public servant could be shoved out of the way, obscuring any idea of who he is and what his time on the court has meant. That is a loss not only for him — and he certainly deserves better — but also for the rest of us, because his career has much to teach us about the state of the court today.
At 83, Justice Breyer is a decade older than the next oldest justice, Clarence Thomas, and a generation older than the youngest, Amy Coney Barrett, who turns 50 on Friday. Like five of his colleagues (Chief Justice John Roberts and Justices Barrett, Elena Kagan, Neil Gorsuch and Brett Kavanaugh), he was once a Supreme Court law clerk.
But there is a difference. He clerked for Justice Arthur Goldberg during the Supreme Court’s heroic age, the period under Chief Justice Earl Warren when the court seemed to be pushing — or dragging — post-World War II America into recognizing the equality of the races and the rights of criminal suspects. The other five came of age in the subsequent era of judicial retrenchment, that era now reaching a climax.
Although the labels often affixed to Justice Breyer are “pragmatist” and “seeker of compromise,” it has always seemed to me that these, while not inaccurate, miss the mark. They discount the passion beneath the man’s cool and urbane persona, passion that I think stems from his early encounter with a court that understood the Constitution as an engine of progress.
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That passion was obvious in his astonishing 21-minute oral dissent from the bench in 2007 from a school integration decision that, early in Chief Justice Roberts’s tenure, marked a significant turn away from the court’s commitment to ending segregation. The law professor Lani Guinier, in a famous article in The Harvard Law Review the next year, celebrated that dissent as “demosprudence,” a way of speaking law directly to the people in the expectation that they will then speak back to the lawmakers.
His passion was obvious this month, too, when the court heard a challenge to the Biden administration’s Covid vaccination rule for businesses employing 100 or more people. Justice Breyer radiated fury as he addressed Scott A. Keller, the lawyer representing the business plaintiffs.
“I mean, there were three-quarters of a million new cases yesterday,” the justice said, his voice rising. “New cases. Nearly three-quarters — 700-and-some-odd thousand, OK?” He continued that the number was 10 times as high as when the Occupational Safety and Health Administration “put this rule in. The hospitals are today, yesterday, full, almost to the point of the maximum they’ve ever been in this disease, OK?”
Noting that the standard for granting an injunction of the sort the plaintiffs requested required a showing that the court’s intervention was in the public interest, he asked: “Is that what you’re doing now, to say it’s in the public interest in this situation to stop this vaccination rule, with nearly a million people — let me not exaggerate — nearly three-quarters of a million people, new cases every day? I mean, to me, I would find that unbelievable.”
Of course, that’s what the court did, and of course, Justice Breyer dissented.
His dissenting opinion, written with Justices Kagan and Sonia Sotomayor, wasn’t particularly showy. It was, one might say, Breyeresque, using data, logic and the language of administrative law — a subject he taught for many years at Harvard Law School — to arrive at its central argument:
Underlying everything else in this dispute is a single, simple question: Who decides how much protection, and of what kind, American workers need from Covid-19? An agency with expertise in workplace health and safety, acting as Congress and the president authorized? Or a court, lacking any knowledge of how to safeguard workplaces and insulated from responsibility for any damage it causes?
That this argument failed to carry the day speaks volumes not only about how out of step Justice Breyer is with the court’s trajectory but also how out of step the majority is with the kind of fact-based analysis that he has brought to the problems the court is charged with solving.
In recent months, Justice Breyer has been mocked on the left for clinging to a romantic vision of the Supreme Court as an institution apart from politics. Surely, that argument has gone, if he could only get over that fiction and understand the political moment, he would hang up his robe.
That mistakes the man. He cut his eyeteeth in politics, working for Senator Edward Kennedy as chief counsel to the Senate Judiciary Committee. I’m sure he, along with the rest of us, has watched with clear eyes and a heavy heart as politics swamped the institution he loves.
His understanding of politics — that the only way to make a difference is by staying in the game — led him to stay on the court as the diminished liberal side’s senior associate justice, a role that will now pass to Justice Sotomayor. Although he will reportedly remain on the court until the end of this term, he chose to announce his plan to retire now, just after the court finished assembling the cases it will hear and decide through late June or early July. This suggests he has the months ahead fully in view and has decided that he has made all the difference he can make.
Now it’s time to let someone else try.
Saturday, January 29, 2022
Sure, it's cold. What do you expect in January? But the sun is shining. I've got lunch meat in the ice box so I am set for the day. I might even turn the TV on. This isn't Key West though I would't mind being in Key West high now for a few days or even Key Largo with Bogie and Bacall. I don't know if Humphrey was a fun guy to hang around with, but I'd chance it. And Lauren? Well. . . .
Saturday, January 22, 2022
After bedding down morose last night, I woke up this morning after getting my 14 hours of g's, saw the sun was out, and with a big, happy smile on my rested face, immediately jumped in the car and did 8 laps at the Pelham Park, then drove thru CFA with one of my favorites, Danielle, taking orders in the drive-thru lane. It's still very cold in Shelby Couny, but with that bright, winter sun as my witness, my day is off to a dazzling start.
Shelby Foote & The American Civil War
Friday, January 21, 2022
When omicron was first identified in late November and began spreading rapidly in the United States, millions of vaccinated people lined up for the extra shots. But that has slowed. To date, 39 percent of fully vaccinated people have gotten the additional doses, according to the CDC. Some people may not be eligible for another shot if enough time has not elapsed since their most recent one.
Surveys by private polling firms suggest the uptake could be somewhat higher, and the CDC has acknowledged that its data may be an underestimate. Still, despite laboratory studies that show an extra dose jacks up antibodies, repeated urgings from Biden administration officials and, more recently, a succession of reports from multiple countries affirming that protection, the boosters have not been embraced by Americans to the extent the initial shots were.
One CDC report analyzed data from hundreds of thousands of emergency room visits, urgent care visits and hospitalizations between August 2021 and Jan. 5, 2022. It showed that a third dose of either the Pfizer-BioNTech or Moderna shots was 90 percent effective at preventing hospitalization, and 82 percent effective in preventing a trip to the emergency room or urgent care. On average, people had received their booster within about 44 days of seeking medical help.
The data includes a three-week period when omicron was the predominant variant.
Omicron has a gaggle of mutations that enhance its ability to elude the neutralizing effects of antibodies, the first layer of immune system protection produced by the shots, as well as by natural infections. Most vaccinated people in the United States received either the Pfizer or Moderna vaccines.
Federal health officials have urged people for several months to get the third shots.CDC recommends booster shots for everyone ages 12 and older, five months after getting two doses of the vaccines made by Pfizer-BioNTech and Moderna, or two months after a single dose of the Johnson & Johnson vaccine. Since early January, CDC officials have said people should get three doses of Pfizer-BioNTech or Moderna’s vaccines to be considered up to date on their immunizations, and those who got Johnson & Johnson should receive a second dose, preferably of Moderna or Pfizer-BioNTech, to be considered up to date.
The protection from two doses of those vaccines has declined since omicron became predominant, with the biggest decline among people who were six months past their second shot, said Mark G. Thompson, a CDC epidemiologist and lead author of the first report.
“That’s the bad news,” Thompson said. “The good news is that for people who received a third booster dose, the effectiveness of three doses is very high and protects against moderately severe and severe disease. This is among the first data that really shows the actual level of protection in the United States.”
Despite this protection against dire outcomes, boosters are not a guarantee against mild infections. Most omicron infections are asymptomatic or “mild” — meaning the person can recover at home.
Health experts welcomed the new data, saying they hoped it would encourage millions of vaccinated Americans to get booster shots. The latest U.S. data echo what researchers in the United Kingdom previously found — that after a third shot of the Pfizer vaccine, protection against hospitalization was above 95 percent (two weeks after the shot) and remained around 80 percent even after four months.
A study published earlier in the week from Kaiser Permanente Southern California and Pfizer, which has not yet been peer-reviewed, showed much the same — protection against omicron-related hospitalization was nearly 90 percent four months after a booster.
“We should be celebrating this,” said Eric Topol, a molecular medicine professor at Scripps Research, referring to the findings. Public health officials need to communicate clearly that although the vaccines and booster shots are “not holding up against omicron infections, they are holding up the wall against severe disease … and that’s phenomenal,” he said. “A booster is essential for preventing severe disease, hospitalization and deaths.”
It’s not clear why booster uptake has slowed. Omicron is generally described as a milder variant, despite its extraordinary transmissibility, meaning that it’s less likely than the previously dominant delta variant to cause severe disease. That fact, combined with general exhaustion with the pandemic, may sap the desire of some people to take additional steps to protect themselves. As whole nations shift their strategy to one of “living with the virus,” many people may discount the need to follow health officials’ advice.
The booster issue has also been dogged by controversy within the scientific and regulatory community and among global health leaders. The World Health Organization has repeatedly called for prioritizing vaccinations in countries where shots are hard to come by, rather than giving boosters in wealthy countries that are already largely vaccinated. And last year, some scientists in the United States, including at the Food and Drug Administration and CDC vaccine advisers, were skeptical that boosters were necessary, since the initial doses continued to show good protection against severe disease and death.
Misinformation is also rampant in the United States, including the idea the vaccines don’t work at all. Former president Donald Trump was booed last year at a rally when he revealed he had gotten a booster shot.
The Biden administration made its booster recommendation last summer at a time when there were fewer studies and greater uncertainty.
“We have lacked this level of data. That’s one of the reasons why there was so much discussion of booster recommendations back in the summer,” said Joshua Sharfstein, vice dean at the Johns Hopkins Bloomberg School of Public Health and a former top official at the Food and Drug Administration.
“There’s uncertainty as decisions are made, and these recent papers are filling in the blanks,” he said. “The evidence is coming in, and it’s very strong.”
Sharfstein, who regularly volunteers at a Baltimore city vaccination clinic, said many people getting their first shots say “they never got around to it until their job required it.” Others, including those getting boosters, are scared of omicron because they know people who are sick, he said.
In January, with the omicron wave slamming the country, about 682,000 booster doses were administered daily, according to the latest CDC data. That pushed up the share of vaccinated people who received a booster to 39 percent, up 6 percentage points. Just under half of the boosters went to people between 18 and 50.
But for vaccinated people older than 65, the most vulnerable group, more than one-third have not received a booster. Only 4 percent of that group received boosters in January.
Some experts say the new studies argue for targeting boosters to high-risk populations.
“I think that the booster discussion has been sidetracked by a desire for a one-size-fits-all-strategy,” wrote Amesh Adalja, a senior scholar at the Johns Hopkins Center for Health Security in an email. The importance of boosters for those most vulnerable may be diluted by the messages for universal boosting coming from the administration, he said.
“When I work in the hospital, it is not people that lack boosters that are occupying ICU beds — it is those that lack first and second doses. If everyone eligible to be boosted was boosted, hospitals would still have capacity problems because of the lack of first doses in high-risk individuals,” he wrote.
Four states have given boosters to a majority of the vaccinated people, according to the latest CDC data: Vermont, Maine, Wisconsin and Minnesota. Five states plus D.C. have given boosters to less than a third of the people with vaccinations: North Carolina, Alabama, Georgia, Texas and Mississippi.
Some experts say the messaging around the number of shots needed for vaccination has been confusing, in part because no one anticipated how the virus would evolve.
When vaccines were first rolled out in December 2020, officials made a “communications blunder” when they said vaccinations would be “two shots, and done,” Andrew Noymer, an epidemiologist at the University of California at Irvine, wrote in an email after reviewing the new data.
This fall, many were confused as a result of complicated booster guidelines. It was not until Nov. 19 that all American adults became eligible for coronavirus vaccine boosters.
As a result, many ordinary people may regard the push for boosters as a case of “moving the goal posts, and are wary of getting on the train of never-ending boosters,” Noymer wrote.
A second CDC report that looked at cases and deaths among unvaccinated and vaccinated adults from April to Dec. 25, 2021, found that when delta was the dominant variant, and in the initial days of omicron, people who were fully vaccinated and boosted had the highest protection against infection.
A study published in JAMA by CDC scientists also found that a third dose of an mRNA vaccine provides significant protection against symptomatic disease for both the delta and omicron variants, with greater protection against delta.