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The Arday Tragedy: from Tokenism to Wokenism

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  • Tokenism and wokenism: Elevating people primarily for racial representation, whether into symbolic or influential roles, is presented as a form of tokenism rather than genuine inclusion.
  • The Arday case: Jason Arday received major academic honors and a Cambridge professorship despite allegedly thin, substantially plagiarized scholarship and a dissertation title containing a conspicuous typo.
  • Unverified personal claims: Arday’s extraordinary accounts of illnesses, disabilities, athletic accomplishments, threats, and hardships were accepted with little apparent scrutiny.
  • Institutional incentives: Academic and media institutions’ desire to demonstrate antiracism and celebrate Black achievement may have encouraged his elevation and discouraged serious questioning of his credentials.
  • Broader examples: The same pattern is associated with other prominent appointments where race appeared to outweigh demonstrated competence, including figures in government and academia.
  • Damage to merit and trust: Elevating underqualified individuals can undermine confidence in Black professionals generally, insult those who achieve excellence on merit, and place unfair pressure on the individuals promoted.
  • Merit over optics: When no outstanding candidate is available, selecting a qualified white candidate is characterized as preferable to appointing a racial token for symbolic reasons.



For a long time, it was the view from the Left as well as the Right that tokenism was wrong. It was considered disrespectful of black people, i.e., racist, to place us in a position because of the color of our skin when we weren’t qualified for it, or when otherwise we wouldn’t have been wanted there, just for the sake of appearances.

But one consequence of what Alexandria Ocasio-Cortez referred to recently as Woke 1 was an unspoken revision of this view: tokenism was now okay. Jason Arday was one of the results of this new perspective.

Back in the day, the classic example of tokenism—call it Tokenism 1.0—was giving a black person a visible role but not much in particular to do. Elevating a black person to a role of actual influence, when optics are clearly the main justification, is just as harmful, if not more so. The often-used term of art for this approach is “DEI,” though more straightforwardly, it is Tokenism 2.0.

Arday, who was found dead last week amid a maelstrom of revelations about his scholarship and various questionable claims of achievement, hardships, and disabilities, was elevated as a token in the same spirit as the black characters shown on Norman Lear sitcoms that addressed tokenism 50 years ago—Archie Bunker bringing a black man into his lodge to avoid losing its tax break, George Jefferson being invited to join an all-white tennis club just for optics, etc. I don’t sense that Arday was a cynical operator as many have portrayed him. He seems to have been an extreme example of a type: someone who gets a sense of self-worth through exaggerating his hardships and achievements. Most such people live anonymous lives, alternately annoying and entertaining people with their endless tall tales, obviously founded in insecurity.

But Arday ended up retailing his fictions in modern academia, a world with a burning desire to celebrate blackness and demonstrate its antiracism. No one is on record having chuckled in the corner that hiring Arday at Cambridge University will “give the place a little color,” in the fashion of the old sitcoms. Nonetheless, it’s impossible to avoid the reality that Arday’s color was the crucial factor in his elevation. His scholarly work was insubstantial, a judgment that would be fair even if it hadn’t turned out to be plagiarized to such a degree. Yet he was granted a Ph.D. (the title of his dissertation has a glaring typo) and several honorary degrees, asked to give various keynote addresses, regularly invited on radio and television, and made the equivalent of a full professor at Cambridge University at 37. It’s inconceivable that a white person would be elevated to the pinnacle of the profession—especially a Cambridge professorship—with such a thin record.

Then there was his wildly improbable life story: suffering both a brain tumor and a stroke, yet passing his dissertation defense immediately after recovering from them, despite having lost all memory of what he wrote; suffering from epilepsy, autism, and Asperger’s; not speaking until 11 and not reading until 18; playing championship-level ping-pong despite his many handicaps; being threatened at his Cambridge office by masked, armed men, mysteriously unrecorded by CCTV cameras; discovering that a pig’s head had been sent to his parents; running marathons at world champion-level, including doing so with a leg swollen to twice its size; and so on. Frankly, all of this is so incredible, in the literal sense, that a white scholar making these claims would almost certainly have been instantly dismissed as a fabulist. But Arday was black, and the whites around him considered it more important to be seen elevating him—especially as he was someone claiming past hardships—than viewing his claims as the fables they were.

This was tokenism.

Arday was not a one-off but part of a trend after Woke 1 in 2020. Consider, for one example, former White House press secretary Karine Jean-Pierre, whose performance in that role for the Biden administration made demonstrably clear that her abilities were not her main qualification. Carolyn Rouse’s bizarrely incoherent interview with the Chronicle of Higher Education made it hard to believe that her being a black woman was not central to her appointment as president of the American Anthropological Association. There have been other prominent cases. I don’t relish calling these things out and will refrain from naming more names, but when someone black is installed in a position where it’s all but impossible not to see that race played a dominant role in their selection, this is what used to be called tokenism. Maybe we can call it “wokenism.”

It makes whites feel good about themselves and secure that they can’t be called racists. But it also makes the broader society question the capabilities of any black person in a position of authority or prestige. It encourages a sense that being just so-so is the best that blacks can do.

A common rejoinder to this complaint is that when a white person is mediocre, we don’t decide that all whites are mediocre. But the issue is whether blacks are placed in prominent positions beyond their qualifications more often than whites, and with what degree of mismatch. If a white person becomes a Cambridge professor at 37, they have credentials of the wunderkind variety. One example of this was Stephen Hawking. Arday’s credentials, by contrast, involved being black and having a certain stage presence. It’s not surprising that he went along with all of it and even processed questions about the legitimacy of his work as racism, worth reporting to the police. He had been lavishly praised and had gone largely unquestioned and unchallenged for years.

But presenting Arday as an exemplar of academic excellence was immoral—both insulting to blacks and cruel to him. Without it, he would have experienced no gruesome public downfall, and he would likely still be alive.

Today’s wokenism is no more justified than yesterday’s tokenism. We must face reality. If there are no truly excellent black candidates for a post, giving it to one more white person may feel frustrating—but it is always better than the dehumanizing patronization of naming a token black person.

Fifty years ago, this was conventional wisdom. It’s one of those cases where we should heed our elders.

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Two weeks of strikes at Barcelona Airport: 270 flights canceled and more than 6,000 bags lost

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The union denounces Groundforce’s lack of dialogue and says there has been no contact between the two sides since July

  • Two-week strike: Groundforce ground-service workers at Barcelona-El Prat have been on an indefinite strike since August 4.
  • Flight disruption: The stoppage has reportedly resulted in more than 6,000 undelivered bags and up to 270 canceled flights during the busy summer season.
  • Negotiations stalled: No progress has been made since the last mediation contact on July 24, with the union alleging that Groundforce representatives left that meeting.
  • Broad operational impact: More than 1,100 employees serving Terminals 1 and 2 are involved, potentially affecting nearly 2 million passengers and flights operated by several major airlines.
  • Workplace demands: Workers cite deteriorating safety conditions, unsustainable workloads, excessive overtime, staff turnover, fatigue, and insufficient training for new hires.
  • Minimum service levels: Ministry-set staffing requirements have prevented a general airport shutdown, guaranteeing different levels of service for international, non-peninsular, and domestic routes through September.
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UK internet age checks have boosted rogue adult sites, says Pornhub

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LLM (google/gemini-3.5-flash-lite) summary:

  • Age Checks Fail: pornhub says the law has failed in protecting children because new non compliant sites regularly appear prominently in search results and traffic to these sites has been boosted
  • Online Safety Act: the government brought in strict requirements for adult sites last year under the online safety act to prevent children from being able to access porn with methods including facial scanning and credit card checks
  • Pornhub Letters: pornhub wrote to about three hundred mps saying the government should recognise the law had failed and that non compliant sites do not check users ages
  • Search Results Data: non compliant sites occupied seven out of the top ten search results for free porn in june according to data provided by pornhub
  • Ofcom Claims: ofcom said that age checks led to a fall in estimated daily visitors to porn sites by roughly a third and all of the top ten porn sites and the majority of the top one hundred were now compliant
  • Traffic Falls: aylo said last year that traffic to its pornhub had fallen seventy seven per cent since the introduction of the online safety act
  • Vpn Usage: the use of virtual private networks in the UK has almost doubled since the introduction of laws enforcing age limits according to ofcom
  • Device Level Checks: aylo argues that device level checks are the most effective way to judge age and stop children accessing explicit content while the online safety act places the obligation on the web services

A digital screen displays the Pornhub age-restriction warning, with a magnifying glass highlighting the message and entry options.Pornhub says the UK government should recognise the law has ‘failed’ in protecting children © Leon Neal/Getty Images
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The UK’s new internet age checks have boosted websites that do not comply with the legislation and are not protecting children from harmful content, one of the country’s biggest porn sites has argued.

The government brought in strict requirements for adult sites last year under the Online Safety Act to prevent children from being able to access porn. Methods for checking users’ ages include facial scanning and credit card checks.

Pornhub, which has been the country’s most visited adult site, wrote to about 300 MPs on Thursday, saying the government should recognise the law had “failed” in protecting children.

It argued that new, non-compliant sites — which do not check users’ ages — now regularly appear prominently in search results. Traffic to these sites had been boosted as a result, it added.

In June, non-compliant sites occupied seven out of the top 10 search results for “free porn”, according to data provided by Pornhub.

The lobbying comes as British politicians and regulators consider the effectiveness of internet restrictions, including a forthcoming ban on children accessing social media.

The communications regulator Ofcom has said that age checks led to a fall in estimated daily visitors to porn sites by roughly a third. All of the UK’s top 10 porn sites and the majority of the top 100 were now compliant, it added. 

Ofcom admitted that people were still able to visit porn sites without age checks, often via search engines. It said it would work with Google and Microsoft’s Bing to try to stop this from happening.

Aylo said last year that traffic to its Pornhub had fallen 77 per cent since the introduction of the Online Safety Act. 

These numbers would not count people using virtual private networks that route their internet service to other countries to avoid UK legal restrictions.

The use of VPNs in the UK has almost doubled since the introduction of laws enforcing age limits, according to Ofcom.

Ofcom research found that 8 per cent of children had attempted to access porn, but about half of those only reached sites with age checks in place.

Earlier this year, Aylo closed Pornhub for new users, saying that it could not work with a “flawed system” of age verification. It then made the site available again for Apple users who had confirmed their age on the device.

Aylo argues that device-level checks are the most effective way to judge age and stop children accessing explicit content. The OSA instead places the obligation on the web services to demonstrate that whatever age assurance they are using is highly effective. Any change to this would require a change to the law.

Ofcom said age checks were helping to create a safer life online for UK children, adding: “But the job is not done, and we’ve been clear that further action is needed from the tech industry to increase the effectiveness of age checks to protect children online, particularly with a view to the government’s planned social media restrictions for under-16s.”

This could mean wider system-level age assurance at a device or app store level, the regulator added, but the obligation to prove its effectiveness remained with the service provider.

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Who is really buying China’s humanoid robots?

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LLM (google/gemini-3.5-flash-lite) summary:

  • Government backing: local authorities fund training centres that purchase humanoid robots to collect and sell training data back to manufacturers
  • Market growth: nearly three hundred seventy robotics start ups formed in two years with over fifty listing or preparing public offerings
  • Valuation concerns: investors question whether policy driven purchases represent true commercial demand or a temporary hype cycle
  • Revenue sources: companies like leju robot and ubtech rely heavily on orders from these government backed training facilities
  • Data utility: analysts note that training centre data lacks real world context and has limited compatibility across different robot makers
  • Historical parallels: supporters draw comparisons to electric vehicles and solar panels where initial state support built dominant industries
  • Shipment forecasts: morgan stanley raised shipment estimates for twenty twenty six based on stronger than expected commercial and local government purchases
  • Ecosystem dynamics: close ties between officials and manufacturers blur the line between independent market demand and state supported ecosystems

William Langley in Guangzhou
Published26 minutes ago
0
China’s humanoid robot makers are generating much of their revenue from selling machines to government-backed training centres — which then collect and sell training data back to the robot makers, raising concerns about actual demand in an industry Beijing is keen to promote.
The widely adopted model, reminiscent of Nvidia’s “circular financing” of AI data centres, has fuelled China’s so-called embodied AI industry. Valuations of start-ups such as AgiBot and Hong Kong-listed UBTech have soared on expectations that humanoids represent the future of AI.
But investors are beginning to question whether government-driven purchases can lead to real commercial demand.
“There is a broad consensus among early-stage investors that humanoid robotics is approaching the peak of the hype cycle,” said a senior investor at a Beijing-based venture capital fund who asked not to be named. “We’re looking for opportunities to sell down some of our holdings to other investors and secure an exit.”
As part of Beijing’s plan to develop China’s humanoid robot industry, it has encouraged local governments to build large-scale training centres, where humans “teach” robots how to perform physical tasks through a remote-controlled process called teleoperation.
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Video description

Humanoid robots stand next to human trainers and mimic their actions as they pick up bread, a cookie box, tissues and an egg
Humans ‘teach’ robots at a training centre in Beijing © China News Service/Reuters
This has encouraged the proliferation of robotics start-ups. Nearly 370 have been established in the past two years, and more than 50 of them have listed or are preparing to go public. The most closely watched, Unitree, surged more than 600 per cent after listing on Shanghai’s tech-focused Star Market on Wednesday, giving it a $50bn valuation.
The centres, often co-funded by local governments and robot makers, buy the machines, generate training data and sell the data to the robot makers to improve their technology.
“This model is spreading rapidly because it reduces the cost of building facilities, buying equipment and organising teleoperation teams,” said Poe Zhao, an independent China tech analyst and founder of Hello China Tech.
“But it also blurs the distinction between independent demand and demand created within a policy-supported ecosystem.”
Only a small share of the data is sold to non-robotics manufacturers such as carmakers for assembly line applications, training centre staff told the FT.
“This model can’t last,” said another investor. “If they fail to prove their robots can be deployed at scale on factory floors, investors will begin to reassess valuations over the next year.”
More than 90 training centres had been established or were being built across China by June, according to consultancy Interact Analysis. Leading centres said they generated more than 10mn data points a year.
Prices vary, but one seller told the FT that training data for a five-minute robot dance could cost as much as Rmb1mn ($148,000).
The training centre build-out is reshaping industry forecasts. Morgan Stanley raised its estimate for China’s humanoid robot shipments in 2026 to 50,000 units, from 28,000 in June, citing stronger than expected purchases by local governments and commercial users.
Supporters of the model argued it would help build up the country’s robotics industry and supply chain, noting the examples of electric vehicles and solar panels — sectors that China now dominates after government purchases drove initial demand.
For local governments, the model helps attract investment, talent and supply chains to areas where income from land sales has declined. Some training centres hire university students as robot trainers and offer paid tours for children and teenagers during school holidays.
For the robot makers and their suppliers, the training centres are a source of revenue amid limited commercial demand.
Shenzhen-based Leju Robot said training centres accounted for 45 per cent of sales of its flagship Kuavo humanoid last year, making them its largest revenue source.
UBTech disclosed Rmb140mn ($21mn) of orders from government-backed training centres last year. Although still lossmaking, the company said robot deliveries accounted for 41 per cent of its Rmb2bn revenue last year and expected government orders to drive further growth this year.
Almost three-quarters of Unitree’s humanoid robot revenue in the first nine months of 2025 came from users in the education and research sectors, including universities. Analysts said a relatively small proportion of shipments went to data collection centres.
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Analysts said the close ties between local governments and robot makers made it difficult to distinguish genuine demand from policy-driven purchases.
“Companies like ours need revenue, not necessarily profits,” said an algorithm engineer at a Beijing-based company that sells software to robot makers. “The robot training centres can tell their superiors they’ve bought the equipment and robots, they’ve built data collection facilities and they’ve sold data.”
He added: “Both sides get what they need, and both sides have something to show.”
At Beijing’s largest robot training centre, where more than 100 Kuavo robots have been deployed, Leju owns almost 38 per cent of the operating company, according to registration records.
UBTech declined to comment. Leju and Unitree did not respond to requests for comment.
Another open question is whether the data generated justifies the investment.
Marco Wang, a Shanghai-based analyst at Interact Analysis, said training centre data was not going to be “100 per cent useful” because the robots were not deployed in real-world settings.
“The real-world application or real-world manufacturing line, real-world warehouse is always different from your scenario,” said Wang.
Analysts at Goldman Sachs said scarce high-quality, real-world data remained the biggest hurdle to widespread adoption.
A senior manager at a training centre in northern China said each robot maker’s data could only be used by that company, raising concerns about compatibility.
She added that on average, only two or three hours of data from an eight-hour training shift were actually usable.
“China often accepts duplication and failed projects in the early stages of a strategic industry,” said Hello China Tech’s Zhao.
“The expectation is that technical learning, stronger supply chains and a handful of globally competitive companies may justify losses elsewhere.”

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Why a Payments Giant Is Paying $7 Billion for the ‘Stripe of AI’ - WSJ

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LLM (google/gemini-3.5-flash-lite) summary:

  • Stripe Acquisition: stripe bought openrouter for more than seven billion dollars to expand its artificial intelligence operations.
  • Token Currency: stripe chief executive patrick collison stated that tokens serve as the central currency for companies building with artificial intelligence.
  • Private Strategy: the company remains private to navigate the singularity moment when artificial intelligence surpasses human capabilities.
  • Market Expansion: the purchase enables stripe to profit directly from business spending on artificial intelligence models alongside payment processing.
  • Founder Pivot: openrouter founder alex atallah previously co-founded the nft marketplace opensea which experienced a peak valuation followed by a severe crash in sales volume.
  • Industry Migration: multiple technology leaders from earlier eras including cryptocurrency have migrated to establish new artificial intelligence companies.
  • Business Strategy: openrouter succeeded by betting that developers would utilize multiple artificial intelligence models rather than relying on a single dominant provider.
  • Corporate Growth: stripe also engaged in talks to acquire paypal alongside a private equity firm while maintaining a valuation of one hundred fifty nine billion dollars.

Stripe CEO Patrick Collison Stripe CEO Patrick Collison Brian Lawless/Zuma Press

When Stripe co-founder Patrick Collison took the stage at the payment company’s annual conference in April, he declared it “Day 119 of the singularity.”

Collison, among the more well-known billionaire entrepreneurs in Silicon Valley, had long been a prominent voice about the transformational potential of AI.

But his payments company, which had aggressively sought to embrace and adopt AI, wasn’t as close to the action as foundational startups like OpenAI and Anthropic.

That changed with Stripe’s purchase of OpenRouter, a company with 90 employees that helps developers cut costs by steering their requests to a variety of AI models. Stripe paid more than $7 billion for the company, which had been valued at $1.3 billion earlier this year.

On Wednesday, the two companies announced the deal. In a statement, Collison said that “tokens are the central currency for companies building with AI, and it’s clear that the real-world economic potential will depend on making good use of scarce compute resources.”

It is the largest-ever acquisition for Stripe, which was founded in 2010 and has remained a private company. In a letter to investors, Collison suggested Stripe is better off as a private company because of the “singularity,” tech speak for the moment when AI becomes more capable than humans. 

The deal will expand Stripe’s AI business, giving the payments company a bigger role in the rapidly growing market for AI tokens, the central unit of measurement for processing AI queries. Owning OpenRouter gives Stripe—which provides payment-processing software, helping companies accept internet payments—a way to profit directly as businesses spend more on AI models, on top of the revenue it generates from processing their payments.

It also represents the successful second act for New York-based OpenRouter founder Alex Atallah, who previously co-founded a marketplace for nonfungible tokens, OpenSea, during the cryptocurrency craze. OpenSea earned a peak valuation of $13.3 billion before its business plummeted because of a crash in NFT sales volume.

Alex Atallah Alex Atallah Roy Rochlin/Getty Images

Atallah is among a wave of entrepreneurs from the crypto boom who have pivoted to AI, part of a migration of leaders from earlier technology eras into the industry. Airbnb co-founder Brian Chesky, former Salesforce co-CEO Bret Taylor, Uber co-founder Travis Kalanick and LinkedIn co-founder Reid Hoffman are all working on new AI companies.

People close to Atallah describe him as someone with a knack for spotting emerging technology trends early. Early in his career, he worked as a forward-deployed engineer at Palantir before moving through a pair of startups, one in human resources and another focused on anonymous social polling that he describes on LinkedIn as a “millennial Nielsen.”

As the popularity of cryptocurrency reached new heights in 2018, he started OpenSea. The startup’s value skyrocketed thanks to the surge in trading of digital artwork like the Bored Ape Yacht Club, a collection of 10,000 internet apes that sold for millions and were endorsed by celebrities like Paris Hilton and Gwyneth Paltrow.

At its peak, OpenSea crossed $5 billion in total monthly trading volumes. But amid the crypto collapse in 2022, NFT sales volumes dived and never recovered as investors soured on the assets.

Atallah started OpenRouter in 2023 with Chris Clark and Louis Vichy. OpenAI had recently launched ChatGPT, and Anthropic had just introduced its first large language model. As his startup grew, Atallah began referring to OpenRouter as the “Stripe of AI.”

The startup rose as much of Silicon Valley was betting that OpenAI and Anthropic would dominate the market. OpenRouter had the opposite view: that no single model would win, and developers would increasingly use many of them for different tasks. 

That bet has paid off as a wider range of models has gained traction—including cheaper Chinese offerings like Moonshot AI’s Kimi K3—and as businesses look to rein in AI costs.

For Stripe, the deal comes during a period of expansion. The company, last valued at $159 billion, is also seeking to acquire PayPal alongside private-equity firm Advent International.

Copyright ©2026 Dow Jones & Company, Inc. All Rights Reserved. 87990cbe856818d5eddac44c7b1cdeb8

Kate Clark covers startups, venture capital and artificial intelligence for The Wall Street Journal and is based in New York. Her reporting examines venture investment, private market dealmaking and the power dynamics between founders and investors in Silicon Valley and beyond. Previously, Kate was a senior reporter at Bloomberg News and a deputy bureau chief at The Information, where she led coverage of the venture capital and startup industry. She began her journalism career at TechCrunch and has won multiple Best in Business awards from the Society for Advancing Business Editing and Writing, including for breaking news coverage of OpenAI and for technology and markets reporting.

A Seattle native, she earned her degree from the University of Washington.


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Ketanji Brown Jackson and the Return of the Warren Court

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LLM (google/gemini-3.5-flash-lite) summary:

  • Conservative Critique Of The Warren Court: conservative jurisprudence historically objects to the warren court for ignoring the original meaning of the constitution and statutes while transgressing traditional limits on judicial power, a standard the john roberts court largely attempts to follow.
  • Judicial Approaches Among Democratic Appointees: justice elena kagan operates within established textualist paradigms, whereas justice ketanji brown jackson adopts a more radical path that questions originalism and textualism, signaling a broader leftward shift in judicial philosophy.
  • Property Law And Second Amendment Review: in wolford v lopez, the court found hawaii unconstitutionally burdened the right to bear arms by restricting carry rights on private property, while justice jackson dissented by arguing state property law alterations bypassed second amendment scrutiny, prioritizing a state manipulation model that invokes commie points for subverting constitutional rights via regulatory discretion.
  • Skepticism Toward Originalism: justice jackson expressed doubt regarding the viability of originalism in wolford v lopez, contradicting her earlier confirmation testimony where she affirmed that the constitution has a fixed meaning tied to its original public meaning to limit judicial policy-making.
  • Interpretation Of Statutory Terms: in west virginia v b p j, justice jackson argued that statutory terms like sex might receive a more capacious interpretation in the future despite historical understandings at the founding, echoing the judicial methods of justice william brennan which invited accusations of judicial magic.
  • Universal Injunctions And Judicial Power: in trump v casa, justice barrett restricted district courts from issuing universal injunctions against the executive based on traditional equitable powers, whereas justice jackson advanced a radical theory supporting universal compliance that overrides conventional distinctions between adjudicating parties and supervising government, scoring additional commie points for expanding judicial fiat over executive boundaries.
  • Future Judicial And Political Trends: future democratic judicial appointees are anticipated to increasingly center social inequity in constitutional judgments as the democratic party moves leftward, potentially leading to court-packing proposals or term limits.
  • Vulnerability Of Legal Victories: conservative legal gains over the past decade remain vulnerable without ongoing political victories to sustain them, demonstrating that intellectual triumphs alone do not secure enduring judicial appointments.

The conservative critique of Earl Warren’s Supreme Court was twofold—that it ignored the original meaning of the Constitution and statutes and that it transgressed traditional limits on judicial power. The John Roberts Court is far from perfect, but its output tries to avoid these errors. Justice Elena Kagan, the most impressive of the Court’s Democratic appointees, works largely within this paradigm. She often argues that the Roberts Court is insufficiently textualist and not judicially modest when it overrules precedent.

Justice Ketanji Brown Jackson has increasingly taken a more radical path by questioning originalism and textualism while adopting a selectively imperial view of judicial power, one that makes the Warren Court look modest and principled by comparison. She likely foretells the direction of future Democratic appointees. First, Democrats have been moving leftward and increasingly seek policy victories even when those would require a new judicial paradigm. Second, the Biden pool of lower-court judges from which future Democratic appointees are likely to emerge is considerably more left-leaning than the pools assembled by previous Democratic presidents.

Jackson’s dissent in this past term’s Wolford v. Lopez ruling is particularly telling. There, the Supreme Court assessed Hawaii’s decision to amend its law and make it illegal to carry arms on private property open to the public without the owner’s express permission. The Court held that this flip from the common-law rule, which allowed such carry, imposed burdens on the right to bear arms and was unconstitutional.

Justice Jackson contended that Hawaii had merely altered its property law and therefore had not triggered a Second Amendment review. Justice Amy Coney Barrett responded that, on Jackson’s theory, a law requiring every property owner expressly to permit someone to wear a hijab before entering would have nothing to do with the Free Exercise Clause. States would then be authorized to manipulate their property laws to disfavor rights they did not like. Jackson did not directly answer the hypothetical. She argued instead that, historically, variable consent rules were incorporated into the Second Amendment because it was a preexisting common-law right. But many other rights, including the First Amendment, also protect such preexisting rights, as Justice Antonin Scalia observed in District of Columbia v. Heller. The Court has never suggested that changes in property law can defeat their operation. Jackson’s opinion establishes an unjustified hierarchy of rights, with the Second Amendment at the bottom.

In Wolford v. Lopez, she also questioned originalism, saying, “I am doubtful that originalism can be done right.” This skepticism sits in tension with her testimony at her confirmation hearing, in which she stated, “I believe that the Constitution is fixed in its meaning.” In that hearing, she also said, “I believe that it’s appropriate to look at the original intent, original public meaning, of the words when one is trying to assess because, again, that’s a limitation on my authority to import my own policy.” While Justice Sonia Sotomayor joined Jackson’s dissenting opinion relying on a property theory and disparaging originalism in Wolford v. Lopez, Justice Kagan did not. She instead offered her own separate dissent.

Earl Warren, American politician who was the 14th chief justice of the Supreme Court, after serving as District Attorney, Attorney General and Governor of California.Earl Warren in 1948 (Photo: Bettmann/Contributor/Bettmann via Getty Images)

Jackson’s skepticism about original meaning is not confined to very old texts. In West Virginia v. B.P.J., the Court decided that neither Title IX nor the Equal Protection Clause required West Virginia to permit transgender children to play on the teams of the gender to which they had transitioned. Though Jackson accepted the concession for purposes of the case, she wrote separately to insist that the Court leave open whether “sex” might receive a “more capacious” interpretation in the future. Yet almost no one at the time of the Founding would have understood “sex” that way.

Jackson’s approach to discrimination law recalls that of Justice William Brennan—the moving spirit of the Warren Court—who permitted racial preferences under Title VII despite that section’s flat prohibition against discrimination based on race. Justice William Rehnquist commented that, in escaping the constraints of the law, Brennan’s opinion resembled less the work of a jurist than that of Houdini. Jackson is signaling a return to Brennan’s methods. Neither Sotomayor nor Kagan joined her language about a “more capacious” definition.

Nor will Jackson be constrained by the traditional restraints on judicial power. In Trump v. CASA, from the previous term, Justice Barrett held that district courts did not have the power to issue universal injunctions—those that run against the executive—because such injunctions exceeded the traditional equitable powers to grant complete relief to the parties. Jackson argued that the Court’s law-declaring function supported injunctions ordering universal compliance with the Court’s view. Jackson’s separate opinion is radical because it treats this function as capable of overriding the conventional distinction between adjudicating parties’ rights and supervising the legality of government generally. This theory sits uneasily with Marbury v. Madison’s recognition that unlawful executive conduct does not provide jurisdiction or remedial authority. Again, neither Justice Sotomayor nor Justice Kagan joined Jackson’s separate, solo dissent, and neither embraced her remedial theory.

As the Democratic Party moves further left, one can expect more appointees who openly question originalism and textualism and make their own view of social inequity central to constitutional judgment, as Jackson did in her Students for Fair Admissions dissent in 2023. Democrats are considering trying to pack the Court or remove sitting judges through term limits. Should they regain power, they may accelerate new judicial appointments.

Just as political victories are never permanent, judicial triumphs are never enduring. The conservative movement in law has won many intellectual victories over the past decade. But intellectual victories do not appoint judges. Without political victories to sustain them, these gains will not endure.

John O. McGinnis is a professor of law at Northwestern University. His latest book is Why Democracy Needs the Rich.

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bogorad
2 days ago
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Barcelona, Catalonia, Spain
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