(no subject)

General thoughts on Trump v. Hawaii,

I'm broadly more sympathetic to the majority's legal arguments than I am to the minority's, yet I nonetheless feel it was decided wrong. That's a weird place to be.

My sense is that this sort of executive order is well within Presidential authority on immigration, and that the way to stop it legally is through Congressional intervention, not Court intervention. And yet... I think EO-1 had Establishment Clause problems sufficient that it would have failed muster to Justice Roberts and Justice Kennedy and maybe even Justice Thomas at the Supreme Court, and there isn't all that much to distinguish EO-1 and EO-2 besides a little bit of process and the removal of the explicit references to religion. So one is stuck with a messy conflict between proceduralism and one's intuitive sense of moral right. [And look, it's more than just empty proceduralism that puts this power in the president's hand. The balance of powers is finely balanced, though not perfect, and we don't want the courts to be able to have indefinite power to analyze the reasoning behind the President's decisions and conclude that some other order would have accomplished the same policy end in a way the justices prefer.]

Because of my jurisprudential intuitions here, I think there's more to like in Justice Breyer's dissent than Justice Sotomayor's. Sotomayor's dissent is basically "Trump hates Muslims, and said so publicly numerous times, so any law he passes that affects Muslims even if not specifically targeted at Muslims is tainted by this animus and thus is an Establishment Clause violation." I think that's a hard position to accept. There has to be some room for a president to operate, some space where even though he has an expressed animus, the orders he issues are perfectly legal because they would have been perfectly legal if any other president had issued them. Otherwise our legal system is unnavigable, whether a law is viable is dependent on who issued it. But Breyer's dissent makes a clear circumstantial case that the notion of discretionary waivers is a fiction designed to allow the law to look like it's within the norms of acceptable presidential action, and that in practice by mandating that almost no waivers be issued, the administration will make discriminatory animus the unwritten guiding principle of the executive order. Even Breyer admits his case is purely circumstantial, though, and all he asks for in his dissent is a remand to the lower court for further judicial fact-finding.

So this is where I am, with an unhappy sense that the Court is right and a lurking fear that the ruling will lead to great evil and harm. And a deep and futile wish that Congress would get their moral act together and fix this.

Harlan Ellison 1934-2018

I met Harlan Ellison once, at the Union Square Forbidden Planet. He was doing a kickoff signing for the release of his fabled screenplay adaptation of Asimov's I, Robot. Which, for the record, is fascinating and probably unfilmable, and even if it were filmable, Ellison claims it was never filmed because he told a studio executive asking about it that he had the intellect of an asparagus.

Ellison was perched at the counter and the line weaved throughout the store and out the door. And I don't know if you've ever been to the Union Square Forbidden Planet, but it's a big store. There was a significant line, is my point, especially for a writer who hadn't written anything important in twenty years. And next to Ellison was a minder from the store, who kept urging him to be faster and spend less time with the people on line.

Because Ellison was having a real, substantial conversation with everyone on line. Not about his books, just about his life or their life, whatever people wanted to talk about. He lectured the guy in front of me about how if he wanted to be a writer, he should go to trade school and become a plumber to have a reliable source of income. For about ten minutes. I mentioned that I had a paper to write on Descartes and he went off for me on the beauty of Cartesian logic for a couple minutes. The line took forever to move, but nobody on it was complaining; Ellison was too entertaining and too gracious. And anytime his minder from the store complained, he went full-on Ellison asshole toward him.

It was one of the most generous performances I've ever seen a celebrity direct to his fans, and it has stuck with me.



There's no question that Harlan Ellison was a terrible person, a habitual sexual assaulter, on top of just being routinely mean to people he held power over in arbitrary unjustifiable ways. His grope of Connie Willis at Worldcon, a couple years after I met him, still stands out as one of the most brazen sexual assaults in SFF fandom history, and that's saying something. And at the time, everyone in fandom said "Why are you surprised? It's Harlan." I was a baby in fandom at the time, and nothing about it was surprising to me, I'd already heard all the stories. You can't write a memoriam for Harlan Ellison without acknowledging what a repulsive human being he was. You can't write a memoriam for Harlan Ellison without saying that he was a predator that the community harbored without anywhere near sufficient censure.

And yet it somehow seems to fail to be enough to just say that he was a predator and leave it at that. I dunno. Dangerous Visions doesn't matter less because he was a predator. "Repent, Harlequin" and "I Have No Mouth" don't matter less because he was a predator.

I long for a way to acknowledge the influence Harlan Ellison had on me and on the world I inhabit, and to acknowledge that that influence must be for the worse as well as for the better.