Holdings from Supreme Court Justice Herzog

[herzogholdings]

An Education

This morning I woke up with a dim recollection of a dream. I do not recall what transpired in the dream, only of whom I dreamt. Years ago I shared a supper with a man from Aubenas. He cooked me a provincial stew with rabbit and parsley, and I commented upon his beautiful wrought iron range. He thanked me and graciously said no more, but I could tell that he was proud of the apparatus, and in my gratitude for the meal I pressed on in order to provide him with a chance to brag about his stove to a stranger. I remarked upon how well the stove fit into the design of the kitchen, and he looked up from his bowl of stew, glancing not at the range, but at a small ceramic bowl on a shelf. As I followed his gaze I noticed that the shelf occupied a place of peculiar prominence given its unremarkable freight, and that the west-facing window in the kitchen gave the bowl the rich orange luster of an overripe nectarine. It was then that I calculated the sight lines from the foyer. They led not to the dining room, as was the regional tradition, but to the kitchen. In fact, the colored glass of the entryway door, I worked out, would illuminate that bowl during the morning and midday. 

Suddenly I realized why the stove, a lovely bit of machinery but no exemplar of craft, had caught my eye. It was slightly curved, as if arching towards that shelf. The entire kitchen was. My host watched as my eyes darted from object to object, working out their secret purposes, and in each finding that it was to exalt that bowl. Every dictate of style, every gesture of form, each followed from the bowl’s placement as surely as the doggerel of a philosopher’s syllogism. An entire house, each contour implied by the aesthetic demands of that bowl. 

The bowl was beautiful, but the cottage’s slavish devotion to it far outpaced what the bowl’s beauty alone could justify. I met my host’s eyes and understood, then, that the bowl was a crude referent for an absent other. Perhaps a father, or a lover, or even the Frenchman himself, whose name I cannot recall, in his youth. He built an entire home in accordance with the barely eluctable implications of that bowl. I thanked him again for the meal, and left.

I myself have built a life, as the Frenchman had, around a secret and well-guarded totem. A Beatrice, who youth and ill-fortune ensured remained little more than a hazy figure seen through the filters of hormones and misrememberances. Each day my Beatrice grows more beautiful and more kind, as she serves as my shibboleth,my conscience by proxy. My consultations with her have became less of a formal affair than a part of my impulsive subconscious machinery.  Should, by some miracle, my Beatrice ever meet the girl I once knew in primary school they would resemble each other only vaguely, as high-German resembles the American dialect, and I should likely prefer the one that has worn smooth an apse to call home. 

That the primary school I attended ostensibly prepared me to pursue a career in accountancy, or supply chain management was of little ultimate consequence. The die were cast once I met Beatrice, and my life has since been spent rearranging windmills that I may tilt at them in her honor. In the blink of a summer, before a move to Munich, my operational metaphor had formed, and from the madness of the Amazon to the still beauty of the arctic, would operate within me to create quiet unease, and a need to impress. 

That the petitioner in Endrew F. v. Douglas County School District is dispositionally ill-suited for traditional academic success is besides the point entirely. Perhaps he is to be a shopkeeper, or a shopkeeper’s helper, or a vandal, or a rogue, in accordance with the dictates of his own life’s guide. It is of no consequence. He is entitled to a place to uncover that truth. We who have found our Beatrices are inviolably blessed, and in recognition of the plain fact that many are found in the productively oppressive climes of schools, Congress passed the IDEA. The value of a public education within the confines of a school is otherwise a nullity. For learning is simply the act of sorting the madness of an absent or indifferent God’s lunacy in accordance with the dictates of a chipped ceramic bowl, and thereby creating personal truth. This is so regardless of “aptitude for learning.” If the quantum of educational value ensured must be reduced to a test, let it be this: the IDEA provides that young people will have a system to spar with, to guide their whims and hours, until the sooner of they find their truth and steal a school camera to film an homage to it and are expelled and sent to art school, or they turn 19.

[herzogholdings]

Samsung, Apple, and Hypokeimenon Go.

Samsung Electronics v. Apple presents this court with the question of whether damages deriving from infringement upon a design patent extend to the entirety of the profits realized by selling the offending product, or are limited to the profits realized from the infringing element only. 

A version of this question was raised by the late Justice Hedberg, who opined in dicta in In Re: Mitch All Together that, 

“You know how they call corn on the cob "corn on the cob", right? But that's how it comes out of the ground, man. They should call that "corn". They should call every other version "corn off the cob". It's not like if you cut off my arm, you would call my arm "Mitch"; but then reattach it and call it "Mitch all together"

Applying this logic to the present case, Apple asserts that Samsung’s infringing telephones are “apples”, while Samsung would have us hold that it’s phones are, at best, “apples off the cob”. Both sides are wrong. 

It is fallacy to call Samsungs “Apples”. It is also impossible to take apples off the cob. The former requires a grotesque conflation. The latter an even more grotesque severance. 

This case thus thrusts the court into the thicket of noumenon-phenomenon. Is the smartphone a thing? Or is it a thing-in-itself? Do we know truly know it? When we play Pokemon do we also reveal the thing’s Do we actually play Hypokeimenon Go?

Apple and Samsung are subsuming each other but it is nonsense to try to pull them apart at this point. It is too late. One snake bit the tail of another, who in turn doubled back and bit the tail of its tormentor.  By attempting to destroy each other, the beasts became one indestructible beast. All we can do is sit by and revel in this wild violence, this singular chaos. 

[herzogholdings]

On valuelessness and Bank Fraud

United States v. Shaw was argued today. The question presented before the court is whether a statute criminalizing fraud perpetrated on a bank can apply when the crime did not actually relieve the bank of anything of value but instead filched money from a depositor. 

In entertaining this question the court misses the point entirely. It is impossible to defraud a bank for the same reason it is impossible to murder a zombie. Banks are fraudulent entities, built on hubristic notions of value and the gossamer-thin and brittle trust of a sleepwalking public. 

Global financial systems, charlatans of order, rely on chaos and discord for their very survival. The stability of the system depends on the irregular comings and goings of depositors, creditors and debtors. As soon as the animal will to crystallize in motion presents itself-- as fish school and birds flock and buffalo stampede--the collective sanity of self-interest reveals the fraud that the bank has perpetrated on its customers. A run on the bank exposes the fraud. The bank does not contain sufficient capital to feed the flock or calm the herd. The zeitgeist wreaks destruction. And all that is left is potted plants and bad art. 

The plants will break out of their pots eventually. The art will be repossessed and then sadly displayed in yet another bank, like some grotesque infection run rampant in a college dorm. 

The muzak of a bank lobby is a vain attempt to impose order on chaos, but beneath the synthesizer lies the deafening roar of thousands of animals, always seconds away from abandoning their individual turbulent, brownian motion and instead coalesce into laminar panicked motion. The symphony of the savannah conquers all. 

[herzogholdings]

On the futility of fluidity

Several weeks ago, this Court heard argument in United States Army Corps of Engineers v. Hawkes Co., Inc. At issue was whether a determination by the Army Corps of Engineers that contested property contained “waters of the United States” was a final agency action subject to judicial review under the Administrative Procedures Act. 

The arguments espoused by both petitioner and respondent are meaningless because they both rely on the vacuous notion that waters can be “of” any socially constructed farce. The absurdity of such a proposition applies just as easily to governments’ appeals to sovereignty as to the insipid cries of citizens appealing to dominion of “property”.*

Waters flow and endure through time. The conjecture of rule by the state and the conceit of “quiet enjoyment” by citizens whose enjoyment so often means building where the water will consume their homes as surely as the tide claims sandcastles are both a laughable testament to man’s incapacity to grasp his own ephemerality. And yet the court is drawn into this teapot tempest and to become complicit in the ongoing hubris of man. At its own peril does this Court ignore that the water within the teapot will return to ocean, river, and cloud. The water will outlive us all. 

*Rapanos v. United States made the same error. The issue is not that the court failed to see a significant nexus between Rapanos’ wetlands and the larger surface hydrology of “waters of the United States”, but that the court failed to see that the subterranean character of water flows bestows dominion to Hades and Poseidon. In Frau Ingeborg’s kindergarten class we were taught to chant “styx and stones no man can own but gods will always rule thee”. 

[herzogholdings]

On Many Ones, Inanely

         Two weeks ago, In EVENWEL v. ABBOTT, the first issue presented to my colleagues was ostensibly whether the “one-person, one-vote” doctrine, from the 14th Amendment, creates a judicially enforceable right – or whether it is an unreviewable political question.[1]  The second issue to be addressed, depending upon the disposition of the first, was whether districting on the basis of total population, rather than eligible voters, violates this doctrine.[2] The third issue, underlying this entire dispute, and which my esteemed colleagues failed to address, is which “one” is invoked in the “one-person, one-vote” doctrine.

           To begin with, the “one” of Plotinus can be rejected. This “one” beyond numbers – undifferentiated as a meadow’s peace, cannot modify anything without losing its meaning. Despite the monotheistic tradition of the United States, the “one” imagined by Zoaster and Moses is improper as well. A “one” which encompasses a supreme and unified entity cannot imagines a vote – an expression of mediated intent – that would be meaningless for a demiurge. Hegel’s “one” is closer, presupposing the existence of the many, through negative relation and the repulsion of the One, the same frenzied romance of the predator and the prey. However, even this imagines a unity of many into one through the form of attraction, a determinateness converting quality into quantity – and voting is not a qualitative endeavor (e.g. “choosing between two evils.”)

           Instead, the only “one” that could function within “one-person, one-vote” is that of the atomists- of irreducible votes, the smallest operative unit of democracy, fittingly espoused by Democritus. However, this atomic theory ignores quantum entanglement, and Wittgenstein’s ontological pluralism. The former, suggesting that units, such as persons, cannot be said to be wholly independent, even if they are indivisible, and thus can best be expressed in probabilistic terms. The later, suggesting that “voting,” or expressing opinion, cannot occupy the space of “one,” since the expression of knowledge or belief cannot be restricted to any single overarching ontology. A more precise restatement of the “one-person, one-vote” doctrine then, under modern phenomenology, should be “a summation of probabilities of people-units approximating one, an inadequately corrupted expression of politic-thought through the distortions of factual discourse.” Inanity.

           Voting, as an expression of a person’s will to being and personality, must be as vibrantly expressive as the person itself. I/We vote by having lurid intercourse with strangers, or knife fights in humid alleys. I/We vote by felling sentinel trees with stolen handsaws. I/We vote by epoxying a pig spleen into a Barbie playset, and screaming “Mother May I/We” when climaxing.

            To engage in this truth-speaking project, we must live in a land which maintains a prima facie truthful connection to its occupants. Which means that so long as America denies its history of lynching and racialized slavery, so long as there are more monuments to professional sports than memorials to the millions who toiled under bondage, voting in America is farce, akin to asking: “which of the following adjectives best describes your opinion about neo-colonialism: fantastic, super-fantastic, or GRRR-EAT?”

[1] This is obviously so – the “one person one vote” doctrine has been the basis of a number of decisions, including Baker v. Carr, Wesberry v. Sanders, and Reynolds v. Sims.

[2] This is even more patently obvious, and deserving of a per curiam review. The fact that representative democracy, in America, has always included apportioning political capital on the basis of people present in a geographical area, rather than eligible voters, is evident from the text of Art. 1 §2 Cl. 3 of the Constitution, as well as the travaux préparatoires for the 14th Amendment. The three fifths compromise supports this reading, and is evidence merely of the founding father’s acceptance of the false narrative of white superiority to maintain racialized slavery. Furthermore, there is some support for the proposition that, absent extraordinary circumstances, such as those present in Burns v. Richardson, a total population method may be constitutionally required.

[herzogholdings]

Wittman v. Personhuballah

The question before the court is whether a contested redistricting plan in Virginia is constitutional. The lower courts struck down the redistricting as a racial gerrymander which used race as the “predominant factor”.

This case illuminates the putrefaction of power seeking to consolidate itself. The Republicans petitioners are not from the redrawn district yet claim they have standing to sue. This absurdity rests on the bald cynicism that views electoral maps as territory seeking to be divided among politicians as demented children might  demarcate a sandbox with ever more monstrous and nightmarish shapes. The court unfortunately involved itself in the question of whether the sandbox shapes drawn by the petulant petitioners offend democracy with their careful demographic calibration. The larger question, and sadly one beyond the reach of this court, is who let such overgrown toddlers feel entitled to the sandbox in the first place?

Petitioners view Virginia as their own private garden to cultivate and organize. The court should realize that democracy is the wilderness rather than a garden. Territory cannot be so easily demarcated as a flower bed. Instead, any district should more closely resemble the furious harmonious pandemonium of the wildness.

[herzogholdings]

On Maternalistic Rights

In V.L. v. E.L., et al. this Court decides that the Alabama Supreme Court cannot unilaterally dissolve visitation rights pursuant to a Georgia court entering a decree of adoption of three children, thereby bestowing parental status to both women in a same-sex partnership. 

Alabama’s argument that Georgia lacked subject matter jurisdiction over the matter of adoption is facially absurd for reasons explained in the opinion. 

However, this Court did the American people a disservice by continuing to bandy about the objectionable and impossible concept of “full faith and credit”. 

Faith and credit are never full. Doubt and discredit invade all corners of the human psyche. Qualms lurk as pervasive and oppressive as humidity in the jungle. Relief is fleeting. One evil is replaced with another. 

In a show of irony, the river grants relief from sticky oppressiveness. By surrendering to immersion in water we escape the discomfort of immersion in the infernal fog of moist atmosphere. Likewise a court may grant relief, respite, and repose. Immersing ourselves in dense and dispassionate law we gain temporary refuge from the chaotic atmosphere amateur conflict. Atmosphere where heat and humidity are replaced by acrimony and emotion. 

Can faith and credit survive such turbulence? Maybe. But they cannot arrive intact. In the turbid Amazon the discomfort of tropical heat is replaced with discomfort of fear of what we cannot see but always suspect. The courts resemble this meandering morass of entropy, opacity, and unknowns. We accept the relief but wonder what creatures of emotion and basest instinct lurk under the surface of the page. Full faith and credit is a myth. No court can operate in a daylight so pure as to be devoid of the long shadow of suspicion and doubt. 

[herzogholdings]

On Paternalistic Burdens

The “undue burden” standard of Planned Parenthood v. Casey requires this Court to discern whether Texas’ medically unnecessary restrictions on abortion providers constitute a “substantial obstacle” to women seeking an abortion. The nation* itself is a “substantial obstacle” to women, and men, seeking hypokeimenon. 

That Texas couches its legislation, which will kill women, in paternalistic concern for the wellbeing of women is incontrovertible. With this hypocrisy the patriarchy is exposed, a fungal growth festering in the interstitial space between the nation and the land. The nation disguises its neo-colonial aspirations as paternalistic concern. This paternalism hobbles humanity, and we lose the hunter’s edge with which we once murdered our competing pithecanthropi, left their rotting corpses to dry upon the land that we would later mistake as Java, ossified corpuscular tributes to our lost savagery, our intestate gore. 

* Everything that looks like land is in actuality nation, ponds and lakes and forest of nation. The nation is treacherous, because it reflects the land. The nation is trying to disguise itself as land. The forefathers constructed the nation as a one-to-one map of the land, and lecherously strangled the land with the nation, overlaid the nation upon the loam of furtive, erotic land. Beggars and Animals and Brokers inhabit the nation. In our attempts to climb atop a perch to see the peripheries of the nation, we scramble up nation.** Up to our wrists in the brackish mudde of nation, we reach the summit and look out across nation, cannot escape nation, yearn for untrammelled anarcho-libertarian proto-Edenic enclaves, but find only the infinite regressive loops of nation.

**  Every man and woman should pull a boat over a mountain. A true mountain. The Tibesti Mountains in the Southern Sahara or Northern Chad.

[herzogholdings]

Actual Fraud

At issue in Husky International Electronic, Inc. v. Ritz is what Congress intended “actual fraud” to mean, in section 523(a)(2)(A) of the Bankruptcy Code. 

There is only ever one fraud, which is diurnal and eternal. It is the fraud of permanency, of continuity, that the tangled snare of sinew and synapse that lays down to sleep endures through that sonorous death. It is for this reason that psychology and self-reflection is one of the major catastrophes of the twentieth century. Solipsistic inquiries into a psyche which collapses like an atomic field, a mouth forever gaping, forming a forgotten word. 

Ritz committed actual fraud by purporting to be the same Ritz that declared bankruptcy. Different and different waters flow upon those who step into the same stream of commerce. However, Cratylus, not Heraclitus, had the right of it, for while it is undoubtedly so that a corporate entity cannot step into the same river twice, the truth of it is not even once. Upon speaking of the corporate entity, it is lost, like the name of the rose, like the grantor’s intent, like a brilliant cactus flower in the vast Sonoran desert.

[herzogholdings]

Anti-Harmony Canon

There is no harmony in the universe. At least, not as we have conceived it. What harmony there is is the harmony of the jungle. The harmony of overwhelming and collective murder. And we, in comparison to the articulate vileness and baseness and obscenity of this jungle, in comparison to that enormous articulation of the singular demiurge, we submit badly pronounced and half finished sentences out of a stupid suburban novel, a cheap novel, and call them statutes. 

I have a deep admiration for this harmony of the jungle, and a correlative contempt for the proffered neatness of finish that my fellow jurists consign themselves to fail towards. Thus, rather than “harmonize” statutes which are mere signals of nothingness, emptinesses which incorporate by reference other emptinesses, we can at best say as Justice G. Stein once did, that “there is no there, there.” To harmonize these blasphemous absences would be akin to harmonizing silences. Let the raucous harmony of the jungle run its murderous course, and get on with the business of fornication and obscenity, the grandiose violence of life.

[herzogholdings]

Illusory Kansas

The petitioner in Nichols v. United States alleges that his relocation from Kansas to the Philippines did not trigger a duty to notify the Kansas sex registry of his move. This argument is facially absurd, because there is no such place as Kansas. Rather, there is a seething mass of fornication and murder that occupies a square shaped region of the fly-over portions of America’s zeitgeist. Furthermore, the idea that one can ever “leave” a place, in any sense of the word that is more than obsequious devotion to the cult of mundane literalism, ignores the oppressive trauma imposed upon our psychic landscapes by the inexorable sadness of Topeka. There is a saccharine fortuitousness in the petitioner’s stated destination, given the “ misery of [M]anilla folders and mucilage, / Desolation in immaculate public places,” however, this Court rejects any insinuation of coincidence or synchronicity, in keeping with the interpretive canon of anti-harmonization.

[herzogholdings]

Standard of Review

Upon any meaningful reflection, the only standard of review is arbitrary and capricious review. This Court’s exercise of its own power is itself arbitrary and capricious. We are all manacled to the cosmos. And the universe is so void of caring for our condition that even ascribing words like “arbitrary” and “capricious” to the mindless vacuum of the aether seems like a cruel joke we tell ourselves. 

Entropy is the only thing that is not arbitrary. Fate is the only thing devoid of capriciousness. This Court wields an illusory will to order. But no monument lasts. 

[herzogholdings]

Herzog Speaks on the First Amendment

The First Amendment itself is an infantile gesture to tame the ramblings of the human mind. Much like the ramblings themselves, these words are of no particular significance. Any misplaced trust in these malleable words belies a hopeless faith in the innate ability of man to tame his barbarous ways. The nature of human beast will ultimately lead to his destruction and that of all his creations, which ultimately were of no significance as well.

[herzogholdings]

Topiary and the First Amendment

The issue before this court is the vacuousness of the human mind and the infinite nature of human suffering. Also, whether or not the City of Poughkeepsie's height limit for topiary violates the First Amendment. Shaping plants to resemble dinosaurs is merely an expression that our own species’ presence on earth is fleeting and meaningless. And no matter how this court rules, it will not change the fact that the height restriction is a feeble attempt to implant false hopes in the minds of topiary viewers. They will die, too. The plants will outlive us all. And someday after this Court and humanity is long forgotten, our planetary successors will shape bushes in the shape of our own fallen species.