True Love Waits

I'm not ready to say anything more about A Moon Shaped Pool than that yesterday, see previous post, I wrote:

True Love Waits (live). A straight-ahead acoustic ballad. "I'm not living. I'm just killing time." It works. This is one many fans have hoped would be finished in the studio. I also have a fan-made version that combines various live performances and an arpeggiated synth pattern that I really like. We'll see.

and today we got True Love Waits as the emotionally overwhelming closing song on a riveting album. "Just ... don't leave."

All My Radiohead

Radiohead's ninth album will arrive tomorrow at 2 p.m. where I live. Today, I'm going to listen to every album and EP that I have. I'll record some thoughts here. I'm going to start with Pablo Honey, to which I've only listened a few times. I'll end with the Spectre single that was released on Christmas Day 2015. It should be roughly eight and a half hours of music. All this is stream of consciousness. So, there will be typos - and bad writing.

Pablo Honey

May 7, 2016, 10:15 a.m.: And we're underway with the electric guitars of You. And I'm back in 1993 listening to 107.7 K-NACK as I pass through Austin on the way to backpacking in the desert. More soon.

10:20: Creep. Well, I should say first that this album is not why I'm a Radiohead fan. It barely contains any hint at all of what will be "so fucking special" about this band. The second track, Creep, is a bit of a hint. But, like the rest of the album, it mostly taps into a guitar-driven, youth-infused landscape that was cracked open for me by Nirvana.

I've always been the type to become obsessed with things. When I was a pre-teen it was Prince. Then, and it happened in one moment, I played Pink Floyd's Final Cut. And I was immediately obsessed with everything Pink Floyd. And Led Zeppelin. At some point, I was introduced to REM and saw them in concert on the Document tour in Clemson.

I was 21 in 1993. And moved to graduate school in Texas. In the summer of 1994, I did my first big climbing trip in the Northwest. The road trips were a big part of my life. And it just felt like my generation was coming into its own, our tastes, our music, our voices. It was such a freeing time. That's where the new alt-radio, Nirvana, Nine Inch Nails, and sleeping in the open air under the West Texas stars fit in.

Stop Whispering is a decent track. Now Thinking About You is playing. Yeah, it just seems to fit in to that early 90s zeitgeist without in any way transcending it. It sounds like a young group with talent who are trying to make music that will break through.

10:36: Anyone Can Play Guitar, now on to Ripcord. These are more interesting (nostalgic?) than I remember them. It's hard to hear them without thinking the Crash Test Dummies will come up next. I didn't own this album and am not sure when I first heard these songs. If I were a decent musician, maybe I'd be able to hear hints of future genius in here. But I don't, just the REM/Pink Floyd/punk melange of the early 90s, well-executed but not timeless.

10:43: "I will not control myself" from Vegetable. Love it. And now on to "I'm better off dead," Prove Yourself. A very, very Sugar vibe to this one. God, I'm liking these songs more than I thought I would.

10:51: Lurgee. This is a much more interesting album than I remember from earlier listens. Is the second half more compelling? Would it hold up as more than an archaeology of grunge? Here's the closer, Blow Out. This is another good song. I think if my 21-year-old self had bought this album, I'd have become obsessed with it. Yes, it's still beholden to conventions that hold it back. That will persist, to some degree, up until Kid A. But there are some good ideas in here. And focusing on the music, I'm coming around to it.

The Bends

10:58: We jump to 1995. I've been through a depressing period starting graduate school but now am in a much better place. I'm just about to become an activist within the Sierra Club and restart a local group. My wife and I have some good friends in Texas, and our trips to the desert and plans for summer mountaineering are omnipresent. Lots of trips into Austin.

I still wasn't a Radiohead fan when The Bends came out. I don't know how I missed it. I know I liked some of the tracks when I heard them. I just didn't buy it. And you had to buy CDs in those days. I think I was listening to a lot of REM, Tori Amos, Mazzy Star, the Pulp Fiction soundtrack, Cake, etc. in those days. Maybe just starting to dabble in Philip Glass.

Planet Telex is a good opening track, sounding so much more like Radiohead, at least conventional Radiohead, to me.

11:03: Now that we're hearing a much better hint of the specialness of this band, here's my theory. Good rock bands usually feature a member with unusual creative talent and other members who are good at their instruments. Special bands, those that transcend, are the ones that have two different, but unusually talented musicians. Many bands form among friends, and so there's no reason to expect that two creative geniuses will wind up in a band together. They're people who knew each other at school. But every now and then it happens. The Beatles had Paul, John, and George. REM had it. U2 has it. You can go down the list.

Radiohead somehow wound up forming around a bunch of gifted, creative musicians. And they complement one another unusually well. Jonny and Thom are a stunningly interesting combination of talents. And that's not to gainsay the talents of the other members of the band. This is not normal science.

11:11: Fake Plastic Trees. "She lives with a broken man..." "He used to do surgery..." These lines get me. This is a timeless song.

11:13: This is also one of those songs I heard in a movie that totally took me over. And it was Clueless, which we saw in the theater for some reason.

11:16: I've always liked Bones. It has that grungy verse-chorus structue, but it feels so realized and has musical turns that make me feel like I'm flying with it. And the guitar tweaks in just the right way. Again, none of this is near, for me, the genius of the later records, but there's a lot of great stuff here.

11:19: (Nice Dream). They can write melodies, and this one is just so great. And it's not just a throwaway verse and one hook-y line for the chorus. It's a continuous float. At least up until the guitars at about 2:30, which don't add anything for me. The easy guitars communicating and soft voice are pacific, but there are background elements of dread. Makes me think of How to Disappear Completely.

11:26: Partly in response to the 11:03 post, @crustopher on Twitter writes - "And to further your Beatles comparison, I've always felt the Bends/OKC/Kid A arc tracked that of Rubber Soul/Revolver/Sgt Pepper's." Interesting. I do think that there'd be a very tight symmetry if, say, Amnesiac had been their last album. From convention and popularity, to new directions and dramatic influence.

11:32: Bullet Proof ... I Wish I Was. Love this song. The noodly but focused guitar line that goes with the chorus. I do feel like that there's something more this song could do. Now on to the fade-in of Black Star. Love this song, too. The verse gets its hooks in. It's the chorus that feels more ordinary and takes me out of it. Best title though. You know, I remember so many songs from my youth where there'd be elements I wish could go on forever and conventional-sounding things I wish could be dropped. (I remember going to symphonies and wishing the tuning would go on forever, the individual and yet collective effort, bowing past one another and together. I loved that drone. And then the all-too-mathematically-perfect and crowd-pleasing bit of music would begin...) So this is one, where I just wish it were all verse.

11:42: Streep Spirit (Fade Out). Radiohead fans still love this one, and I do too. Like much of The Bends, it doesn't escape its time, but it reflects the band's embrace of a musical identity in the way Pablo Honey didn't. Well, maybe it does transcend its time. There's just so much to like on this album, as a great rock album.


11:48: Banana Co. and Talk Show Host. Banana Co. - the acoustic version - pulls the same thread as Fake Plastic Trees. Talk Show Host is excellent. It's original in its construction, sound, lyrics. You can live in it. "I want to be someone else." "You want me? Fuckin' then come on and break the door down. I'm ready." "Nothing. Nothing. Nothing." Nigel Godrich really came into his own with this one. I love songs that came before this one. But not like I love this one.

OK Computer

11:52: Yep.

11:53: This is the first Radiohead album I bought. (As I'll mention, and for reasons, I only really discovered Kid A and Amnesiac several years after their release.) It's now 1997. In a year, my wife and I will have our first son. I'm finishing a PhD and seriously devoting my time to environmental activism. At this point, I'm thinking about law school and a career as an environmental attorney. I'm writing local press releases about climate change (decrying the gag order in Congress that prevented agencies from even talking about global warming) and about the destruction of local creeks. And I'm reading lots of Ed Abbey, taking week-long trips in Canyonlands, lots to Big Bend, climbed Mt. Olympus, Rainier, failed on Baker, Shuksan, and Challenger. But these were the days.

And I bought this from the little CD shop across the street from campus. Listening at a time when I was diving into Philip Glass and local folk music. Kundun was about to come out. I was organizing evening star parties in the country for our local Sierra Club. Yeah, I'm trying, but I can't entirely recapture those days.

"What's this?" Needless to say, Paranoid Android is a great track.

12:03: "From a great height. From a great height. God loves his children." What must they have been thinking when they finished this track?

12:09: "Today, we escape. We escape." Exit Music (For a Film) is one of my favorite tracks here. The brooding space it creates for your own thoughts is classic Radiohead. Is this maybe the most post-Kid A tarck on the album? "Now we are one." Same music as the subdued "we escape" but so different. Interestingly, I've misunderstood the final lyrics to this one. I had always heard in my head "We all let you jump, let you jump" rather than "We hope that you choke." My misheard lyrics are... darker. And now on to Let Down, which at the time was my favorite track. Funny. I still like it a lot, but I wouldn't say it's my favorite at all. It has this driving techno-phobia to it - but that drive sweeps you along, a body out of control hurtling along a robotics-filled track.

12:18: Karma Police. "He talks in maths. He buzzes like a fridge." Looking ahead, this album ends so strongly. The only wrong note - and I'll see if I still think this - is Electioneering. Ideally it'd be Karma Police, Fitter Happier, Climbing Up the Walls, No Surprises, Lucky, The Tourist. Anyway, back to Karma Police. There's just such character in Thom's singing. And the song doesn't give a damn about rock norms. This is a band moving on. "For a minute there, I lost myself." Again, I rarely listen to the albums from before Kid A. This is so much better than I remember it, and I remember it very fondly.

12:21: Ha! I forgot I was listening to a rip of the very CD I used to own. And Karma Police skips where the CD was scratched. The nostalgia of remembered imperfection.

12:34: Yes, I don't think Electioneering fits. I remember not liking Climbing Up the Walls so much when I first had the album. But now, it's just so perfectly itself and creepy.

12:40: I still can't believe that No Suprises was basically the first take. Lucky starts as though it's the album closer. It sounds like a summation. "It's going to be a glorious day. I feel my luck could change." The little guitar breakdown near the end feels so right and interesting here, doesn't sound at all forced.


12:50: Meeting in the Aisle, Lull, A Reminder, Melatonin, Palo Alto, How I Made My Millions.

12:53: I'm up to Lull now, which is solid, if a bit standard for Radiohead. Melatonin and How I Made My Millions are two my favorite Radiohead songs. Radiohead B-sides would probably be my all-time favorite album if there had otherwise not been a Radiohead. And now up to A Reminder, which is a great song I guess I never listen to.

12:58: I'm not sure when I first heard Melatonin, but it wasn't until after my son was born. Maybe he was two? But "Don't forget that you are our son. Now, go back to bed." And the way the music so simply and earnestly marches lullaby-like. It's a secular prayer, a wish that resonated with me. Right up until "Death to all who stand in your way, my dear."

1:04: How I Made My Millions is right up there with the songs I most treasure. I read that this is Thom's demo, recorded at his house while his girlfriend can be heard unpacking groceries. "Let it fall." This song just feels like mournful yet joyous observation of life outside of itself - just let it. Anyway, I think different thoughts every time I hear it.

Kid A

1:12: The perfect album. The first time I heard the opening tones of Everything in Its Right Place, I was obsessed with Radiohead. Oddly, though, I didn't get this album when it came out in 2000. We'd moved to California for law school. I had a two-year-old, and my daughter would be born the month later. Money was tight, and there was no iTunes Store - and I didn't use Napster. So I just wasn't buying CDs around this time. I was listening to a lot of film music. And I think Magnolia, a PT Anderson film that looms large in my memory, came out the year before.

So it wasn't until we'd left California and moved to the East Coast that I, by chance I think, heard Kid A. That opening. I don't even know what to write. I've heard EEIRP and Kid A so many times, in so many contexts and emotional states.

Kid A, the track, is unlike anything I'd heard before. There's a more traditionally beatutiful song underneath the sonic treatment, but that treatment isn't obscuring - it's just perfect. "Standing in the shadows at the foot of my bed."

1:22: It defies explanation that this album became massively popular. I'm on The National Anthem now, and these just aren't the kinds of songs that you think would have mass appeal. But damn do they move me. And apparently many, many millions of others. This was the music I'd always wished other songs would be, shed of the guitar solo that was added because there was supposed to be a solo and shed of the standard form. How does one even describe what's so great about the ending of The National Anthem, the brass out of control but hitting all the right notes. Someone who also loved to hear the orchestra tune and sunk a little on hearing them start to play perfectly and formally, yes someone like that wrote these songs. And now How to Disappear Completely, the distillation of melody of dread that is a platform for one's own thoughts, how much less would this song be without the background drone? They got so much right on this.

1:32: Do you think some music exec listening to this for the first time and having heard the first four tracks was thinking and hoping, "Maybe there'll be guitars in Treefingers."

1:44: Reading old reviews of this album is hilarious. So many people rejected it. Crazy to think that it's now over fifteen years old. Idioteque is just starting - one of those that I knew instantly would be a favorite for a long time. I'd forgotten that I really like In Limbo, with its wandering notes, living in a fantasy. Curiously, it's Optimistic that seems ever so slightly out of place. I'm sure the label was thrilled to have something, anything, that could pass as a normal rock track. The album would work as well without it for me. "Here I'm allowed everything all of the time." Genius song, Idioteque, just works on every level.

1:55: So many details make these songs more than the sums of their parts. And this album so much more than the sum of its parts. Thom's repetition in the background for the last quarter of Morning Bell. And now Motion Picture Soundtrack, which just sounds like a closer. (And sounds a bit like what you'd have wished some Smashing Pumpkin song would have wound up. I forget the name of it.) "I think you're crazy, maybe." It's a band who, at this point, are just trying to make something great, as painful a process as it was. You can hear the purity of the motivation in every minute of this album.


2:00: True Love Waits (live). A straight-ahead acoustic ballad. "I'm not living. I'm just killing time." It works. This is one many fans have hoped would be finished in the studio. I also have a fan-made version that combines various live performances and an arpeggiated synth pattern that I really like. We'll see.


2:04: I actually think it was hearing my landlord's copy of Packt Like Sardines in a Crushed Tin Box, the Amnesiac opener, sometime in 2003?, that instantly hooked me on Radiohead again. Maybe I got Amnesiac and Kid A at the same time after hearing this track. I think I bought them on the relatively new iTunes Store. My iTunes suggests it was December 2002. Oh well, whatever it was, there is so much going on and yet such simplicity to this first track. And then into Pyramid Song. There are fluttering strings behind the dominant piano. "I jumped in a river; what did I see?"

2:16: Pitchfork's (otherwise very positive) review of Amnesiac says this about Pulk/Pull: "Powered by a gritty industrial beat, the song's intentional abstractness, for the first time ever, seems forced and caricatured." No. Now, into You and Whose Army? Yep, this is a band that had a fairly obvious route to cashing in after OK Computer. And we get this. The distorted vocals, so devoid of any vanity. Everything is in the service of plumbing the depths of seemingly everything. Then that guitar lick that carries the drone of I Might Be Wrong. Have I told you how much I love this band?

2:25: Knives Out is the most accessible song on the album, where that word accessible just means, I guess, that you can play for it someone who listens to pop music without risk that they'll hurt you in order to turn the music off. But it's also terrific. That mix of incredibly dark lyrics, uptempo beat, somber and stretched out vocal, the kind of "this is life going by" guitar jangle, it's so much more because of the relation among the details that compose it.

2:37: The sounds on Hunting Bears, the subtle whoosing behind guitars whose delay and percussiveness create this tension. It's all in the timing of the elements on this one. I could listen to twenty minutes of this. Now Like Spinning Plates. Drawn from a backwards version of another song they'd been working on (I Will, which appear later), they then recorded some of the vocals and some other elements backwards. The whole thing has trademark Radiohead dread overlying melody. "While you make pretty speeches, I'm being cut to shreds." Ending: "And this just feels like spinning plates. My body is floating down the muddy river." And finally into Life in a Glasshouse, which just comes from nowhere, well, maybe some kinship with the chaotic brass in The National Anthem. But this is New Orleans jazz in a loose, sad, grand, let's have it out, final reckoning.


2:49: Now seven singles before the next album. And I rarely listen to these, unlike the post-OKC group. But you know what? The Amazing Sounds of Orgy is damned interesting and amazing. The deep, tunnel like bass (reminds me of Burn the Witch at the moment), and the almost rotating quality of the duh - da-da-da - duh - da-da-da - duh. So good.

2:54: Fast-Track - yep, I'm down with it. The blippingly fast vocal sample. Trans-Atlantic Drawl is one that I think I usually skip over. Listening with fresh ears, though. There's a wickedly heavy electric guitar carrying the track, but it doesn't go anywhere unexpected. Ha! Yes it does. Totally forgot the synth interlude 1t 1:50. I love this part! Ok, ok, this is a cool track. I guess you could make two classic albums of Radiohead B-sides. Ok, on to Kinetic, Worrywort, and Fog.

3:00: You know what's absolutely great that I've not listened to nearly enough: Kinetic. Philip Glass-like vocal patterns, synth patterns that serve a purpose. Percussion that says its own thing. Yep, this one I'll come back to.

3:10: Worrywort and Fog. Fog is one of those Radiohead songs that's heartbreaking even if you're not sure why. I've heard some people say it's about children growing up among and within war. Or about children growing into evil generally. On to the divisive Hail to the Thief.

Hail to the Thief

3:20: This has some of my favorite songs on it. But it's also one that I almost never listen to from beginning to end. And it has songs that have brilliant parts that I wish had not been joined with other parts. Everyone, even the band I think, thinks about whether the tracking might have been better. The funny thing is that in instance after instance what some fans say is wrong with the album is exactly what other fans love about it. The album, as an album, doesn't rise above its parts, but those parts are excellent. And one person's fix is another's marring.

Even the opener, 2+2=5, which I think is great, has kind of a standard rock jam near the end. Would it have been better arranged differently? Maybe it depends on your mood. And the "raindrops" repetition in Sit Down. Stand Up. is something that is at times just the right thing and at other times not. It's like I wrote earlier, the thing about Radiohead for me is how in so many cases it appears their judgment about what was good and what they'd cut or re-arrange from the music I grew up with is the same as mine. That we identify very similar qualities as important in music. But on this album, there are a few instances where I'd cut and pieces of music that I wish could stand on their own. (There, there, e.g.)

I just know that I deeply love so many things on this album. (The last two songs especially.)

3:31: I definitely like the back half of this album more than the front. I can appreciate Sail to the Moon, Backdrifts, and Go to Sleep, but they don't move me. Getting into Where I End and You Begin now.

3:38: Yes, Where I End and You Begin ("I will eat you alive.") and We Suck Young Blood are both excellent, though definitely different from the Kid A / Amnesiac vibe. The latter, though, has a lot in common with Life in a Glasshouse - but with a lot of fascinating ornamentation, for a spare yet rich sound.

3:43: I love The Gloaming. I love the title. I love the bleeps, bloops, wandering vocal, the "they will suck you down to the other side." And the fact that it leads into There, There. There, There is one of the all-time great Radiohead songs. And I love it, the lyrics "singing you to shipwreck," and "Just because you feel it, doesn't mean it's there." I just wish it ended around the three-minute mark. It's the first part that works so well, lyrically, sonically. The jammy part, not as much.

3:53: When I first heard that Like Spinning Plates was I Will run backwards (or at least based on it), I was, well, surprised. I love I Will, kind of in the way I love All I Need from In Rainbows. They're earnest and meaningful, not elliptical in a way that totally leaves you with your own thoughts - another quality I love about some RH songs. Now on to Punch Up at a Wedding, which is fine but is not my favorite. Next will be Myxomatosis, which many people love, but I haven't really, at least before. Looking forward to Scatterbrain and Wolf at the Door, which would be on my desert island disc.

3:59: Yeah, I love Myxomatosis sometimes. The out front overloaded blasting line that carries through right up to the "I don't know..." part. And the synths working against the rest of the song. It feels like being lost and in trouble. Ok, Scatterbrain, which is just beautiful. I'll never understand why some fans don't like it. The vocals are set as if they're blown around, vulnerability and violence and, again, being lost. "I'm walking out in a force ten gale. Birds thrown around, bullets for hail. The roof is pulling off by its fingernails. Your voice is rapping at my window sill." It's one of those RH songs that feels inevitable and drives right through you. "Somewhere I'm not Scatterbrain."

4:04: But for the fact that I love Videotape so much, I'd confidently say that Wolf at the Door is the greatest close of an album ever. Thom Yorke channels insanity and violence in a torrent of words. And the music doesn't let you off the ride. It feels like something smashing and not stopping. "I wish you'd get up get over. Get up get over and turn the tape off."


4:07: Gagging Order, I Am Citizen Insane, Paperbag Writer, Where Bluebirds Fly

4:09: I don't think I'd heard Gagging Order before hearing it on Jaydiohead (the Jay Z / Radiohead mashup). But what a simple and beautiful song. And the dread is there: "A couple more for breakfast. A little more for tea. Just to take the edge off." For me, it's someone who wants to be left alone to their drugs, no matter the inevitability of death. "Move along. There's nothing left to see. Just a body. Nothing left to see." Citizen Insance is a nice instrumental.

4:22: I Am a Wicked Child doesn't do anything for me. Paperbag Writer is fine. Where Bluebirds Fly is probably the most interesting of the three, all rhythm and bleeps and bloops, with synth layering. After this song, it's on to In Rainbows.

In Rainbows

4:30: October 10, 2007, my kids were 9 and about to turn 7. And I was celebrating Radiohead Day and blasting In Rainbows while we were having breakfast and getting ready for school. By this point, my taste had very much turned to experimental music and modern classical. Looking back, I see we also listened to a lot of Arcade Fire, Sigur Ros, and Mozart (with whom my daughter was obsessed). REM Day (Accelerate) would happen the next year.

4:32: As much as I love this album, I don't love Bodysnatchers. It's fine, but the rest I absolutely love. So there's that. There is, though, a part of it I like, the part at 2:15 with the soaring but backgrounded guitar. Yeah, this is good.

4:38: I just don't see how it would be possible to dislike Nude. When we get to Weird Fishes, the whole vibe is very relaxed and yet still intense. I'm loving this so much right now. "In the deepest ocean. The bottom of the Sea. Your eyes..."

4:51: Such a strong album. If I had it my way, I might send All I Need into Reckoner and drop Faust Arp. But when Last Flowers is a B side, you know there's a plethora of material. What's striking me again is just how restrained it all is, especially compared to Hail to the Thief. I mean, there are strings and lots more going on, but All I Need and Reckoner have a pure and unadorned sound.

5:00: I almost always skip over House of Cards. Listening to it, I wonder if it's because it's so restrained that there's not enough musically interesting to me and nothing emotionally compelling even if simple? Or is it just that I'm impatient for the last two songs? As with Hail to the Thief, I often listen just to the last two songs. Jigsaw Falling Into Place. "Come on and let it out ..." and then the part after "dance, dance, dance." "Not just once..." This whole part. Wow.

5:07: I guess Videotape is probably my favorite Radiohead song. The themes of comprehending death, clinging, being satisfied, these I keep turning over. And this deceptively simple but powerful song is always there. I reach for it often. And I feel less alone.

In Ranbows Disc 2

5:18: When I first heard disc two, I was blown away that the songs were easily good enough to compose another album. It may have been the first set of Radiohead B sides I'd heard. Go Slowly is beautiful. Last Flowers is transcendent, and I wish it could have found its way into the In Rainbows track listing. "It's too much. Too bright. Too powerful." I have a literal interpretation of what's going on in this song in which an elderly person can't keep up and the world is caving in and the appliances and everything have gone beserk. But I also hear in it the basic question: how do we cope with our reality? I love it. Listened to it over and over again over the years.

5:25: Up on the Ladder is the perfect song to follow Last Flowers, as it, musically, creates tension in an opposite manner. Still classic Radiohead, but it layers in sound upon sound, pulls them away, builds them in again. "Snake charming" is a lyric and the feeling. It has that elevating synth sound that deepens the mood.

5:34: I'm not a huge fan of Bangers and Mash, which just ended. 4 Minute Warning is a nice step-down. Funny because I can't think of another Radiohead song like it. I keep thinking it reminds me of something else. Sounds like a closer, though.


5:37: Unravel by Björk is an amazing song. And this cover was a great surprise. But not, because it's a great song. "The devil collects it. With a grin."

5:45: These Are My Twisted Words is a Radiohead jam, easy to listen to and to like but hard to love. (A little of Hunting Bears in the guitar.)

5:49: Last single before The King of Limbs is Harry Patch, which might have been released before These Are My Twisted Words. I love Jonny's film work for PT Anderson and had listened many times over to the soundtrack for There Will Be Blood when this was released. I was excited to hear the string arrangement - with the undertone of dread recalling How to Disappear Completely. But then come beautiful cycles of strings coming in waves, over which Thom sings in a high falsetto. The lyrics are the words of Harry Patch, the last surviving British soldier who fought in the trenches in World War I. I'm taken back to the first time I heard The Final Cut. And the song itself sounds like a field of poppies. This is among my three favorite Radiohead songs.

The King of Limbs

5:53: This album stands in such contrast to In Rainbows for me. I absolutely love it. But Radiohead Day for this album came at a time when my kids were a bit older and when I was absorbed in a research project about which I was passionate. I remember listening to this and the related singles on repeat as I typed and typed. Bloom is magnificent. A track with so much going on that I hear new things, new ways to hear it all the time. Thom Yorke performed a solo piano version at Pathways to Paris last fall that is well worth checking out. Look it up on YouTube or soundcloud.

5:59: Mr. Magpie is one I'd replace. I've never connected with it like I have with The Butcher and Staircase, which followed as singles. What am I missing in it? The other song I'd replace, although I'll give it a fresh listen when it comes up, is fan-favorite Separator. It may be the only Radiohead closer that I like significantly less than other tracks on the album.

6:06: Little by Little feels too easy. Of course I'm going to like this song, and I feel like they could write songs like this by the gross. It's the most Radiohead-y song on the album. And I love it. Then we get to Feral, which gets more interesting and affecting with each listen.

6:19: The subdued but vital feel of the Lotus Flower / Codex /Give up the Ghost tracks is palpable. It transports me back to a particular place, particular struggles. And it best encpasulates the organic themes of the album. Give up the Ghost in particular got its hooks in me when I first saw a solo performance by Thom on YouTube. I find myself having it on the musical loop in my mind, sometimes humming it. It's rich with yearning, with a sense of wanting something more, but more real. "Don't haunt me."

6:25: What do I not get about Separator? I like it, but I don't love it the way some seem to. And I love this album. So I don't know. I do love the light touch of the guitar at the end, at the "if you think this over then you're wrong."


6:30: Supercollider, The Butcher, The Daily Mail, Staircase, Spectre

6:33: I was one of the poor fools hoping for an Amnesiac for the King of Limbs. We didn't get it, but we did get some finished singles. Several were previewed in solo shows by Thom. Supercollider was one, which I'm not sure if I prefer just on piano or in this produced version. It's interesting. The Butcher, though, is one of those songs that makes me wonder how they do it. So much to think about on that one.

6:44: The Daily Mail and Staircase. Staircase was a song I fell in love with after seeing a video of Thom performing it on solo guitar - I think in LA. It's a beautiful version that I like a little more than this live from the basement version. I listened to this on repeat while working in March 2011. "A magnetic pull." "Let me take control." This song deserves more. Just one more song after this.

6:50: Spectre. Well this was a surprise. Maybe the most beautiful, orchestral Radiohead song yet. It's a perfect Bond theme, evoking Nobody Does It Better, which Radiohead have covered and which was always a favorite of mine. The vocals are sublime. And the way the melody and strings are brought together in a fully realized idea. It sounds more mature and melodically interesting than much they'd done before. My excitement for the new album went through the roof after hearing this.

6:53: And that's it. Yes, I've heard Burn the Witch and Daydreaming, and, yes, they're both amazing. But I'm trying my best not to listen to them too much before the album drops tomorrow. Admittedly, I've failed at that. I've probably listened to BTW over a hundred times, and a couple dozen for Daydreaming. Anyway, I was hoping to capture something of what it's meant to me to age with this band. But I don't know if I've done that. What's amazing to me is just how vital they are now. I think their best work is ahead of them, mostly because they want it to be.


A random thought upon beginning a re-reading of Obergefell, which is really just another way of putting a well-known position in a well-known dispute:

The constitutional originalist strives to uphold the terms of a bargain among a people utterly alien to him, people whose culture and reasons he surely and inevitably fails fully to understand much less feel and intuit. He prefers adherence to this bargain rather than that struck by his more recent predecessors: the bargain concerning what to do with all the bargains that came before. And here we all are, giving shape to the past's now-formless physics and calling them intentions. We could indeed adopt a model of law that pretends to reanimate minds and eschews a more direct aim at living together acceptably. It would instead take a purposefully indirect route toward that goal, fearful that anything else would make kings of those at whose feet decisions fall. But that way too makes a king, a king of the one who raises an authority partly from the dead but entirely from opinionated debris and puppets the zombie's mouth.

Hold Up!

While our podcast takes a week off, I'm posting this "pilot" episode of a show called Hold Up! that Joe and I thought of doing last year. We recorded it at the beginning of this year, and I gave it one pass of editing. The premise is that we talk about a movie we remember liking from long ago, pause the recording and watch the movie, and then return to discuss whether it holds up. It would feature Joe, me, my spouse Meredith, and other guests. For this one, we watched Weird Science.

I don't know whether we'll ever record any more of these. Our lives got much busier after this recording was made. But maybe some of you will enjoy this bit of goofiness.

Submarine Statutes

On the podcast, in reference to the Religious Freedom Restoration Act and the Hobby Lobby case, I've described what I see as a troubling kind of congressional action: the enactment of statutes that would affect the interpretation and implementation of all future statutes. The RFRA requires, roughly, individual exemptions from federal laws that interfere with religious practice unless the interference is strictly aligned with a compelling governmental interest. What a new statute will mean in a future case depends not only the interpretation of the law itself but also on the interpretation of its interaction with a prior law, the RFRA, in a specific factual setting. So too lies hidden and potent the debt ceiling statute that restrains the government from borrowing in excess of a specific amount, even when Congress has mandated spending that would require such borrowing. These submarine statutes lurk beneath the layer of newly enacted statutes, potentially dramatically changing the meanings of enactments from what a plain reading of them in isolation would have suggested.

Of course, the venerable Dictionary Act is an example of such a statute, and I don't see it as particularly problematic. The trouble arises when there get to be too many such statutes and when their combined or even singular effects come to be too unpredictable. To create intentional products, legislators need to understand what the words they write will mean, at least in a large sense. Yes, the central dispute among the proponents of the various methods of interpretation is what it means for a text to "mean" something. But a unifying principle among all schools is that a legislator who wants to accomplish some task ought to be able to do it, within the bounds of the Constitution, if he or she speaks plainly enough about that thing. The meaning of any law in a regime thickly patrolled by submarine statutes would be a most uncertain thing. It would begin with one zone of meanings in the mind of a legislator, more or less connected to those in other legislators' minds, but then diverge in meaning and application through a cascade of interactions with all the submarine statutes, like a grand old game of Plinko, a puck bouncing from place to place in a random walk.

That's what caused me to raise an eyebrow at a portion of a speech by Marco Rubio that I otherwise found agreeable for its focus on reigning in federal criminal laws.

It is for this reason that I have proposed that Congress establish a national regulatory budget, which would require that new, costly regulations be offset by the repeal of other existing regulations.

It's an odd proposal to be set amidst other sentences arguing for greater rather than lesser congressional control over agency rule-making. This “regulatory budget" would appear potentially to restrain an agency even from enacting regulations clearly contemplated in later-enacted statutes and therefore clearly intended by the enacting Congress. Of course, a new statute that Congress desires be given effect without regard to other statutes can include a general or specific waiver. But that’s the very problem with submarine statutes. They require Congress when doing anything new to contemplate and keep track of their existence, to anticipate whether they might present a problem, and to enact specific waivers. A court could come to the rescue by observing a fundamental incompatibility and giving effect to the later-passed statute. But when the alteration caused is something less than outright conflict, the meaning of a statute can deviate in all its interactions from anything rational, intended, or plainly inscribed in its text. That’s no good.

I’ll stop here for now. I’m aware of a great many arguments concerning provisions and canons that operate very much like submarine statutes that we have come to accept. And so some further account of the complexity argument against submarine statutes would have to consider them.

The Latest Obamacare Challenge

I was not a fan of the argument that the individual mandate at the heart of Obamacare somehow was beyond the power of Congress to impose. But it at least was interesting and thought-provoking, even if ultimately unpersuasive. That it was partially accepted by the Court, though I maintain only in dicta, was unfortunate.

The latest assault on the Act has no such redeeming qualities. While I can appreciate academic curiosity over the statutory language – it would make for fun debate in hallways, the faculty lounge, or the classroom – the challenge here is, for all practical purposes, positively nihilistic. To tell you the truth, I don't think I can put the problem as well as the challengers themselves did:

The Government tries to make the statutory issue seem complex, but it is not. Only three ACA provisions need to be understood. Section 1311 instructs that states “shall” establish Exchanges. Section 1321 clarifies that in case of a state’s “failure to establish [an] Exchange,” HHS “shall ... establish and operate such Exchange within the State.” And then the Act grants subsidies for coverage “enrolled in through an Exchange established by the State under section 1311.” Any English speaker reading those provisions would immediately understand that if a state “fail[s] to establish [an] Exchange” and taxpayers instead enroll through an Exchange established by HHS under § 1321, no subsidies are authorized.

(Citations omitted.) Here is where we agree:

  1. The issue is not complex.
  2. Only three ACA provisions need to be understood. (Though others make the challengers' argument look even worse.)
  3. The statute's meaning can be immediately understood by reviewing the text. (Though understanding the context and history of Obamacare makes you wonder if you've been living in the same world as those who claim seriously to believe the story the challengers tell.)

What they think: that "such Exchange" clearly and unambiguously does not count as a "State Exchange" but instead means some other kind of exchange that is subject to none of the provisions relating to state exchanges. In particular, the participants in "such Exchanges" would receive none of the subsidies the Act provides for participants in "State Exchanges", thereby – as these very same lawyers have previously argued – undermining the entire statutory scheme. (For reasons relating to something called the Chevron doctrine, if the language is at all unclear, the government's interpretation should win.) Their prize for this feat of language wrangling would be, by 2016, the denial of insurance subsidies to about seven million people, with various and horrible ripple effects, reversing the progress we've made on the problems of and caused by the uninsured. All this because of an unwillingness to accept what the word "such" very clearly means, and, worse yet, because of a bizarre refusal to concede that it's at least unclear that a federally operated exchange in a state is not a state exchange within the meaning of the Act.

It's bad enough that the Supreme Court agreed to hear this case. But if somehow textualism were used to strike down the heart of Obamacare on these grounds, it would not only turn the Supreme Court into a laughingstock, it would denigrate textualism itself as patently not the serious, structurally-focused, and ideologically neutral method its defenders have struggled to claim it to be. For a more detailed argument, one that this challenge does not deserve, read Abbe Gluck's thorough analysis.

No one has to be a supporter of Obamacare, single-payer, or any other kind of health care reform. No one has to give up arguing to adopt another approach. Indeed, there may be valid legal challenges to aspects of the ACA. But just because you can typeset an argument to look like a brief, just because you really hate Obamacare, just because language could, in the abstract, be construed to say something it obviously does not mean, and just because, perhaps because of the confluence of these reasons, you have come honestly to believe in the righteousness of your objection: these are not reasons to treat a fundamentally unserious argument as anything more than an amusing curiosity. Unfortunately, the stakes are high, and I'm not amused. I'm open to being shown the error of my ways. But when you place on the word "such" the weight of the health of millions of people, you better have a good argument that Congress did not mean what it and everyone else on the planet believed it meant.

Bound by Federal Law

Ours is a legal system with two sovereigns. At least, that is the often repeated principle expressed in a number of important decisions carving out zones of authority and lines of power among federal and state actors. As someone who is not a scholar of this dual sovereignty problem, often taught in law school in courses called “federal courts” or “federal jurisdiction,” the ornate body of precedent that has grown up around the obvious sources of friction between competing and cooperating governmental bodies is daunting. But the questions it is meant to answer are sometimes disarmingly simple.

One such simple problem has arisen from the Supreme Court’s denials of petitions to hear appeals from lower federal court decisions striking down bans against gay marriage. These denials are not themselves “law” in the sense that all lower federal and state courts are bound by anything they might imply. But when the Fourth Circuit Court of Appeals (the court that hears appeals from federal trial courts, referred to as the federal district courts, in South Carolina, North Carolina, Virginia, West Virginia, and Maryland) struck down Virginia’s marriage ban, and the Supreme Court refused to hear the case, that decision became binding precedent for the federal district courts in the Fourth Circuit.

The simple question: Are South Carolina state officials, including judges, bound to follow federal constitutional law as interpreted by the Fourth Circuit, as they would be had the Supreme Court decided the case? To be honest, I had always assumed the answer was yes. Michael Dorf wrote confidently that the answer was no and said as much on our show (which was as good an excuse as any to try to convince Michael to take the time to hang out with us).

He is, in the important sense, apparently correct on this point. But part of me still wonders: what does it mean to be right or wrong about this kind of question? Without knowing that, we have difficulty answering some of the questions that might follow on this one, questions such as: Is South Carolina entitled to interpret the Fourth Circuit’s constitutional pronouncements as binding? Here again, Michael says no. But Steve Vladeck and Marty Lederman both say yes. (Steve’s writing elaborates on points he made in the opening minutes of his appearance on the show.) Hmmm... I explore this as an outsider to the field and will probably get a lot wrong. But, in my experience, voicing your thoughts is the quickest way to have them corrected. So here goes. And I anticipate updating this post to highlight the error in my ways.

The Law’s Surface and the “Easy” Answer

Let’s start with the position that everyone in this debate seems to take for granted: state courts are not bound or required to follow the interpretations of federal law contained in the holdings of federal courts in whose geographic area the state lies. As a relative amateur on these issues, I do not see why this is necessarily so.

Behind all of the positions on this and the ensuing questions are a single constitutional provision and some related statutes. The constitutional provision is the Supremacy Clause:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof ..., shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

This clause means at the very least that South Carolina state court judges, and by implication South Carolina officials, are bound by federal laws, including the Constitution. And so if the Constitution forbids bans on same-sex marriage, then an attempt to prohibit such marriages or a refusal to recognize them would be unlawful and must be so recognized by any judge, federal or state.

The problem is that when the Supreme Court has not spoken, it may not be clear what exactly federal law is. The point of view Michael espouses is consistent with a position Justice Thomas took in concurrence in Lockhart v. Fretwell. In a nutshell, the idea is that until the Supreme Court has spoken, there is no authoritative interpretation of the sources of federal law and that state courts are equally empowered as lower federal courts to provide one. Here is Justice Thomas:

The Supremacy Clause demands that state law yield to federal law, but neither federal supremacy nor any other principle of federal law requires that a state court's interpretation of federal law give way to a (lower) federal court's interpretation. In our federal system, a state trial court’s interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located.

The argument goes, though I do not think it has been articulated plainly by the Supreme Court, that binding precedent, meaning a decision that obligates another court to rule in other cases in ways that do not contradict the necessary reasons contained within the decision, exists between courts only alongside a formally hierarchical relationship. That is, one court is bound by the decisions of another just in case the former court’s decisions are reviewable by the latter.

Let’s call this the “precedent follows supervision” theory. Now, this theory does not strike me as obviously or necessarily following from the Supremacy Clause or founding-era cases interpreting it, but let us assume it for the moment. Its truth would mean that, indeed, because state court rulings on matters of federal law are formally appealable only to the United States Supreme Court and not to lower federal courts, rulings on issues of federal law by lower federal courts are not binding on state courts.

And so, the Fourth Circuit’s conclusion that marriage bans like Virginia’s are incompatible with the Equal Protection clause of the Constitution does not require the South Carolina Supreme Court so to hold if it disagrees in a case raising the issue before it. A congressional statute could alter this state of affairs. An inverse of the Rules of Decision Act (which requires, after the famous Erie case that federal courts apply the legal interpretations of state supreme courts when confronted with issues of state law) could require state courts to follow federal decisional law, the decisions of federal courts with federal jurisdiction over the state courts’ respective geographic territories. I suppose there could be a non-textual argument that such a statute would violate general principles of federalism and state dignity, but it would not be sensible to me as anything more than an attempt at constitutionalizing a structural policy preference. (After all, under such a statute state courts could follow the lower court precedent, signal their disagreement, and forward appeals to the Supreme Court, which is, well, supreme anyway. And so I wouldn’t see the impact on even aggressive understandings of federalism as all that great.)

The states are actually divided on the question of whether they are bound, as a matter of federal law, by the precedent of the federal circuit courts of appeals in whose geographic jurisdiction they are. Some courts have cited the “precedent follows supervision” theory, but others, including maybe South Carolina, apparently reject it. See generally, pages 16-26 (which read quickly) of Colin Wrabley, Applying Court of Appeals’ Precedent. But textual or precedential justifications for the theory are hard to come by. In fact, other than general resorts to federalism, the argument seems to be mainly of the “how would this work” variety: would federal district (trial) courts’ rulings be binding, and if so, only within their limited geographic range or more widely, etc. See the single paragraph on page 27 of Wrabley’s article to see the summary. These practical concerns, though, are offset by equally weighty practical concerns on the other side: state officials might be subject to one set of rules in federal court and a different set of rules in the state court across the street. True, the Supreme Court could take up and decide such a federal-state split on issues of federal law. But so too is it easy to imagine a simplifying Erie doctrine for the state courts at the end of which would still lurk potential Supreme Court review.

Michael Dorf gave arguments for the “precedent follows supervision theory” during our show, and he later summarized them thusly, cautioning that this was not a full defense:

Congress could have authorized appeals from the state courts to the lower federal courts on questions of federal law (as stated by Justice Story in the landmark Martin v. Hunter’s Lessee); indeed, Congress perhaps even could have required state courts to follow lower federal court precedents on federal law; but there is no reason to think that Congress ever did obligate the state courts to follow lower federal court precedent; and given the Madisonian compromise (i.e., the fact that Article III leaves to Congress the decision whether to create any lower federal courts or instead to leave federal claims to be litigated in the first instance in the state courts, absent the limited original jurisdiction of the SCOTUS), the default assumption must be that state courts would be bound by federal law decisions of the SCOTUS only.

This hints in a more fulsome direction, relying on historical inferences that many might find persuasive. But I don’t know. I certainly see the argument that we in fact have coordinate systems of courts that all respond to the authoritative rulings of the US Supreme Court on issues of federal law but that otherwise leave for state courts interpretations of federal law. There are, though, at least two important caveats that set up a forum-shopping problem, among others involving uncertainty, caused by the “precedent follows supervision theory.” First, courts must generally give preclusive effect, preventing the re-litigation of claims, to cases actually decided in other courts that necessarily included the same parties. I’m being brief and rough with this point.

These systems are more porous than just that, however. Second, parties with a federal claim may move litigation from a state court to federal court, a process called removal. This process doesn’t really, or maybe even nearly, replicate the hierarchical relation that would trigger bindingness under the “precedent follows supervision” theory (see, e.g., this Note about the unanimity rule), but it does exacerbate the problem of forum shopping. If dueling interpretations of federal law are offered up by courts that parties are free to choose among, then gamesmanship in choosing courts and in choosing parties to add to the lawsuit may control the law that applies. Again, the Supreme Court can always step in to resolve these problems ex post, but that is true no matter what rule of bindingness we choose.

Were I writing on a clean slate, not only would I make circuit court rulings binding on the states in the circuit but I’d go further to rebalance the relationship between federal and state law. I might favor the elimination of diversity jurisdiction, radically cutting back on federal criminal laws (leaving more authority in the states), eliminating AEDPA deference in habeas corpus, increasing the occasions on which federal courts certify questions of law to state courts, and doing a number of other things that would help consolidate responsibility for federal law in federal authorities and state law in state authorities. The slate is not clean, but it’s not exactly covered in writing either. As usual, I basically agree with Guido Calabresi on these matters.

There is, of course, one other, exceedingly practical reason for just adopting the “precedent follows supervision” theory whatever our principles. A state supreme court faced with a federal legal question but which refuses to apply the legal interpretation of the relevant federal court would only be reversed after appeal to the Supreme Court. But it is difficult to imagine, though I guess not impossible, the Supreme Court’s deciding that the state court should be reversed for not following the lower federal court’s precedent while also refusing itself to pass on that precedent. But if it did rule on the issue to which the precedent speaks, then the state court would only be reversed if the Supreme Court disagreed with it on the issue of federal law. Whether it followed lower court precedent would be irrelevant. Upshot: unless the Supreme Court reverses without deciding the federal question, the state supreme court is in no worse a position for having refused to follow the lower federal court.

This practical reason flows from the same idea that animated the theory to begin with, that binding precedent only really exists in a hierarchical relationship. But, just in point of fact, there are many state courts that have declared themselves bound by lower federal court opinions and have operated on that assumption for quite awhile. It can be done, even it cannot effectively be (or at least is not likely to be) enforced by federal authorities.

So, would the Thomas/Dorf position be adopted in the Supreme Court in a case presenting the issue? I think it likely would, but not because it is “correct” in an uncontroversial sense. As far as I can tell, there are reasons and practical difficulties on each side of the question. Rather, it would be adopted in a decision citing general historical facts, the practical difficulties of precedent without hierarchy, and very general structural and “dignity” arguments. Fine, maybe even the more appealing argument, but hardly conclusive. That said, and to emphasize the opening caution, I’m not a federal courts scholar, and I eagerly await being put in my place by those who are.

A Further and More Controversial Position

What surprised me, and struck me as quite clever, in our conversation with Michael was the further and bolder claim: Not only is South Carolina not bound by the Fourth Circuit’s ruling, but it is required not to afford that ruling the status of binding precedent. Shockingly, at least to me, the Supremacy Clause, the very clause that gives superior status to federal law over state law, requires the South Carolina Supreme Court not to treat the lower federal court’s ruling as authoritative.

Here’s how Michael puts it in his post:

I would say that the state court’s obligation in deciding the content of federal law is to make its best efforts to determine the content of federal law, not to gratuitously outsource the job. After all, if the South Carolina courts can gratuitously decide to accept the rulings of the Fourth Circuit as definitive, then they would seem to be able to accept some other body’s determinations, like the Second Circuit’s, or the views expressed on this blog. In each case, the South Carolina courts would be violating the obligation (under the Supremacy Clause) to be bound by federal law, not somebody else’s understanding of federal law, even if that somebody else is learned in federal law.

Note that this appears to follow from the “precedent follows hierarchy” theory that would say vis-a-vis the South Carolina Supreme Court there’s nothing particularly special about the Fourth Circuit as against any other non-superior court. And, thus, to apply some other random institution’s interpretation of federal law is not yourself to apply federal law.

This position, going a step beyond the position I found questionable above, is more controversial among people who know this stuff. Steve Vladeck, for example, does not buy it for reasons of existing doctrine and good policy. Steve’s argument is that, doctrinally, the Supreme Court’s decision in Danforth v. Minnesota establishes that state courts can retroactively impose new rules of constitutional law (rules protective of criminal defendants) identified by the Supreme Court, even when the Supreme Court itself does not require these rules to be applied retroactively. Thus, state courts may, at least in this instance, decide for themselves whether to be bound by a federal law that the Court has said is not binding.

On policy, Steve writes (emphases his):

If state courts are the authoritative expositors of state law, and they choose, as a matter of state procedural law, to be bound by a federal precedent that isn't otherwise binding as a matter of federal law, I don’t see how that raises any kind of federal constitutional concern under the Supremacy Clause.

And in comments to Michael’s post, Marty Lederman objects:

I don’t see how the Supremacy Clause -- which merely prescribes that federal law prevails over inconsistent state law -- imposes any such “follow your own best lights”/anti-deference principle. To be sure, it, along with the adjacent oath clause, requires state judges to be “bound” by federal law -- but that’s an obligation that applies to all judges, federal, state, and local, and indeed to all government officials. That obligation doesn’t tell such judges and officers how to assess what federal law requires, let alone prevent them from relying upon the views of others in trying to most efficiently and reliably adjudicate federal questions in a complex federal system.

Michael’s responses in comments are interesting, and he has promised a follow-up blog post, one that may well make wish I’d never started this one! But these responses to his position represent my own intuitive reaction, though they are doubtlessly backed by far more extensive familiarity with case law than my own. In the end, I think we’re left trying to answer the following question:

What Does It Mean for a State to Decide What Federal Law Means?

Could South Carolina pass a statute that requires its courts to give authoritative weight to the Kentucky Supreme Court’s interpretations of federal law? Could its courts decide to do so on their own? Could it establish a South Carolina Commission of Federal Law that produced authoritative interpretations of federal law consistent with those of the United States Supreme Court but otherwise discretionary? And what exactly is federal law detached from an institution that interprets it?

The debate between people who are familiar with these kinds of issues seems to turn on whether the decision about how to decide what a federal law means is itself a question of federal law or a question of state law. Let me put that another way. Is the choice of method for determining the proper interpretation and application of the Equal Protection clause a choice constrained by federal law or by state law? I would go further, though. Even if federal law somehow controls the way in which a state court must determine the meaning of the clause for a case, in the absence of Supreme Court guidance, what exactly is this federal meta-law?

I was reminded by these questions of the concurring opinion by Justice Rehnquist in the infamous case of Bush v. Gore. There, the concurring justices found fault with what they saw as the Florida Supreme Court’s frustration of the Florida legislature’s intentions as expressed in state election statutes, in a context in which the federal Constitution specifically authorizes the manner of choosing presidential electors to be determined by the state’s “Legislature.” The concurrence stated:

[I]n ordinary cases, the distribution of powers among the branches of a State’s government raises no questions of federal constitutional law, subject to the requirement that the government be republican in character. See U.S. Const., Art. IV, §4. But there are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State’s government. This is one of them. Article II, §1, cl. 2, provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct,” electors for President and Vice President. (Emphasis added.) Thus, the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance.

I have always had difficulty making sense of this. The concurring justices give an interpretation of the constitutional reference to the “direct[ion]” of a state’s “Legislature” as though state law can be definitively identified with a single institution irrespective of the state’s own rules for how such directions shall be interpreted and applied. What does a bare statute mean disconnected from the processes the state has established for applying it and determining its meaning? Where exactly is it written that a state must identify the “direction of its legislature” in a particular way? (And what is a “legislature” in the abstract?)

There is, perhaps, one constitutional source of constraint on a state’s ability to determine the content of law, whether federal or state, and that is the so-called Republican Guarantee Clause:

The United States shall guarantee to every State in this Union a Republican Form of Government ....

Perhaps this clause (but doubtlessly the questions would instead be shoved into abstract Due Process and federalism arguments) would prohibit states from alienating to other states’ courts the job of interpreting their own legislative acts or departing too much from a model of accountability that connects the determination of a law’s meaning with citizen input in ways that hew closely to the legislature-court dynamic, the dynamic that is all we really know. But such a principle, in whatever clause, could not possibly be a bar to a state’s granting interpretive authority over federal law to another court it believes is better suited or able to do so. Or, even if it feels able, the state may want to avoid the forum-shopping and instability that could accompany an intra-state conflict over the meaning of federal law. Why can a state not decide to do that? Is there a federally mandated principle of meaning-interpretation that gives non-delegable power to state courts to interpret federal sources of law? In other words, and this is the point connected to my current work, does the Supremacy Clause or the inaction of Congress in providing for lower federal court bindingness somehow carve out from the set of reasons a court uses to determine a law’s application rules of authority recognition?

I do not see how it could be so. Surely South Carolina could conclude that the meaning of federal law as it interacts with its own state law is more likely to be identified correctly by the court that specializes in that kind of question: the Fourth Circuit. I admit it could also conclude other institutions, legal or not, might be good at answering such questions and recognize them as not only very persuasive but authoritative. (Keeping in mind that the court’s decision that another court is authoritative is revisable by the delegating court.) But, as discussed above, South Carolina has many practical reasons for concluding the Fourth Circuit is the right federal court to recognize as authoritative on issues of federal law. And when it adopts as a reason for decision that the Fourth Circuit decided a federal question a certain way (such reason being characteristic of authority recognition), I do not see that as a refusal to apply federal law but as a choice among possible institutional arrangements that would carry out the task the Supremacy Clause requires.

Conclusion but Not Really

I suppose I have had trouble letting go of these questions I have no business answering because they raise the question of what it means to say something is the law and where the answer to that question is bound up with competing institutional concerns. We have data from a number of institutions and a graph of institutional information transaction (from the Framers and Re-Framers to all relevant institutions; from federal legislature to federal and state courts; from lower federal courts to the Supreme Court; from lower state courts, through the state supreme court, to the U.S. Supreme Court; porosity in removal and preclusion). And the question concerns the treatment by these institutions of the information they produce, which question really is about the sets of reasons each institution maintains. What is going here is that people view the set of information (the Supremacy Clause, earlier cases) and intuit different models of the institutional networks and intra-institutional reasons that constitute the legal system. The conclusions on particular questions result from these models.

But I’ll stop here, maybe save more for my book, because I only started this to record my thoughts in a small post. And this has taken the whole afternoon. I’m sorry, because you, dear readers who have arrived all the way here, are the ones who have suffered!