Judge Took All-Expense Paid Luxury Retreat Before Anti-Masker Opinion
The mask mandate opinion read like gibberish and now we might know why.
Judge Kathryn Mizelle learned a lot while clerking for Clarence Thomas, including, apparently, her mentor’s fondness for taking luxury gifts from dark money outlets with vested interests in the cases you’re deciding.
The same week we learned that Thomas hoovered up millions in gifts, it turns out his erstwhile clerk — appointed to the bench as a mere Biglaw associate only a year removed from her own clerkship — accepted a cushy trip to The Greenbrier from a Koch-funded conservative group to learn about a particularly goofy niche form of statutory originalism. And then wouldn’t you know it… weeks later she strikes down the federal mask mandate — a fight Koch was funding as an anti-masker — using this same goofy niche form of statutory originalism.
Mizelle’s opinion in that case amounted to a jumbled mess of archaic, out-of-context dictionary definitions to reach the conclusion that in 1944 people wouldn’t have thought “sanitary face masks” were related to “sanitation” because… reasons. In our evaluation of the opinion we noted that Mizelle seemed “incapable of keeping a consistent argument from page to page,” as she shadow boxed Funk & Wagnalls. Law professors at the time said that Mizelle’s analysis wouldn’t earn passing marks on an exam. Even by low standards of conservative statutory interpretation, Mizelle’s opinion sputtered. And then she went ahead and said it:
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The Court here searched the Corpus of Historical American English (COHA) to find uses of “sanitation” between 1930 and 1944.
Ah corpus linguistics, the dumbest refuge of the scoundrel.
As we explained recently, as an academic pursuit, corpus linguistics scours historical documents to generate quantitative and qualitative insights into usage across society for the purpose of illuminating changing patterns in language across geography, class, and ethnic backgrounds. As a legal pursuit, however, it performs none of these functions. Because while corpus linguistics can describe how language changes, it’s a pretty bad way to determine what a word “means” at a point certain.
That doesn’t deter a clutch of conservative legal activists who’ve decided to champion the process as a convenient way to cherry-pick historical support for whatever contemporary policy goal they hope to achieve. And one proponent of this theory is the Judicial Education Institute, the group that took a bunch of Koch machine money, and invited Mizelle on a luxury trip to learn how to use their word-mogrification tool.
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From the Huffington Post:
Now, new disclosures seen by HuffPost shed some light. Just weeks before she issued the ruling, Mizelle had discreetly attended an all-expenses-paid luxury trip from a conservative group whose primary mission is to persuade more federal judges to adopt the use of corpus linguistics. For five days, Mizelle and more than a dozen other federal judges listened to the leading proponents of corpus linguistics in the comfort of The Greenbrier, an ostentatious resort spread out over 11,000 acres of West Virginia hillside.
Long story short: this opinion reads like Mad Libs because she was testing out a new tool that she’d never used before to make libs mad. Like giving a baby a loaded gun, which is a metaphor for a bad idea, but which corpus linguistics would probably say is the original meaning of the Second Amendment.
But the big picture here is that federal judges are taking FIVE DAY junkets to learn how to use “History Google.”
Hey, you miss 100 percent of the shady gifts you don’t take.
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How A Luxury Trip For Trump Judges Doomed The Federal Mask Mandate [Huffington Post]
Earlier: Shocking No One, ABA Thinks Biglaw ASSOCIATE Not Ready For Federal Bench
Mask Mandate Struck Down Because ‘Sanitation’ Doesn’t Mean ‘Keeping Things Clean’ For… Reasons
Originalist Judge Hails Future Where Time-Consuming Task Of Compiling Fake History Is Replaced By AI Hallucinations
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
