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Outside of libertarians, most people are just fine with occupational licensing regimes, until it impacts them. Exhibit A is the newly-coined “ubertarian.”

D.C. is home to a growing and curious breed, progressive young professionals who bemoan the city’s income inequality one instant and approach a black limo the next, asking “Are you my Uber?”; who condemn the government for under-regulating the banks and for over-regulating businesses and developers; who lament the decline of American labor but wish the teachers’ union didn’t have so much power in D.C. schools.

They support government regulation—except when it inconveniences them. Clamping down on the big banks? Yes, please. Tighter safety standards? Love ’em. Restrictions on app-based taxi competitors, or on the number of bars or restaurants in their neighborhood? An outrageous imposition on the free market!

I’ve previously commented on the obstructive barriers to entry placed in the path of Uber, and noticed how surprising it was that prominent liberals, who usually love all means of government regulation, have seemed to oppose the most basic instances of occupational licensing. What do we make of these ubertarians who see no problem with the District of Columbia regulating a whole host of professions, but lord help us if they make it harder to get a taxi? Probably nothing.

But if people viewed all forms of occupational licensing the same way–whether it affects them directly or indirectly–rational basis review wouldn’t stand.

A few months ago I took a taxi in Washington, D.C. and asked the cabbie what he thought about Uber. He said he wasn’t worried now, but if they began to take away his business he would do something. He explained that he didn’t think it was fair for Uber to take away his business. When I asked what happens if consumers chose them over him, he repeated that it wasn’t fair, and that he was there first. Well, that settles that.  He asking me if I knew anything about collective bargaining, and said that cabbies wanted to organize, and formally oppose Uber (beyond what the Taxicab Commission was doing I suppose).

A bill was recently advanced in France that would require Uber cars to wait fifteen minutes before letting a passenger in. Let’s see if the right to earn a living makes a surprise appearance in Paris.

The Bully Pulpit (a book I have blogged about several times) explores Taft’s brief stint as Solicitor General. Goodwin recalls Taft’s difficult in transitioning from Judge (he was appointed to the Cincinnati Superior Court at the age of 29) to Solicitor General at the age of 32. Now, he was the one being asked questions!

William Howard Taft’s stolid demeanor prevented the sort of aggressive, confident debut in Washington that Roosevelt had enjoyed. He confessed to his father that his first oral argument before the Supreme Court had left him despondent. “I did not find myself as fluent on my feet as I had hoped to,” he explained. “I forgot a great many things I had intended to say.” He worried that his deliberate speaking style would fail to capture the justices’ attention. “They seem to think when I begin to talk that that is a good chance to read all the letters that have been waiting for some time, to eat lunch, and devote their attention to correcting proof, and other matters that have been delayed until my speech,” he grumbled. While the solicitor general’s position might offer great “opportunities for professional experience,” he doubted his own ability to capitalize on those opportunities. “I find it quite embarrassing to change from the easy position of sitting on the bench to the very different one of standing on your legs before it,” he told one friend, “and I do not find myself at home as I hoped to do in presenting one side of a case at Court.”

He was SG from 1890-1892, so he would have faced the Fuller Court with (courtesy of Oyez) CJ Melville W. Fuller and Associate Justices,  Samuel F. Miller, Stephen J. Field, Joseph P. Bradley, John M. Harlan, Horace Gray, Samuel Blatchford, Lucius Q.C. Lamar (one of the baddest-ass names in SCOTUS history), and Junior Justice David J. Brewer.

But his second time up before the Court went better.

His second appearance before the Court gave him “somewhat more satisfaction” and made him feel “more at home.” Unfortunately, his speaking style, at least in his own estimation, seemed to exert “the same soporific power” on the justices. He refused to be discouraged, declaring he would “gain a good deal of practice in addressing a lot of mummies and experience in not being overcome by circumstances.”

Goodwin also recalls how he developed a relationship with the Court, and Justice Harlan in particular (the native son of Kentucky was right across the river from Cincinnati):

Furthermore, Taft was happy to note that by year’s end he had “come into exceedingly pleasant relations with the Supreme Court,” the bench he one day ardently hoped to join. He developed a genuine friendship with Justice John Harlan and, at Harlan’s request, agreed to write a short sketch of his life for publication in a commemorative history of the Supreme Court. “It has been a work of considerable labor, because it involved an examination of a great many cases,” Taft related to his father. “However, Judge Harlan has been very kind to me, and I feel as if anything I could do for him was only repaying the friendly interest he has taken in me.” Indeed, the trust and affection generated by Taft’s good nature made him welcome in the city’s most eminent company. He became a regular whenever the attorney general hosted dinners for members of the Supreme Court.

Goodwin identifies three of Taft’s most successful victories:

DURING HIS SECOND YEAR AS solicitor general, Taft extended his string of victories in three celebrated cases. In the first, he successfully defended the constitutionality of the McKinley tariff, which raised duties on imports competing with American products. His second case, in which he convinced the Supreme Court to sustain Speaker Thomas Reed’s new method of counting a quorum, had profound implications for partisan politics in the legislative process. Reed’s procedure ended the old practice that demanded a voice vote rather than a simple tally of “those who were actually present in the room” to establish a quorum. This traditional method, in place since the first Congress, had enabled the minority party to prevent the transaction of business by simply hiding in the cloakrooms and refusing to answer the roll call. Reed’s new rule, unanimously affirmed by the Court, greatly increased the power of the Speaker, allowing him to push through sweeping legislation. Taft’s most resounding triumph involved a dispute between Great Britain and the United States over fishing rights in the Bering Sea. Initially, the international attention focused on the case disconcerted Taft. “I suppose I ought to feel that it is a great privilege to take part in it,” he confessed, “but I look forward with considerable trepidation to making an argument orally before that court in a case which will be so conspicuous.”

I think the last case was In Re Ross (1891).

And, when new vacancies arose on (what the book refers to as) the Sixth District, Taft was widely recommended, even by Justice Harlan, who lobbied on his behalf with President Harrison.  Can you imagine that happening today?

The affinity Taft had developed with Attorney General Miller and Justice Harlan served him well when the two men wholeheartedly endorsed him for the post. In a joint interview with the president, Harlan called Taft “the man whom  .  .  . of all others, you should appoint”; Miller agreed, telling Harrison that he believed Taft possessed “in an eminent degree the judicial faculty” and that his “age was such as to secure to the people of the circuit a great many years of hard work.” Justice Henry Billings Brown affirmed that he “would be very glad” if Taft received the appointment.

He was appointed to the Sixth Circuit at the age of 35!

 

Jonathan Cohn blogs:

The official enrollment number doesn’t tell us many things. It doesn’t tell us whether these people getting private (or public) coverage had insurance previously—or, if they had insurance, how much they were paying for it. It doesn’t tell us how many of these people have actually paid premiums, which is essential for coverage to take effect. It doesn’t tell us whether insurers have proper data on these people or what kind of access and protection the new coverage will give. It doesn’t tell us how many of the enrollees are in relatively good health or how many are in relatively poor health—or how that mix will affect insurance prices going forward.

In addition, the numbers do not appear to match the Administration’s own targets. According to internal projections, later reported by the Associated Press, officials expected more than 3.3 million enrollments by year’s end, with about 1.8 million of those coming through the federal website.

For all of those reasons, and a few others, it’s premature to say Obamacare is meeting expectations.

Professor Kyle Graham graciously shared internal correspondences on the Court from Justice Blackmun’s papers regarding Smith v. Maryland. One of the more fascinating exchanges came in a series of letters between Justice Stevens, Justice Blackmun, and Blackmun’s law clerk AGL (Al Lauber, now a Tax Judge). If you ever wonder how those odd, out-of-place footnotes wind their way into majority opinions, this is it.

In short. Stevens urged Blackmun to clarify an issue about the subjective and objective expectation of privacy. Within a day, Blackmun’s clerk (who was given complete discretion on writing the opinion) managed to insert a footnote that repeated Stevens’s point very closely. Here’s the chronology.

First on May 24, 1979 (two months after the case was argued on March 28, 1979), Stevens wrote to Blackmun regarding the “actual or subjective expectation of privacy,” offering two hypotheticals to consider.

Later that day, Stevens sent a follow-up letter with a “suggestion” of how to treat the subjective and actual expectation of privacy when extending into a “new area.”

Later that day, Blackmun’s clerk, AGL, wrote back to Blackmun and offered a footnote to address JPS’s concern. HAB replied later that day “OK.”

Here is the footnote inserted. You can see that it tracks JPS’s example very closely.

Blackmun wrote back to Stevens, asking if this footnote suffices.

Stevens replied that it would do just fine, and he would not write separately.

Here is the final footnote 5 in Stevens v. Maryland.

[5] Situations can be imagined, of course, in which Katz’ two-pronged inquiry would provide an inadequate index of Fourth Amendment protection. For example, if the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry, individuals thereafter might not in fact entertain any actual expectation of privacy regarding their homes, papers, and effects. Similarly, if a refugee from a totalitarian country, unaware of this Nation’s traditions, erroneously assumed that police were continuously monitoring his telephone conversations, a subjective expectation of privacy regarding the contents of his calls might be lacking as well. In such circumstances, where an individual’s subjective expectations had been “conditioned” by influences alien to well-recognized Fourth Amendment freedoms, those subjective expectations obviously could play no meaningful role in ascertaining what the scope of Fourth Amendment protection was. In determining whether a “legitimate expectation of privacy” existed in such cases, a normative inquiry would be proper.

Fascinating.

Update: To respond to a question on Twitter, it was fairly common for Justice Blackmun to delegate the task of writing opinions entirely to the clerk. Here is the clerk’s transmittal memo, noting how he wrote the “short, rathe unscholarly opinion, rather befitting the case.”

See you in Times square Miley and Sonia!