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FOCUS: What Does the Holy Book of Islam Say About the Birth of Jesus? |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=51519"><span class="small">Juan Cole, Informed Comment</span></a>
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Friday, 25 December 2020 12:49 |
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Cole writes: "The Qur'an, the scripture Muslims believe was received by the the Prophet Muhammad (d. 632) by divine inspiration, has a number of passages that mention Mary and the virgin birth of Jesus."
Juan Cole. (photo: University of Michigan)

What Does the Holy Book of Islam Say About the Birth of Jesus?
By Juan Cole, Informed Comment
25 December 20
evised.
The Qur’an, the scripture Muslims believe was received by the the Prophet Muhammad (d. 632) by divine inspiration, has a number of passages that mention Mary and the virgin birth of Jesus.
The Chapter of Mary, 19:16, says (my interpretation):
And mention in the Book Mary, when she withdrew from her family to an eastern place.
It is implied that it was her unexplained pregnancy that caused her to withdraw.
Verses 19:17-35 continue:
And once remote from them, she hid behind a screen. Then we sent to her our spirit, who took the shape of a well-formed man.
She said, “I take refuge in the All-Merciful from you, if you are pious.”
He said, “I am but an angel of your lord, come to bestow on you a son without blemish.”
She said, “Will I have a son, when no mortal has touched me, and I was not rebellious?”
He said, “So it is.” He said, “Your Lord says, it is easy for me. We will make him a sign for the people and a mercy from us. The matter has already been decreed.”
So she bore him, and withdrew with him to a remote place.
And the pangs of childbirth drove her to the trunk of a palm tree. She said, “I wish I had died before now, and had been forgotten in oblivion.”
But he called to her from beneath her, saying, “Do not be sad. For your Lord has made a stream run beneath you.”
So shake the trunk of the palm tree toward you, and ripe, fresh dates will fall to you. So eat and drink and be comforted. If you see any human being, say, “I have taken a vow to the All-Merciful to fast, and will speak to no one today.”
Then she brought him to her people, carrying him, and they said, “Mary, you have done something unheard of!”
Sister of Aaron, your father was not wicked and your mother was not rebellious.”
She gestured to him. They said, “How can we speak to a baby in its cradle?”
He said, “I am the servant of God, and he gave me scripture and made me a prophet. He made me blessed wherever I might be, and counseled me to prayer and giving charity as long as I live. And he made me obedient to my mother, nor did he make me overbearing or cruel. Peace be upon me, the day I was born, and the day I die, and the day I am raised up alive.”
That is Jesus, the son of Mary, the Word of truth about whom they dispute. It was not for God to take a son. Praised may he be. When he decrees a thing, he says to it, “Be!” And it is.
This Christmas carol will seem both familiar and unfamiliar to Christians. The Qur’an tells a more elaborate story than does the New Testament. It underlines that Mary’s pregnancy was a scandal to the Jews of Jerusalem. The angel reassures her that a virgin can give birth, since God can make anything happen.
I talk about Christianity and Islam in my recent book,
Muhammad: Prophet of Peace amid the Clash of Empires
Nicola’s Books in Ann Arbor
And Hachette
And at Barnes and Noble
And Amazon
The Qur’an denies the fatherhood of God. Because it grew up in a polytheistic environment, there was always a danger that pagans would take the fatherhood of God and the sonship of Jesus literally. The Qur’an rejects this metaphor, almost uniquely among religious texts of that era.
Jesus is a sign that God can say “Be!” and, it is. He is also the Word of the Truth.
As for Mary, some Muslim scholars considered her a prophet in her own right, and Jesus is depicted as demanding respect for her.
This is one of the passages that convinced the authors at the Vatican in the 1960s, who produced the Vatican II document, that Islam has some of the divine truth.
A passage of November 1964 says
“But the plan of salvation also includes those who acknowledge the Creator, in the first place among whom are the Muslims: these profess to hold the faith of Abraham, and together with us they adore the one, merciful God, mankind’s judge on the last day.”
A passage the month before had said,
““The Church has also a high regard for the Muslims. They worship God, who is one, living and subsistent, merciful and almighty, the Creator of heaven and earth (Cf. St. Gregory VII, Letter III, 21 to Anazir [Al-Nasir], King of Mauretania PL, 148.451A.), who has spoken to men. They strive to submit themselves without reserve to the hidden decrees of God, just as Abraham submitted himself to God’s plan, to whose faith Muslims eagerly link their own. Although not acknowledging him as God, they venerate Jesus as a prophet, his Virgin Mother they also honor, and even at times devoutly invoke. Further, they await the day of judgment and the reward of God following the resurrection of the dead. For this reason they highly esteem an upright life and worship God, especially by way of prayer, alms-deeds and fasting.”
“Over the centuries many quarrels and dissensions have arisen between Christians and Muslims. The sacred Council now pleads with all to forget the past, and urges that a sincere effort be made to achieve mutual understanding; for the benefit of all men, let them together preserve and promote peace, liberty, social justice and moral values.”
“Therefore, the Church reproves, as foreign to the mind of Christ, any discrimination against people or any harassment of them on the basis of their race, color, condition in life or religion. Accordingly, following the footsteps of the holy Apostles Peter and Paul, the sacred Council earnestly begs the Christian faithful to ‘conduct themselves well among the Gentiles’ (1P 2:12) and if possible, as far as depends on them, to be at peace with all men (cf. Rm 12:18), and in that way to be true sons of the Father who is in heaven (cf. Mt 5:45).”
The Vatican II council knew what it thought of Islamophobia or irrational hatred of Muslims. It called us all to something better, to an acknowledgement that Jesus and Mary unite people of faith, rather than dividing them and that discrimination against people on the basis of their religion or race is always wrong. The Qur’an also puts Jesus under the sign of peace.

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FOCUS: It's Not Science Fiction |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=57663"><span class="small">Bill McKibben, New York Review of Books</span></a>
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Friday, 25 December 2020 11:49 |
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McKibben writes: "The prolific science-fiction writer Kim Stanley Robinson, who is at heart an optimist, opens his newest novel, The Ministry for the Future, with a long set piece as bleak as it is plausible."
Bill McKibben. (photo: Wolfgang Schmidt)

It's Not Science Fiction
By Bill McKibben, New York Review of Books
25 December 20
In Kim Stanley Robinson’s anti-dystopian novel, climate change is the crisis that finally forces mankind to deal with global inequality.
he prolific science-fiction writer Kim Stanley Robinson, who is at heart an optimist, opens his newest novel, The Ministry for the Future, with a long set piece as bleak as it is plausible. Somewhere in a small city on the Gangetic Plain in Uttar Pradesh during the summer of 2025, Frank, a young American working for an NGO, wakes up in his room above a clinic to find that an unusually severe pre-monsoon heat wave has grown hotter still and more humid—that the conditions outside are rapidly approaching the limit of human survival. Actually, conditions inside are approaching the same level, because the power has gone out.
Frank manages to get a generator going and opens the doors of the NGO’s offices to seven or eight extended families, who cram themselves into the few rooms where creaking air conditioners knock the fatal edge off the heat. But then local thugs take both the generator and the AC unit at gunpoint. The temperature inside and out approaches 108 degrees Fahrenheit; the humidity is 60 percent. People start to die, and their bodies are taken up to the roof and left there. As night falls, Frank goes with some of the survivors to the shallow lake in the center of the city and they submerge themselves in the water, hopeful it will help them survive. It doesn’t—the lake water, too, is above body temperature, and as thirsty people drink it,
hot water in one’s stomach meant there was no refuge anywhere…. They were being poached….
People were dying faster than ever. There was no coolness to be had. All the children were dead, all the old people were dead. People murmured what should have been screams of grief.
Frank survives, barely, with a lifelong case of PTSD: “Any time he broke a sweat his heart would start racing, and soon enough he would be in the throes of a full-on panic attack.” Even a job he gets in the UK in a meat-processing plant with refrigerated rooms is not enough to keep the terror at bay. Nor the guilt, nor the anger, which become plot points of sorts in this sprawling novel. An uncountable number of Indians died in the heat wave he survived—perhaps 20 million. In the book, it marks the effective starting point of humankind’s effort to deal realistically with climate change.
And such a heat wave is not unlikely—in fact, it is all but guaranteed. We came pretty close in California in September, when temperatures even in communities near the ocean like San Luis Obispo hit 120 degrees Fahrenheit, albeit at a lower humidity. Over the last few years we’ve seen record-breaking combinations of heat and humidity in Middle Eastern cities—the heat index has approached 160 degrees Fahrenheit in places like Dhahran, Saudi Arabia, and Bandar, Iran. The latest research—some of it published last summer—indicates that such heat waves will become steadily more common. As the decades pass, a belt across India, Pakistan, and the North China Plain will see temperatures past the survival point for days and weeks at a time. The heat wave that killed tens of thousands in Europe in 2003 is only a foretaste.
In taking on heat and glacial melt and fire, Robinson is writing more realistic fiction than most contemporary novelists, for whom the physical world remains a backdrop for more interior stories. We are entering a period when physical forces, and our reaction to them, will drive the drama on planet Earth. We are lucky to have a writer as knowledgeable, as sensible, and as humane as Robinson to act as a guide—he is an essential authority for our time and place, and our deliberations about the future will go better the more widely he is read, for he is offering a deeply informed view on what are quickly becoming the great questions of world politics. The New Yorker once asked if Robinson was “our greatest political novelist,” and I think the answer may well be yes. He’s not trained as a scientist, but he’s so up on the literature that he’s usually three or four years ahead of the news, and not just in the US—his sense of the Earth’s political currents, including the rise of China and India, runs deep.
Which is interesting, because Robinson first made his mark writing about a different planet. His Mars trilogy, published in the 1990s, won every science-fiction award there is. (Robinson writes long books, and they often come in groups of three.) That story begins at almost the same time as The Ministry for the Future does: a group of a hundred earthlings takes off in 2026 to colonize Mars, as conditions on their home planet begin to deteriorate. It is an epic tale of the technological effort required to “terraform” Mars—to make it habitable for humans by, say, drilling deep holes to release subsurface heat, and exploding nuclear weapons in the permafrost to start producing flowing water. Robinson’s scenarios are precisely what NASA engineers were thinking through back then: that it was only a matter of time before we colonized the red planet. But in truth the technology is secondary—his true interest, then and now, is more in political science than in science itself.
The Mars trilogy is really an exercise in asking how humans could, would, and should settle an uninhabited place: how, given a blank slate, we might work out our divisions and create a society that could survive and thrive. With a Mars colony as a setting, Robinson needed to deal with only a scattered few people on an empty world and had room to address questions of human nature, human organization, and human agency that are harder to deal with on the messy, crowded, historically contingent world we actually inhabit. His careful thought in those early novels has paid off in the years since; the conceptual seedlings he nurtured on Mars he has transplanted back on Earth in his more recent work, culminating in The Ministry for the Future, which may serve as his ultimate account of how to set our Earth on a workable course.
Before diving in, however, it’s worth noting why Robinson has mostly left space behind. In the decades since the Mars trilogy appeared, the science has made it clearer that we’re not going to easily spread out into the cosmos. The visions of Jeff Bezos and Elon Musk notwithstanding, even colonizing Mars will be much harder than originally envisioned by the writers of space operas and the NASA planners in the halcyon post-Apollo days—among other things, NASA probes have discovered that the red planet is carpeted in a soil containing toxic perchlorates, so you’d somehow have to decontaminate the planet before you started doing anything grander.
It has also become clear that the distances involved in interstellar travel effectively preclude colonization outside the solar system: everything from the effects of radiation to the lack of genetic diversity in any “ark” that we’d send into space would amount to crippling obstacles. As Robinson has said:
There is no Planet B, and it’s very likely that we require the conditions here on earth for our long-term health. When you don’t take these new biological discoveries into your imagined future, you are doing bad science fiction.
Indeed, he devoted an entire (and quite lovely) novel, Aurora (2015), to demonstrating why deep space colonization would be impossible. It follows the crew of an interstellar craft as they fail to inhabit a distant planet and then try, against the odds, to return to Earth, with a much-sharpened appreciation for its fragility and beauty.
The real danger of fantasizing about space travel is that it creates a moral hazard: one begins to care less about the fate of our own world. And Robinson very much wants us to focus on this world. In book after book in recent years, he has laid out the path forward for dealing with the existential crisis that climate change has clearly become.
In a trilogy of novels set in the near future in a rapidly heating Washington, D.C.—collected in 2015 in an omnibus edition titled Green Earth—the US government and the National Science Foundation are still focal points for the fight to save the planet. By 2025, in the new novel, it is a UN agency that takes the lead—“the Ministry for the Future,” formed in response to the Indian heat wave by the parties to the Paris climate accord. The ministry is located in Zurich, an often overlooked city that Robinson describes with great intimacy and affection, and is headed by Mary Murphy, an Irishwoman—she is, for my money, an accurate and beguiling composite of an actual former UN commissioner for human rights, Mary Robinson, and Christiana Figueres and Laurence Tubiana, the two diplomats who did more than any others to pull off those Paris talks. (That women have been at the center of climate diplomacy is perhaps less noted than it should be.)
No UN ministry, of course, can move world affairs—that waits on the interests of the powers that be. In this case, those interests come in many forms. Some countries, like India, are scared enough to try anything: Delhi launches a fleet of airplanes that ferry sulfur compounds into the atmosphere, where the particles block some incoming solar radiation, a fairly low-tech (and in the real world highly controversial) geoengineering plan to reduce the temperature.
The ministry sponsors other technological tricks, all of which have to be applied on similarly immense scales to have any effect: drilling holes to the base of Antarctic and Greenlandic glaciers to drain the meltwater collecting there so the ice sheets slow their slide into the ocean; dyeing the newly melted Arctic Ocean yellow so that it stops absorbing so much sunlight. Some schemes work better than others, but by themselves they’re nowhere near enough, and indeed The Ministry for the Future mostly brushes past them, more concerned with the changes in the world economy and governance that must come.
Such shifts are opposed by entrenched interests like fossil fuel executives and the status quo politicians. And so those interests are targeted by a terror group, the Children of Kali, which arises in India to avenge the victims of the heat wave, and also by a dark-ops wing of the UN ministry itself. These operatives are clever: in one of the more enjoyable interludes in the book, they manage to take over Davos, subjecting the global elite to an endless series of seminars and workshops on global poverty and environmental disruption. Meanwhile, on what will henceforth be known as Crash Day, the terrorists send swarms of drones into the engines of jets around the world, downing them. Some are the private jets of plutocrats, but not all—the deaths of innocent people are real, if limited. As a result, far fewer people are willing to fly, except in the growing fleet of solar-powered dirigibles and airships that slowly circle the Earth.
Similarly, vast, smoke-belching container ships are torpedoed by futuristic “pebble-mob” missiles that can overwhelm defenses by sheer force of numbers. They are replaced by photovoltaic clipper ships that harvest both sun and wind as they make their more stately way across the ocean. (Murphy travels in one from Europe to Florida, making the obvious point to anyone who’s lived through the pandemic that as long as you have your laptop you can as easily work from the deck of a boat as from an office.) But again, these technologies—all in various stages of development today—aren’t the real salvation.
That lies instead in the various changes that start rippling through societies. Minister Murphy’s most important interventions are with the four or five crucial central bankers around the world; they’re persuaded not only to tax carbon but to issue a “carbon coin” as a reward for actions that keep oil and gas in the ground or sequester CO2 from the atmosphere. This “carboni” begins to replace the dollar as the underpinning of the global economy, and as that happens, neoliberalism—really capitalism itself—begins to bend a little in its dictates.
“The euthanasia of the rentier class,” as Keynes called it, begins; more and more of the uberwealthy find themselves compelled to take a serious haircut, left with tens of millions in place of their billions in increasingly stranded assets. Popular movements break out everywhere—debt strikes by students, and then by the debtor nations of the global south; uprisings in China of migratory workers long denied residence permits in the cities where they work, who take to the streets by the millions and force some basic changes from the Chinese Communist Party:
There was so much going on, such a spasm of revolts occurring spontaneously (if it was spontaneous!) all over the world, that some historians said it was another 1848…. Coincidence? Conspiracy? World spirit, Zeitgeist in action? Who knew? All they knew for sure was that it was happening, things were falling apart.
And when things fall apart, new things can emerge. It is here that Robinson is at his best—he has a head full of all the hopeful experiments on our planet, the ones that run a little counter to the prevailing wisdom. For instance, there’s a tidy discourse on the town of Mondragón in Basque country that for decades has seen a successful and fascinating experiment in cooperative control of industry; there’s an informed account of the state of Kerala in the south of India, where a low GDP coexists with high quality of life; there’s a nod to Modern Monetary Theory and the idea that deficits might not matter, and to Vandana Shiva, an activist and pioneer in organic agriculture who has long argued that local agriculture is significantly healthier for people in developing countries.
Robinson also understands the blockchain technology underlying currencies like bitcoin, and the ways it might stop the wealthy from hiding their cash in the Caymans; he knows what the agronomist Wes Jackson is up to at the Land Institute in Kansas, where they’re figuring out how to grow wheat as a perennial, not an annual crop; and he’s followed the French law intended to increase carbon in farm soils. He’s got a handle on rotational grazing and on wild oyster farming, and on a thousand and one other possibilities. He knows that—pace Margaret Thatcher—there is an alternative to capitalism, or really millions of alternatives, each designed for its own place. If only the system can be moved.
And it turns out that climate change—as Naomi Klein posited in her great book This Changes Everything—is the tool for moving it, the crisis that finally forces us (because chemistry and physics simply won’t be denied, the way morality and justice can be) to deal with our inequality and our unjust history and the whole wretched mess we’ve managed to make of things in the early twenty-first century. Robinson’s scheme is not utopian, it’s anti-dystopian, realist to its core: there’s still money and still nation-states and still central banks, and change comes from riot and occupation and protest (grahasatya, he calls it, or force peace, in a realpolitik nod to Gandhi)—but “it will be legislation that does it in the end, creating a new legal regime that is fair, just, sustainable, and secure…. The best Plan B will emerge from the multitudes.”
In The Ministry for the Future, it all kind of works. Yes, there’s a great and savage depression, and ongoing ecological wreckage, especially in the acidified oceans. But by the 2050s the level of carbon dioxide in the atmosphere has begun to drop, and fairly fast—down five parts per million per year, maybe even headed back to the 350 mark that the climate scientist Jim Hansen set as the boundary for some kind of civilizational chance.
Is this possible, outside the confines of fiction?
I think it might be: the emergence, for instance, of Greta Thunberg and a hundred other high school–age leaders, militantly demanding change, seems like it could easily have been a plot point instead of a reality. The youth of the Sunrise Movement and their demand for a sweeping Green New Deal exemplify the kind of change Robinson imagines. The rapid development of cheap renewable energy makes a quick change in that direction technically and economically possible, even at this late date.
But part of me fears that Robinson underestimates not just the staying power of the status quo but also the odds that when things get really bad, we will react really badly. It’s possible that a killer heat wave striking India might begin to wake up the conscience of the world; it’s also possible that it makes the emergence of the next round of Trumps and Bolsonaros and Modis more likely.
If the Covid pandemic is a kind of early test of our ability to respond to crisis, some parts of the world seem to have passed and others seem to have failed. Can the US achieve the kind of unity that might make it an ally in this greatest of fights? In Robinson’s novel, the valiant people of Hong Kong not only hold off Beijing but manage to help change the flavor of its government—at the moment, that river seems to be flowing the other way. And the change that must come must come rapidly: even one more wasted decade may be enough to put us past the point where the momentum of global warming can really be checked.
This is precisely why one hopes that this book is read widely—that Robinson’s audience, already large, grows by an order of magnitude. Because the point of his books is to fire the imagination, to remind us that the great questions of our lives are not just about love and relationships, but also about politics and economics.
He ends with another set piece, this one charming. Mary Murphy, retired, has returned to Zurich after a dirigible tour of the planet, which has been increasingly rewilded as populations begin to shrink and human settlements are purposefully taken off the map. From the air the passengers have watched herds on the Serengeti, caribou streaming across a reviving Arctic. She has begun to fall for the gentle and quiet captain of the blimp, and the two of them now go out together to wander the streets of the Swiss city for Fasnacht, the pre-Lenten masquerade. Men with alphorns play Fanfare for the Common Man, a steel drum band offers a Trinidadian tune, some Andean Indians in serapes play the panpipes. Mary looks at this world, which she has done much to save, and she thinks:
That there is no other home for us than here. That we will cope no matter how stupid things get. That all couples are odd couples. That the only catastrophe that can’t be undone is extinction. That we can make a good place. That people can take fate in their hands. That there is no such thing as fate.

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The True Meaning of Christmas Is of Vital Importance in These Divisive Times |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=53457"><span class="small">Jesse Jackson, Chicago Sun Times</span></a>
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Friday, 25 December 2020 09:50 |
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Jackson writes: "On Friday, millions of people across the world will celebrate Christmas. Here and abroad, safety - staying home, social distancing, wearing masks, being sensible - requires limits on the gatherings and parties. Yet the bells still ring, music is in the air, lights on homes and lampposts shine, blessings are shared."
Rev. Jesse Jackson Sr. (photo: CommonWealthClub)

The True Meaning of Christmas Is of Vital Importance in These Divisive Times
By Jesse Jackson, Chicago Sun Times
25 December 20
With the pandemic raging and millions unemployed, this Christmas will witness tears among the smiles.
n Friday, millions of people across the world will celebrate Christmas. Here and abroad, safety — staying home, social distancing, wearing masks, being sensible — requires limits on the gatherings and parties. Yet the bells still ring, music is in the air, lights on homes and lampposts shine, blessings are shared.
For so many, this holiday is a difficult time: the cold and hungry, those separated from families, those alone or imprisoned or sick. With the pandemic raging and millions unemployed and on the verge of eviction, this Christmas will witness tears among the smiles. Each year at this time, I use this column to remind us of the true meaning of Christmas.
Christmas is literally the mass for Christ, marking the birth of Jesus. He was born under occupation. Joseph and Mary were ordered to go far from home to register with authorities. The innkeeper told Joseph there was no room at the inn. Jesus was born on a cold night in a stable, lying in a manger, an “at risk baby.” His earthly father was a carpenter, not a prince or a banker.
Jesus was born at a time of great misery and turmoil, with his country under Roman occupation. Prophets predicted that a new Messiah was coming — a King of Kings — who would rout the occupiers and free the people.
Many expected a mighty warrior, like the superheroes of today’s movies, who would mobilize an army to defeat Rome’s legions. Fearing the prophecy, the Roman King Herod ordered the “massacre of the innocents,” the slaughter of all boys two and under in Bethlehem and the nearby region.
Jesus confounded both Herod’s fears and the peoples’ fantasies. He was a man of peace, not of war. He gathered disciples, not soldiers. He began his ministry by quoting Isaiah 62:1: “The Lord has anointed me to bring good news to the poor.” We will be judged, he taught us, by how we treat “the least of these,” by how we treat the stranger on the Jericho Road. He called us on to feed the hungry, to clothe the naked, to care for the sick, to offer aid to the refugee.
Jesus was the great liberator, but by his words and example, not by his sword. He converted rather than conquered. He accumulated no worldly wealth. He threw the moneylenders from the temple. He owned no home, no land, and had no regular paycheck. His time with us was too brief, and he was crucified for his ministry.
And yet, Jesus succeeded beyond all expectation to transform the world. The Prince of Peace, he taught us that peace is not the absence of violence; it is the presence of justice and righteousness.
These days, Christmas too often becomes a stressful holiday rather than a prayerful holy day. It is a time of sales, shopping and Santa. Yet Jesus taught us to focus on the most vulnerable among us.
This is even more vital today. Poverty is rising, not falling. Food kitchens are overwhelmed. Millions of hard-working people have lost their jobs through no fault of their own. Millions more are deemed “essential workers,” risking their lives for us, yet many receive the lowest pay and the fewest benefits.
And at the same time, the economy is rigged so that the very richest — the billionaires in America — have added over a trillion dollars to their fortunes in the midst of the pandemic.
Jesus praised the Good Samaritan who cared for the stranger on the Jericho Road. Yet today, racial inequities — too often structured into our institutions — continue to cost lives and waste futures. Demagogues fuel fears and hatreds of the other; harsh immigration policies — separating children from their mothers in the extreme — violate our own values. We continue to lock up more people than any nation in the world.
Ignoring the climate crisis that increasingly threatens all of God’s creation now costs us daily in lives, in the destructions of extreme weather, in economic disruptions that already generate millions of refugees.
In this secular age, let us remember the message of Christmas. Jesus demonstrated the astonishing power of faith, hope and charity, the importance of love. He showed that people of conscience can make a difference, even against the most powerful oppressor. He demonstrated the strength of summoning our better angels, rather than rousing our fears or feeding our divisions. This Christmas, this surely is a message to remember.
Merry Christmas, everybody.

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Amy Coney Barrett Is Already Putting Her Mark on the Supreme Court |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=15772"><span class="small">Dahlia Lithwick, Slate </span></a>
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Friday, 25 December 2020 09:50 |
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Lithwick writes: "On a recent episode of Amicus, Dahlia Lithwick spoke with Steve Vladeck, professor at the University of Texas School of Law, about the emerging 'shadow docket' at the Supreme Court, wherein the conservative justices are signaling their intentions - and sometimes laying precedent - with quickly dashed off opinions."
Amy Coney Barrett. (photo: Samuel Corum/NYT)

Amy Coney Barrett Is Already Putting Her Mark on the Supreme Court
By Dahlia Lithwick, Slate
25 December 20
The court has embraced the shadow docket.
n a recent episode of Amicus, Dahlia Lithwick spoke with Steve Vladeck, professor at the University of Texas School of Law, about the emerging “shadow docket” at the Supreme Court, wherein the conservative justices are signaling their intentions—and sometimes laying precedent—with quickly dashed off opinions. It shows what the conservative branch of the high court is willing to do now that they have the votes. A portion of their conversation, edited and condensed for clarity, has been transcribed below.
Dahlia Lithwick: I wanted to talk about the COVID cases. I know that it is a strange and wending path that we are on, where we’ve gone from, at the beginning of the summer, John Roberts voting with the liberals did not want to second-guess public health measures that are being instituted by states. Suddenly we’re in a whole new court, whole new world, and we have the archdiocese decision that is now being relied upon in all of its nonexistence for further decisions, including Thursday’s Kentucky Christian schools case. Parse out with me your thinking on why the court has been so aggressive on these cases, particularly when a lot of them are moot.
Steve Vladeck: First of all, this to me is Exhibit A so far of how Amy Coney Barrett has already put her mark on the Supreme Court. You mentioned the two big cases from the summer where Roberts joined the four lefties in leaving intact orders from California and Nevada. And this is a shift since Barrett came along. Now it’s 5 to 4 the other way. I was struck, especially in the New York case, by the chief’s dissent, because first of all, he doesn’t write dissenting opinions that often, and second, he doesn’t usually use them to attack his colleagues and yet here’s what happened.
I think part of what’s going on is that at least some of the five justices who are in the majority in the archdiocese case—Justice Neil Gorsuch, perhaps foremost among them—really are in the camp that states are being irrational in some of these COVID restrictions. Some of the lines they’re drawing just don’t make any sense. And insofar as the lack of logic in those line drawings implicates religion, here’s a perfect moment to look like you are a libertarian while also nodding toward the future of the court’s religious liberty jurisprudence. They already have this case on the docket from this term, Fulton v. City of Philadelphia, about whether they should overrule Employment Division v. Smith. Even if that’s not coming in Fulton, Gorsuch’s concurrent opinion in the archdiocese case is a pretty powerful sign that it’s coming sooner or later.
There’s this broader debate about whether we should be applying ordinary modes of scrutiny to COVID restrictions or whether we should be more deferential to public health authorities. And I think the reality is that the Supreme Court and some other judges are being less deferential and they’re holding government officials and public health experts to a higher standard than we would usually hold them in other cases. And that’s really alarming. Justice Sonia Sotomayor pointed out in the New York case that the majority relies to some degree on statements Gov. Andrew Cuomo made to find sort of a discriminatory intent—and in the exact context where Donald Trump’s statements about the Muslim ban were pooh-poohed by most of the same justices. So I think it’s a confluence of three things: It is justices who buy into the narrative that some of the COVID restrictions have been overbroad, justices who are looking for opportunities to establish a foothold for this new religious liberty jurisprudence, and justices who for the first time in a very, very, very long time have the votes.
It knits back to your shadow docket concerns that when you have justices who are relying on shifting doctrine that was coughed up in a hairball late at night and is two paragraphs in per curiam and doesn’t fully grapple with the facts of the case, you are building a really kind of alarming house of cards because the reliance on cases that we don’t fully know even what the reasoning was, much less what the implications are. The shadows in the shadows are extra, I think, pernicious.
Not only that, but the court is starting to embrace them. I am a super procedural nerd when it comes to the Supreme Court and I don’t think anybody else cares about this, but one of the remarkable things that’s happened after the archdiocese case is there were cases from, I want to say, Colorado and California, where the churches had applied for emergency writs of injunction, and rather than granting them, the court treated the application as a petition for cert before judgment. So basically a direct appeal of a district court decision, granted them, vacated the district court injunction, and remanded for instructions to consider the impact of the archdiocese case when the whole point of the archdiocese case was that Cuomo got carried away. And so the court itself is now sending the message that when we’re issuing these rulings in COVID cases with either no reasoning or in the archdiocese case a short unsigned opinion, even though those are fact specific cases, we want lower courts to be taking those very much into account.
I have two sets of problems with that. One is I actually think it’s a real issue on the merits, but two, I mean, you said mootness. The notion that the court has taken up these moot cases and is handing down vague guidance that it’s then using to instruct lower courts to reconsider nonmoot cases. It’s hard to explain to the layperson why that’s so offensive as an exercise of judicial power, but it is really. It is the court being much more aggressive in this context than it has previously. And I think a large part of that is because the speed brakes on that kind of aggressiveness were Anthony Kennedy and then to a lesser degree John Roberts, and the brakes are no longer there. And I don’t see a Justice Brett Kavanaugh as a speed brake here, and I see Gorsuch as almost leading the charge.
And maybe just the final layer to this worrisome trend has to be the dissenting justices saying, yeah, yeah, we get it. It’s moot. We’re afraid it’s going to come back. That’s kind of strange: We acknowledge there’s nothing left to decide, but unlike any other case, we’re going to just do something aggressive in advance of actual new moves.
There was a line in there in Gorsuch’s concurrence that Cuomo might decide to reinstitute this thing. So problem No. 1 is that is usually a consideration that goes into whether a case is jurisdictionally moot and comes as part and parcel of analysis that the government’s policy is capable of repetition yet evading review, or that there was voluntary cessation. Fine, but on the question of whether the Supreme Court should issue an emergency injunction when no lower court did, the party seeking the injunction is supposed to show irreparable harm. And I’m still trying to figure out how someone can be irreparably harmed by a policy that isn’t in effect. The court is basically taking procedural shortcuts through the shadow docket to send messages because they know they have a majority that wants to send these messages. They don’t have a suitable merits case in which to do it and so they’re pulling cases off the shadow docket, where they can say what they want to say.
That’s why I keep using the language of signaling, because it seems as though this is weird flashing lights. There’s nothing to affix it to other than No, we’re really, really serious about religious liberty and assuming animus whether or not it exists. Part of what you’re grappling to explain and I’m grappling to explain is that in some ways it has no effect, but in some ways, it is built on nothing. And so it has an effect, even if it’s just a signal.
The archdiocese case is a great example: The Supreme Court’s decision actually requires Cuomo to do nothing. And yet the Supreme Court’s decision is going to affect how so many local and state officials going forward think about these kinds of restrictions and how many lower state and federal court judges analyze these kinds of restrictions in future cases. And I’m the last person to say the court lacks the power in this context. Formally, I think they have the power to do it, but there are reasons why there are these prudential constraints on their power to issue these kinds of injunctions and these kinds of orders.

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