Wednesday, November 21, 2018

Chief Justice Roberts' Press Statement

Gerard N. Magliocca

I'd be fascinated to hear more about how these comments to the Associated Press came about. Surely the Chief Justice must have told someone to tell the journalist to call him for this statement. I doubt very much that intrepid reporters are constantly calling his chambers looking for comments and--at long last--hit the jackpot.


Continued judicial independence requires people actually believe the fiction progressive "Obama" judges neutrally follow the law as written. Otherwise, the people may begin to demand long overdue checks on the judiciary like impeachment, recall elections or say an amendment empowering a supermajority of Congress to reverse outlaw Supreme Court opinions.

I'm surprised that SPAM failed to include his version of the 2nd A in the second sentence of his screed. Speaking of "outlaw" decisions, consider the conservatives in lockstep in Bush v. Gore "electing" George W, keeping in mind the Bush/Cheney 2003 invasion of Iraq, two unpaid tax cuts and ... [drum roll] ... the Bush/Cheney 2007/8 Great Recession. The mess in the Middle East created by Bush/Cheney continues, exacerbated by Trump ("let me count the ways ... "). Some of the stuff Kavanaugh wrote on protection of the Executive probably was based upon his experience as secretary to George W. Bush v. Gore was a political decision as noted by its designed non-precedental use.

Trump has two tweets responding to the Chief. Might the Chief consider recusing himself if and when the asylum case gets to the Court? Might Trump seek such recusal? Has Justice K been called by Trump or someone on his behalf? I wonder what effect all this will have on the public's perception of the Court?

It's possible that Trump is too stupid to see what Roberts was trying to do, namely establish a defense of "impartiality" by the Court in anticipation of more pro-Trump opinions. But of course Trump wouldn't be grateful to the Court even if he did understand that. In his world, the Court exists to validate what he does. When courts agree with him, that's the natural order of things. When they disagree, he bullies.

It's what he does. It's all he does. He can't be bargained with, he can't be reasoned with. He doesn't feel pity, or remorse. And he absolutely will not stop, ever, trying to bully anyone who fails to bend the knee.

The Chief probably will not respond to Trump's "hitting back harder." If so, that will please Trump's base. But what does it do for the Court? If the Chief initially spoke out in defense of the judges on the inferior courts, how will they perceive the Chief's failure to further respond, especially if Mark is correct about what the Chief was trying to do? As a practical matter, Kavanaugh is a Bush 43 as are the Chief and Alito, and Thomas is a Bush 41. I eagerly await the polling on this brouhaha. Trump may have co-opted the conservatives on the Court by The Chief's taking Trump's bait. Can the Chief stay silent if the public, not only Trump's base, view the Chief as having folded?

Roberts statement is not only correct in many ways, but even the aspect of it that might not always describe the most politically charged cases (where identity of the Presidential appointer surely counts for a lot) is basically the most important illusion that all indepedent judiciaries must always maintain.

And that make's Prof. Tushnet's comment incredibly snotty and trollish (of course, Prof. Tushnet, who has CLS tendencies, probably doesn't care about the legitimacy of the system very much).

If you think judging is political now, you don't know how much worse it can be. In countries where the judiciary is not independent, a litigant's or lawyer's political connections can determine the result of even minor cases. You could never see a result such as last week's ruling by a "Trump judge" giving Acosta his press pass back.

And that's the endpoint of the CLS/extreme legal realism/"nobody really believes that judges aren't political" thinking. It's incredibly dangerous and damaging to the country. We need judges to feel they aren't simply members of a political team. It's actually one of the founding myths of the judiciary and plays a crucial role. Without it, the country can get a lot worse than it is now, and sarcastic liberals who don't even think about the deep issues of jurisprudence and who wrongly think they are smarter than John Roberts would play a key role in that decline.

But in order for that founding myth to be useful, it has to retain some truth.

And in order for it to retain some truth, we have to be permitted to notice when it's decidedly not true, or else it may be undermined without notice.

Kind of a paradox, no?

The founding myth has been declining since, approximately, the "switch in time that saved nine". It's been declining, because it's been losing that critical bit of truth. You really can predict how judges nominated by specific parties will rule on specific issues, because that is the basis on which they were selected, and explicitly so.

So we shouldn't talk so much about maintaining the myth, as how we might restore it. Which begins with injecting some truth into it, not pretending that truth is already there.

I agree about Tushnet, of course. He would not enjoy the legal system he wants to create. It's not so much a legal system as a "my side wins regardless" system.

But he's not a stupid man, and he's thought this through, and it isn't just a legal system he has in mind. It's more of a one party state where the other side never will ever get the opportunity to make him live under his own rules.

Tushnet is my go-to guy when I want an example of a deeply scary liberal... Not because his thinking is unusual, but because he's willing to come out and say it, and acknowledge the implications of what he advocates.

It's clear that Brett swallows his dear leader Trump (to whom he virtuously self-describes as a subordinate) in the labelling of judges - and perhaps even justices - politically (or personally as in the case of Trump University). Brett and his ilk's complaints don't really go back to 1937 but to 1954's unanimous Brown v. Bd. of Educ, written by Chief Justice Earl Warren, appointed by Ike, a Republican, Warren having been long a CA Republican elected official and once a potential rival of Ike for the 1952 GOP nomination. Of course Brown led to the civil rights movement and the Civil Rights Acts of the mid 1960s to which Nixon's Southern Strategy Republicans have continued to employ, to wit, right now in Mississippi. That's the complaint of Brett and his ilk.

Recognizing the judiciary as political goes back to Jefferson and Marshall. And that's if you ignore the very long history in England in which there was no dispute that the judges were in place to do the King's will.

Putting aside the realist debates, the idea of judicial independence is a good one to propagate and try to enforce -- I think it can be very useful, especially at the lower court levels -- but we don't have to be blind to the differences at the Supreme Court level. The extremists on the right have spent the past 50 years in a very successful effort to create a partisan and right wing Court. There's no secret about this -- they not only say so, they brag about it. Now they have that extremist Court. Pretending not to see it would be just as destructive as the actual Court itself. The goal should be rather to call attention to it for the purpose of correcting it.

It is way overstated even at the Supreme Court level. Most cases even there are not 5-4 party line votes. And I know you know that Mark, but most liberals who read this sort of commentary on the Internet have no idea.

Dilan, I'd be far, far more worried about the cynical words of POTUS than some law prof in undermining the mythology you highlight.

Of course Brett sees dishonesty and comspiracy in those he disagrees with, in other news people will eat turkey today!

Also, hilarious that Brett points to when the Court stopped Lochnerization as his point when interpreting the Constitution as written instead of via inserting ones political philosophy into the document. The least self aware guy in the world perhaps.


Progressive judges are reliable rubber stamps for progressive policy regardless of what the law says. The so called "swing judges" are always those appointed by nominally "conservative" Republicans to apply the law as written, but who "evolve" to occasionally rubber stamp progressive policy regardless of what the law says.

The idea of an independent judiciary should be rejected. All branches of government should be accountable. If the judge does not follow the law as written, at minimum, the legislature should be able to impeach or the people should be able to vote to recall him or her.

Mr. W:

I would recommend David Bernstein's Rehabilitating Lochner for your holiday reading list.

SPAM provides his rubber stamp that The Gilded Age of the late 19th century were America's best days.

Is SPAM proposing an amendment to the Constitution that " ... the people should be able to recall ... " judges that fail to follow the law as written? SPAM seems to believe that the idea of an independent judiciary is bad. That's what authoritarians/fascists believe. When SPAM was on deck with the Cruz Canadacy, he pejoratively accused candidate Trump of being a fascist over and over again. SPAM has converted now that he sin lockstep with his dear leader Trump. The Constitution has an impeachment provision that can be applied to the federal judiciary. When was he last time it was so employed? "Loose lips sink ships." That's what happened to the Cruz Canadacy.

"Dilan, I'd be far, far more worried about the cynical words of POTUS than some law prof in undermining the mythology you highlight."

Those words are what Roberts is pushing back at.

And unfortunately, too many liberal voices who really haven't given near enough thought to how the legal system really works and the premises it depends on are going after Roberts for that pushback.

"The idea of an independent judiciary should be rejected. All branches of government should be accountable. If the judge does not follow the law as written, at minimum, the legislature should be able to impeach or the people should be able to vote to recall him or her."

We already have impeachment, and under Nixon v. United States, a Senate's judgment is unreviewable.

So if the political branches really felt that the judiciary was getting way out of line, they could rein them in.

But the idea of an independent judiciary is crucial. How would you like it if you started losing every case before a Democrat judge in Colorado because you have outspoken conservative views? Well, that's the sort of thing that happens in lots of countries. Judging is far LESS political in this country because we hang on to that myth.

Rehabilitating Lochner is ridiculous revisionism, but more importantly for our purposes whatever can be said for Lochner what certainly *can't* is that it is anything like 'applying the law as written.' Hence the rank hypocrisy and insincerity of that line when trotted out by propagandists like Bart.

""The idea of an independent judiciary should be rejected."

Bart doesn't understand that independence refers to the other branches. But he's long expressed his dissatisfaction with what the Founders set up. He and Bart and other radicals would love to go to work changing our constitutional system (but only they and their ilk have the chutzpah to call themselves 'conservatives' while doing so).

Dilan, I think the gist of much of that criticism is that actions speak louder than words.

Before this post and thread become subject to "moderation" and eventually enter its Archives, it's important to provide more background for the post. Adam Liptak's NYTimes article dated 11/21/18 "Chief Justice Defends Judicial Independence After Trump Attacks ‘Obama Judge’" It includes a comment of Josh Blackman:

"Some legal experts said Chief Justice Roberts may rue his decision to tangle with the president.

“'Ultimately, I think this sort of statement will backfire,' said Josh Blackman, a law professor at South Texas College of Law in Houston. 'Trump will always have the upper hand to escalate his attacks on the judiciary. Roberts will invariably be criticized for staying quiet. In the end, the court comes out weaker in this sort of struggle.'”

During the Cruz Canadacy SPAM would describe such as fascist.

Liptak's article also addresses Trump's claims about the Ninth Circuit:

"The Ninth Circuit hears appeals from federal courts in nine western states, including two on the Mexican border, California and Arizona. The circuit has a reputation for being frequently reversed by the Supreme Court, but its reversal rate is only a little higher than average and not as high as that of some other circuits."

In conjunction with Liptak's article, check out Linda Greenhouse's 11/22/18 NYTimes column "Supreme Court Party Time" on the "independence" of conservative Justices Thomas, Alito, Gorsuch and Kavanaugh feted at a Federalist Society function. Greenhouse comments on the Chief's absence with some background that might suggest why. Orrin Hatch, also a guest," joked" about Trump's outsourcing of judicial nominees to the Federalist Society.

Bernstein's first book on Lochner was more properly the length of a modest law review article. That book seems to be the foundation of his academic career. Bernstein has been giving mouth-to-mouth to Lochner for years, his legal Frankenstein. Jack Balkin has an interesting article whose title, as I recall, is "Lochner, Wrong When It Was Decided, Wrong Now." Presumably SPAM's "recommendation" of Bernstein's mouth-to-mouth is that it provides SPAM with wet dreams of The Gilded Age of the late 19th century, America's best days according to SPAM. [Note: I'm aware that Lochner came down early in the 20th century, a remnant of The Gilded Age.] I assume SPAM frequently rereads Ayn Rand to reassure his libertarian creds (although Rand was actually a libertine).

It is crazy to rehabilitate Lochner.

At BEST, you might say that the counterrevolution against Lochner went a bit too far and that groups like the Institute for Justice are doing good work making economic due process arguments against truly dumb or protectionist regulations like requirements that black hair braiders go through years of cosmetics training.


CO has a series of checks on the judiciary, including confidential surveys if the attorneys who practice in front of them, judicial performance commissions, retention elections and mandatory retirement age.

Mr. W:

You obviously did not read Rehabilitating Lochner, which does an excellent job digging up the long precedential basis for the right to contract which the Lochner Court employed.

Is SPAM aware of the long precedential basis for slavery pre-13th A and the subsequent long precedential basis for Jim Crow? Were rights of contract involved with the former? Ignoring the right to contract with the latter?

A person saying they are for an accountable judiciary that 'applies the law as written' and for Lochner is like a person who says people should be vegetarians and they should eat more turkey. In other words, they don't know what one or both of those things are.

The 'liberty to contract' that would trump duly democratically passed laws is not mentioned in the 14th Amendment at all. As the late Professor Bork said, Lochner's a-textual 'Liberty to contract' is an 'abomination' which the 'quintessence of judicial usurpation.'

Which is the quintessence that is

Should it be pointed out that Prof. Bork was an early originalist in the movement?

Bernstein posts once in a while over at the VC. Sometimes I check comments on his posts for chuckles. He sometimes gets into the thread of a post of his if he is criticized. He seems to be thin-skinned at times.


Applying the law as written, what the Court should have held the 9A guaranteed the centuries old right to contract and the 14A P&I Clause guaranteed it against the states.

However, the Supremes rarely used the 9A and wrote the P&I out of the Constitution. Lochner used the wrong method to get to the correct decision.

Does Bernstein's Lochner mouth-to-mouth comport with SPAM's 2nd paragraph at 9:34 PM?

By the Bybee [expletives deleted, despite Gina], the 14th A has a PorI clause, not a P&I clause.

Maybe SPAM's next book should be his own mouth-to-mouth: "Rehabilitating the 9th A."

Query: Has the 9th A been incorporated via the 14th A by SCOTUS?

A person who complains about judges applying their personal philosophy instead of 'the law as written' and then pointing to the 9th Amendment so much is like a person complaining that people don't eat healthily enough and then saying we need to have more meals at McDonalds. The 9th is the most vague, open ended invitation to a judge to read their personal philosophy into the law that there is in the Constitution.


You, of all people, should know that if a liberal elite got control of institutions such as judicial performance commissions, such tools could be brought to bear against conservatives and not liberals.

What actually protects you is the strong taboo against this sort of politicized judging, with both you and Tushnet want to tear down.

Mr. W:

The Ninth Amendment as written is a catchall provision protecting liberties unenumerated in the rest of the Bill of Rights.

Anglo American law recognized the freedom to enter into contracts in general and the freedom to enter into employment contracts in particular for centuries. Wage controls were not part of the Anglo American legal tradition.


Where does this taboo against politicized judging exist?

You take it for granted and don't notice it.

But it exists any time any one of us walks into a courtroom and our case isn't immediately considered in terms of its relationship to those in power- which is what happens in numerous other countries.

You think a few party line cases on the most politically salient issues make the courts political. You literally have no idea how good we have it.

Did that Anglo American law that recognized the freedom to enter into contracts govern all individuals, did it permit for slavery, did it permit for indentured servitude, did it permit for discriminating against the "others"?

As to the 9th A, perhaps SPAM as a textualist/originalist could point to 1791 history and contemporary writings about the original meaning of its text, including federal and state court decisions demonstrating SPAM's understanding of the original meaning of the text.

As to wage controls being no part of the Anglo American legal tradition, that sounds like the views of the Robber Barons of The Gilded Age of the late 19th century. But what about federalism and the roles of the states on police power? The Dickens, SPAM says. Should we revert to the days of stocks and bonds of a non-financial nature? Sweatshops? Child labor? SPAM's still stuck in a time warp.

More background and and fofollow up, including by Mr Kellyanne Conway, on the topic of this post at:

Extensive stats are provided on the Ninth and other circuits reversal rates by SCOTUS.

Dilan: You think a few party line cases on the most politically salient issues make the courts political. You literally have no idea how good we have it.

Two different issues - deciding disputes under the law and enforcing limits on government power.

The former is generally non-politicized because political policy is not being decided.

For totalitarians like progressives and democratic socialists, who recognize no natural limits on government power, the latter is always politicized.

Shag: As to wage controls being no part of the Anglo American legal tradition, that sounds like the views of the Robber Barons of The Gilded Age of the late 19th century.

More like the British increasingly rejecting feudalism until eliminating it entirely with the Tenures Abolition Act 1660.

Bart doesn't realize he's cutting off the bottom of his ladder to nail to the top in trying to get out of the hole he's dug, citing a "law as written" which says the law is also unwritten in his railing against judges who don't stick to "the law as written!"

Also, restrictions on contract go way back in the common law (requirements of common carriers to not refuse service, restrictions on the contracts with seamen, etc.). The a-textual 'Liberty of contract' of the Lochner court (which, btw, was about hours regulation not wage regulation) was, as Bork well explains in The Tempting of America, a device used by judges to read their personal socio-political ideals into the law. The "quintessence of judicial usurpation."

To add to the background of this post, over at the VC David Post has this interesting post: "Hail to the Chief!
We really should, as Chief Justice Roberts suggests, be thankful for the "independent judiciary" on this Thanksgiving Day."

For chuckles, one might check out the comments.

SPAM provides his own acts of feudalism as he titles at windmills with his wet dreams of the past when he thinks America was great.

Back to Lochner, a wise man once said "The quintessence of bagels is usurped when the bakers are overworked." Avoid the Lochner "schmear" on bagels.


Mr. W:

The Founders originally wrote the Constitution to limit government powers to an enumerated few.

The Federalists believed there was no need to list our freedoms at all because they consisted of everything outside of the enumerated government powers.

Properly distrusting the government, the Anti-Federalists demanded at least a partial list of our freedoms analogous to the English Bill of Rights. However, even they realized it was impossible to list everything outside of the enumerated government powers in a Constitution, so they provided the catchall 9A protection of unlisted freedoms.

This is how a judge should apply the Constitution as written.

BTW, government capping the amount of time you can work or mandating increased pay for any hours worked beyond the decreed cap are indeed indirect wage controls.


You are literally nuts

I mean, lots of decisions conservatives hate, like Roe and Lawrence, impose limits on government power.

And lots of legal systems have had fully politicized judiciaries, where a vast array of disputes are adjudicated politically.

Literally every point you have made in this thread is wrong and some of them are utterly disconnected with reality. Slow down before hitting publish.


My note concerning government power was not a complete description of totalitarianism.

We all have a natural right to live our lives as we please so long as we do not harm one another.

We created the classically liberal government to protect this right by limiting its powers to keeping people from harming others by denying one another freedom.

In contrast, Totalitarians believe, by virtue of their superior intelligence, they can improve our lives by using government to direct our lives. If a totalitarian government desires us to perform X act, it can accomplish this by either ordering us to perform the act or removing government prohibitions against the act.

For example, in Roe, the Supremes wanted to promote abortion so they rewrote the Constitution to remove government prohibitions on killing unborn children.

In Lawrence, the Supremes adopted the classically liberal standard of prohibiting government direction of our lives where we are not harming others out of convenience, rather than principle, to achieve their desired end result of promoting homosexual relationships.

Remember, for totalitarians, all approaches are fair, so long as we live as they desire.

"This is how a judge should apply the Constitution as written."

They must apply the Constitution as written where it writes that they must apply the parts that are not.

Again, we're dealing with a man complaining about restaurants not serving enough healthy foods and then telling everyone to eat at McDonalds.

And caps on hours are 'indirect' wage controls? Like regulations on intrastate wheat use that affects interstate markets are indirectly then regulations of interstate markets...


"Literally every point you have made in this thread is wrong and some of them are utterly disconnected with reality."

Dilan, meet Bart!

The sad thing is that his kind of thinking is more and more becoming the norm on the Right.

"We all have a natural right to live our lives as we please so long as we do not harm one another."
This is your particular political philosophy which then read, a-textually, into the Constitution just like what you accuse progressives of doing. And, like many of those progressives you seize upon the vaguest, most open ended provisions to try to work your political philosophy into the document. At least they, though, don't then absurdly and hypocritically turn around and talk about original understandings, applying the law 'as written,' etc.

In Lawrence, the Supremes adopted the classically liberal standard of prohibiting government direction of our lives where we are not harming others"

Over the strong dissent of the conservatives who pointed out that this libertarian conception had *never* been the guide of our legal system! Governments, especially state ones, routinely violated that principle when the 9th and 14th were passed, virtually no one understood the terms of the 9th and 14th to have meanings contravening those long standing, widespread practices when ratification occurred. There was no 'presumption of liberty,' contract or otherwise, it's just another example of people being tempted to use the vaguest provisions of the Constitution to read their philosophy into judicial mandates usurping the power our actual system intended to be primarily resolved via the political, democratic branches.

As I said, Bart's philosophy is a mirror image of what he and his ilk confuse 'progressive' jurists of, but an even more clouded image for the hypocrisy which accompanied it.

SPAM's crusade is against totalitarians in his 10:22 AM screed. Who are these totalitarians? Apparently those who disagree with SPAM's versions of libertarianism and the classically liberal government, he claims, "We created ...." As Tonto responded to the Lone Ranger's "We are surrounded by Indians!" "What you mean 'We,' Kemosabe?" Apparently SPAM has been rereading Ayn Rand to sharpen his libertarian creds with the dull words of a true libertine.

Mr. W:

You are (most likely willfully) missing the entire structural argument.

A constitution which enumerates government powers implies we live the parts of our lives outside the reach of those powers as we please.

This implication is redoubled when the constitution adds a bill of rights enumerating liberties which the limited government may not abridge and then finishes that list with a catchall provision expressly protecting other liberties "retained by the people."

How can you logically and honestly apply such a catch all provision expressly protecting retained liberties without applying a presumption of liberty to the identification of the retained liberties?

The reason you cannot or will not see this logical progression is you apply a totalitarian world view to liberty as what is left over after the state exercises unlimited power, not a natural right which the state may not abridge. In other words, you apply a presumption against liberty to the 9A.

While SPAM professes to combat totalitarians, SPAM is in lockstep with Trump, his long ago (Cruz Canadacy) branded fascist. Isn't a fascist a totalitarian? SPAM is a Mugwamp, one foot in his Mug (libertarianism) and the other in his Wamp (totalitarianism). That may account for the split in SPAM's genes (for which we are all thankful)

SPAM's version of textualism works by implications? Of course, by definition such implications are not written. Nice try, Hemlock.

Give me freedom from the presumptuousness of libertarians on their concepts of liberty. Libertarians are oblivious to the harms they cause in their selfishness. Libertarians cannot govern.

"A constitution which enumerates government powers implies we live the parts of our lives outside the reach of those powers as we please."

This confuses the federalism aims of the Constitution with a declaration of 'classical Liberty' political philosophy. The careful enumeration of *federal* powers doesn't imply 'classical Liberty' otherwise, because it could of course mean the states can legislate in the unenumerated areas. And lo and behold the 'text as written' expressly contemplates this as in the 10th Amendment. Also, at the time of ratification those states engaged in numerous, long standing and widespread government action contrary to the principles you say must be presumed. The ratifiers of the Constitution and 9th Amendment clearly didn't understand its terms to preclude state power to legislate in areas that would violate the principle asked to be presumed, as evidenced by the many unchallenged violations of it at the time of ratification.

What's worse for the claim the Constitution aims to establish 'classical Liberty' politicial philosophy even at the federal level is that 1. the 'text as written' contains an express statement of aims in the preamble where at best Liberty is stated as one of several goals (and not the first or second stared at that and 2. There are express provisions in the Constitution that violate the very principle offered (takings, draft, etc.).

It's a fantasy, a mirror image of what conservatives like Bart accuse 'progressive' jurists of: using the vaguest parts (and a-textual 'structural' or 'spirit of' arguments) to read their policy preferences as allowed/required by the Constitution unchallengeable by democratic majorities. With people like Bart every accusation is a confession.

The problem with "libertarianism" (a mostly-misused word), is that it's fundamentally authoritarian. It rejects a definition of liberty which includes democracy. In order to achieve what it calls "freedom", it has to impose that "freedom" on people against their own wishes as expressed in the democratic process. That's why we so often find "libertarians" standing side by side with authoritarians.

Shag: SPAM's version of textualism works by implications?


Of course, written law makes implications. The maxims of statutory interpretation are generally based on this fact.

Mr. W: The careful enumeration of *federal* powers doesn't imply 'classical Liberty' otherwise, because it could of course mean the states can legislate in the unenumerated areas. And lo and behold the 'text as written' expressly contemplates this as in the 10th Amendment.

Article I, Sec. 10 of the Constitution expressly limits state powers, of pertinent part for our earlier discussion: "No state shall...pass any law impairing the obligation of contracts."

Additionally, Article IV, Sec. 2 of the Constitution prohibited states from abridging the privileges and immunities of American citizens.

Now, read the 10A for content: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."


Liberty is to live your life as you please so long as you are not harming (denying liberty) to others.

We adopted a representative democracy based on its own relative merits as a means to choose the government, not necessarily to protect liberty

Indeed, a representative democracy is not necessary to achieve liberty and is often as tyrannical as any dictatorship. Thus, the concept of the tyranny of the majority and why our Constitution placed multiple checks on our representative democracy.

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