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Along with the prayer ruling today from the Supreme Court, the New York times reports on a study from USC on the justices' biases in voting to defend free speech rights.

Surprising no one, the headline finding is that the more liberal or conservative a justice is, the more likely they are to vote in favor of a liberal or conservative speaker, respectively.  Here's the key graphic.

Supreme Court justices' support for speakers declines as the speaker is further from their own ideology.
(By the way, side note on the roles of journalists and scientists here.  I think this graphic was constructed from the scientists' raw data by the Times; it's not found in the original paper, and it really conveys some key points very clearly.  If so, good communication on the part of the Grey Lady there.)

So far, so human, although we can and should demand more of our highest justices.  People favor their side even when they think they're being fair.  But there are two things I noticed that I think are much more important than the evidence of a normal human bias among all Supreme Court justices.

First and by far the most important, while a difference is visible for liberal justices -- the justices fit a model with a nonzero slope, with Justice Stevens at the most liberal end -- the study calculates that the difference is not statistically significant for any liberal justice but him.  Take a look at that graph again.  Does being a conservative speaker penalize you as you move from the conservative to the liberal justices?  A little.  But compare that to how much being a liberal speaker penalizes you as you move from the liberal to the conservative justices.

The liberals are, for the most part, not statistically different in their support for conservative and liberal speech.  They can fairly claim to be impartial when evaluating speakers.  The conservative justices are statistically different in their support for conservative and liberal speakers.  This is an objective measure that calls their commitment to impartiality into serious question, and -- in the rare cases that Supreme Court Justices open themselves to questioning by the public -- an accounting should be demanded.

(A note: the Times article opens with Scalia's famous vote to strike down a law banning flag-burning.  One wonders if in the years since, Scalia is suffering from a version of the Snackwell effect: having inoculated himself against charges of favoritism in his own mind, he is free to play favorites.  Recall any pleasant surprise you may have felt when Chief Justice Roberts voted to uphold the ACA.)

The second thing to notice is that the study looked at votes from 1953 to 2011.  Discarding justices with fewer than 100 votes (insufficiently strong basis to form a sound  ideological measure), who has the most extreme bias in the last half-century plus?  Justices Scalia and Thomas.  I've downloaded the study's original data and I'm going to see if I can determine whether the margin of bias has become more extreme over time.  Technically my working hypothesis is the null, but the good Reverend Bayes is whispering for me to put it all on "yes."

Sat May 10, 2014 at 11:11 PM PT: I have completed the time series calculations.  The scientists' raw data was already helpfully sorted by the time the justices was appointed, so that made a handy guide.  I might have sorted by midpoint of time on the court, but I doubt that would have affected anything.

At any rate, the upshot: turns out no, bias isn't getting worse -- at least, I can't say with confidence that it is.  There is basically a band of justices for whom the differences in support for liberals and conservatives (whatever the justice's base ideology) is 10 to 20 percent or so.  If you ignore the justices with fewer than 50 free-speech votes, the only justices with a difference above 30% are Douglas, Warren, Scalia, and Thomas.

There's kind of a trend-ish in the lower band of justices, of bias increasing over the years, but we're getting perilously close to the Texas sharpshooter fallacy by this point.

Originally posted to Inflection on Mon May 05, 2014 at 04:14 PM PDT.

Also republished by Repeal or Amend the Second Amendment (RASA) and Community Spotlight.

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Comment Preferences

  •  Alito looks like he's just about as bad as (8+ / 0-)

    Scalia and Thomas.

    "We the People of the United States...." -U.S. Constitution

    by elwior on Mon May 05, 2014 at 04:25:45 PM PDT

    •  That's because he is (8+ / 0-)

      This is they guy, after all, who made faces at Justice Ginsburg as she was trying to read a dissent.

      "Corporations exist not for themselves, but for the people." Ida Tarbell 1908.

      by Navy Vet Terp on Mon May 05, 2014 at 04:32:59 PM PDT

      [ Parent ]

    •  Proportionally worse: S & T are thrice as likely (10+ / 0-)

      to support Conservative free speech as Liberal; Alito is five times as likely to. So he's much more biased.

      Though Scalia, who's such a clever troll, is perhaps the most dangerous rationalizer on the court. Roberts is also quite pernicious.

      "Every man has a right to utter what he thinks truth" Samuel Johnson

      by Brecht on Mon May 05, 2014 at 04:37:11 PM PDT

      [ Parent ]

      •  Roberts is close as well. (4+ / 0-)
        Recommended by:
        Brecht, Matt Z, Jon Sitzman, greengemini

        "We the People of the United States...." -U.S. Constitution

        by elwior on Mon May 05, 2014 at 04:54:43 PM PDT

        [ Parent ]

      •  Scalia's remarks in the Town of Greece oral arg (7+ / 0-)

        should get more criticism like his broccoli analogy, etc. He said that a legislature isn't really a government like a court is, rather it's an amateur citizen group that earnestly asks support of the deity. A listing of his greatest travesties should be collected for public comment on whether his time has come to resign. Not a bad grasp of criminal procedure, but he has entirely lost touch with what a republican form of government is.

        •  I haven't studied the evolution of Scalia's views (8+ / 0-)

          but he seems to be a brilliant man, with a sharp rationality; who has grown more emotionally committed to the right-wing over the last twenty years, so that much of his previous reasoning has curdled into rationalizations supporting his constant hunger to punch hippies.

          "Every man has a right to utter what he thinks truth" Samuel Johnson

          by Brecht on Mon May 05, 2014 at 10:28:14 PM PDT

          [ Parent ]

          •  Even his previous reasoning (5+ / 0-)

            was based on the concept of originalism,  which rests on the notion that the framers were inhumanly wise and saw every possible future ramification of their writings. Anyone who's read the history of that era knows this is absurd, that there were clauses put into the Constitution as a result of clumsy sausage-making just as unseemly as any that went on in the present era.

            But if one accepts originalism as a valid legal philosophy, then he has, indeed, gone far afield. From the page linked above:

            1. Originalism reduces the likelihood that unelected judges will seize the reigns [sic] of power from elected representatives.
            2.  Originalism in the long run better preserves the authority of the Court.
            3.  Non-originalism allows too much room for judges to impose their own subjective and elitist values. Judges need neutral, objective criteria to make legitimate decisions.  The understanding of the framers and ratifiers of a constitutional clause provide those neutral criteria.
            I must laugh, otherwise I'd cry.

            "The only thing we have to fear is fear itself."........ "The test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little." (yeah, same guy.)

            by sidnora on Tue May 06, 2014 at 05:14:33 AM PDT

            [ Parent ]

            •  it's a tactic to trump legislative revolutions (4+ / 0-)

              like New Deal and VRA, by imposing judicial supremacy. Like striking down innocent McCain-Feingold as if Congress and President had violated their oath of office and trampled all over the First Amendment. This is the opposite of rule of law set forth in Marbury, the rule of 5 mullahs who get the last word on all legislation. The president gets a veto, not the Court. The Marshall Court worked it out in Ogden v. Saunders that a law doesn't get overturned unless unconstitutional beyond a reasonable doubt. The 4 dissenters don't raise a reasonable doubt for Scalia, who believes Congress is an inferior branch of government that needs his guidance.

        •  Bearing in mind that any process could be used... (5+ / 0-)
          Recommended by:
          Musial, sidnora, Black Max, poco, offgrid

          ...against liberal judges, do you think some sort of pressure to resign ought to be possible to apply to SCOTUS judges?

          To be honest, I'm not sure how any more exposure of the court to politics wouldn't have ultimately a far more corrupting effect than mere tenure.  Sustained mockery and disapprobation can wear on anyone, though.  Of course, in this day and age it's relatively easy to avoid that by retreating into the bubble of like-minded claques that surround any political figure, especially on the right.

      •  Conservative Free Speech is code for... (2+ / 0-)
        Recommended by:
        Black Max, Brecht

        lying.

        •  Conservative free speech is code for MONEY (0+ / 0-)

          and if money chooses to lie, oh well.  

          "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

          by lgmcp on Tue May 06, 2014 at 04:06:31 PM PDT

          [ Parent ]

  •  clarification of "the speaker" (13+ / 0-)

    Thanks for drawing attention to this!

    When I first read your diary, I was confused about what you meant by a "speaker". I wondered whether you meant a lawyer speaking before the Supreme Court.

    But now I see that footnote 4 of the paper defines the "speaker" as "the litigant whose expression the government is attempting to constrain."

    That clarifies the subject. The paper is talking about whether a justice rules in favor of a conservative or liberal litigant whose free speech is at issue.

    The Republican plan is always the same old trickle-down, on-your-own, special-interests-first, country-club, voodoo economics.
    Donate to Oxfam America for the famine in east Africa.

    by JayC on Mon May 05, 2014 at 04:37:41 PM PDT

  •  So this is why people hate me (0+ / 0-)

    When I defend Scalia's decisions?

    http://jasonluthor.jelabeaux.com/

    by DAISHI on Mon May 05, 2014 at 09:18:07 PM PDT

    •  Depends. Since Scalia is a hypocritical (5+ / 0-)
      Recommended by:
      poco, edg, Hamlets Father, Occulus, MKinTN

      conservative troll undermining core American values with his work on the Court, it's entirely possible that your defense of his decisions labels you as an enabler of that same anti-Americanism that most people in this forum deplore.

    •  Because this is a sport and you are cheering wrong (0+ / 0-)

      team. Seriously thats it, I am so tired of the blue team red team bs.

      It kills logic and reason and reduces everything to the source and not the result.

      Join the DeRevolution: We are not trying to take the country, we are trying to take the country back. Get the money out of politics with public financed campaigns so 'Of the People, By the People and For the People' rings true again.

      by fToRrEeEsSt on Tue May 06, 2014 at 01:29:18 PM PDT

      [ Parent ]

      •  Sport? (1+ / 0-)
        Recommended by:
        JerryNA

        Trying to stem the tide of oligarchism and jingoistic, theocratic barbarism isn't the same as cheering on the home team, buddy.

        •  Buddy? Sure we can be buds if you like but can you (0+ / 0-)

          admit the Dems are just as bought out and are the other party of the oligarchy, they just play for those with empathy while the right plays for the 'fend for yourselfers'.

          You are proving my precious post, you see the 'team' and not the reality. You think the repubs took us here on their own with the dems fighting tooth and nail to stop them.

          If you do then there is little chance I can get you to see the truth now. I'm sure you just think dems are terrible negotiators and some how inept and those dirty republicans always find a way to win.

          What is it about Dems that make them lose/give the Repubs what they want? Could be a genetic democratic defect or it could be they are just insincere and are wanting many of the same things.

          Only you can choose which is true for you, but I know which is true for them. They may represent us when it comes to social issues like the repubs do for the right, but both serve the oligarchs where it matters and super rich don't care about social issues they can afford to do anything they want. Social issues are the emotional dividing lines that are hard to vote against, thus we as a nation are divided afraid of the other 'team'.

          Join the DeRevolution: We are not trying to take the country, we are trying to take the country back. Get the money out of politics with public financed campaigns so 'Of the People, By the People and For the People' rings true again.

          by fToRrEeEsSt on Wed May 07, 2014 at 02:29:14 AM PDT

          [ Parent ]

          •  So, then... (1+ / 0-)
            Recommended by:
            JerryNA

            Saying 'the Democrats and the Republicans are the same' basically means 'any policy differences between them, anything that the Democrats do that the Republicans wouldn't, is unimportant'.

            You can say that. You aren't one of the tens of thousands of people who won't die because of the ACA. So you can afford to say that, hey, you people are just a rounding error, you're not important.

            Anyone who knows me knows I'm no cheerleader for the Democrats. But accusing them of being exactly the same as the Republicans basically involves putting your hands over your eyes and your fingers in your ears and ignoring those times when they do do something good, solely to make a point. Those of us who know people who are still alive only because of the efforts of those Democrats, imperfect though they might be, find that preeeeetty offensive.

            •  Please don't make a straw man argument they are (0+ / 0-)

              so boring to prove as fallacies. They are not 'exactly the same' because that would serve no purpose, they are different in social issues and vibe. The Repubs are catering to the very religious right and the 'fend for your selfers' while the dems cater to the empathetic and secular.

              So no they are not 'exactly the same, but both still work for the oligarchy. As to the ACA its a Heritage Foundation plan that the Repubs could never pass and if its a long term benefit or problems can only be determined in the future, and anyone who says its great or terrible has little interest in reality . I know you want to say how great it is, and it has done some good, but it has some potential problems down the line. I am not anti ACA or Dem, but the fact you are 'offended' by me speaking freely and honestly means you rather be offended than face the truth or even have an open mind. (I mean what are you offended by,my opinion that is not about you? Thats a defense mechanism to easily disregard anything I say, because facing the reality that I might be correct is outside your current comfort zone )

              I can't make you see what you refuse to look for, so just pretend i'm the bad guy and you are the good guy just like both parties do to each other because blaming the other always absolves one of responsibility.

              At some point the people will have to stand up for themselves if they want their country back, but I know its scary and most prefer to live in the illusion that offered for exactly this purpose.

              I don't care what you believe until the day you are committed to getting your nation back into the hands of the people, until then you can believe whatever you like and I won't be offended.

              I just throw it out there so people can slowly become comfortable enough with the idea to remove all slants and truly evaluate. Everyone works at their own speed, but if no one has the guts to speak the truth others won't have the opportunity to seriously evaluate it.

              Sorry to offend you and I hope the rest of the your day is filled with ideas you already believe so you won't have any more offense today.

              Join the DeRevolution: We are not trying to take the country, we are trying to take the country back. Get the money out of politics with public financed campaigns so 'Of the People, By the People and For the People' rings true again.

              by fToRrEeEsSt on Wed May 07, 2014 at 04:47:30 PM PDT

              [ Parent ]

  •  Unsurprising. (4+ / 0-)

    I fucking hate the Westboro Baptist Church and everything they stand for.

    They can go straight to hell.

    But ask me if I want to ban their speech, and I'll defend their right to say ignorant shit until my last breath.

    Compare that to conservatives:  If they disagree with you, they want the police state to beat the shit out of you and shut you up.  Just ask the folks at Occupy Wall Street.  Did even one conservative anywhere defend their right to speak?  Fuck no.  All you heard from those obtuse, selfish assholes was how "dirty" and "criminal" the Occupiers were.

    This is the part those idiots don't get.  Their version of the Constitution is a cafeteria - they take what they want when they want it in the context they want it and ignore the rest.

    Fuck 'em.  Subversive assclowns.

    "There was no such thing as a "wealthy" hunter-gatherer. It is the creation of human society that has allowed the wealthy to become wealthy. As such, they have an obligation to pay a bit more to sustain that society than the not-so-wealthy." - Me

    by Darth Stateworker on Mon May 05, 2014 at 09:25:54 PM PDT

  •  Studies like this are inherently questionable. (0+ / 0-)

    It gives equal weight to cases like Citizens United or the Pentagon Papers rulings or other landmark rulings as to rather inconsequential rulings.

    The most important way to protect the environment is not to have more than one child.

    by nextstep on Mon May 05, 2014 at 11:19:46 PM PDT

    •  How do you quanitfy consequential (0+ / 0-)

      vs inconsequential? That's a matter of perception.

      http://jasonluthor.jelabeaux.com/

      by DAISHI on Tue May 06, 2014 at 06:35:55 AM PDT

      [ Parent ]

      •  The implicit assumption that all should have equal (1+ / 0-)
        Recommended by:
        ManhattanMan

        weight is what is wrong with the method.  It is not necessary to have an agreed method of weighing the different decisions for my criticism to be true.  The method asserts all cases have the same weight, a very precise weighing that few would agree with.  If assigning weights is difficult, that does not make equal weighting valid in an analysis.

        I think that most (but not all) people would place greater weight to Citizens United (striking down some campaign finance laws) or NY Times Vs United States (the government cannot impose prior restraint on the press) than Morse Vs Frederick (educators can block a high school student from speech promoting illegal drug use at a school event - a tee shirt saying "Bong hits 4 Jesus")

        The most important way to protect the environment is not to have more than one child.

        by nextstep on Tue May 06, 2014 at 10:18:50 AM PDT

        [ Parent ]

        •  I think equal weight is OK. (2+ / 0-)
          Recommended by:
          Batya the Toon, lgmcp

          Assigning weight to cases will be contentious and will offer even more opportunities for bias.

          It's safer just to call everything equal and make up for it with huge sample sizes.

          •  Equal weight is a bias and is arbitrary. (0+ / 0-)

            Mathematics successdully applied to the real world requires that the mathematical model used is a reasonably accurate representation of reality.

            In addition a bad weighting does not improve with increasing a sample size.

            Equal weighting in situations like this is frequently accepted by those who are not very good at applied mathematics.

            The most important way to protect the environment is not to have more than one child.

            by nextstep on Tue May 06, 2014 at 11:09:44 AM PDT

            [ Parent ]

            •  Feel free to propose a weighting methodology (1+ / 0-)
              Recommended by:
              Batya the Toon

              and re-calculate the outcomes -- that would be most interesting.  But in the meantime, I think a transparent, objective, reproducible method of weighting all decisions equally, makes a lot of sense and is highly defensible.

              "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

              by lgmcp on Tue May 06, 2014 at 04:10:09 PM PDT

              [ Parent ]

            •  We bow to your superior intellect, Khan. n/t (0+ / 0-)

              Feed the hungry? Clothe the naked? House the homeless? American Jesus says "Nuh-uh."

              by edg on Tue May 06, 2014 at 10:08:46 PM PDT

              [ Parent ]

    •  I'm not sure I understand your objection. (0+ / 0-)

      Can you give an example of how this "giving equal weight" might give a distorted impression of what's actually happening?

      •  Equal weighting means the common but (0+ / 0-)

        unimportant cases dominate the statistical result.  Most of the free speech cases in the study received little public attention and were generally thought to be unimportant.  

        What matters however are the important cases which have little impact on the statistics from an unweighted study.  Ultimately what matters are the important cases - but this study does not provide insight into the instances that matter.

        In addition there are different themes in first amendment rights that come in waves before the SCOTUS, regulation of campaign finance is very different than pornography cases, which are different from protests in the public square which is different from cases that border commercial speech.  The study groups all of these under first amendment.

        The most important way to protect the environment is not to have more than one child.

        by nextstep on Tue May 06, 2014 at 12:00:44 PM PDT

        [ Parent ]

        •  I'm still not sure I see how that's a problem (1+ / 0-)
          Recommended by:
          JerryNA

          in terms of giving an inaccurate result, unless you think that "common but unimportant cases" are likely to be weighted toward one side or the other of the scale.

          I grant you that the different types of first amendment issues ought to be counted separately to give a better overall picture.  It would be very illuminating to see whether/how those tend to cluster.

        •  I think I agree with Batya. (3+ / 0-)

          The question being asked is, "in a random case, how likely is the justice to vote in favor of the free speech argument, and how is this likelihood affected by the ideology of the speaker?"

          The result, if robust, should then have predictive value for any random case.

          Now, if you hypothesize that the justices will vote differently in highly consequential cases, and that a prediction based on solely considering their previous votes in such cases will be predictive, that's plausible but needs two things.  First, you would have to define "consequential" in some objective way.  Perhaps you could take "number of mentions of the case in the print edition of the New York Times in the six months before the case" and assign some threshold.  Then whatever prediction you came up with would only apply to cases so mentioned in the future.

          The other problem would be that the sample size of "consequential" cases would be smaller, so the result would have less predictive power.  You might find that no significant effect obtained.  On the other hand, if you suspect the effect is stronger in consequential cases, then you might still find a significant difference!

          Personally, I don't think only considering  "consequential" cases would see much change in the data, especially not once one takes into account the necessarily smaller data set.  I could be wrong though, and it would be something interesting to find out -- go run the study!

    •  Your ego exceeds your intellect. (0+ / 0-)

      Fortunately, it is not up to you to determine what is consequential and what is not.

      Feed the hungry? Clothe the naked? House the homeless? American Jesus says "Nuh-uh."

      by edg on Tue May 06, 2014 at 10:14:36 PM PDT

      [ Parent ]

      •  Thinking all SCOTUS decisions are of equal (0+ / 0-)

        importance is breathtaking in its ignorance.  You will find very few if any law professors at major universities who would think this.

        At no point do I say that I should be the one to decide the weighting.

        The most important way to protect the environment is not to have more than one child.

        by nextstep on Wed May 07, 2014 at 09:43:30 AM PDT

        [ Parent ]

        •  The Court does not take inconsequential cases (2+ / 0-)
          Recommended by:
          JerryNA, VClib

          There is a reason the Court gets to pick and choose what cases it will hear.  It is the ultimate determiner of what is consequential.  If a case can't garner the 4 votes it requires to be granted certiorari then it is by definition inconsequential to the Court.  If it gets four or more, then it is by definition consequential.

          You do not need to project what is important to you on the decisions of the Court.  It is perfectly capable of weeding out the inconsequential cases for itself.

          Knowledge without conscience is the ruination of the soul -- François Rabelais

          by ccyd on Wed May 07, 2014 at 02:19:44 PM PDT

          [ Parent ]

  •  I agree I think the two party system is a bust (1+ / 0-)
    Recommended by:
    samfish

    and little more than rival sports teams corrupting as many new comers as they can.

    I say get rid of parties and just vote for people based on their individual platform and enough of the built in divide.

    A house divided can not stand...

    Join the DeRevolution: We are not trying to take the country, we are trying to take the country back. Get the money out of politics with public financed campaigns so 'Of the People, By the People and For the People' rings true again.

    by fToRrEeEsSt on Tue May 06, 2014 at 01:26:45 PM PDT

  •  One thing this graph says to me (1+ / 0-)
    Recommended by:
    offgrid

    is that the Court as represented by this data, HAS no liberal wing.   It has a conservative wing, and a centrist wing.  

    "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

    by lgmcp on Tue May 06, 2014 at 04:04:11 PM PDT

    •  538 did a graph of the ideology of the justices (2+ / 0-)
      Recommended by:
      JerryNA, lgmcp

      It was back in 2010 or something.  Ginsburg, the "leader" of the liberal wing is about dead center in ideology.  As a whole, the Court has never been more conservative than it is now.

      Knowledge without conscience is the ruination of the soul -- François Rabelais

      by ccyd on Wed May 07, 2014 at 02:22:46 PM PDT

      [ Parent ]

  •  If they started in 1953... (0+ / 0-)

    There should have been many more justices in the data and not just the contemporary ones.  I would be interested in seeing if the cognitive bias has increased over the years, or whether it has always been the case.

    •  It is. The graph is by the NYT. (1+ / 0-)
      Recommended by:
      JerryNA

      For impact, the Times made a graph based on the ten most current justices for whom good data is available.  You'll notice it doesn't include Sotomayor and Kagan, neither of whom had enough votes for the study to confidently claim a result.

      I've downloaded the study's raw data and hope to be able to answer your question about change over time.

  •  Want Dissonance? Scalia's "Federalist Society" (1+ / 0-)
    Recommended by:
    JerryNA

    ....it exists to push radical anti-Federalist policies loved by secessionists and Tenthers.

    Men are so necessarily mad, that not to be mad would amount to another form of madness. -Pascal

    by bernardpliers on Wed May 07, 2014 at 11:07:04 AM PDT

  •  Follow The MONEY Pouring To Conservative Justices (1+ / 0-)
    Recommended by:
    JerryNA

    They are getting PAID to deliver these politically charged speeches.  But don't you dare call it "bribery."  Clarence Thomas' wife has her own nonprofit that rakes in millions of dollars to pay her to make radical speeches as "Mrs. Clarence Thomas."

    Men are so necessarily mad, that not to be mad would amount to another form of madness. -Pascal

    by bernardpliers on Wed May 07, 2014 at 11:10:34 AM PDT

    •  They all get honoraria (0+ / 0-)

      I think you're barking up the wrong tree.

      Some justices limit themselves to ideologically slanted organizations, and others try to keep politics out of the equation entirely.  But they all get paid for speeches they make.

      Knowledge without conscience is the ruination of the soul -- François Rabelais

      by ccyd on Wed May 07, 2014 at 02:27:55 PM PDT

      [ Parent ]

  •  I think what this shows is that (0+ / 0-)

    The so called conservative justices are right wing ideologues. O'Connor and Kennedy are conservatives.

    Gondwana has always been at war with Laurasia.

    by AaronInSanDiego on Wed May 07, 2014 at 09:35:07 PM PDT

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