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Archive for June, 2007

Preserving What?

[ 1 ] June 30, 2007 |

Jonathan Zasloff beat me to Cass Sunstein’s discussion of Roberts and Alito’s “minimalism,” but since I’m working on and thinking about a scholarly article about it I thought I’d add my two cents. Sunstein’s basic point — that Alito and Roberts cast pretty much the same votes as Scalia and Thomas but are less interested in theory and write narrower opinions — is true as far as it goes. But when they vote to nominally “preserve previous decisions,” one has to ask exactly what is being preserved. The clear and explicit overturning of landmark precedents a la Lawrence is rarer than one might think; the New Deal Court, for example, often overturned precedents sub silento, and the Warren Court’s overturning of Plessy happened the same way (strike down segregation in a case emphasizing that education was unique and therefore not controlled by Plessy, and then just cite the case to overturn other types of segregation with no further explanation.) Rehnquist’s strategy was to hollow landmark Warren Court precedents rather than explicitly overturning them, and he tried to do the same thing with Roe. Upholding the precedents means something only they retain actual content. As Zasloff argues with respect to the nominal upholding of Flast v. Cohen, the centerpiece of Sunstein’s argument:

This is really grasping at straws. Does Sunstein really think that the next time taxpayers sue over a legislative appropriation, Alito and Roberts will gravely uphold standing, saying that they are bound by the precedent? If so, I have a bridge in Brooklyn to sell him. No–they will find some other meaningless distinction to show that there is no standing here, either. The distinction that they insisted on here actually cut against their argument: it makes MORE sense for there to be standing with an executive action, because the President is much less accountable to the public than Congress is. (If you don’t like something that the government is doing, whom do you call: your Congressman or the White House?). Besides, it’s easier to overrule a precedent simply by depriving it of all of its force: this is precisely what Roberts and Alito will do with Roe.

Right. And, of course, this is even more striking with the “upholding” of Carhart in Carhart II. As far as I can tell, what’s been preserved is “a woman’s right not to be burdened by an arbitrary abortion regulation if anyone is dumb enough to pass a law that’s exactly like the Nebraska statute.” (And since Kennedy found that statute constitutional anyway, almost certainly not even that.) What matters here is not the (laughably disingenuous) characterization of precedents but what the decision actually did with the statute and why, and the Court’s accepting anachronistic assumptions that no matter what the data says women must be crazy to want to get an abortion as a legitimate state interest will obviously give the states more leeway to regulate a woman’s right to choose. A couple of other points:

  • As I mentioned yesterday, while Sunstein likes to tout the democratic advantages of minimalism, I think there are real democratic costs to the kind of disingenuous hair-splitting employed by Alito and Roberts. Moreover, the democratic advantages of narrow rulings are inhere only if they actually reserve real legislative authority (or a right to sue that might actually be recognized or whatever.) Accountability is best served by candor (and, yes, I would say the same thing about the Warren Court’s post-Brown desegregation jurisprudence.)
  • I don’t mean to suggest that narrow holdings are never relevant, only that they can’t assumed to be and that we shouldn’t just take the Court’s word for it. While I remain skeptical that Kennedy himself will ever find an affirmative action program that will pass muster, failing to overrule Grutter has at least some consequences even as Bakke is reduced to less and less. Having said that, though, it’s important to remember that Alito and Roberts’s lack of interest in legal theory cuts both ways. The rare cases where the justices differ in their votes are likely to be cases where Scalia and Thomas cast more “liberal” votes. While, as we’ve seen, their commitment to “originalism” doesn’t constrain them on the issues that matter most to them, there are others — punitive damages, the 4th Amendment, 6th Amendment right to a jury trial, etc. — where they will vote with liberal justices. With the similarly reactionary but more pragmatic Alito and Roberts. conversely, there’s nothing that will cause any unpredictability.

At any rate, the first term demonstrates Roberts and Alito to be doctrinaire conservatives just as their records predicted, and the most likely effect of their “minimalism” is to do most of what Scalia and Thomas want to do in a more politically palatable manner.


"Market-Based Solutions"

[ 0 ] June 30, 2007 |

Nearly everything worth saying about this week’s Parents Involved decision has probably already been covered in previous threads (and elsewhere), but I want to highlight one piece of relevant historical obfuscation that joins several right-wing talking points about the history of and appropriate remedies for racial segregation. It’s axiomatic, of course, that your garden-variety wingnut sallies forth into the world with a severely limited understanding of the history of race in the US; as near as I can tell, the second half of the 19th century is an especially dark void for these people, who are prone to utter all kinds of bloated inanities about the Civil War, reconstruction, immigration and optional, imperial wars. That period really has it all — expanding government authority, massive demographic change, violent social conflict in every region of the nation, corporate growth, military revitalization — and nearly every time conservatives open their mouths on any of these subjects, they fuck it up royally.

The latest iteration of this trend comes by way of Captain’s Quarters, where Ed observes that

[r]acial preferences may have suffered a body blow, but we still have not succeeded in pushing market-based solutions to resolve the vestiges of the government failures to enforce the 14th Amendment for 100 years.

Um. Say what?

First of all, if I read Ed correctly, he’s expressing a geniune lament that radical reconstruction efforts — including state-level, race-based policies dedicated to integrating public schools — amounted to what Carl Schurz famously described as a “revolution, but half accomplished.” Good for him. As I gather from reading conservative blogs this week, it takes remarkable moral courage to denounce the “vestiges” of Jim Crow. I’m heartened to see that we’ve moved beyond the agonizing denunciations of Dred Scott and chattel slavery. (As a side note, could we at last retire the noxious metaphor of “vestigial” racism — as if economic inequities, vote suppression, and other ills were nothing more than vanishing traces of a regrettable past, or a shrunken, useless organ like an appendix? Among other things, racial resentment has been a vital part of conservative electoral success since the 1960s. However we choose to characterize that fact, “vestigial” isn’t the accurate term.)

But what is this “failure” of which the Captain speaks? As Ed is doubtless aware, by the 1872 Presidential election, the Republican Party had essentially abandoned the project of reconstruction to prevent the defection of Northern white voters from its ranks; by 1874, only a handful of states governments had not yet been “redeemed” by white supremacists; and beginning with the Slaughterhouse cases in 1873, the Supreme Court began narrowing the scope of the Fourteenth Amendment in a way that flatly ignored its legislative history and the easily discernible intent of its framers. In other words, “the government” did notfail to enforce its own Constitution for 100 years — this would imply that some sort of genuine attempt had been made in that direction.

Instead, “the government” allowed “the market” to determine that blacks were unfit for equal citizenship, that they were biologically and socially inferior, that they were to be governed by a regime of petty coercion and extraordinary violence, that they were uniquely suited to unskilled labor, and that all of this was to function as permanently as possible. “The market” also satisfied a healthy white demand for coon songs, racist postcards, horrid novels and films, and souvenirs from the latest lynchings — all of which helped to rationalize the broader architecture of white supremacy. Now, one could make the case (as liberal opponents of segregation sometimes did) that Jim Crow laws were an unjust interference with the socio-economic order and that Jim Crow regulations — however much they conformed to popular (i.e., white) preferences — weren’t actually expressions of the mystical priorities of “the market.” But as Nancy Cohen points out in her excellent work on late 19th century liberalism, most of the “market-based solutions” to the post-Civil War racial landscape went no further than boarding up the Freedman’s Bureau, removing federal troops from conquered lands, and muttering pieties about hard work, personal responsibility, and the immutable laws of the economy as Southern blacks were siphoned into debt peonage.

The larger point is this: As our courts narrow the remedies available to correct racial disparities in education, we’re going to have to endure a lot of nonsense about how “market-based solutions” like coupons “vouchers” will cleanse our souls. Clarence Thomas and others will ask us to worry about “elites bearing racial theories” — a statement so historically ignorant as to deserve a separate post — while asking us to trust the better angels of the market. It’s worth bearing in mind that “the market” has been part of the problem all along.

The Sporadic Originalists

[ 0 ] June 29, 2007 |

I have an article up in TAP about the affirmative action cases and “originalism.” The cases make clear that for even justices who occasionally practice it rarely gets in the way of strongly held policy preferences:

Affirmative action cases pose a similar but even more difficult problem for conservative originalists. It is implausible in the extreme to claim that the equal protection clause was generally understood, at the time that Congress was creating the Freedman’s Bureau, as prohibiting even remedial or otherwise benignly intended racial classifications. And neither Scalia nor Thomas has even tried to make a serious historical argument to this effect. Rather, they make policy arguments or speak in abstract terms about the principle of “color blindness,” a principle that is consistent with but hardly compelled by the 14th Amendment’s broad language.


And that’s even not the worst of it. Consider the case of Adarand v. Pena, in which Scalia and Thomas found a blanket constitutional prohibition on federal affirmative action. The problem for originalism here is even more grave, because the 14th Amendment doesn’t apply to the federal government. And if it’s a stretch to say that the equal protection clause was originally understood as prohibiting all racial classifications, it is absolutely farcical to read this principle into the due process clause of the 5th Amendment, which was ratified when the Constitution protected slavery. Whatever its independent merits, then, the Scalia/Thomas position on affirmative action has nothing whatsoever to do with originalism.

Having said that, I do think that Scalia deserves credit for taking Roberts to task for his disingenuous “I’m not overturning the precedent, I’m just refusing to ever apply it” hair-splitting. (As a friend noted in email, with Alito it seems almost a neurosis — what state will the Republicans lose in 2008 if Flast v. Cohen is overturned explicitly? He supposes that it’s the counts of precedents overturned that matters; if relatively few precedents are explicitly overruled some people may be fooled into thinking that nothing is really changing even as major branches of doctrine are being significantly revised.)

Walter Dellinger wrote recently that “But it’s neither minimalist nor restrained to overrule cases while pretending you are not.” Admittedly, as a skeptic I’m inclined to think of this kind of behavior as exemplifying minimalism rather than betraying it. But leaving aside the semantic issue the overall point he’s making is absolutely correct. The Court owes it to the public and role of the courts in a democracy to be honest about what it’s doing. If it wants to overrule Stenberg v. Carhart or McConnell or Flast v. Cohen, it should do so explicitly. In the meantime, however, it’s important not to be fooled when the Court declines to formally overrule a precedent it’s completely gutting.


[ 0 ] June 29, 2007 |

Shorter neo-neocon: “Everything changed for me on September 11. I used to consider myself a Democrat, but thanks to 9/11, I’m outraged by Brown v. Board of Education.”

Good Steps in Prison Reform

[ 0 ] June 29, 2007 |

We’ve all heard the mantra “Elections Have Consequences” a lot this year. Maybe too much. But it’s relied upon because it’s true. Elections do have consequences. That’s few places clearer — or as positive a statement — as in New York.

When Eliot Spitzer won the governorship last fall, ending eight years of Pataki reign, a lot of us felt like a good wind was blowing. Pataki had gone out with a flourish, vetoing the Emergency Contraception Access Bill, which would have made EC available in New York without a prescription (this was back in the day before FDA approval). And then in came Spitzer, who has already pushed for legislation that would shore up abortion rights, and indicated his support for same sex marriage. How much weight he will throw behind these measures is another question.

Yesterday had news of a couple additional good Spitzer developments, as well as a call on him to do more in the arena of criminal justice. Spitzer will soon have the opportunity to sign up to three new — and needed — reforms. The first, the Safe Harbor Act, would treat children victims of sexual exploitation as victims instead of as criminals. The second would guarantee that people who are released from prison do not have a several months long lag in their medicaid coverage — often time that they cannot spare when battling HIV/AIDS, Hepatitis, Diabetes, and other serious illnesses. The final bill would prohibit state prisons from placing mentally ill prisoners into disciplinary isolation except under special circumstances.

These bills are all important and Sptizer should (and hopefully will) sign them all. The last is particularly worth highlighting. New York – like many other states – has an abysmal track record when it comes to the level of care it provides for seriously mentally ill men and women who are incarcerated. About 11% of New York’s prison population falls into this category, but prison guards and other officials – not to mention prosecutors and judges – are poorly trained on how to handle the issues and problems posed by a mentally ill prison population.

Of course, the question of mental illness in incarcerated men and women opens up a whole other can of worms about how the criminal justice system treats mental illness from the get-go — from the time of arrest, arraignment, plea, and trial. But that is one big and politically unpopular can. And this, at least, is a good start.

The Alito Court

[ 0 ] June 29, 2007 |

Emily Bazelon has an amusing article asking liberal and moderate legal scholars who claimed that Roberts would not preside over a rightward shift on the Court on the basis of…well, frankly I have no idea if they have second thoughts. (Of course he said he valued stability and precedent at his confirmation hearings. Everybody does. Including Clarence Thomas.) But while claims that Roberts “might even move the Court to the left” were frankly bizarre, as were the stories that took the possibility of lots of unanimous decisions in high-profile cases seriously, it’s important not to attribute too much causal weight to the new Chief Justice per se. Roberts is essentially a dead match for Chief Justice (as opposed to Associate Justice) Rehnquist–a standard issue conservative with little interest in grand legal theory and a tendency to disingenuously gut precedents rather than explicitly overruling them (although Roberts has taken the latter tendency to ridiculous lengths.) In other words, what really facilitated the Court’s rightward shift was replacing the moderate conservative O’Connor with the doctrinaire conservative Alito. If O’Connor had stayed on, the Roberts Court would look exactly like the end of the Rehnquist Court, and several major cases (including Carhart II, Ledbetter, and yesterday’s desegregation decision) would almost certainly have come out the other way. Given a minimum (i.e. more than Burger) level of competence the impact of the Chief Justice on the modern Court just isn’t very great.

Thoughts on Darth Cheney

[ 0 ] June 29, 2007 |

I’m still not sure how I’m supposed to react to the excellent Washington Post series on Dick Cheney’s tenure as Vice President. On one level, I’m impressed; Richard Cheney is an extraordinarily competent bureaucratic infighter. He has a masterful understanding of the linkage between patronage politics and ideological politics, an understanding that has enabled him to create a group of extremely capable and rigidly loyal underlings. Although the Bush administration in general is without shame, Cheney goes a step beyond; criticism from those who don’t share his ideological preconceptions or his single-minded purpose has no meaning. He’s a bastard, but within the narrow confines of negotiating and navigating government bureaucracy, he’s a magnificent bastard.

Perhaps inevitably, it occurs to me to wonder “what if he were our bastard?” Would I respect and appreciate Cheney if the ideological tables were turned, and if he were using his skills in support of causes I find worthwhile? I would like to think not, and I believe I’m on solid ground with that view. Cheney is a masterfully effective operator within government, but his mode of operation is antithetical to good governance. A bureaucracy should be capable of delivering a service reliably and repeatedly. When the personal influence of a particularly powerful actor is needed to make the system move, government has failed. Indeed, the influence of such an actor is disruptive to the normal course of operations. Also, I think that a commitment to open, well-conceived policymaking is critical to the progressive-liberal conception of government. Cheney’s method of operation is poisonous to the idea that policy should result from open, transparent discussion and debate. It’s not terribly surprising that the very policies that Cheney has most vigorously fought for have been “successful” only in the most temporary bureaucratic sense; a clear line can be drawn between Cheney’s contempt for good policymaking and the disasters that are Iraq and the federal budget.

The things that make Cheney appalling to me should also make him appalling to conservatives. A “principled” conservative (to the extent that the phrase has meaning) should place a high value on accountability and transparency in government. No single individual, especially through unofficial channels and personal influence, should be able to bend the machinery of governance in a particular ideological direction. No single individual should be able to so transform the architecture of government that even the most basic elements of the social contract (freedom from torture, freedom from arbitrary arrest, freedom from surveillance) become endangered. Indeed, Dick Cheney should be utterly terrifying to an anti-statist or even quasi-anti-statist conservative. He is precisely the kind of figure that conservatives warn against when they speak of the dangers of “big government”.

While some conservatives do view Cheney as a threat, most do not. In part this is because of the good things that Cheney brings; he does, after all, put red meat on the table, whether it’s through shattering international law while torturing America’s enemies or killing thousands of fish while supporting a few economically unviable Western ranchers. It’s more, though, because the anti-statism in the modern Republican Party is less about a fear of the state than an utter contempt for government. Cheney’s depredations don’t bother conservatives because they don’t think that fair play in government is possible. A good conservative should be waging a guerilla war against government, because the system itself is corrupt. If good governance and a competent bureaucracy have no (or even negative) value, then ruining them by ignoring law, precedent, and common sense is a positive good. Sure, Dick Cheney may break government by subverting the machinery for partisan ideological purposes, but since government itself is just a partisan ideological racket, who cares? We should get ours while the getting’s good.

I would also hazard that Cheney himself appeals in another, almost cinematic way. Cheney isn’t Jack Bauer; he’s never going to save the girl, never going to land on an aircraft carrier in a flightsuit. George W. Bush is (or was) the action hero/sex symbol for conservatives. Cheney is the behind-the-scenes-enabler, from a long line of cinematic enablers. He’s Richard Crenna to Bush’s Rambo, Archangel to Bush’s Stringfellow Hawk, Devon Miles to Bush’s Michael Knight. Cheney slides easily into a narrative that conservatives find appealing, in which the extralegal violence that we need is enabled and conducted by people that we trust. Cheney’s ability to fit so comfortably into that narrative (and all of us, not just conservatives, tend to understand politics through familiar narrative), more comfortably, indeed, than the action hero himself, may explain in no small part his enduring appeal to so many conservatives.

Publius also has some detailed thoughts.

[ 0 ] June 29, 2007 |

Friday Cat Blogging… Starbuck and Nelson

Getcher Hot Links! Parents Involved Edition

[ 0 ] June 29, 2007 |

Some further reading about today’s Supreme Court decision striking down school desegregation programs in Seattle and Louisville:

  • Echidne finds some applause for the decision and offers a critique.
  • Mary Dudziak on the decision’s misreading of history.
  • Lots of interesting stuff at the LDF’s blog.
  • Adam B reminds us that the decision overturned an opinion by libertarian hero Alex Kozinski.
  • Jack Balkin offers an optimistic reading of the Kennedy concurrence.
  • Professor B. ponders the diversity issue.
  • Christy puts the case in broader perspective.
  • And, for the final word, Mark Graber on the “conscientious objectors” from the civil rights moverment opposing desegregation under the mantle of Brown v. Board: “Today’s opinions in the Seattle school case feature the too usual lectures from conservative justices on the meaning of the “good” civil rights movement, the one which asserted that “the constitution is color-blind.” Of course, neither Chief Justice Roberts nor any other member of the majority were actually members of that “good” civil rights movement. To paraphrase Dick Cheney, they had other priorities at a time when police dogs were being set upon African-American children who dared insist on the right to drink at the same water-fountains as white children. Indeed, Roberts, Alito, and Scalia were proud to be in the vanguard of the movement that pried from the Democratic Party those who set the dogs upon the children (and those who applauded that behavior). They could do so in good conscience because somewhere in the late 1960s, the “good” civil rights movement was replaced by the “bad” civil rights movement, a movement which insists that persons of color be actual as well as pro forma, legal equals. Curiously, this transition took place even though the vast majority of participants in the “good” civil rights movement remained in the “bad” civil rights movement, included almost the entire leadership. By comparison, on this history, George Wallace became the person who best understood that the central principle of BROWN v. BOARD OF EDUCATION was that no “innocent” white person could ever be harmed in the effort to secure racial equality and any person of color who claimed covert race discrimination would have to produce a smoking gun the equivalent of the smoking guns which convinced the Burger Court that the Alabama Constitutional Convention of 1900ish was committed to race supremacy. Recognizing that George Wallace and Strom Thurmond are the true heirs to Martin Luther King, Justice Roberts and his allies feel the need to direct lectures on BROWN to the “bad” civil rights movement in the hope that we may be converted.”

More Judicial Restraint

[ 0 ] June 29, 2007 |

I should say off the top that I don’t know enough about antitrust to know about the economic wisdom of the latest 5-4 pro-business decision by the Roberts Court. I’ll even say that some Chicago School doctrine might have had a salutary effect at the margins of antitrust law; it certainly seems bizarre to me, for example, that the government would break up a merger between the third and eighth biggest shoe companies in the country (although whether the Court should override such an executive decision is another question.) Intuitively, it doesn’t seem right that price floors could be good for the consumers, but who knows; I haven’t seen the data.

Still, this decision is obviously very problematic whether or not the economic theory underlying it is correct. Breyer explains it well, but there is a very strong presumption of stare decisis in statutory cases, and this case is an excellent illustration of why. The Court created a bright-line, easily applied rule in 1911. If Congress thought that the Court had distorted its intent it’s had roughly 100 years to modify the statute and correct the Court. Moreover, the affected interests here are not (to put it mildly) the kind of disempowered minorities who might lack fair access to the political process. It doesn’t make the rule clearer — which might justify a departure from stare decisis — but in fact makes it less clear and harder to apply.

So whether or not one agrees with the Court on the economics, it has no business imposing its theory in the face of a long-enduring statutory precedent.

The Twisted Logic of Judicial Bypass Laws

[ 0 ] June 28, 2007 |

Via RH Reality Check: For the first time, a minor woman in Colorado has been denied judicial approval for an abortion. Colorado law, like that of many other states, require that a minor get parental consent to procure an abortion. If she cannot or will not get parental consent, she can seek a judicial bypass. The Colorado Court of Appeals today upheld a lower court’s determination (PDF) denying a young woman permission to get an abortion. The reasoning is astounding.

The pregnant minor’s burden of proof was to either show by clear and convincing evidence that she was mature enough to make the decision, or by a preponderance of the evidence that notification was not in her best interests.

After the hearing the judge found that “she lacked the maturity to decide whether to have an abortion.” The court emphasized her “unwillingness to communicate with her mother or consult with other adults, her focus on her own needs, and her failure to discuss the matter with a doctor.” The trial court also felt that she had “only minimal understanding of the risks of the abortion procedure” and that she was “unemployed and being supported by her mother.”

So let me get this straight: a woman whom the court feels is not mature enough to make her own choices about her reproductive life is mature enough to have and raise a child?

[scratches head}

This is why we don’t do Bloggingheads…

[ 0 ] June 28, 2007 |

Well, one reason, anyway.

captured the following during the “Thirsty Thursday” ($3 for 32oz of Red Hook!) at the single-A Daytona Cubs-Clearwater Threshers tilt. The subject of discussion was one Brian Dopirak, a 2002 2nd round Chicago Cubs draft pick. Mr. Dopirak, a 24 year old first baseman/DH, is currently hitting .238/.266/.462 (and he’s really picked it up in the last couple of weeks). I contend that Mr. Dopirak is wasting his life, and that he should either go to college or get a real job; DJW disagrees.

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