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Circuit Courts Are Not Bound by Dead Letters

[ 4 ] December 2, 2014 |

Linda Greenhouse has an excellent critique of Jeffrey Sutton’s outlier opinion upholding bans on same-sex marriage. Jonathan Adler disagrees:

Adler can’t capture this in 140 characters or less, of course, but Greenhouse does discuss this point extensively. Adler’s argument is that Baker v. Nelson, an 11-word order dismissing a mandatory appeal to a decision confining marriage in Minnesota to opposite-sex couples, remains binding precedent. Greenhouse recounts the arguments made and joined by more than 10 federal judges — including Richard Posner — explaining why Baker is no longer authoritative. Even if one disagrees with Antonin Scalia that Romer, Lawrence, and Windsor imply a right to same-sex marriage, they certainly make clear that at a minimum challenges to the constitutionality of same-sex marriage bans now present a “substantial federal question.” It is perfectly appropriate for circuit courts to take these doctrinal developments into account.

Just as it does on the merits, Daughtrey’s dissent has by far the better of the argument on this question:

If ever there was a legal “dead letter” emanating from the Supreme Court, Baker v. Nelson is a prime candidate. It lacks only a stake through its heart. Nevertheless, the majority posits that we are bound by the Court’s aging one-line order denying review of an appeal from the Minnesota Supreme Court “for want of a substantial federal question.” As the majority notes, the question concerned the state’s refusal to issue a marriage license to a same-sex couple, but the decision came at a point in time when sodomy was legal in only one state in the country, Illinois, which had repealed its anti-sodomy statute in 1962. The Minnesota statute criminalizing same-sex intimate relations was not struck down until 2001, almost 30 years after Baker was announced. The Minnesota Supreme Court’s denial of relief to a same-sex couple in 1971 and the United States Supreme Court’s conclusion that there was no substantial federal question involved in the appeal thus is unsurprising. As the majority notes—not facetiously, one hopes—“that was then; this is now.”

At the same time, the majority argues that we are bound by the eleven words in the order, despite the Supreme Court silence on the matter in the 42 years since it was issued. There was no recognition of Baker in Romer v. Evans, nor in Lawrence v. Texas, and not in Windsor, despite the fact that the dissenting judge in the Second Circuit’s opinion in Windsor made the same argument that the majority makes in this case. And although the argument was vigorously pressed by the DOMA proponents in their Supreme Court brief in Windsor, neither Justice Kennedy in his opinion for the court nor any of the four dissenting judges in their three separate opinions mentioned Baker. If this string of cases—Romer, Lawrence, Windsor, Kitchen, Bostic, and Baskin—does not represent the Court’s overruling of Baker sub silentio, it certainly creates the “doctrinal development” that frees the lower courts from the strictures of a summary disposition by the Supreme Court. See Hicks v. Miranda.

This is clearly correct. The point about Windsor is in and of itself pretty much dispositive. It’s hard to argue that Baker remains binding precedent when neither the majority nor dissenting opinions in a major Supreme Court case decided last year consider it even worthy of mention. Adler’s response is that Baker wasn’t applicable because it was a federal, not a state, case. But Kennedy’s rationale clearly remains applicable to both:

The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does,the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.

The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.

In the first paragraph, Kennedy cites Bolling v. Sharpe, which as many of you know held that segregation in D.C. schools was unconstitutional although the 14th Amendment applies only to state governments. The “reverse incorporation” theory of Bolling held that the federal government was bound by the equal protection clause through the 5th Amendment. If the disabilities imposed by gays and lesbians by DOMA violate the “equal protection component” of the due process clause of the 5th Amendment, how can it be true that the disabilities imposed on gays and lesbians by state bans on same-sex marriage do not even raise a “substantial federal question” under the equal protection clause of the 14th? It can’t. And even if you want to claim that somehow the “equal protection component” of the due process clause is meaningfully different in content than the equal protection clause, Romer and Lawrence were state cases and they didn’t mention Baker either, although the former was an equal protection case and in the latter a concurring opinion (extensively critiqued by the Scalia dissent) rested on equal protection grounds.

Sutton, in other words, is an outlier for a reason. He’s being disingenuous when he suggests that he’s bound by Baker, which has clearly been superseded by multiple subsequent opinions. Which, presumably, is one reason Sutton didn’t just rely on Baker and refuse to consider the merits but devotes the bulk of his opinion to making his own (shallow and exceedingly unpersuasive) arguments on the merits.

The Slope Is Permanently Slippery

[ 76 ] December 2, 2014 |

Eric Posner on Obama’s immigration executive order:

What might these ends be? Imagine a President Rand Paul entering office in 2017. An enormous regulatory structure will greet him, nearly all of it the creature of liberal policy-making going back to the New Deal, and it’s his to defer action on. Financial regulation required by the hated Dodd-Frank act, health regulation under the even more hated Obamacare, climate regulation despised by the coal industry, antitrust regulation opposed by big business—in all cases, President Paul will be able to argue that he can follow in President Obama’s footsteps and “defer action.”

To be sure, President Paul will not enjoy complete freedom to defer enforcement. The Constitution’s take-care clause would block him from disregarding the law entirely. Legal precedent establishes that he can’t refuse to spend congressional appropriations on enforcement. Many regulatory agencies enjoy independence from the executive, and private parties can sometimes force agencies to act. The courts say that the executive must comply with specific statutory mandates. And immigration law, as I have argued, falls uniquely under executive authority, as a matter of history and tradition. Still, because most of the regulatory statutes contain pockets of vagueness, and the immigration-law arguments bleed over to those other areas of the law, President Paul’s power to lift regulatory burdens through non-enforcement will be extensive.

The point is not just that Republican presidents can do what Obama has done. It is that enforcement discretion creates an advantage for Republicans—it favors conservative governance and hurts liberal governance. The reason for this asymmetric effect is that the great bulk of federal law is liberal economic regulation, not conservative morals regulation.

This is a good summary of the kind of things the next Republican president will do, and I also think it’s right that there’s an asymmetry where selective non-enforcement is more likely to favor conservative goals. What I continue to dispute is the assumption that Obama’s executive order will play any causal role in this process. Congressional Republicans have relentlessly discarded norms in order to use formally legal mechanisms to advance their goals. Does anyone think that the next Republican occupant of the White House will be any different? This is the political universe we’re already in — as Posner’s work with Adrian Vermeule has quite convincingly demonstrated — and you can’t enforce norms through unilateral disarmament.

I’d also note that there’s nothing new in Republican administrations being, ah, less than aggressive about enforcing liberal regulations. Clarence Thomas’s tenure heading the EEOC is both an excellent rebuttal to the myth that he’s an intellectual lightweight and strong contemporaneous evidence that he was very reactionary. Hans von Spakovsky worked on — and, therefore, against — voting rights in the Bush administration. And so on.

I’d say something similar about David Savage’s speculations that Obama’s order might cause John Roberts to side with ACA trooferism. I think Roberts will do what he wants to do and Obama’s order will be neither here nor there. I can’t resist quoting this, however:

Ilya Shapiro, a lawyer for the libertarian Cato Institute, said the immigration order is the “starkest example” of what he called the president’s “pattern of lawlessness.”

Except for the fact that it doesn’t actually, you know, break any laws. Maybe Shapiro can explain how the executive order is “lawless” after he finally explains what constitutional provision Section 4 of the Voting Rights Act violated…

“Genetics’ embarrassing, cranky old uncle”

[ 89 ] December 2, 2014 |

As Laura Helmuth explains, James Watson has always been a definitive case study in the perils of thinking that being an expert on one thing makes you an expert on everything:

One of his earliest sins: Watson didn’t credit Rosalind Franklin, a chemist also working on DNA at the time, for her crucial research on X-ray diffraction images, without which he and Francis Crick would not have been the first to discover the double helix structure. (Linus Pauling and others were right behind them and would have figured it out.) In Watson’s The Double Helix memoir, he calls Franklin “Rosy” (not a nickname she used), critiques her clothing and makeup, and characterizes her incorrectly as another scientist’s assistant.

Watson was also famously insulting and arrogant as a professor at Harvard, even for a professor at Harvard. Fellow faculty member E.O. Wilson described Watson in the 1950s and ’60s as the “Caligula of biology” for his contempt of scientists who studied anything other than molecules. Wilson wrote that, unfortunately, due to Watson’s stroke of genius at age 25, “He was given license to say anything that came to his mind and expect to be taken seriously.”


And, of course, Watson fundamentally misunderstands research on race, genes, and intelligence. Scientists have been debunking ideas like his since well before The Bell Curve made a mockery of statistical analysis. The latest for-crying-out-loud-do-we have-to-do-this-again moment came this year with the publication of Nicholas Wade’s book Troublesome Inheritance, which Watson blurbed as “a masterful overview of how changes in our respective lineages let us begin to understand how human beings have evolved.” Anthropologists, evolutionary biologists, and pretty much anybody with real expertise explained why the book’s assumptions about race-based traits were wrong—and Wade is much more sophisticated in his thinking than Watson is.

Watson had a major insight 61 years ago about the physical structure of DNA. He is one of the founders of a very important but very specific subset of modern biology, and he devoted most of the rest of his career to the study of cancer biology. But he knows fuck all about history, human evolution, anthropology, sociology, psychology, or any rigorous study of intelligence or race. It is a fundamental misunderstanding of how science works for him to think that his expertise at one level of analysis—a molecular level—predicts anything at a higher level of analysis. The structure of DNA does not predict the workings of a cell, which does not predict the shape of a body, which does not predict the characteristics of a culture. It’s not as if the idea that people with dark skin are genetically inferior to people with light skin is some horrible secret that scientists had been trying to hide from the world until Jim Watson came along and revealed the truth. It’s simply incorrect.

Helmuth is also very good on the passive-aggressive self-pity of Watson auctioning off his Nobel Prize — he’s been extremely well-compensated for decades, but like many privileged white supremacists he’s always looking for a chance to whine in public.

Did Feminists Stop the ARRA From Having Infrastructure Funding? (SPOILER: No.)

[ 103 ] December 1, 2014 |

It must be said that Glenn Harlan Reynolds identifies a real problem in his column today — namely, a lack of infrastructure spending and the resultant loss of working-class jobs. There are plenty of people you can blame from this fact. Most obviously, you must blame the Republicans who strongly oppose infrastructure spending and have used their control of key veto points to stop in from happening. You could talk about Republican governors who turned down federal infrastructure money because it would provide actually useful infrastructure rather than the ridiculously useless boondoggles he would prefer to waste state money on. On the ARRA specifically, you can blame the Republicans and conservative Democrats who used their vetoes to make the stimulus smaller and more tilted towards tax cuts than spending or state aid. Since Reynolds is both a Republican hack and a world-class concern troll, we can guess who he blames:

So if Democrats want to win back the white working class — and they kind of need to, if they want to win elections, because it’s an enormous demographic — maybe they need to start thinking about honoring and encouraging work, rather than talking about race or class. One person who has some ideas in this direction is Vermont Sen. Bernie Sanders, who suggests that the government invest heavily in infrastructure, which would create a lot of blue-collar jobs.

That was actually an original part of Barack Obama’s stimulus plan, but it was derailed by feminists within the Obama coalition who thought it would produce too many jobs for men. Christina Romer, then-chair of Obama’s Council of Economic Advisers, reported: “The very first email I got … was from a women’s group saying ‘We don’t want this stimulus package to just create jobs for burly men.’ “

The women did it! If you look at the linked piece, however, you’ll noticed that while feminist groups were (rightly!) concerned about gender equity in stimulus spending, they did not oppose infrastructure projects or get any stripped from the ARRA. Women’s groups wanted additions, not subtractions, and got them. The idea that women’s groups, rather than conservative Republicans, are the reason for the lack of infrastructure spending is risible bad faith even by Reynolds’s standards.

…feminism has been very busy lately; not only has it stopped infrastructure spending, it caused the Ferguson shooting.

Great Momements In Winger Analysis

[ 103 ] December 1, 2014 |


The “hands-up-don’t shoot” gesture made by Rams players was going to lead to plenty of crackpottery. But Roy has found the funniest example, in the person of Mr. Rick Moran. The setup:

What this very public display of ignorance may do to the team chemsitry of the Rams is another question.

The punchline. Even if you adjust for the fact that the Rams were playing competition that can only very generously be called NFL caliber, the chemistry seems OK to me…

The Need For Federal Intervention In Ferguson

[ 38 ] December 1, 2014 |

As I mentioned over the holiday, I have a #Slatepitch in what is hopefully the non-pejorative sense about what actions the federal government should be taking even if they don’t think that Wilson could be successfully prosecuted for civil rights violations:

But indicting Wilson for civil rights violations does not exhaust the possibilities of federal intervention. The Civil Rights Division of the Department of Justice is empowered by statute to file civil charges if it finds a “pattern or practice” of violating civil rights on the part of local law enforcement. The DOJ can obtain a court order or negotiate a settlement that requires changes in police practices and maintains federal supervision to ensure that the changes are implemented.

These civil interventions can be very important. “Department of Justice’s civil pattern-or-practice investigation has the potential to make a real systemic change in the way policing is done in Ferguson,” explains Samuel Bagenstos, a professor at the University of Michigan Law School who served as principal deputy assistant attorney general for civil rights under the Obama administration. “It could lead to a consent decree or other agreement that changes the way the police hire, screen, train, and monitor officers, alters use-of-force policies, and so forth. I think the pattern-or-practice cases, far more than the criminal ones, are where DOJ can make real change to policing practices.”

As Josh Voorhees argued in this virtual space earlier this year, the importance of reforming police practices in Ferguson can hardly be overstated. In a tour de force of investigative reporting for the Washington Post, Radley Balko found that the police departments in Ferguson and other small towns in St. Louis County collaborated with local courts to function in large measure as a white supremacist protection racket. Overwhelmingly white police forces impose arbitrary fines for minor legal violations on overwhelmingly African-American residents, which are often compounded by penalties for failure to appear in court or to pay fines. (The average citizen of Ferguson has three outstanding arrest warrants!) Not surprisingly, there is good evidence that these draconian enforcements are racially discriminatory.

In case you’re having any doubts about whether to click through to this article, I would like to note that it’s been endorsed by…your wife. Yeah, that’s the ticket.

Rumors that Heather Locklear will be blurbing Erik’s book are unconfirmed but probably accurate.

Specious Arguments In American History

[ 72 ] December 1, 2014 |

The National Review wonders why the shooting of Michael Brown is getting disproportionate attention:

“While I understand the people are concerned about the use of deadly force by the police, by far — about 50 to 1 — more blacks in St. Louis are killed by other blacks as compared to white police officers,” Klinger told KMOX-TV.

Meanwhile, 98 percent of black murders go virtually unremarked. Where are the angry crowds demanding justice for blacks such as these, who were wiped out in St. Louis by other blacks in recent memory?

Yes, it’s a real puzzle! Scocca beat me to the shorter:

The best part is that Murdock doesn’t even hide the fact that the cases he cites involves people who were actually indicted. NRO presumably believes that it’s impossible to insult the intelligence of its core readership, and in fairness they’re almost certainly correct.

Monday Links

[ 26 ] December 1, 2014 |

Congratulations to the Calgary Stampeders for winning North America’s most prestigious football trophy!  Some reading material:

  • Ohio Republicans want to keep the details of executions secret.


[ 29 ] November 30, 2014 |

The EPA’s next step:

The Obama administration is expected to release on Wednesday a contentious and long-delayed environmental regulation to curb emissions of ozone, a smog-causing pollutant linked to asthma, heart disease and premature death.

The sweeping regulation, which would aim at smog from power plants and factories across the country, particularly in the Midwest, would be the latest in a series of Environmental Protection Agency controls on air pollution that wafts from smokestacks and tailpipes. Such regulations, released under the authority of the Clean Air Act, have become a hallmark of President Obama’s administration.

“Rice did not lie”

[ 62 ] November 28, 2014 |

As appalling as Ray Rice’s underlying behavior was, this is clearly the correct decision.  Yes, if the NFL had a competently designed system of punishment, knocking a woman unconscious would not merit a significantly lower suspension than using recreational drugs.  Nonetheless, the NFL did not have such a system when Rice committed the offense (and, for that matter, doesn’t now, but anyway.)  The idea that Rice should retroactively receive a greater punishment than Goodell thinks a domestic offender should get in a standard announced after the fact because he “lied to Goodell” is absurd on its face.  And the absurdity is compounded by the fact that it’s vastly more likely that Goodell is lying than Rice is.

Obviously, Rice may never play an NFL game again; he was a replacement-level player at the NFL’s least important offensive skill position last year, and if his behavior means NFL GMs don’t want to gamble that he has something left in the tank I don’t have a problem with that.  But the Ravens should pay him what they owe him, and he shouldn’t be singled out for uniquely harsh discipline from the NFL.

Happy Carbonara Day!

[ 16 ] November 27, 2014 |

Obligatory Calvin Trillin link, supplemented by a Kosher version. But whether you have turkey or choose something that tastes good instead, happy Thanksgiving!

Also, I’ll have more on this later this weekend, but hopefully this is a literal but not figurative #slatepitch.

Let’s Try To Be As Wrong On As Many Levels At Once As Possible!

[ 41 ] November 26, 2014 |

Shorter Verbatim Kathleen Parker: “Whatever the truth about Cosby, due process has been the victim of what Clarence Thomas once called a high-tech lynching.”

If you think that this was preceded with a specious comparison of the Cosby case with the demonstrations in Ferguson, I’m sad to say you’re right.  As always, any explanation of how drawing the obvious conclusion that it’s massively unlikely that every one of the nearly 20 women accusing Cosby of sexual assault is lying violates Cosby’s “due process” rights is omitted.

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