I think, amazingly, that original title was a trfile less idiotic. I must admit that I’m unclear about how a chain selling food voluntarily to willing consumers represents “fascism” and “totalitarianism” in any sense, or the link between somewhat overpriced tasty organic produce and Hegel, but I’m sure the argument has never before been made in such detail and with such care! But why do conservatives hate capitalism?
“Various unrelated things I don’t like and resent because they’re associated with urban elites are fascism” really isn’t an argument that merits a blog post, let alone a book.
…Dave Weigel and Ezra have more.
I’ve discussed before the phenomenon of a textbook repeating the right-wing canard that Bush v. Gore was 7-2. And now I see that Oyez, normally a valuable resource, is printing a lie about the vote in the case:
the per curiam opinion held 7-2 that the Florida Supreme Court’s scheme for recounting ballots was unconstitutional.
This claim is straightforwardly factually erroneous (it’s not even phrased in a weaselly technically-accurate-but-misleading way, like “7 justices found an equal protection violation of some sort.”) Breyer and Souter dissented. Full stop. They did not concur in part and dissent in part. They did not join the equal protection analysis of the majority, period; this is not a matter of debate. The fact that they identified an equal protection problem does not mean that they identified the same equal protection problem as the per curiam. To say that Breyer and Souter only disagreed about the remedy is missing the point; Breyer and Souter were pointing out that the remedy was wholly inconsistent with the equal protection violation they found. The difference on the remedy was also a difference on the merits.
Anyway, the per curiam opinion had 5 votes, not 7, and it’s dismaying that a resource so many students rely on is repeating right-wing spin in the immediate wake of the decision rather than the actual facts of the case. (Interestingly, the much-maligned Wikipedia actually gets it right.)
At this thread over at TAPPED, some commenters tried to defend Scalia’s credentials as a principled originalist who was never political. In response, I mentioned Bush v. Gore, which not only had no conceivable “originalist” justification but failed to conform even to basic standards of the rule of law in order to legitimize the presidency of Scalia’s favorite candidate. A commenter then responded with an, ah, innovative defense:
True, the court didn’t rely on originalist arguments in Bush v. Gore, but that route was arguably foreclosed to it. Otherwise, you would have it overturn precedent that forbids arbitrary and disparate treatment to a state’s voters in its different counties – a precedent established in 1963. Scalia recognizes the doctrine of stare decisis saying it is a compromise operating on all judicial philosophies, origninalism no less than any others.
I trust that the argument that — on the same week in which Scalia called for pverruling two long-standing landmark precedents that were actually directly controlling to the case at hand! — Scalia had no choice but to accept stare decisis in Bush v. Gore based on a precedent that said absolutely nothing about how ballots cast with different voting systems should be counted is too transparently silly to merit substantial engagement. But this desperate gambit can be used to illustrate why grand theories don’t do very much to constrain judges in practice.
The first reason “originalism” doesn’t have a strong constraining effect is that even serious historians will disagree about historical evidence, and law office history generally falls well below these standards. Constitutions and statutes involve agreement among sufficiently diverse parties that originalists can often cherry pick evidence from some politically congenial source to resolve ambiguities. (If you want to (inplausibly) justify Brown v. Board in originalist terms, for example, you can focus on some Radical Republicans, place less emphasis on other legislators, and ignore the state ratifiers altogether.) If that doesn’t work, you can always climb Originalism’s Ladder and define broad constitutional principles at whatever level of specificity happens to support your desired outcome. This can justify a wide range of outcomes, but a potentially inconvenient side effect is that once you permit principles to be defined at a sufficiently high level of abstraction William Brennan’s jurisprudence can be just as plausibly be called “originalist” as Robert Bork’s.
But sometimes — as with, for example, federal affirmative action statutes, or Bush v. Gore — even this won’t fly. So then you can declare that originalism can be constrained by stare decisis, and even if you’re not hackish enough to claim that Bush v. Gore is supported by compelling precedents a pretty wide range of additional outcomes can now be justified, and Supreme Court justices have wide discretion about when to apply precedent and when not to. And to borrow a point from Jeffrey Rosen, in Scalia’s specific case you can also cite “textualism” and “traditionalism,” which gives you even more discretion. The text of the Constitution says nothing about equal protection not applying to gender? No problem; you become a traditionalist, and without paying virtually any attention to the text of the Constitution simply note that the country has a long history of gender discrimination that you decide is therefore self-justifying. But the country also had a long tradition of banning interracial marriage? Look, it’s Halley’s Comet!
This is not to say that these principles have absolutely no content, especially in the case of Thomas. And as I’ve said before, even the sporadic commitment of Scalia and Thomas to “originalism” is preferable to Alito, who is similarly reactionary without much of an overaching grand theory. But the idea that “originalists” are engaged in entirely non-political or non-”outcome-oriented” judging is obviously untenable.
It is definitely true, of course, that talking about how the war is awful while you continue to give the Bush administration everything it wants is much, much worse than just uncritically supporting the war. The effect is precisely the same, but the latter at least could theoretically be idiocy undertaken in good faith while the former position wants to add some unjustified self-congratulatory moral preening on top of their de facto support of the war. Lugar deserves less than no credit.
Today’s “Bong Hits 4 Jesus” case actually turns on relatively narrow grounds. The problem with Roberts’ opinion is that it turns on a claim that punishing the student was justified because the banner was seriously advocating drug use. As Stevens points out, though, this isn’t very plausible:
I would hold, however, that the school’s interest in protecting its students from exposure to speech “reasonably regarded as promoting illegal drug use,” cannot justify disciplining Frederick for his attempt to make an ambiguous statement to a television audience simply because it contained an oblique reference to drugs. The First Amendment demands more, indeed, much more.
… I take the Court’s point that the message on Frederick’s banner is not necessarily protected speech, even though it unquestionably would have been had the banner been unfurled elsewhere. As to the second, I am willing to assume that the Court is correct that the pressing need to deter drug use supports JDHS’s rule prohibiting willful conduct that expressly “advocates the use of substances that are illegal to minors.” But it is a gross non sequitur to draw from these two unremarkable propositions the remarkable conclusion that the school may suppress student speech that was never meant to persuade anyone to do anything.
In this case, however, I am happy about Alito and Kennedy concurring to narrow the scope of the opinion, emphasizing that Tinker is being upheld and that “it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue.” I still find the application to be puzzling–couldn’t a principal, under this standard, “reasonably” conclude that a “legalaize drugs now!” poster “promotes” drug use?–but in this case better it be a misapplication of an acceptable principle.
Thomas, meanwhile (and, interestingly, without a join from Scalia) wrote a concurrence arguing that the landmark student speech case Tinker v. Des Moines should be overturned and schools be given the essentially unlimited power to censor student speech on (plausible, it must be said) originalist grounds. Oddly, however, in joining Scalia’s concurrence in another case today arguing that virtually all campaign finance laws are unconstitutional, neither of the Court’s two “originalists” managed as far as I can tell to muster a shred of evidence that the First Amendment was understood in 1791 as creating an absolute prohibition on the regulation of campaign spending and donation. Nor did Thomas’s dissent in McConnell contain a historical analysis of the original understanding of the First Amendment, although it does cite any number of libertarian 20th century precedents that would seem erroneous under a strictly originalist standard. Hmm, and the ability of wealthy people and corporations to give and spend money for political purposes is enormously important to the modern Republican Party and protecting the free speech of students who if you squint really hard can be vaguely construed as encouraging drug use is not. What an amazing coinky-dink!
The Court’s 5-4 decision today in Hein v. FFRF makes it much more difficult to challenge programs — in this case, the Bush administration’s decision, thorough executive order, to funnel taxpayer money to religious organizations — that raise serious Establishment Clause questions. I’m not at all persuaded by the Court’s holding; in the words of William Douglas, I think the Court’s opinion “reflects the British, not the American, tradition of constitutionalism. We have a written Constitution; and it is full of ‘thou shalt nots’ directed at Congress and the President as well as at the courts.” Particularly given the modern Court’s control over its docket, the constitutional merits of the issue should be what matters, and there’s little reason for the Court to create standing rules that make it more difficult to challenge serious Constitutional violations. A couple other points:
- We can see in this case the difference between the otherwise similarly reactionary Alito and Scalia. The latter urges the Court to be honest about what it’s doing: overruling Flast v. Cohen. Alito, conversely, prefers
simply ignoring the precedent “minimalism.” I can understand not going out of the way to overrule a precedent, as Scalia and Thomas will sometimes urge. But in this case Alito has adduced a distinction without a substantial difference. As Souter argues, “the controlling, plurality opinion declares that Flast does not apply, but a search of that opinion for a suggestion that these taxpayers have any less stake in the outcome than the taxpayers in Flast will come up empty: the plurality makes no such finding, nor could it.” Essentially, the effect of Alito’s approach is to produce the same outcomes while attracting less attention.
- The Court’s conservatives, needless to say, are not always on the side of reducing standing; as Jack Balkin has pointed out, “ Compare this case with Northeastern Florida, in which Thomas wrote an opinion holding that a challenge to an affirmative action program could go forward even absent any evidence that the individuals challenging the program were denied a contract because of it. In fairness, Scalia and Thomas have created a clear, identifiable principle: standing rules should be liberal when they are likely to produce conservative outcomes and narrow when they are likely to produce liberal outcomes. Whether this is a defensible principle I leave to the reader.
…meanwhile, given the assertions of arbitrary authority by the administration, one must read this from Kennedy as black comedy: “It must be remembered that, even where parties have no standing to sue, members of the Legislative and Executive Branches are not excused from making constitutional determinations in the regular course of their duties. Government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law and then must conform their actions to these principled determinations.” Scout’s honor!
[Also at TAPPED.]
Losing 2 out of 3 to the Giants makes one wonder how badly things would have gone for the World’s Greatest Manifestation of Evil if they were playing a team with a major league offense. Yesterday is making me think for the first time that the Yankees might not make the playoffs. And nice to see St. Derek of Pastadiving make yet another crucial error; he’s having such an abysmal defensive year even by his standards that it might cost him the Gold Glove by 2012, three years ahead of schedule. If it weren’t for the Rangers idiotically donating A-Rod to the Yankee cause for discounted rates, the playoffs wouldn’t even be an issue.
The other reason for some optimism is that Torre is in the full panic mode that made him such a disaster in his pre-Yankee stints; I’m particularly enjoying the ongoing installments of “Miguel Cairo, major league first baseman” and “letting Johnny Damon put his vanity about his DL streak ahead of the team.” It would be nice if the Indians could get Gagne, though…
Proving once again how astute Nader was to argue that control of the executive branch is irrelevant, a dismal looking day at the Supreme Court with the moderate Sam Alito writing
a 5-4 opinion gutting standing in
environmental Establishment Clause cases and Roberts writing an opinion allowing a student to be punished by a state school for speech on his own property. More when the opinions come out.
…my mistake; the banner was not on school property but not on his personal property. I will have more on the case soon.
…Actual substantive commentary on the free speech case here and the standing case here.
I have a guest post up at Feministe about Helena Silverstein’s new book, which amasses and expands on the data she’s collected about how parental involvement laws — and especially the bypass provisions — actually work on the ground. The answer is that they don’t work well even if you support their goals.
So it’s a good thing that a parental consent bill (and consent laws are especially indefensible; it’s one thing for a minor’s constitutional right to be balanced against the state’s interest in protecting children, and quite another for their right to be abolished entirely although the consequences of being forced to carry a pregnancy to term are considerably more dire for a teenager) has failed in Arizona. (Via Ann.) And even better is that, in the wake of Ayotte New Hampshire’s new legislature has repealed its parental notification law, a particularly striking development given that the law became a test case because it didn’t even contain a health exemption. This is good; while these policies are popular, they’re also bad public policy. Hopefully this will become more widely known.