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The "De Farco" Overruling

[ 0 ] July 1, 2007 |

I’ll have more substantive comments on the post (and the Greenhouse article, and the WaPo‘s ridiculous “we’re strongly opposed to the rulings that were made utterly inevitable by the justices we endorsed” editorial stance) later. But I wanted to have some fun this comment from Lederman first:

even when it means a very heatedly divided Court, and when (as in Leegin, WRtL and elsewhere), it requires de jure or de facro overruling of past cases.

I wonder if that’s a typo? Either way I think that it could come in handy in describing a depressing amount of future Roberts Court jurisprudence. A case, such as Carhart II, in which the Court makes a farcically trivial or specious distinction in order to avoid formally overruling a precedent is a “de farco overruling.” I like it!

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.

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.”

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.

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.

Notes On The School Integration Cases

[ 1 ] June 28, 2007 |

Some initial observations based on a first reading of the Court’s opinion striking down voluntary school integration programs in Louisville and Seattle:

  • Nothing in the text of the Constitution compels these programs to be struck down. Essentially, Roberts’s plurality opinion rests on the assertion that racial classifications intended to perpetuate a caste system should be considered the precise legal equivalent of racial classifications intended to remedy segregation. This is exceptionally unpersuasive, and also makes it almost impossible to actually remedy the ongoing de facto segregation of American school systems, much of which has roots in various forms of state discrimination (not just formal apartheid in the South, but the drawing of arbitrary school district lines to create segregated systems, local ordinances encouraging residential segregation, etc.) As Breyer says, “This context is not a context that involves the use of race to decide who will receive goods or services that are normally distributed on the basis of merit and which are in short supply. It is not one in which race-conscious limits stigmatize or exclude; the limits at issue do not pit the races against each other or otherwise significantly exacerbate racial tensions. They do not impose burdens unfairly upon members of one race alone but instead seek benefits for members of all races alike. The context here is one of racial limits that seek, not to keep the races apart, but to bring them together.” To compare what these cities are doing to states that maintained apartheid is historically blinkered and morally untenable.
  • Given the modesty of the Seattle program — which used race only as a tiebreaker, making the potential injustices of the classification particularly dubious — it is clear that no affirmative action program is going to survive an encounter with the Roberts Court in its current configuration. This is another area where replacing O’Connor with Alito makes a major difference.
  • The opinion was predictably narrowed by Kennedy, who provided the swing vote but (exactly as Dahlia Lithwick predicted) holding out the dim possibility that a future program may theoretically take race into account. This probably won’t be terribly meaningful in practice (particularly since the federal courts are rapidly abandoning the desegregation orders necessary for Kennedy’s distinction to be relevant.)
  • I strongly urge you to read Breyer’s dissent, which among many virtues contains a detailed history of segregation in both cities, pointing out that federal court orders were necessary to compel desegregation in both cities and (contrary to the plurality) even Seattle had significant elements of de jure segregation. It also does a good job of pointing out the opinion’s obvious inconsistency with past precedents the Court claims to be applying (I’ll have more on that later.)
  • I’ll have an article about this coming out tomorrow, but you will be shocked to hear that Thomas’s concurrence does not contain the long-awaited historical evidence that the Fourteenth Amendment was originally understood as prohibiting even remedial racial classifications. Strange; I’m sure he must have it somewhere and just hasn’t gotten around to it! Obviously, in the wake of Bush v. Gore accusations by conservatives about liberals favoring “judicial activism” or “outcome-oriented” jurisprudence are risibly hypocritical, but here’s another data point.
  • I’ll give the last word for to Breyer: “Today, almost 50 years later, attitudes toward race in this Nation have changed dramatically. Many parents, white and black alike, want their children to attend schools with children of different races. Indeed, the very school districts that once spurned integration now strive for it. The long history of their efforts reveals the complexities and difficulties they have faced. And in light of those challenges, they have asked us not to take from their hands the instruments they have used to rid their schools of racial segregation, instruments that they believe are needed to overcome the problems of cities divided by race and poverty. The plurality would decline their modest request.

    The plurality is wrong to do so. The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown. To invalidate the plans under review is to threaten the promise of Brown. The plurality’s position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret.”


[ 0 ] June 28, 2007 |

Stevens, dissenting in the Seattle integration case:

There is a cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education, The first sentence in the concluding paragraph of his opinion states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” This sentence reminds me of Anatole France’s observation: “[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions.

A re-writing, of course, which is crucial if you want to maintain that remedial racial classifications are precisely equivalent to racial classifications intended to subordinate a particular racial group.


[ 0 ] June 28, 2007 |

A judicial panel in Scotland has held that the only person convicted in the bombing of Pan Am Flight 103 may have been wrongly convicted and that potentially exculpatory evidence not available at trial has surfaced. I obviously have no way of judging the reliability of the evidence, but a detailed recent article in the LRB argues that there’s considerable evidence implicating a radical Palestinian group, that the crucial state witness was unreliable, and that there’s some reason to believe that Libya accepted responsibility as the price of re-integration.

School Integration Plans Struck Down

[ 0 ] June 28, 2007 |

And the Alito Court marches on; this was, alas, all too predictable. More when the opinions are released.

…opinions in pdf form here. Will post links to a format compatible with ongoing computer operation when they’re up.

…Christy has a good take here.

LIberal Fascism: The Next Iteration

[ 0 ] June 28, 2007 |

Ted Barlow has received a sneak preview of the next subtitle of Jonah Goldberg’s forthcoming epochal work of American letters:

Liberal Fascism: From Plato to the Pet Shop Boys.

National Review editor Jonah Goldberg lays out, in devastating fashion, the parallels between Hitler’s National Socialist party and modern-day liberals. In a very serious, thoughtful, argument that has never been made in such detail or with such care, Goldberg exposes the liberal plot to replace economic freedom with a council of eleven philosopher-kings, six East Coast boys and five West Coast girls. Read about how (Hillary’s? Obama’s? ed.) plan to abolish the family and destroy private property rights flows inevitably flows from a philosophy where the common good is always on their mind.

Impeccably researched and persuasively argued, LIBERAL FASCISM will elicit howls of indignation from the liberal establishment and rousing cheers from the Right.

And in the interests of fairness, I think it’s important to put this stirring defense on the record:

I resent the implication that the title of my colleague Jonah Goldberg’s new book should be seen as anything other than a deeply serious effort to stimulate a vigorous and productive intellectual debate.

As you well know, the argument has been made many times over the years that Big Government Liberalism is kinda like fascism, and is like, totally oppressive. But this argument has usually been made by anonymous usenet trolls with usernames like “H. Roark,” who rarely flesh out this argument with the detailed research craved by serious scholars, such as random frat-house anecdotes, Battlestar Galactica references, and historical analogies full of big words borrowed liberally from Wikipedia and the works of Victor Davis Hanson.

Never before has this classic freeper message-board screed been made with such detail and care, padded out to book length with filler, published by a non-vanity press, and largely ghost-written by talented writers like Ramesh Ponnuru.

Your refusal to take Jonah’s book seriously just shows how profoundly unserious and unwilling to engage in good-faith debate you cheese-eating surrender monkeys really are.

And he doesn’t even mention the important new findings that Hitler liked organic tofu potstickers!