Author Page for Scott Lemieux

The Myth Of Conservative "Judicial Restraint"

To follow up on my point about abortion centrists who inexplicably assert that Roe’s opponents have some sort of principled opposition to “judicial activism”, Seth Rosenthal has an excellent summary of what abject nonsense this is:

As the Supreme Court’s term nears its conclusion, columnist George Will has asserted that the John Roberts and Samuel Alito confirmation debates were all about preventing “the nation’s courts [from being pulled] even more deeply than they already are into supervising American life.” The implication is that those who championed the recent nominations believe in a limited role for the courts, while those with reservations idealize an expansive one.

This characterization, taken directly from the right wing’s playbook, sounds nice and neat. There’s only one problem: It isn’t true.

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But contrary to what Will suggests, that’s just not the end of the story. Though you’ll rarely hear them admit it, today’s movement conservatives do embrace muscular courts that “supervise American life,” often in the very same cases in which liberals want courts to take a hands-off approach. The most fervent Roberts and Alito supporters would use the power of judicial review to wipe out or weaken land-use regulations, campaign-finance reform, affirmative action, and gun control. Perhaps more significant, they cheered—and hope that the additions of Alito and Roberts re-invigorate—the Rehnquist Court’s recently slowed assault on Congress’ legislative authority. Generating the highest-ever annual rate of invalidating federal legislation, the “hands-off” Rehnquist Court scotched laws safeguarding workers, seniors, people with disabilities, school children, and religious minorities and established standards threatening to scuttle even more, including important environmental achievements.

Among other things, these rulings provide that when deciding cases in which state government officials stand accused of violating a federal antidiscrimination law (such as the Americans with Disabilities Act), courts must strike the law down unless they determine that it is a “congruent and proportional” response to a demonstrable history of state-sponsored discrimination. Another landmark conservative favorite brushed aside a “mountain of data”—four years of fact-finding, studies from task forces in 21 states, and eight different congressional reports—to condemn as unconstitutional the “method of reasoning” Congress employed to enact legislation that would have protected women against violence. Talk about supervising American life.

The public evaluates judicial opinions in terms of results, full stop. The idea that any significant percentage of the opposition to Roe is based on opposition to “impositions” by the federal courts per se is just self-evidently false.

The Left Coast Lieberman

One remarkable aspect of the vote on the proposed (and blissfully failed) constitutional amendment to address the enormously consequential problem of flag-burning is this name from the vote tally:

Feinstein (D-CA), Yea

Ye Gods, what a wet. This tops, although it’s admittedly not as consequential as, her generally appalling performance on the judiciary committee. (Indeed, in this case my title is unfair; even Holy Joe didn’t roll over for this crap.) California really could do a lot better than this.

TAP on Abortion

The American Prospect’s three-article package on abortion rights–including an article by yours truly–is now up and accessible to all; make sure to check it out. Because many of my arguments will be familiar to this site’s tens of longtime readers, just to provoke some discussion let me highlight this part, which I see as the must puzzling aspect of the “If Roe is overturned the issue will pretty much go away” argument:

The evidence is overwhelming that abortion is a divisive issue in the United States because it is divisive, not because of procedural objections to the methods by which policy has emerged.

Abortion centrists appear to take cultural conservatives at their word when the latter say they’d be mollified if only the courts stepped out of the debate. But cultural reactionaries employ anti-elitist rhetoric against any and all institutions they are hostile to, not just against “activist judges.” Consider the anti-gay constitutional amendment in Colorado struck down by the Supreme Court in Romer v. Evans, which was passed as a response to the protection of gay rights by democratically elected city councils. Affirmative action and the recent eminent domain decision in Kelo are also instructive examples: Conservatives are able to mine fury against courts that refuse to overturn the policies of democratically accountable officials. Arguments against “judicial activism” are equally applicable against “elites” and “Congress” and “those bureaucrats down at the state capital.” To believe this resentment would go away if only the courts gave up protecting abortion is to be stuck in a dream-like state in which politics functions as it does in bad sixth-grade civics textbooks.

I really, really don’t understand why people take the jufiscatory rhetoric of cultural reactionaries at face value, particularly when their actions are so transparently inconsistent with their arguments. Lest you think this is a strawman, let me give you my favorite example of the argument that–against all of the empirical evidence on the issue–that the general public evaluates judicial opinions in the way law professors do, from Jeffrey Rosen’s 2004 NYT Magazine article “How to Re-ignite the Culture Wars?”:

Might Roe serve as a cautionary tale for supporters of Lawrence? If any single Supreme Court decision can reinvigorate the culture wars today, conservatives say, the court has just handed it to them on a silver platter.

“It isn’t so much the facts of the case; it’s the reasoning of Kennedy’s majority opinion that was really very offensive to a lot of people,” Phyllis Schlafly, the president of the conservative Eagle Forum, told me. In Lawrence, the defendants were prosecuted for having consensual sex with each other under a Texas law that forbade sodomy by homosexuals but not by heterosexuals. Texas is one of only four states in America that banned sodomy only when committed by gays and lesbians, and the court could have struck down these four laws as a violation of the constitutional guarantee of equal protection, as Justice Sandra Day O’Connor recommended. This would have left states free to ban sodomy, as long as they did so in an evenhanded way, treating heterosexuals and homosexuals alike. Libertarian conservatives insist that they would not have objected had the court simply struck down these four discriminatory state laws.

Social conservatives would have been mollified had O’Connor’s concurrence been the majority opinion rather than Kennedy’s right to privacy argument (oddly, because an equal protection argument would have considerably more radical implications for gay marriage, but never mind). And we know this because…Phyllis Schlafly said so. If you find this convincing evidence, you’re probably a good candidate for the “pro-choice” anti-Roe cult, where a permanent slot on the nation’s liberal op-ed pages and magazines awaits.

A Round of Applause

Now that I’m finally back from becoming even more Frenchified, it’s time to thank my outstanding guest-bloggers, Iocaste and Lizardbreath. And to add one more round of kudos to SteveG and Dan Nexon. Make sure to visit them regularly at their usual residences.

Today’s Decisions II: A Different Kind of Conservative

When Ann Althouse said that Alito was a different kind of conservative than Scalia, she was in a sense right, although in a rather different way that she intended. From a left-liberal (if not left-communitarian) perspective, Alito is clearly worse. Scalia does have a libertarian streak; he is, albeit in a very inconsistent and erratic manner, willing to enforce the clear textual demands of the Bill of Rights, while the less theoretical and even more results-oriented Alito won’t. Today’s decision in U.S. v. Gonzales is a case in point.

The case concerned the question of whether or not the Sixth Amendment’s right to counsel clause was violated when the state refused to allow a defendant to hire her first choice of legal defense. Alito’s dissent claimed that a Sixth Amendment violation required a showing that the choice of lawyer affected the outcome of the trial. Leaving aside the fact that this is virtually impossible, it also doesn’t make any sense. As Scalia (joined in an unusual coalition by the court’s four more liberal members) says:

Stated as broadly as this, the Government’s argument in effect reads the Sixth Amendment as a more detailed version of the Due Process Clause—and then proceeds to give no effect to the details. It is true enough that the purpose of the rights set forth in that Amendment is to ensure a fair trial; but it does not follow that the rights can be disregarded so long as the trial is, on the whole, fair…

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So also with the Sixth Amendment right to counsel of choice. It commands, not that a trial be fair, but that a particular guarantee of fairness be provided—to wit, that the accused be defended by the counsel he believes to be best. “The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment, including the Counsel Clause.” In sum, the right at stake here is the right to counsel of choice, not the right to a fair trial; and that right was violated because the deprivation of counsel was erroneous. No additional showing of prejudice is required to make the violation complete.”

Exactly right. If the Sixth Amendment means anything, it means that the state cannot obstruct a defendant’s choice of attorney. The unknowable question of whether or not the trial would have come out differently is beside the point.

Now, of course, it’s not a conincidence that Scalia’s textualist conscience was awoken in a holding more likely to involve defendants with financial resources than a typical civil liberties case. But nonetheless, when he’s right he’s right, and in this case he is.

Today’s Decisions I: I Am Still Not A Contrarian!

Some big Supreme Court cases today. I’m going to leave discussion of the Vermont campaign finance decision until tomorrow. In the meantime, I’m going to take a page from LizardBreath and defend a coalition of 5 justices I almost never would. Generally, the odds that I’ll join Scalia/Thomas/Alito/Roberts/Kennedy in a civil liberties case are about the same that I will accompany Ludivine Sagnier to watch the Royals and Pirates play Game 7 of the World Series, but if pressed I would probably join them in Kansas v. Marsh.

The case concerns the constitutionality of the Kansas death penalty statute, which holds that a convicted defendant can be sentenced to death if the jury finds a balanced number of aggravating and mitigating factors. As I’ve said before, despite all of the criticism the decisions received, I basically think the Supreme Court got it right in the 70s; the death penalty as practiced before 1972 was plainly unconstitutional, but I do not believe that the Eighth Amendment categorically prohibits the death penalty (which I would vote against as a legislator), so the states should have been given the opportunity to construct a more rational system. Within these parameters, however, I just can’t see a lot of basis for striking down Kansas’ particular balance of sentencing factors. Although the “tie goes to the defendant” standard makes sense to me as a question of policy, as far as I can tell the short opinions of Souter and Stevens don’t make a convincing case that this particular balance is required by the Eighth Amendment. I’m willing to be convinced otherwise, but I’m afraid I think the majority is probably right on this one.

The Biggest Problem With American Third Parties

After Iraq and massive deficit busting upper-class tax cuts and Ashcroft and Abu Gonzales and Strip Search Sammy etc. etc. etc. it’s very difficult to continue to defend the narcissistic third-party candidacy that put Bush in the White House in 2000, and to continue to defend this as a viable strategy for progressives. Some of these defenses couldn’t be more easily dismissed. The argument that Nader didn’t really throw the election to Bush is just unambiguously false (and as Chait points out, it’s crucial to note that putting Bush in the White House was not merely an incidental byproduct but the central goal of Nader’s campaign.) Ditto for claims that because Democrats and Republicans aren’t different enough on NAFTA and legalizing hemp that there is therefore no difference between the two parties. Then there are the times in which the lines of communication between the various arguments appear to have been cut off. My favorite is the attempt to justify the Greens by noting that a significant number of conservative Democrats voted for Bush, or that Gore couldn’t win his conservative home state. To quote myself, “First of all, it’s a non-sequitur on its face; it doesn’t change the fact that if Nader doesn’t run, Gore wins. But secondly, Greens don’t seem to understand that this fact fatally undermines the basic rationale for a left-wing third party candidacy. So, because of realignment, many nominal Democrats voted for the most reactionary President in decades…but the Greens want us to believe that there is a majority for social democratic politics in the US that would inevitably manifest itself if only the Democrats would stop thwarting democracy and run a Kucinich/Mumia ticket. Sure.”

Having said that, though, I know some people of some actual political sophistication who voted for Nader, and in my experience none of them are willing to defend claims that there’s no difference between the two parties, or that the fact that the electorate is moving right means that the Democrats should move to the left. In my experience, most of these arguments always wind up simply noting a lot of things that are wrong with the Democrats. And, of course, many of these complaints will have merit. Clinton did sign a lot of bad legislation. Cantwell’s vote for cloture on Alito was appalling. The problem, however, is that pointing out that the Democrats aren’t where you want them to be is insufficient. The real question is: what does voting for a third party do to change the Democrats? And the answer is: nothing. After all, by throwing the election to Bush Nader had about as much leverage on a presidential election as a third-party candidate could have…but according to his dead-ender supporters, the Dems are just as bad. So when is this strategy going to work, exactly? How many elections do you have to throw to Republicans? When will the contradictions be sufficiently heightened? When Clarence Thomas is the median vote on the Supreme Court, maybe? What’s the causal mechanism here? Of course, this strategy of using third parties to push the Democrats left is doomed to dismal failure, because there are always more votes in the middle. As Katha Pollit pointed out, this is particularly true of Nader, who ironically seemed to share the DLC’s dream of a progressive movement without labor, feminists, or civil rights groups (although, in fairness, their chief political constituency was white male college students as opposed to wealthy white businessmen):

Future elections will be even tougher. Whoever wins the presidency, people now know every vote counts–the frightened liberals are really frightened now. If Bush wins, the energy left of center will go into re-electing Democrats–any Democrat. Meanwhile, the small Nader vote–only 2 percent of Democratic voters chose him, while 11 percent chose Bush–means that the Democratic Party will move, if anywhere, rightward. The Greens may move that way also; after all, they failed to dislodge the old progressive voting blocs–feminists, blacks, Hispanics, Jews, labor. The typical Nader voter was a young white man, college educated but income poor. Nader did well among students, independents and Perot voters; outside a few left strongholds–Madison, Portland, Berkeley, western Massachusetts–his best counties were rural, his best state Alaska (10 percent), of all places. None of this sounds like a recipe for a powerful progressive voting bloc.

That’s the problem. The argument is not that the Democrats don’t leave a lot to be desired, as is inevitably the case in a system where coalitions are put together before elections rather than after. It’s that voting for third parties does nothing, and can do nothing, to change that, and it has hugely consequential negative externalities.

"Someone who is concerned merely with seeming to be reasonable"

Hilzoy identifies the crucial problem with Lieberman, and identifies another classic example of Holy Joe putting himself above the party that I had forgotten:

Prizing genuine pragmatism, reasonableness, and statesmanship is a good thing. Prizing your reputation as a pragmatic, reasonable, statesmanlike politician is something else entirely…

This, I think, is what bothers people about Lieberman: that when push comes to shove, he is more concerned with his reputation as one of the reasonable people who rises above mere partisan bickering than with principle, and that this leads him both to trash his own party (since, of course, a Democrat can only establish his bipartisan bona fides by embracing Republican positions and criticizing Democrats), and to compromise even when compromise is wrong. His obvious flirtation with the idea of leaving the party can only strengthen this impression.

As a friend of mine reminded me recently, this isn’t the first time Lieberman has placed his own narrow interests above those of the party. Back in 2000, when he was nominated to be Al Gore’s running mate, he had to decide whether to continue running for his Senate seat. Had he withdrawn, the Democrats would have been able to nominate someone else, and that person would almost certainly have won. If he stayed in the race and Gore won the Presidency, however, Connecticut’s governor would have named his replacement; and since Connecticut’s governor was then a Republican, Lieberman’s replacement would have been a Republican as well.

Which, of course, is why this alleged man of principle won’t rule out a destructive third-party run. Which shouldn’t stop anyone from voting for Ned Lamont. (Check out part 2 as well.)

On The Mythical "Pro-Choice" Republican

Aspazia: “Next time you meet a “pro-choice” Republican, just remember, they might care about their own choice, but they could give a rat’s ass about yours.” Indeed, and this goes for Republicans who hint at “moderation” on choice as well. This is what makes the fact that liberal pundits who should know better are willing to assert that John McCain is a secret pro-choicer so baffling. Aside from the fact that his subjective beliefs are completely beside the point, the fact that McCain doesn’t really believe that a woman he knows should be subject to the use of state coercion to carry her pregnancy to term doesn’t make him a pro-choicer; it makes him a Republican. The “abortion should be illegal but not so illegal that my wife couldn’t get one” faction of “pro-lifers” is simply the Republican flipside to the “as a pro-choicer, I believe we should compromise by denying abortion access to poor women who live in states I never will” crowd, and what Republican “pro-choicers” remain almost always fall into the latter camp.

The Cantwell Problem

Apparently she’s in a lot of trouble. And while officially I still maintain that voting for a third party is stupid given the high stakes involved, and even though I have some residual goodwill for anyone who could get Slade “Skeletor” Gorton out of the Senate, I must say that even I can’t muster much enthusiasm for the argument. It’s not just the war; it’s had to say much good about someone who comes from perhaps the strongest pro-choice state in the country and votes for cloture on Alito. I understand that if a Senator from Nebraska or Louisiana does it you have to suck it up, but this seems almost as stupid strategically as it was appalling on the merits. With Bush’s approval numbers where they are, about the only way an incumbent Democrat could botch a statewide election is to piss off the base for no conceivable reason.

So Overrated It’s Underrated

Many people I spoke to about seeing the Lourve pretty much said that it wasn’t terribly exciting. I guess it’s sort of like Citizen Kane; once a reputation reaches a certain point a lot of people are inevitably going to be disappointed. But granting that if I could only see one Paris museum in a visit I would probably stick with the D’Orsay, it’s nonetheless pretty spectacular. The thing is that a large percentages of the admittedly large crowds (even early on a Friday morning) at any given time are falling into the arms of Venus De Milo, and that atrocious book and Ron Howard movie seems to have also increased the lines around the Mona Lisa, leaving one free to browse the exceptional second-floor collection in relative peace (you might run into a big tour group, but there’s just so much worth seeing that you can just skip a room and hit it on the way back.)

And maybe I’m just an easily pleased Francophile, but with the partial exception of the Rodin (which is just because neither sculptures nor gardens are really by thing) I can’t say I was disappointed by anything. The D’Orsay is just incredible, of course, but the Picasso, the Cluny (medieval museum) and the Cinematheque (terrific Almodovar exhibit, screening of Duck Soup)…all pretty great despite difficult to meet expectations. Plus, wandering around Le Marais today I stumbled across a free Paris Au Cinema exhibit, which involved a whole bunch of film clips featuring Paris and organized thematically. If that doesn’t inspire me to get a Netflix queue going, I don’t know what will.

Alito v. Civil Rights: A Foreshadowing

Several of the cases recently handed down by the Supreme Court have been interesting more for what they tell us about the future than for the cases themselves. An excellent example is today’s decision in Burlington Northern v. White, the case where a woman was suing under Title VII of the Civil Rights Act because she was removed from her primary job as a forklift operator by a overtly sexist supervisor and assigned to much worse positions. The case was anticlimactic in a good way; the Court unanimously ruled that White had a case under the law and upheld the jury’s verdict in her favor. However, note that Alito filed a concurrence in which he gave a (highly strained) reading of Title VII that would both narrow the definition of what constitutes “retaliation” and confine it strictly to workplace-based retaliation (although of course other forms of retaliation could have the same disincentives to report illegal behavior that the CRA is trying to prevent.) In other words, Alito wants to chip away the statutory civil rights of litigants accepted by those radical civil rights activists Clarence Thomas and Antonin Scalia. Which couldn’t have been more obvious at the time of his nomination.