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[ 15 ] June 29, 2008 |

I saw my first ever Mets/Yankees game yesterday, and it certainly sucked although my section didn’t have the fights that apparently happened in other sections. Especially with the effect of the rain delay, the striking thing is that after Reyes getting picked of second with 2 out and Wright up the crowd was completely dead, and for good reason. And although it was a one-run game the bottom of the ninth severely tested my irrational commitment to never leaving the park with a game in progress, given that it involved Rivera facing Didn’t You Used to Be Carlos Delgado, Fluke Season Tatis, and the Rapidly Decomposing Corpse of Trot Nixon. The term “overmatched” seems grossly inadequate.

Although I’ve seen this It’s not really accurate to say that Petite outpitched Santana. The latter had much better stuff; it’s just that the Yankees have this strange commitment to trying to put major league hitters into as many lineup slots as possible. I don’t understand how anyone could watch yesterday’s game and think that the Mets are underachieving. They had a washed-up third baseman whose last good year was 2000 in right, a shitty backup first baseman in left, an immobile utility infielder whose last good season as a regular was also in 2000 at second, and a washed-up anvil at first base. That’s four positions out of which you’re not getting any offense or defense. The more common lineup isn’t much of an improvement; Castillo can get on base but is barely better defensively that Easley at this point, and Schneider can throw but can’t hit at all, Chavez is a good outfielder but would be a bad hitter for a utility infielder, let a lone a corner OF. Three stars plus 5 below-average-to-entirely-unacceptable players adds up to mediocre even if you get good pitching. If Church comes back and is healthy and Minaya can find a major league left fielder (and, in fairness, who could ever have anticipated that Moises Alou would get hurt?), then maybe they can win a weak division, but with the kind of lineups they’re running out there now they’re not going to finish .500 if Joe McCarthy comes back to earth and takes over Manuel’s body. This team isn’t underachieving; it’s just not very good.

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Compulsory Reading

[ 5 ] June 28, 2008 |

Good one. (Via Jessica Crispin.)

Free Ride

[ 15 ] June 27, 2008 |

To follow up on Dana’s excellent analysis of Jim Wallis’s latest bit of abortion concern-trolling, I continue to be irritated by these kinds of assertions:

Without calling for restrictions such as parental consent laws, Wallis believes that if the Democrats were to alter their abortion platform, it could help them make inroads among young evangelicals and Catholics.

“Taking abortion seriously as a moral issue would help Democrats a great deal with a constituency that is already leaning in their direction on poverty and the environment,” said Wallis. “There are literally millions of votes at stake.”

Wallis expects us to believe that there is a substantial bloc of voters who 1)care enough about abortion to vote against Democrats they would otherwise support because of abortion, and 2)will switch back despite no change in the party’s substantive positions if Democratic rhetoric just becomes even more mealy-mouthed when defending reproductive freedom. Since this is implausible in the extreme, and I’ve never seen the slightest bit of evidence to support it, I see little reason to take this seriously.

In addition, even if this mythical group of single-issue-anti-abortion-voters-who-don’t-care-about-abortion-policy existed, there are potential strategic (as well as normative) costs to Wallis’ strategy. Shouldn’t we consider the many voters who have had abortions and don’t appreciate people like Wallis implying that they did something grossly immoral? In addition, as even Amy Sullivan has conceded McCain’s entirely unearned reputation for moderation on the abortion issue seems to be worth a significant number of votes. The Democrats would be much better off emphasizing McCain’s extensive history of unpopular anti-abortion extremism (including support for the draconian ban in South Dakota) than further muddling their position to chase after unicorns.

Everyone Balances

[ 1 ] June 27, 2008 |

There’s something of a curious disconnect between two passages of Scalia’s opinion in Heller:

After an exhaustive discussion of the arguments for and against gun control, Justice Breyer arrives at his interest-balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach.

[…]

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

In other words, both Scalia and Breyer are for all intents and purposes engaged in “interest balancing.” Both are that the scope of the right to bear arms are limited by important states interests; they differ only in where they draw the line. I am inclined to believe that Scalia rather than Breyer draws it in the right place where the D.C. gun ban is concerned, but claim that Breyer’s interest-balancing is somehow unusual is odd. Especially since the majority’s balancing seems just as “free-standing” as Breyer’s.

That aside, the second passage is of course the critical one: what this decision means will be determined by how the Court applies the right in the future, and especially since the Court didn’t articulate a clear standard for evaluating future regulations we simply don’t know how this will affect more reasonable types of regulation. One could be concerned that the precedent will lie around like an, er, loaded weapon and will have much broader consequences.

Taking Scalia’s assertions at face value, though, I don’t see anything objectionable about the Court’s judgment: the D.C. gun ban is too ineffective and overbroad to justify the restriction of a constitutional right. And since I generally take the Stevens/Marshall position that dividing rights into discrete categories of scrutiny isn’t useful in itself and often fails to accurately describe what the Court actually does in practice, I’m not concerned that the Court left a lot of unanswered questions per se. Even if the Court had tried to develop a standard, the direction of the Court’s Second Amendment jurisprudence would be determined by future presidential elections and other political developments in any case.

Law Office History

[ 0 ] June 27, 2008 |

Great point by Sandy Levinson:

If one had any reason to believe that either Scalia or Stevens was a competent historian, then perhaps it would be worth reading the pages they write. But they are not. Both opinions exhibit the worst kind of “law-office history,” in which each side engages in shamelessly (and shamefully) selective readings of the historical record in order to support what one strongly suspects are pre-determined positions. And both Scalia and Stevens treat each other—and, presumably, their colleagues who signed each of the opinions—with basic contempt, unable to accept the proposition, second nature to professional historians, that the historical record is complicated and, indeed, often contradictory. Justice Stevens, for example, writes that anyone who reads the text of the Second Amendment and its history, plus a murky 1939 decision of the Court, will find “a clear answer” to the question of whether the Second Amendment supports a “right to possess and use guns for nonmilitary purposes.” This is simply foolish. Justice Stevens pays no real attention to a plethora of first-rate historical work written over the past decade that challenges this kind of foolish self-confidence, as is true also of Justice Scalia. There is no serious discussion, for example, of Saul Cornell’s fine book A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control, but many other examples could be offered, from various sides of the ideological spectrum.

Both Scalia and Stevens manifest what is worst about Supreme Court rhetoric, which is precisely the tone of sublime confidence when addressing even the most complex of issues. The late Victoria Geng once wrote a marvelous parody of Supreme Court decisions in which, among other things, the Court announced that “nature is more important than nurture.” We wouldn’t take such a declaration seriously. It is not clear why we should take much more seriously the kinds of over-confident declarations as to historical meaning that both Scalia and Stevens indulge in.

The one caveat is that I wouldn’t even say that it’s the “worst kind” of law office history; their historical analysis is actually considerably less perfunctory than most tendentious historical analysis in judicial opinions is. At any rate, it should be pretty clear that invoking originalism does little to constrain justices, not only because of irresolvable ambiguities in the historical record and the ability to use originalism’s ladder when dealing with the meaning of broad constitutional provisions, but because even on cases where a grand theory seems to produce fairly clear answers judges will ignore them if they conflict with strongly held policy preferences.

Meanwhile, Publius notes that exclusively relying on originalism would be undesirable even if it actually worked to substantially constrain judicial discretion.

Friday Cat (Power) Blogging

[ 14 ] June 27, 2008 |

Supreme Court Facilitates the "Tort Reform" Bait And Switch

[ 22 ] June 26, 2008 |

Yesterday, many conservatives managed to work themselves into a lather about a plausible interpretation of the Constitution with exceptionally few real-world consequences. I noticed much less outrage about the Court’s opinion in Exxon Shipping v. Baker, which read the justice’s public policy preferences into the law with considerably less textual support in order to protect poor, defenseless Exxon in the light of the Exxon Valdez spill. (Four justices held that the corporation was not liable at all.)

The majority argues that the potentially arbitrary nature of punitive verdicts requires a fairly strict upper limit, with punitive damages virtually never permitted to exceed a 1-1 ratio with compensatory damages damages. However, the fact that punitive damages will vary to some degree is an inevitable consequence of the American system of relying on torts rather than regulation to create disincentives for corporate behavior. Limiting punitive damages with an arbitrary upper end — even in what, as even the usually sympathetic Breyer notes, were quite unusual circumstances — makes punitive damages a highly ineffective means of constraining bad behavior. That would be fine if people who agreed with the majority wanted to move to a more European-style regulation-based system, but needless to say that won’t happen.

The key to the case is that Scalia and Thomas, who haven’t joined past attempts to find limits on punitive damages in the constitutional text (and still disagree with these holdings), joined this time, presumably because of the majority’s reliance on maritime law. In dissent, however, Stevens points out quite compellingly that the limits on compensatory damages in maritime law make arbitrary upper bounds on punitive damages even less appropriate.

Court Finds Individual Right to Bear Arms

[ 15 ] June 26, 2008 |

The only real suspense about D.C. v. Heller was 1)how exactly the right to bear arms was defined and 2)what the lineup would be. The D.C. gun ban was clearly doomed. Scalia writing the lead opinion made a broader coalition less likely, and indeed the Court split 5-4, along typical ideological lines. And yet, based on a quick scan, Scalia’s opinion wasn’t exceptionally broad — while striking down the D.C. ban it emphasized that the reasonable regulation of gun ownership was permissible.

Stevens’s lengthy and detailed dissent, meanwhile, immediately conceded that the Second Amendment conferred an “individual” right in some sense, but argued that text and history compelled the conclusion that — given the constitutionally stated purposes of the right the D.C. gun ban was a reasonable restriction of the right. Breyer’s dissent, as you might expect, was more pragmatic, focusing on what he claims to be the reasonableness of the ban.

More on the decision later.

Major League Chutzpah Of The Week

[ 94 ] June 26, 2008 |

Mr. Ralph Nader — in a good position to speak on such issues, having earned 0% of the votes of African American women in 2000 while successfully achieving his goal of handing the election to George W. Bush and all — lectures Barack Obama for “talking white.” Uh-huh.

I can’t resist quoting Mike Tomasky:

Third, and most of all, I kept noticing in 2000 that most of the people who lectured me on how corrupt Gore was and how Nader was the courageous choice were people for whom the outcome of the election, on a personal level, didn’t really matter. Some were young people, whose idealism is to be admired but who were by and large demographically insulated from some of the harsher realities of American life. But most were older, white, left bourgeoisie, tenured and cocooned in the carapace of self-righteous satisfaction, whose own lives wouldn’t change much one way or the other no matter which party won. In fact, if anything, Bush’s elevation was good for them personally, because they wouldn’t suffer directly from federal budget cuts and were probably in a bracket that benefited from his tax cuts (as was I, but at least I had the sense to vote against my own interests). Among people who were directly affected by which candidate won, Nader was seen as the ornament of frippery that he was. I promise you, you could not have gone to the corner of Lenox Avenue and 145th Street in October of 2000 and found four Nader voters. And at that intersection and the many others in America like it, by my lights, the moral case for Nader crumbles to dust.

The Eighth Amendment and Sexual Assault

[ 18 ] June 25, 2008 |

Today’s decision in Kennedy v. Louisiana is a fairly typical Eighth Amendment case. The relevant textual language — “nor cruel and unusual punishments inflicted” — can evidently accommodate multiple outcomes in any case sufficiently interesting to get to the Supreme Court, and this case is no exception. The Court’s four more liberal members and the moderate conservative found that the Eight Amendment categorically bars the death penalty for cases of sexual assault “where the crime did not result, and was not intended to result, in death of the victim.” The Court’s four doctrinaire conservatives dissented.

One interesting aspect of Alito’s opinion, however, is the particular way in which he made his argument. One could imagine an argument to the effect that the text of the Eighth Amendment as originally understood did not prohibit the death penalty for the rape of a child. This would be true, but given what kinds of punishments would be permitted by an originalist analysis would prove too much, and indeed even Scalia has said that cruel and unusual punishment is an area where he is a “faint-hearted” originalist who would not actually hold flogging for minor property theft to be constitutional. Instead, Alito takes on Kennedy’s standard analysis of whether there is a national consensus against the death penalty for the sexual assault of children. Here, Kennedy’s case is pretty strong, given that the few states with such statutes are clear outliers (this is roughly the same number of states that didn’t provide lawyers for criminal defendants at the time of Gideon). Alito attempts to explain this away:


…dicta in this Court’s decision in Coker v. Georgia, 433 U. S. 584 (1977) , has stunted legislative consideration of the question whether the death penalty for the targeted offense of raping a young child is consistent with prevailing standards of decency. The Coker dicta gave state legislators and others good reason to fear that any law permitting the imposition of the death penalty for this crime would meet precisely the fate that has now befallen the Louisiana statute that is currently before us, and this threat strongly discouraged state legislators—regardless of their own values and those of their constituents—from supporting the enactment of such legislation.


The claim that legislators would have been prevented from pursuing laws they strongly favored because of mere dicta in an opinion is, however, highly implausible. In the wake of Furman, for example, some people (including the Chief Justice) believed that the death penalty was effectively abolished although only 2 of the 5 majority justices held the death penalty categorically unconstitutional — but this didn’t stop a majority of states from quickly passing new death penalty statutes despite little knowledge of whether such laws would be upheld. In the case of abortion, legislators have passed laws that were clearly unconstitutional under contemporary doctrine, such as the federal Partial Birth Abortion Ban Act, the states that have passed abortion bans after Roe, and the states that continued to pass abortion restrictions after Akron. Alito’s claim that mere dicta intimidated states into not passing legislation they otherwise preferred and that Supreme Court precedent did not explicitly prohibit is highly implausible, and (if one accepts the standard being applied) Kennedy’s assessment is much more credible. If the Court’s opinion in Coker ran counter to strong sentiment, we would have expected a significant number of legislatures to immediately test the boundaries of the Court’s opinion; needless to say, this didn’t happen.

Alito also makes an argument that there is no reason to assume that murderers achieve a unique level of moral depravity, which on its face is more reasonable:

Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing. In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second?

Fair enough as far as it goes. However, there’s another way of approaching this: to question whether the death penalty should be applicable in cases of felony murder. A categorical prohibition on the death penalty for people who did not intend to cause the death (or their personal actions could not foreseeably have caused) of another person seems the better way of resolving the conflict to me.

A Meme Expands

[ 0 ] June 25, 2008 |

djw — who thankfully encouraged me to a see a rare screening of L’Eau Froide at a tiny theater in Seattle — will be especially happy with this addition…

Court Rules Against Death Penalty for Sexual Assault

[ 0 ] June 25, 2008 |

In a 5-4 opinion written by Kennedy, the Court has ruled that the Eight Amendment makes the death penalty unconstitutional in cases where the defendant did not intend to cause death. More when I have a chance to fully read the opinion.

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