A quick follow-up to yesterday’s post:
- Things do not, alas, look good for the de-segregation side in yesterday’s cases. With Alito replacing O’Connor, the only chance was Kennedy, who was extremely hostile, although Lithwick thinks that he’ll try to split the baby for future cases: “He will add that he looks forward to some future hypothetical case in which some school district somehow remedies racial imbalances without accounting for race.”
- I would say that Patterico has climbed Originalism’s Ladder, except that not surprisingly he can’t be bothered to make a constitutional argument at all. I actually think that Publius is being too generous to such arguments when he says that “I suspect few of them thought the new amendment banned affirmative action-type preferences that disadvantaged white people because respectable opinion in 1868 wouldn’t have even conceived of such policies.” The Freedman’s Bureau, for example, seems to me a classic race-conscious remedy. So, really, I think affirmative action is like Brown: if originalism has any connection to concrete historical meanings, there is no originalist justification for striking the programs down. (Those interested in the nitty-gritty should see Michael Klarman‘s definitive takedown of claims that Brown can plausibly be defended in originalist terms.) And if all originalism means is that principles must be applied at a high level of abstraction, I’m not sure why we can ignore 19th century conceptions of education and distinctions between social and civil rights, but we have to remain bound to 19th century conceptions of “commerce.” To the extent that originalism has any content at all, the choice is between Brown and originalism; myself, I’m going with the former. But once you’ve reduced originalism to these kinds of broad abstraction, there’s simply no good reason to treat racial classifications used to ossify apartheid and racial classifications used to dismantle segregation as being equivalent. It is, regrettably, virtually impossible to remedy past segregation without being conscious of race, and I see no reason why the Seattle and Louisville program’s aren’t “reasonable.”
And, personally, I’m not willing to leave aesthetic judgments aside. What’s next, “Joel Scuhmacher is often referred to as the Orson Welles of his time?” “James Patterson is often called the Chekhov of his time?” “Kevin Federline is often referred to as the James Brown of his time?” “Ramon Santiago is often cited as the Honus Wagner of his time?” Yeesh.
Lizardbreath lays out why the treatment of Jose Padilla is indefensible on every level:
We seem to be systematically ill-treating our prisoners in a way that doesn’t make any legitimate sense. If it’s punishment, it’s simply wrong because they haven’t been tried. If it’s for interrogation, it seems insanely excessive. If the argument is that “We are certain enough that Padilla had vital information that we are justified in confining him for years and treating him in any manner, no matter how psychically damaging not likely to cause organ failure in the hopes of extracting that information,” I really want that argument to be made explicitly. What do they hope to find out from these people? And if we’re claiming that the ill-treatment is necessary for security, that is patent nonsense. What was done to Padilla (and is being done to prisoners at Guantanamo) is obviously not necessary to keep them from escaping or hurting other people, and anyone putting forth that justification for blindfolding Padilla on his way to the dentist is either deceiving themselves or a liar.
This is all correct — and there’s an additional issue. Let’s assume, for the sake of argument, that Padilla was an extremely dangerous man who should have been locked up (although the government can’t actually substantiate the most serious charges against him.) As Andrew Sullivan points out, torturing Padilla is also counterproductive because it will make it extremely difficult to convict him. This kind of systematic mistreatment of prisoners is an utter disgrace on every level: moral, political, legal, and pragmatic.
(Cross-Posted to TAPPED.)
I have a post up at TAPPED discussing “originalist” arguments in light of today’s Supreme Court case considering school integration in Louisville and Seattle. A follow-up question might be: “OK, Scott, since you’re not an originalist, why isn’t the Scalia/Thomas “color-blind Constitution” argument right, even if it contradicts their own stated jurisprudence?” Well, for the following reasons. First, I agree with Thurgood Marshall that the equal protection clause is most usefully construed as reflecting an antisubordination principle, and read this way it’s obviously implausible to see programs intended to remedy past discrimination as the constitutional equivalent of programs designed to entrench a racial caste system. And, second, on a pragmatic level, the brute fact that school segregation was largely crated and reinforced by state action makes race-conscious remedies, while suboptimal in a perfect world, necessary. The problem of school segregation has hardly been solved. The actions of the school boards here should be upheld.
Shorter Erick Erickson: It’s just a simple fact that Jose Padilla “plotted to blow up a radiological dirty bomb inside the United States,” despite the fact that the government doesn’t have sufficient evidence to even indict him for these charges. But because 9/11 was really horrible, the American state can arbitrarily detain and torture anybody they want–it’s logically impeccable! And anyone who opposes arbitrary state power is just pro-terrorist.
Needless to say, Treason in Defense of Slavery Yankee also agrees with Erickson’s fascist claims.
The destruction of Jose Padilla’s mind. It’s difficult for me to find the words to speak about this. Digby:
I know that all the tough guys on the right will say that Padilla is just being a typical whining malcontent but I have a feeling that most of them would crumble into blubbering babies after five minutes in his position. This treatment is extremely inhumane. They basically blinded, deafened and then isolated him, essentially destroying his mind. There is no reason on earth to put those goggles and earphones on him to go to the dentist in the prison in South Carolina except to keep him from ever feeling like a normal human being, part of the natural world. It’s sick.
But, although this kind of torture is unjustifiable in any case, at least the state has an ironclad case that he’s an extremely dangerous terrorist, right? Right?
Mr. Padilla was added as a defendant in a terrorism conspiracy case already under way in Miami. The strong public accusations made during his military detention — about the dirty bomb, Al Qaeda connections and supposed plans to set off natural gas explosions in apartment buildings — appear nowhere in the indictment against him. The indictment does not allege any specific violent plot against America.
Disgrace is much too weak a word here.
…Prof. B. has more. As does Greenwald.
A lot of the MVP award comes down to the question of Derek Jeter’s defense. The Baseball Prospectus claims that his defense has improved from wretched to average, and if that’s the case then I think he was unquestionably been the MVP. But. I’ve never been very compelled by explanations of the BP defensive methodology. So what do the other numbers say? I don’t have my Hardball Times annual yet, so I can’t check John Dewan’s numbers. But Dave Pinto’s Probabilistic Model of Range has him as one of the worst defensive shortstops in baseball. Win Shares has him as a poor shortstop (remember that WS is a counting stat. There’s no adjustment for playing time and you get credit for just showing up at short, but Jeter ranks about even with Bobby Crosby–who played 96 games.) Zone Rating ranks him as a terrible shortstop. So, basically, I don’t buy the Prospectus numbers. Every metric showed Jeter as a bad shortstop before 2004, and it’s very unusual for a player to suddenly show vastly improved range at his age. I see him play a lot, of course, and if he’s added a lot of range it’s not visible to the naked eye. And no other metric picks up what the BP one does. The overwhelmingly likely conclusion is that the BP numbers are anomalous, and Jeter is still the good-hit no-range shortstop he’s always been.
So the more I think about it, the more I think I was wrong to say that Jeter was probably screwed in the MVP vote. We just don’t know enough about measuring defense to be sure, but if I had a vote today I’d vote Mauer #1, Jeter #2. It’s not like he can be that broken up about losing anyway.
There are problems with claims that abortion takes time away from issues like women’s equality in the workplace, domestic violence, etc.–these things aren’t a zero-sum game. But I think there’s some truth to it. But for the
Jews for anti-Semitism Turkeys for Thanksgiving Feminists for Life who are bringing this up, there’s an easy solution: stop trying to ban and regulate abortion. As Amanda says:
If abortion has diverted feminist attention, then whose fault is that? Let me put it to you in simple terms: Do you think that I’d be writing something else right now if Serrin Foster wasn’t out there trying to get abortion banned? Of course I would. Does the fact that I write about FFL mean I don’t write about other things? No. So, reproductive rights activism doesn’t mean feminists don’t spend time and energy on other issues, and if you want them to dedicate more resources to those issues, the first step is to quit trying to ban abortion, which creates the need for the activism you think is diverting attention.
The rest is more blather about not making women choose between family and career, as if the legality of abortion somehow forces you to have one. She never does address the issue of equality between men and women issue and how it relates to abortion, but I suspected that no one was willing to put any money on the chance that she would.
Ah, what to do with The New Republic? On one hand, they giveth biweekly Rick Perlstein. But, boy, does that other hand do an increasing amount of takething. Publishing Bob Kagan is bad enough, but to let him recycle literally the same nonsense he’s “contributing” to The Weekly Standard? OK, but maybe the article is so good it’s worth reading twice? Oh, wait, it’s Bob Kagan:
It is stunning that this administration has attempted to fight two wars and has envisioned other possible interventions with a force clearly inadequate for these global commitments.
Wow, despite all his lofty rhetoric, Bush isn’t willing to sacrifice any spending or his precious, precious upper class tax cuts for the War To Save Civilization By Installing A Theocratic Quasi-State in Iraq. That is stunning! If you just woke up from a lengthy coma that also sapped most of your brainpower.
Julian notes the appropriate Shattered Glass reference.
Admittedly, there are few manifestations of idiot hackery that haven’t appeared in the post-9/11 writings of Roger L. “I used to consider myself a Democrat, but thanks to 9/11, I’m outraged by Chappaquiddick” Simon. But even I’m a little surprised that he would trot out the “since it’s cold on individual days in individual places, global warming is a complete fraud!” routine. (I don’t think I’ve seen that outside of Shill Central Station before.) I would like to be charitable and think he was arguing in bad faith, but I think he might actually be dumb enough to believe that the global warming theory holds that it will be warmer everywhere every day starting now. [HT: Blue Texan.]
And the punchline is that I don’t think that Simon’s further descent into wingnuttery is the most irritating thing I’ve read today. Say hello to Mr. Jeff Jarvis. [HT: Ezra.]
“The five justices in the Bush v. Gore majority are thus the only judges involved in this election dispute who fall uniquely within the category that is most indicative of partisan justice: they made a decision that was consistent with their political preferences but inconsistent with precedent and inconsistent with what would have been predicted given their views in other cases. Moreover, their decision received no support from any judge with presumably different partisan loyalties.”
–Howard Gillman, The Votes That Counted (p.189.)
Al Gore apparently made some quips about the abject lawlessness of the 2000 Supreme Court on Leno. Ann Althouse, one of a tiny handful of legal scholars hackish enough to defend the indefensible with an article* that, as this excerpt suggests, is (with the exception of a good but not terribly important refutation of the claim that the Court should have denied the case under the “political questions” doctrine) a compendium of strawmen, evasions, and non-sequiturs, returns to the subject of Bush v. Gore. And…well, the term “Orwellian” seems grossly inadequate:
But, in any case, Scalia’s position in Bush v. Gore worked to extract judges from the election, as it pushed back the Florida Supreme Court, which thought it had the expertise to run things.
No really–she thinks that a case where a bare majority of the Supreme Court ended a recount being conducted under state law with an argument that was strikingly inconsistent with the previous doctrinal commitments of the justices, asserted that this newly-minted “principle” would not apply to subsequent cases, and then refused to apply the “principle” logically within the case itself (leaving in places recount results that if you–unlike the majority–take the alleged principle of the case seriously was just as illegal as the one the Court pre-emptively rejected) is…an example of judicial restraint! We’ve been through this before, but one more time:
- It wasn’t the Florida court which “which thought it had the expertise to run things.” Even leaving aside the fact that in our system the courts have the authority to apply statutes, resolve ambiguities, etc., it was the Florida legislature which thought the court had the relevant expertise. Section 102.168(8) of the election contest statute reads as follows: “The circuit judge to whom the contest is presented may fashion such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances.” [my emphasis] To argue that the Florida courts were arrogantly arrogating power that the legislature explicitly gave to them is beyond ludicrous. No other institution or body, consistent with Florida law, could have deployed their “expertise” to resolve the contested election. I am very skeptical that Rehnquist’s Article II argument is ever valid as long as Marbury remains good law, but if it’s ever applicable it certainly can’t be in a case where the legislature explicitly gives the courts wide discretion to resolve disputes with little in the way of direction or constraint.
- Underlying Althouse’s argument is her assumption that (as she puts it in her article) that the Florida court gave a “strained, result-oriented interpretation” of Florida law. First of all, it takes more than a “strained” interpretation for it to be legitimate for the Supreme Court to override a state interpretation of state law in a case that otherwise didn’t present a remotely serious federal question (and I have no idea what a straightforward application of Florida’s ambiguous, poorly constructed election statutes would look like.) But, more to the point, her assertion that the Florida Court was acting in a “results-oriented” manner is–to the extent that it has any non-tautological meaning–flatly erroneous. The court applied the same legal standard consistently although Gore (allegedly their favored litigant) lost 3 out of 5 cases. A more formalist statutory construction–which would have, for example, led to the exclusion of technically illegal military ballots that ended up being counted–may well have been more favorable to Gore if it were applied consistently.
- And, finally, such defenses of Bush v. Gore seem to be premised on a “two wrongs make a right” theory of constitutional law. I would be interested in some, ah, reasoned elaboration of the merits of this theory. (Even pragmatically, the defense fails unless you start with the assumption–as Scalia implicitly did in his egregious decision to stay the recount–that the presidency rightly belonged to Bush.) But to proceed from this premise to Althouse’s claim that Bush v. Gore was about judicial modesty…I think this is self-refuting.
As the fact that defenses of his conduct would have to become considerably more coherent to rise to the level of being specious suggests, Bush v. Gore will be a permanent disgrace on Antonin Scalia’s record–Gore’s mild ribbing is going to look tame. And rightly so.
*See Ann Althouse, “THE AUTHORITATIVE LAWSAYING POWER OF THE STATE SUPREME COURT AND THE UNITED STATES SUPREME COURT: CONFLICTS OF JUDICIAL ORTHODOXY IN THE BUSH-GORE LITIGATION,” 61 Maryland Law Review (2002.)
It’s generated very little discussion in light of the global warming case, but in some respects a more important case that came before the Supreme Court this week is Ledbetter v. Goodyear. I’ll have a longer piece about the case and the larger issues next week, but the dispute is about a clear-cut case of gender discrimination:
The case was brought to the court by a woman, Lilly M. Ledbetter, who worked for 19 years as a manager at a Goodyear Tire and Rubber plant in Gadsden, Ala. For years, Ms. Ledbetter was paid less than men at the same level, and by 1997, as the only female manager, she was earning less than the lowest-paid man in the department. In 1998, after an undesired transfer, she retired and filed a discrimination charge against the company with the Equal Employment Opportunity Commission.
Seems straightforward, right? Except that there’s a procedural question about the statute of limitations imposed by the Civil Rights Act. Logically enough, according to the plaintiff, the EEOC, and several lower courts every time an employee receives a lower paycheck because of rank discrimination in fact represents ongoing discrimination. But to according to 11CA and (natch) the Bush administration, only the initial act of intentional discrimination counts as discrimination, and ongoing pay inequities created by this discrimination don’t count. This case is yet another illustration of how conservative civil rights retrenchment works: you don’t repeal or roll back popular civil rights legislation, which would attract visibility, but rather you can use executive agencies and the court to quietly create various procedural hurdles that make almost impossible to actually pursue a suit and provide evidence of discrimination. And this is an area where who is appointed to federal courts makes a huge difference, although it’s rarely discussed during confirmation hearings.
It’s not clear how the case will come out. The oral argument suggests, not surprisingly, that Roberts will almost certainly vote to uphold 11CA, and Alito is if anything an even more slavish pro-business hack. An interesting swing vote is Scalia, who’s more a philosophical conservative than just pro-business; his jurisprudence often, but not always, meshes with business interests, and he may believe that the language of the statute constrains him. Kennedy is also a tough call. I may revise my judgment when I read the transcripts more carefully, but I’m cautiously optimistic as of now.