Author Page for Scott Lemieux
On the issue of affirmative action and the alleged principled “originalism” of the Court’s conservatives, Simon Lazurus has a very good summary:
On the contrary, as legal and historical scholars — 60 of whom signed an amicus curiae brief to the Court — have exhaustively demonstrated in scores of books and scholarly articles, Reconstruction Congresses, in addition to adopting the Thirteenth, Fourteenth, and Fifteenth Amendments, aggressively promoted racial integration as a goal and deployed race-conscious measures to achieve it. They provided for special payments to “colored” soldiers to ensure they were compensated for service to the Union; established a bank to provide financial services to “freedmen and their descendants;” passed numerous race-conscious anti-poverty measures; and, most important, created the Freedman’s Bureaus to fund school construction and other education programs specifically for blacks. All these measures were enacted over objections, including vetoes from President Andrew Johnson, that marshaled precisely the arguments made today by opponents of school integration programs like those deployed in Seattle and Louisville.
Principled conservatives acknowledge that the Reconstruction generation “originally” understood the Fourteenth Amendment to promote equality for blacks and posed no ‘absolute,” across-the-board bar to race-based classifications. Chief Judge Michael Boudin of the First Circuit Court of Appeals, a widely respected Bush I appointee, observed in a 2005 case that a Lynn, Massachusetts integration plan similar to those in Seattle and Louisville “is far from the original evils at which the Fourteenth Amendment was addressed . . . [which were] the oppression of one race by another.” In the Seattle case itself, in the Ninth Circuit decision under review by the Supreme Court, Judge Boudin’s approach was endorsed by prominent conservative and Reagan appointee Alex Kozinski.
It’s simply overwhelmingly clear that the 14th Amendment was understood as permitting race-conscious policies far beyond the extremely narrow of category of policies Thomas and Scalia would consider “remedial,” and at any rate accepting the policies of Reconstruction makes it abundantly clear that we’re not debating about a “color blind Constitution” (cf. also Scalia and Thomas’s belief in the constitutionality of racial segregation in prisons.) Scalia and Thomas have never bothered to even try to mount an “originalist” defense of their position on affirmative action and to defend their vacuous soundbites about a “color-blind Constitution” because you can’t.
Thers makes a comparison.
As I’ve mentioned before, I actually think that the narrow issue of not granting a pardon to Karla Faye Tucker (as opposed to his conduct afterward and his general attitude towards the death penalty) constitutes one of the few times that Bush has acted with any integrity. The pro-death penalty conservatives who wanted Tucker pardoned were advancing a truly indefensible and indeed disgusting position; if people don’t feel comfortable with executing attractive Christian white women, the only acceptable solution is to abolish the death penalty, not to reserve it for poor black men. As Matt says, the Libby pardon presents an excellent example of why use of the arbitrary pardoning/commutation power is generally a bad idea, and the fact that its use has declined is a good thing in general. Connections and publicity end up mattering more than the merits, and if we’re not willing to apply draconian punishments to certain individuals we shouldn’t apply them to anybody. How often has Bush used this power to exempt anyone who isn’t a political ally from punishment?
First, I come home to find that Jim Capozzola has passed away (R.I.P.). Then I see that Bush has commuted Scooter Libby’s sentence. (Although, at least for some cross-ideological comity I can agree entirely with Patterico.) Yikes.
…see also Marcy.
…Julia has a tribute to Jim.
…make sure to see Lindsay’s tribute to her late father.
Yeah, it’s pretty embarrassing that anyone would consider this a “controversy” or “scandal.” (An obscene word! At a baseball stadium! Heavens to betsy.) On the other hand, I certainly hope the Yankees will take this as another reason to follow Joel Sherman’s advice and trade Slappy — he’ll never have the clutchiosity or Jetertude to hit in New York! Really, the only way they’ll win
is to go back to the days of Scott Brosius and Charlie Hayes, and they already have Certified Gold Glover St. Derek of Pasta Diving to build their infield around. Oh yeah.
Marty Lederman identifies the two crucial pieces of data from the first full term of the Roberts Court. The first is that “the Chief Justice voted for the more conservative result (by most observers’ lights) in 24 out of the 24 cases decided by a 5-4 vote.” (By my count this is also true of Alito; if someone has a couterexample feel free to point it out in comments.) This was, of course, utterly predictable — when a justice is very conservative but is a pragmatist without even a sporadic commitment to some grand theory, that’s what happens. It was also predictable that they would prefer to gut precedents rather than overturn them. I suppose some people would consider the the fact that “[f]ully a third of the court’s decisions, more than in any recent term, were decided by 5-to-4 margins” significant, but I can’t fathom why anybody thought the idea of Roberts achieving unanimity in significant numbers of closely divided cases was serious in the first place. The other key point is the effect of Alito replacing O’Connor so far, and for the future. Lederman summarizes:
At the time of her resignation, I identified 31 5-4 decisions in her final decade on the Court that could very well be overturned by a Court with a more conservative Justice replacing her. (A recent iteration of that list can be found here. Steve Vladeck helpfully notes that I should add to it a 32d case — Central Virginia Community College v. Katz, involving sovereign immunity and the Bankruptcy Clause — decided after O’Connor announced her retirement (indeed, on her final day in office)).) So far, only two of those precedents have been (de facto) overruled — but they’re big ones: Carhart and the BCRA title II section of McConnell. And although Grutter was not overruled, its impact was severely compromised in the integration cases on Thursday. That’s already three of the five major areas (abortion, affirmative action, campaign finance) I identified as the most significant doctrinal areas subject to dramatic shifts; the other two are the Establishment Clause and Congress’s remedial powers under the Civil War Amendments. (The Court hasn’t yet considered any cases in which O’Connor precedents such as Mitchell v. Helms and Tennessee v. Lane might be vulnerable.)
Depressing, if not in the least surprising.
Meanwhile, several bloggers have noted this comedy gold from the Washington Post, in which it consistently decries the inevitable results of the confirmations it supported. What’s striking about the editorial endorsing Alito is that despite some hemming and hawing it doesn’t really take the Althouse/Taylor tack of asserting that he’s a “moderate” on the basis of no evidence whatsoever, although there is some nonsense about Alito favoring judicial restraint (still foolishly assumed to be a conservative trait in the wake of Bush v. Gore, the “sovereign immunity” cases, etc. etc.) Rather, once you boil off some nonsense about how judicial restraint would be great “if applied apolitically” (And a pony! What this has to do with a longtime GOP operative who impressed the administration with a voting record of remarkable conservative consistency I can’t tell you), the argument seems to be that given some minimum set of qualifications the President is entitiled to get anyone he wants confirmed. As a commenter at Ezra‘s puts it with exquiste Broderite vacuity, “[t]he standard view has been that neither the President or the Senate should have specific political litmus tests, but neither ignores ideology either.” (What this will mean in practice since the terms mean nothing, of course, is that when the Bush administration selects a judge who casts conservative votes in virtually every contested case, has a long-time history of expressing reactionary legal views, etc. they want someone “broadly conservative,” but if the Senate objects to this they’re applying a “litmus test.”)
Obviously, this is silly. The Senate should limit itself to qualifications…at exactly the same that Presidents start picking nominees at random from a list of well-qualified ABA judges. Otherwise, it’s entirely resonable for the President to consider ideology, and it’s entirely resonable for the Senate to consider ideology. A President is due considerable ideological deference on cabinet appointments, but not on lifetime appointments to a third branch of government. If you disagree with Alito’s legal views, you should oppose his confirmation by the Senate. And if you think that because Alito went through the Senate the GOP will give the next Democratic unlimited deference to choose a qualified justice I hope you’ll let me guard that new shipment of i-Phones for you.
Ah, the travails of the (ex)-warblogger for whom everything is World War II again and again.
I also think this a good point about Powell:
Think about Colin Powell, once arguably the most respected man in the United States. In 2003 Bush sent Powell to the U.N. with a bunch of fuzzy pictures and a scary story to sell the Iraq War. That nonsense being now exposed, Powell’s a joke. No one’s ever going to talk about him running for President again.
Like a lot of other people, Powell has mildly turned on the Bushies. But like the late protestations of Sullivan, Reynolds, and Noonan, Powell’s gripes count for nothing but a bit of post-facto positioning, a quick step into a doorway just as the dawn breaks.
Given that he was the one person who could possibly have stopped the fiasco, the amount of credit Powell deserves for ex post facto criticisms of the war is “absolutely none.” Putting some misguided conception of “loyalty” to crackpot incompetents over the interests of one’s country is worthy of no respect whatsoever. If Powell’s disgrace at the UN makes him a permanent laughingstock, that’s as it should be.
I especially like panel #5. Speaking of which, Orson Scott Card has decided to take time off from writing political “novels” so subtle they make Atlas Shrugged look like The Charterhouse of Parma to favor us with an twelve-billion word essay recycling the most specious warblogger World War II analogies from 2004. If only the damned Some Guys With A Sign Somewhere didn’t want to surrender like Chamberlain everything would be OK!
A friend still in Seattle emailed recently to note that the Mariners’ surprisingly good season was a mixed blessing, in that it probably wouldn’t be good enough to make the playoffs but good enough to save the jobs of the hapless Bavasi and Hargrove. Well, at least in the latter case, apparently that’s no longer something to worry about. Having said that, though, one can’t be happy about the circumstances of a manager resigning in the midst of a long winning streak; hopefully it’s nothing too dire.
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!
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.
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.