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Kind of Undermines Those Ridiculous Dred Scott Analogies

[ 0 ] September 5, 2006 |

Shorter Verbatim Leon Wolf: “[P]ro-freedom sounds more attractive than anti-slavery.” I dunno, “anti-slavery” sounds plenty good to me, but then I’m one of those nutty pro-Reconstruction radicals who are no longer welcome in the Republican Party.

On the substantive issue “anti-abortion” and “pro-abortion rights” are far more neutral terms than “pro-choice” and “pro-life.” (And, of course, if the idea of abortion was as unpopular as people like Wolf are wont to claim, this framing would be much better for the forced pregnancy lobby.)

Via Roy.

Snark and Originalism

[ 0 ] September 5, 2006 |

Eric Muller calls an exchange between Michael Stokes Paulsen and Jed Rubenfeld about the latter’s new book in the Yale Law Journal “head-turningly nasty,” and Ann Bartow agrees. While I think that would be an accurate description of, say, John Simon on Gore Vidal, I’m not sure what it says about me but I really didn’t see it. In terms of tone, I don’t see anything problematic at all about Paulsen’s review; it’s hard-edged, but I certainly don’t see it crossing any boundaries. (His piece in the Roe v. Wade book, which I’ll hopefully blog about later today, is much harsher.) With respect to Rubenfeld, the “I do not know Michael Stokes Paulsen or his writings” line is bad, although for its sneering condescension more than the lack of truth Muller claims (I don’t think that sitting on a panel with someone at a conference a few years ago constitutes “knowing” somebody or their writings.) The next part of Rubenfeld’s review is pretty nasty, but if Paulsen misread the book as badly as Rubenfeld claims (I haven’t read it, so I can’t say)–especially on something as crucial as whether he believes Blaisdell was correct–I’m not sure it’s unjustified. And with respect to his comments on originalism, again, I don’t see the problem. I suppose I can see objections to Rubenfeld calling many originalist arguments “half-baked”, but he defends the claim substantively:

Consider Paulsen’s particular brand of originalism. He purports to reject “crude intentionalism.” Original meaning, says Paulsen, is properly understood to be the “objective linguistic meaning of the words of a text (in historical context),” as distinct from any “subjective,” “concrete historical understandings” of the text, including any “historical beliefs” about the applicability of the text in specific settings.

This position is either incoherent or fundamentally misguided or both.

It is of course conceptually possible to divorce the “objective linguistic meaning” of uttered words from the subjective, concrete historical understandings of those words held by the people who wrote or spoke them. What we might call the “semantic content” of words, derived from the linguistic rules of the relevant community, can always differ from the speaker’s or author’s “intended meaning.” People often employ words whose semantic content (in the above sense) differs slightly or significantly from their intended meaning. When we hear such words, we always have a choice in principle between interpreting them according to their semantic content or their intended meaning. Paulsen wants to say that only by following the original linguistic meaning can interpreters interpret correctly, remaining faithful to the actual written law as opposed to creating new law.

[...]

There is an excellent example of this point in Robert Bork’s The Tempting of America. n25 Like Paulsen, Bork tries to defend an originalism that casts aside the actual concrete historical understandings of the Constitution in favor of a supposed objective meaning of the text. He does so in an effort to make originalism safe for Brown v. Board of Education.

Yes, Bork admirably concedes, “those who ratified the amendment did not think it outlawed segregated education or segregation in any aspect of life.” Nevertheless, Bork asserts, Brown could “have clearly been rooted in the original understanding.” How? Well, “equality and segregation were mutually inconsistent, though the framers did not understand that,” says Bork, and “equality, not separation, was written into the text.”

In other words, the subjective understanding of the ratifiers – their concrete historical understandings – were out of whack with the objective meaning of the words written into the text. Equality means equality; this is not anachronistic; equality meant equality in the 1860s; equality was written into the text; segregation is unequal; hence segregated public schools are unconstitutional. Paulsen indicates that he essentially agrees with this analysis: “The result in Brown … makes entire sense if one focuses on the original linguistic meaning of the Fourteenth Amendment rather than on the mistaken subjective views or expectations of some individuals at the time that the Amendment’s principle did not extend to segregated education.”

The problem is not that Brown cannot be squared with the original linguistic meaning of the Fourteenth Amendment. Of course it can. The problem is that a great many other things can too. An originalism that cuts anchor with concrete historical understandings in this way can no longer coherently present itself as originalism.

The one virtue of originalism was that it purported to offer determinate, demonstrable answers to real constitutional controversies. Does the Eighth Amendment ban the death penalty? “Of course not,” an originalist could say; “I can easily prove to you that it was not so understood at the time of enactment. Any contrary reading by the Court today would therefore be a usurpation – government by judiciary.”

But when originalism cuts anchor with concrete historical understandings, the death penalty’s unconstitutionality certainly could be “rooted in the original understanding.” “Capital punishment was inconsistent with abolishing cruel and unusual punishment,” a Borkian originalist judge could say, “though the framers did not understand that, and the bar on cruel and unusual punishments was written into the text.” Even a Marxist judge could now be an originalist: “Private property and equality were mutually inconsistent, though the framers did not understand that, and equality was written into the text.” Or how about abortion? “Roe v. Wade makes entire sense if one focuses on the original linguistic meaning of the Thirteenth Amendment’s prohibition of “involuntary servitude,’ rather than on the mistaken subjective views or expectations of some individuals at the time that the amendment’s principle did not extend to laws banning abortion.”

Rubenfeld has a substantive point here, and I think it’s proper to make it in forceful terms. Although many originalists seem to think it’s a trump card, the distinction between “original intent” and “original meaning” has very little difference in practice although the latter is somewhat easier to defend theoretically. And Brown is really where the rubber hits the road. While it’s not strictly accurate to say that you can’t defend Brown in “originalist” terms, because at the time of the ratification of the 14th Amendment “equal protection of the laws” was generally not understood as applying to social (as opposed to political) equality, you can do so only by defining principles at such a high level of generality that “originalism” is essentially drained of any content. “Originalism,” defined this way, is indeed virtually indistinguishable from Dworkinian aspirationalism, and does little to constrain judges even in theory. I don’t see anything wrong with pointing this out in clear, biting language.

Right-wing Identity Politics With Antlers

[ 0 ] September 5, 2006 |

Shorter Bullshit Moose: “A few random comments on a website somewhere prove that ‘Democratic leaders continue to collude with the anti-Semitic appeasing left.’ But what really demonstrates anti-Semitism is opposing the lunatic idea of invading Iran.”

The DLC likes to complain about its reputation, but having people like Wittmann–somebody with reactionary positions on most economic and cultural issues, whose positions on foreign policy aren’t so much liberal or conservative as living some kind of blood-drenched double life, and whose schtick consists almost entirely of uninformed, broadly drawn smears of actual moderate Democrats–act as a public face means that they’ve made their own bed.

…and, as Atrios points out, this is especially ridiculous coming from a guy who was working for the Christian Coalition while Pat Robertson was busy re-writing anti-Semitic propaganda for the wingnut masses.

Why We (Should) Fight

[ 0 ] September 5, 2006 |

In this thread, a commenter noted something I’ve written about before, one of the most disturbing aspects of the deliberations surrounding Bush v. Gore: Ginsburg’s retreat on a footnote criticizing the Court’s equal protection “argument” for overlooking the actual problems of racial injustice inherent in the various arbitrary inequities inherent to Florida’s voting system. Alas, it according to the Vanity Fair expose it didn’t take long for her to roll over:

As the drafts began circulating, tempers began to fray.
In an unusual sealed memo — an unsuccessful attempt to avoid the clerks’ prying eyes — Scalia complained about the tone of some of the dissents.

He was, he confessed, the last person to criticize hard-hitting language, but never had he, as the dissenters were now doing, urged the majority to change its decision based on its impact on the Supreme Court’s credibility.

He charged that his opponents in the case were inflicting the very wounds to the Court that they had supposedly decried.

As Jeffrey Toobin first reported, he objected in particular to what he called the “Al Sharpton footnote ” in Ginsburg’s dissent: her comment on Florida’s disenfranchised black voters.

Whether out of timidity, collegiality, or affection — Scalia was her closest friend on the Court — Ginsburg promptly took it out.

“It was the most classic example of what kind of bully Scalia is,” says one clerk, who called Scalia’s complaint “an attempt to stifle legitimate discourse worthy of Joe McCarthy.”

As for Ginsburg, this clerk says her response “showed a lack of courage.”

Frankly, I blame Ginsburg as much as Scalia. Scalia may be a bully, but the thing about successful bullying is that bullies generally have leverage. In this case, it was the dissenters who held the cards–the majority was deciding a Presidential election through an opinion that was a monument to bad faith (and Scalia, whose previous interpretations of the equal protection clause were so narrow that he doesn’t believe that gender discrimination should be suspect, was especially vulnerable on this point.) The majority had to count on the dissenters not exposing the full extent of the egregious contradictions and lawless unwillingness to apply the opinion’s stated principles even with respect to the case being decided, and Ginsburg was willing to go along.

Scalia’s invocation of Sharpton, of course, also exposes the invocations of racial color-blindness in his affirmative action opinions as the shallow opportunism they are, and also makes clear than attempts to portray Ginsburg as some sort of liberal firebrand are ludicrous. Could you imagine Scalia–the unfailingly collegial fellow who compared Ginsburg to the authors of Dred Scott and Korematsu (and isn’t the latter such Al Sharpton rhetoric!)–trying to pull that crap on William Douglas? As Bill James said about Billy Martin, you’d want to reserve the hospital bed in advance. Now, evidently, I wouldn’t want justices I generally agreed with to follow a Douglas model of collegiality over the long-term; if you don’t pick your spots, it’s counterproductive. The effects of strategy withing the court can be overstated, but obviously Brennan held a lot more coalitions together (although I certainly can’t imagine Scalia bullying him into removing the footnote–once he didn’t have the votes, he would write what he thought.) But if ever a case called for the most strident possible dissents, this was it.

A final thing to point out is that the article also contains some evidence that Kennedy’s extremely poor record of hiring female clerks may result partly because his clerks are rigorously screened for ideological correctness–something that paid off handsomely for Republican operatives in this case.

Can’t…Stop…Mocking…Lee…Siegel

[ 0 ] September 4, 2006 |

I admit it: part of me wanted to mount a modest defense of Foer for giving a blog to Lee Siegel, if only on the grounds that nobody could have expected it to be as bad as it was. And Siegel had in the past shown at least glimmers of talent as a critic. (A book critic, anyway–I’m incompetent to judge, but the arguments in various quarters about his crass ineptitude as an art critic are persuasive. ) But then I read Rob’s link to that Slate diary. I was at a meeting with several other bloggers yesterday and most people hadn’t read it, but if you’re interested in colossal trainwrecks–and if you’re interested enough in this story to have read this far, I’m sure you are–it’s a grimly fascinating read. As A White Bear sums it up:

For five straight days in 2003, Siegel wrote masturbatorily bombastic prose on the subjects of (1) a cat he invented that he feeds real milk, (2) an abusive relationship he invented with a nonexistent Spanish woman, (3) a relationship he pretends to have with a West Indian shop clerk, (4) sex he pretends to have with the cat he invented who sometimes turns into a pretend woman, (5) a ritual he learned from a therapist he invented who insists he name himself to the mirror for hours, (6) his inability to stop inventing personae to contact people he knows in invented voices, and, my favorite, (7) the pain of having to interact with “cool beautiful aloof self-sufficient women” in real life who resist becoming figments of your imagination.

When you read this, the fact that his blog consisted of pretty much nothing but uninformed political rants, ad hominem attacks and inchoate rage about nothing in particular is not terribly surprising.

There is, however, happier news where Siegelpalooza is concerned. Siegel’s favorite hip-hop act has graciously agreed to appear:
,

Unfortunately, another act had to pull out. Svengali Frank Farian told L, G & M that “we’re sure this will be really wunderbar, and we surely have the playfulness and complexity Mr. Siegel demands. However, we feel our act’s historical analysis holds up much better than the arguments about Iraq made by Mr. Siegel’s former publication, and for that reason we cannot associate ourselves with them.”

Full of Santorum

[ 0 ] September 4, 2006 |

I’m happy that John posted the full context of Rick Santorum’s reprehensible attempt to drag Bob Casey’s dead father into their Press the Meat debate today:

SANTORUM: He says the science is clear and it is clear. In fact, it is an abortifacient in certain circumstances. If the, if the egg has been fertilized and, and the, and the pill is taken, it does cause an abortion. It’s inconsistent with his previous position. It’s a classic attempt of him, how in a general election, to try and middle and, and, and violate his principles. And I think his father would be very upset if, if he were alive today and, and heard him be supportive of something like this.

SEN. SANTORUM: No, I’m not. I, I agree that it is an abortifacient, and that, that it’s dangerous to give a dose of hormones equivalent to one third of a whole series of birth control pills to, to someone without any kind of doctor supervision. I think it could be dangerous and I think, obviously, if you’re giving it out over the counter to, to 18-year-olds it’s going to get to younger people, and I think it could be very dangerous, can lead to serious problems. And plus, I do believe that it, that it causes abortions—in some cases.

[...]

SEN. SANTORUM: He says the science is clear and it is clear. In fact, it is an abortifacient in certain circuemphasize.SENthe, if the egg has been fertilized and, and the, and the pill is taken, it abortifacient abortion. It’s inconsistent with his previous position. It’s a classic attempt of him, how in a general election, to try and middle and, and, and violate his principles. And I think his father would be very upset if, if he were alive today and, and heard him be supportive of something like this.

So the demagogic use of dead fathers is necessary because Casey Jr. is claiming that Plan B isn’t an abortifacient. Does Santorum have the slightest idea what he’s talking about? Sadly, No:

Use of emergency contraception is limited largely by ignorance. Although it seems likely that the estrogen/–progestin regimen works mainly by interfering with ovulation, it is nevertheless regarded by many as an abortifacient because it is taken after, rather than before, intercourse. This confusion is compounded when mifepristone is advocated for emergency contraception since, when taken after pregnancy is established, it can be and is used for the induction of abortion. The prevention of pregnancy before implantation is contraception and not abortion. Intervention within 72 hours after intercourse cannot possibly amount to abortion, because implantation is not achieved until at least seven days after ovulation and the egg is capable of being fertilized for only about 24 hours.

To summarize, Rick Santorum is not only an odious reactionary, but he’s either ignorant or a liar. Bob Casey is far from optimal, but let’s be frank: to get Santorum out of the Senate, I’d vote for Mickey Kaus himself.

UPDATE: In comments, Sara and Matt point out that I’m conceding too much to Santorum; there is no actual evidence that Plan B can prevent implantation. And even if it did, preventing a pregnancy is simply not the same as terminating a pregnancy.

Chickenhawk Scumbag of the Day

[ 0 ] September 3, 2006 |

Mark Steyn:

Do you want to hear what a person sounds like when they really are — to use Steyn’s words — “weak, that there’s nothing — no core, no bedrock — nothing it’s not willing to trade”? Here is Bush loyalist Sen. John Cornyn, explaining why we should allow the President to break the law and eavesdrop on our conversations without any oversight: “None of your civil liberties matter much after you’re dead.” And here is Pat Roberts, showing how willing he is to trade all American values in the hope of being protected from the things he fears: “I am a strong supporter of the First Amendment, the Fourth Amendment and civil liberties. But you have no civil liberties if you are dead.” That “rationale” means we do anything — give up all freedoms, relinquish all values — because desperately trying to stay alive is the only thing that matters.

So someone — like Centanni or Wiig — who recites a few words that they don’t mean in order to avoid death is a wretched, feminine coward who has no core values and nothing they are willing to die for. But if that’s the standard, then people like Steyn and his fellow neoconservative warriors — who want to place blind faith in the Government in exchange for promises of “protection,” vest in the President the most unlimited powers, and fundamentally change how our country functions and the values which define it, all because they think that doing so is necessary to increase their chances of living — are drowning in a self-protective cowardice that dwarfs by many magnitudes that which they mock in others.

Centanni and Wigg, of course, are (unlike Steyn and his fellow authoritarian bedwetters) also acting well within the Western political tradition, understanding that while exercising such coercion is extremely bad the superficial repeating of bromides under the threat of force is about as far from compromising your “core” as you can get. Calling for arbitrary state power, conversely, is the definition of sacrificing a core principle.

…Steven Taylor has more.

I Don’t Get It

[ 0 ] September 2, 2006 |

My parents are coming to town this week, so I was asking a couple people about potential shows to see. One theater maven correspondent had this to say about The Lieutenant Of Inishmore (which apparently is closing this weekend in any case): “Imagine Quentin Tarantino, onstage in full bloody glory, but without the depth and heart…it’s entertaining, but shallow.” Having sat down and watched both parts, I have to say that I think this is a fairly accurate description of Kill Bill; as he’s gained technical proficiency as a filmmaker, his soul seems to have gone missing, and if the Kill Bill movies have any reason to exist other than Tarantino’s desire to make clear that he’s seen an enormous number of shitty martial arts movies I couldn’t discern it. I guess the female-empowerment angle makes the interminable fight signs a little less dull than they would be otherwise, but…if any New Yorkers have recommendations for the legitimate thee-yater, feel free to leave them.

I actually have some positive discussions of recent (and, given how lax I’ve been) not-so-recent movies. In the meantime, however, I have it good authority that both Lee Siegel and his imaginary cat will be making an imminent public appearance at the next public party for Pajamas Media.

Wanktacular!

[ 0 ] September 1, 2006 |

Just in case they vanish from the Google cache (also here), it’s really worth preserving some of the best of the comments of his sock puppet for posterity:

You have quite an obsession with Siegel! Sounds to me like you’re an envious young writer. I mean, first you have a wife and two kids, and now you’re a poor young lawyer with time to write extended tirades against Siegel. Men with two children don’t take time out to defend obscure academics from charges of pedophilia, their defense replete with (pretentious) references to ancient Greek categories of desire! If I had to guess, you’re this person Mark Greif himself. Or someone in his circle. Every young write in NYC has it in for poor Siegel it seems. They all write like middle-aged hacks. He has the fire and guts of a young man (I assume he’s middle-aged himself, or somewhere near there.) Who am I? Someone who knows who you are.

You’re a fraud, and a liar. And a wincingly pretentious writer. You couldn’t tie Siegel’s shoelaces.


I’m well within Stewart’s target group, and I think he’s about as funny as a wet towel in a locker room. Siegel is brave, brilliant, and wittier than Stewart will ever be. Take that, you bunch of immature, abusive sheep.


Groupthink from a mob of bullies cowering behind their user-name aliases. Groupthink! Groupthink! Naaa naaa naaa-naaa naaa!


And my personal favorite:

I’m a huge fan of Siegel, been reading him since he started writing for TNR almost ten years ago. (Full disclosure: I’m an editor at a magazine in NYC and he’s written for me too.) I watch the goings-on and have to scratch my head. The people who hate him the most are all in their twenties and early thirties. There’s this awful suck-up named Ezra Klein–his “writing” is sweaty with panting obsequious ambition–who keeps distorting everything Siegel writes–the only way this no-talent can get him. And I ask myself: why is it the young guys who go after Siegel? Must be because he writes the way young guys should be writing: angry, independent, not afraid of offending powerful people. They on the other hand write like aging careerists: timid, ingratiating, careful not to offend people who are powerful. They hate him because they want to write like him but can’t. Maybe if they’d let themselves go and write truthfully, they’d get Leon Wieseltier to notice them too.

Really, Siegel’s blog was a national treasure–that level of onanism doesn’t come along every day. Now, the question is who will replace him: Ben Domenech? John Lott? Ann Coulter?

"They Won’t Lie To You. Quite."

[ 0 ] September 1, 2006 |

DeLong explains hackery, complacent reactionary contrarian division.

What You Should Know About Bush v. Gore

[ 1 ] September 1, 2006 |

As Ezra notes, Katherine Harris’ laugh-a-minute campaign–which is particularly amusing in light of the steady stream of GOP arguments that she was a great public official while she was handing an election to the campaign she was working for–will bring Florida 2000 back into view. I was choking on my own rage, however, to see in comments that not only were wingnuts were once again spreading lies about the Supreme Court’s lawless behavior, but that nobody was calling them on it. So, for future reference:

1)Bush v. Gore was a 5-4 opinion. (If I could put that in neon, I would.) Full stop. No qualifications. No dissenter joined any aspect of the opinion of the Court. Pace uberhack Stuart Taylor, there is no such thing as a “partial concurrence.” You join an opinion, or some aspect of an opinion, or you do not. Souter and Breyer did not join any part of the per curiam, including its equal protection analysis. Anyone claiming that Bush v. Gore is a 7-2 opinion is lying, or lacks an even rudimentary understanding of constitutional law.

2)Harris’ running out the clock was extremely important, and indeed between that and the decisions of various local boards in the face of Harris’ handiwork and the manufactured bourgeois riots Bush was likely to have emerged the winner of the recount that the Supreme Court stopped. However, it is important to note that the “safe harbor” deadline that was looming does not provide the slightest justification for stopping the recount. As Souter said, arguments that going beyond the “safe harbor” was of constitutional significance were farcical:

The 3 U.S.C. § 5 issue is not serious. That provision sets certain conditions for treating a State’s certification of Presidential electors as conclusive in the event that a dispute over recognizing those electors must be resolved in the Congress under 3 U.S.C. § 15. Conclusiveness requires selection under a legal scheme in place before the election, with results determined at least six days before the date set for casting electoral votes. But no State is required to conform to §5 if it cannot do that (for whatever reason); the sanction for failing to satisfy the conditions of §5 is simply loss of what has been called its “safe harbor.” And even that determination is to be made, if made anywhere, in the Congress.

And while the Florida Court had assumed that the legislature, all things being equal, intended to take advantage of the “safe harbor” provision, it certainly did not hold that the legislature would prefer meeting the “safe harbor” to finishing a proper recount, and states have submitted electors far after the “safe harbor” deadline without raising any significant problems. And the problems with the majority’s combination of a newly minted equal protection standard and their stopping of the recounts are obvious. As Kim Scheppele puts it:

In the per curiam opinion in Bush v. Gore, the December 12 “safe harbor” suddenly turned into a blockaded port. The Supreme Court, in effect, prohibited recount ships from exploring the waters beyond the safe harbor, even though the Florida Legislature had nowhere put into the law anything that indicated such a preference, and even though the Florida Supreme Court, while clearly hurrying to try to meet this date, had not indicated that it was a blockade date for them either if there were important considerations of fairness at stake. Other states had clearly gone beyond this date in the past and still had their electors uncontroversially recognized far later in the process than the “safe harbor” date of December 12. Suddenly, however, the December 12 date became an absolute deadline preventing the newly announced standards from being applied to the matter at hand.

This particular aspect of the Court’s decision has few defenders even among those who otherwise broadly agree with what the Court did in Bush v. Gore. But the deadline was critical to the result; in fact, in large measure, the deadline was the result. The per curiam opinion announced an ambitious set of guarantees that Florida law had to ensure, and then said that time was up so that standards could not be formulated and applied in the case that provided the occasion for the change in the law.

This combination of the ambitious new standards and the miserly deadline created an impossibility problem. If the Gore team sought to follow the guidelines for creating a uniform set of counting standards, it would miss the deadline. If it sought to meet the deadline, it could not create the standards. It was, at the time Bush v. Gore came down, impossible for the Gore team to satisfy simultaneously both legal requirements that the Court set out.

How can we think about what is wrong with this? Again, the rule-of-law jurisprudence of the post-horror constitutional courts provides some guidance. Particularly in soviet-style legal systems, these sorts of Catch 22 situations were not unusual. And it was precisely this sort of experience that has led post-horror courts to be on the lookout for impossibility situations in particular, using their powers to do the opposite of what the U.S. Supreme Court did. Rather than announcing standards that create new impossibility problems, constitutional courts typically use their powers of judicial review to say that an interpretation of law creating such impossibilities is in itself a violation of the rule of law. When law commands two contradictory things, the rule of law requires that the contradiction be removed. For a court to participate actively in the creation of such an impossibility seems, in comparative perspective, quite astounding.

And this is why Breyer and Souter did not join any aspect of the per curiam. Their equal protection analysis could not have been the same, because the system that gave the vote to Bush was just as arbitrary and lacking in uniform standards as the recount ordered by the Florida Court. (And there’s the additional issue that the Florida Court didn’t establish standards because the Supreme Court told it not to.)

And what makes the attempts to pretend that 7 justices agreed about the equal protection violation particularly odious is that this disjuncture identifies what was most appalling about this opinion. It is true that the equal protection analysis egregiously contradicts the previous jurisprudence of at least three members of the majority, but these kinds of inconsistencies aren’t terribly unusual. Their attempts to deny that this principle had precedential value is much more problematic. But their unwillingness to apply the alleged controlling principle even within the case at hand–making it clear that the decision’s purpose was to support a favored litigant rather than to advance a particular contestable constitutional principle–is as stark a violation of the principles of the rule of law as can be imagined.

…As Dave reminds us in comments, the casebook I (used to) use is still claiming that Bush v. Gore was 7-2. Really, this is one of the great propaganda coups of all time.

…Many good comments, especially about Breyer joining Stevens’ opinion. I think it’s worth quoting the opening of Breyer’s dissent:

The Court was wrong to take this case. It was wrong to grant a stay. It should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume.

I think that’s pretty unequivocal. I also wish, in retrospect, that Breyer and Souter had figured out they were being played for suckers and withdrawn their dissents, but I guess you can’t blame them for trying ot fashion a compromise, given that the alternative was the destruction of the Court’s integrity.

Who Needs Systematic Evidence When You Have Random Anecdotes?

[ 0 ] September 1, 2006 |

Shorter Verbatim Glenn Reynolds: “I keep hearing about real-wage stagnation, but everyone I know who has a business complains that they can’t get enough decent help even when they raise pay, because people are always leaving for better jobs.” This a favorite Reynoldsism: “the fact that affluent professionals such as myself benefited from the Bush tax cuts means that everybody must have!” The latest post is kind of a B- performance, though–where’s the apocryphal cab driver explaining how Knoxville can’t find enough cabbies because everybody goes to spend five years at Wal-Mart and then retire to their solid gold houses? (Via alicublog.)

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