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A Hopeful Response to Gonzales v. Carhart

[ 0 ] April 21, 2007 | admin

Constitutional scholar Cass Sunstein had a column in yesterday’s L.A. Times focusing on Justice Ginsburg’s dissent in Gonzales. The dissent, unlike the Court’s abortion jurisprudence, focused on the right to abortion as necessary for women’s equality. As Sunstein notes, Ginsburg has argued for an equality approach to abortion rights since at least the 1980s (the Court continues to push its privacy/Due Process rationale).

Sunstein highlights the clear advantages of an equal protection claim:

For supporters of the right to choose, the sex equality argument has considerable advantages over the privacy argument. Much more than the right to privacy, the ban on sex discrimination is firmly entrenched in constitutional doctrines.

It defies social reality to approach the abortion issue as a mere matter of privacy, as if it could really be divorced from questions of sex equality. Some proposed restrictions on abortion, such as requiring the consent of the father of the fetus, are plainly an effort to revive discredited notions about women’s proper place, and they violate equality principles for that reason.

I agree with Justice Ginsburg (and Professor Sunstein) that there are significant advantages to an equality approach, not the least of which is that equality is explicit in the Constitution whereas privacy is not. But, as I have noted before, the Court’s pregnancy jurisprudence stands between us and an equality rationale for protecting abortion rights. The Court, in a now-infamous 1970s case, Geduldig v. Aiello, held that pregnancy discrimination is not sex discrimination because the comparison is not between men and women but between pregnant people and non pregnant people (a group that includes men and women). It’s a legal fiction and a farce of logic, but it stands. And stands in the way of forward movement on equality jurisprudence.

Still, Sunstein is optimistic:

But Ginsburg has now offered the most powerful understanding of the foundations of the right to choose — and it is important to remember that today’s dissenting opinion often becomes tomorrow’s majority. The equality argument has the support of four members of the court (Ginsburg and justices John Paul Stevens, David H. Souter and Stephen G. Breyer). We should not be terribly surprised if, in the fullness of time, Ginsburg’s view attracts a decisive fifth.

Right now, facing decades more of a Roberts court, we can only hope that Sunstein’s crystal ball is as good as Reva Siegel‘s.

(via Grace; also at AB&B.

The Haircut Wars

[ 0 ] April 21, 2007 | Scott Lemieux

From Pulitzer Prize winner Maureen Dowd. Somerby has a history of the haircut wars, featuring the ‘WaPo‘s own Pulitzer Prize-winning airhead Robin Givhan, and airhead who probably hasn’t won a Pulitzer but does have his own cable show Chris Matthews. It’s never going away. Shoot me now.

Speaking of Althouse, if you can stomach it in this recent BloggingHeads episode she uses Givhan’s inexplicable Pulitzer (is there a “column submitted to the editor in crayon” division? Maybe a “columns rejected by a second-rate junior high student newspaper for for being too frivolous and gossipy” category? That would explain a lot…) to justify her own vacuity. Then comes the sequence where she explains her conflict with online feminists–I swear I’m not making this up (you can click right on the “intra-feminist debate” link)–because they don’t share her MacKinnonite radicalism. You remember all those op-eds MacKinnon wrote arguing that it was completely irrational for progressives to oppose Sam Alito, right? Hmm, neither do I. But, anyway, if I took anything away from Toward a Feminist Theory of the State it’s that feminists should completely ignore radical opposition to women’s rights instantiated in public law and the United States Reports, and focus on politician’s socks.

…via Garance, I see that Givan has already discussed this pressing public issue.

Friday Night Pinata

[ 0 ] April 21, 2007 | davenoon

Project Runway, April 20:

What really struck me about that audio clip though was what a gasbag Obama is. I hear a tired-sounding man, who rambles on and on. I know he’s speaking before a group. I hear them respond now and then, when he mentions that Iraq is a war that should never have been waged and when he says teachers deserve higher pay. But if I didn’t know who he was and that there was a crowd there, I would picture an old man slumped in an armchair, expatiating for the benefit of anyone unlucky enough to be within earshot. It’s formless stream of consciousness.

Project Runway, March 28 (as discovered by TBogg):

I suppose we now know how she lives with herself now that her favorite Supreme Court justices have revealed their moderate souls.

4/20

[ 0 ] April 20, 2007 | davenoon

Season’s Greetings.


Herman Melville: Objectively Pro-Terror?

[ 0 ] April 20, 2007 | Robert Farley

In what may be the silliest wingnutitude since the “a crescent is coming to kill us and take our memorials” fiasco, Jerry Bowers:

Envy, deep and powerful, comes through it all. Resentment against our society. Christianity, capitalism, and sports all take their hits. This was a man who hated the American regime — our very way of life. And he took a Muslim name to register his discontent — Ismail, the preferred Arab spelling of “Ishmael,” Abraham’s first son, the disinherited son who took second place to the wealthy Isaac.

The inimitable Debbie Schlussel concurs, but Austrolabe isn’t convinced:

After discovering the word “Ismail Ax” on the arm of the Virginian killer, the bright minds of the blogosphere quickly identified the name as being part of the opening sentence of Herman Melville’s Moby Dick. “This is an obvious reference to the book,” said one blogging anti-Herman harridan. “They hate our way of life and our civilisation. They want to wind back the clock on American literature to the 19th century. We are engaged in an existential struggle with readers of Moby Dick.”

Actually, I jest. Some of the bright minds of the blogosphere did react to the name scrawled on the man’s arm, in the only way they knew how: by trying to cobble together some sort of link between the tragic murders and the War on Terror. “Was the killer an Islamist?” Well, Ismail is indeed a Muslim and/or Arab name and, let’s face the awful truth, Korean is just one letter short from Koran. And that’s pretty damning evidence in the bizarro world that some of these bloggers seem to inhabit.

This seems like Chamberlain-esque complacency to me. It turns out that Cho used the spelling “Ishmael” in correspondance with NBC, which leads to some truly frightening questions. If we are to conclude that Cho was an Islamic terrorist, then doesn’t his apparent admiration of Herman Melville open some disturbing doors? Is the anonymous narrator of Moby Dick actually Mohammed, or perhaps Osama Bin Laden? And if Melville should be properly understood an an Islamist, then what of Hawthorne? Isn’t Hawthorne, through the compromised Arther Dimmesdale, trying to express the basic corruption of Christianity, and (by obvious extension) the powerful attraction of militant Islam? Indeed, have Moby Dick and the Scarlet Letter been part of a long term jihadist/secular liberal plot to undermine America through ideational infiltration of our high schools? The answer seems obvious to me…

[ 0 ] April 20, 2007 | Robert Farley


Friday Cat Blogging… Nelson

Another Rebuke to Kennedy & Cronies

[ 0 ] April 20, 2007 | admin

The amazing Lynn Paltrow (a mentor and friend of mine), founder and executive director of National Advocates for Pregnant Women, has cranked out a strong rebuke to the Supreme Court’s holding in Gonzales. She focuses on how Kennedy’s decision, while claiming to value life above all, totally devalues the women who give life. It’s up at The American Prospect. Here’s an except. But go read it all.

And yet the Bush administration is actively supporting policies to limit poor children’s access to state child health insurance programs. In short, the Court’s decision in Gonzales v. Carhart — and Bush’s professed support for it — reinforces the sense, once again, that only the unborn deserve protection in this country. Not by ensuring universal health care, paid maternity leave, or an end to workplace pregnancy discrimination — only by restricting pregnant women’s access to health care.

Also at AB&B.

No Chance

[ 0 ] April 19, 2007 | Scott Lemieux

I’m frankly baffled by Ilya Somin’s claim that there are plausibly five votes to strike down the PBA Act on Commerce Clause grounds. The most obvious problem with his argument is that it entirely ignores the Raich decision, under which the Commerce Clause issue presented by the Act is plainly insubstantial. Obtaining an abortion is much more clearly a commercial transaction than growing medical marijuana for personal use, and given the dearth of abortion providers in the country abortion is certainly an interstate market. The idea that Scalia and Kennedy, both strongly personally anti-abortion, would switch votes given a more favorable set of facts is implausible in the extreme. It is true that the Court’s personnel has changed, but the two Justices who left the Court were two of the three dissenters in Raich. At best, Roberts and Alito would be treading water, but both are demonstrably hostile to reproductive rights and lack Thomas’s commitment to grand theory, so this strikes me as unlikely in any case.

The only other chance, then, would be if some of the Court’s liberals would act as unprincipled hacks; I don’t think there’s any reason to assume that, as they’ve been entirely consistent on Commerce cases. (Certainly, Stevens’ and Ginsburg’s brief questions at oral argument–which seemed to be much more about tweaking conservatives than about advancing a position–aren’t good evidence.) Similarly, the fact that Scalia joined Thomas’s concurrence means nothing, since it didn’t advance any position on the merits. Thomas, as far as I can tell, is the only likely vote to strike, and there’s no chance at all that there would be five.

Dept. of Corrections

[ 0 ] April 19, 2007 | Scott Lemieux

This blogger picked the Cleveland Indians to win the AL Central. He did this despite the fact that they were going to be using Joe Borowski as a closer and were managed by Eric Wedge. Lawyers, Guns & Money regrets this egregious error.

Where are the Men? Right Here, Baby . . .

[ 0 ] April 19, 2007 | davenoon

“Why can’t we get laid?”

Nathaniel Blake and Derb have diagnosed the Rooseveltian weaknesses of the American Boy, who has been softened by our culture into a cowardly mound of goo. Some people are outraged that Blake and Derb would, from a great distance, chide the living and the dead in Norris Hall for neglecting their obligations to generate good screenplay material. I don’t think, however, that any of this quite captures the thrust of their arguments.

Now, I understand that while many prepubescent boys fantasize about being rescued by a helicopter, others like Blake and Derb pass their days in quiet, semi-erect reverie, devising scenarios to win the hearts of girls — girls who would not otherwise stoop to spit on them — by saving them from masked bandits, rabid wolves, or perhaps an ululating swarm of Arabs. “Someday,” they think to themselves, “I’ll get my chance. Then they’ll see.” And with that, they go back to practicing their defiant sneers and snappy one-liners in the mirror. “Let’s roll” has been taken, but they’re pretty sure they’ll think of something really, really cool when the time comes.

Well, Nathaniel Blake and John Derbyshire weren’t fortunate enough to be among the students being showered with bullets at Virginia Tech earlier this week, and so they couldn’t show off their outstandingly manly characters and totally off-the-hook kung fu skills — the combination of which would have entitled them to a gracious whirl of fellatio from all the women whose lives they might have selflessly protected. Having missed that opportunity, however, the boys can only remind the world that they would have done things differently. Maybe that will be good enough for a hand job behind the bleachers. Who knows? It’s worth a shot.

And so Blake, jostling for position and reduced to humping his own hand, observes that

[s]omething is clearly wrong with the men in our culture. Among the first rules of manliness are fighting bad guys and protecting others: in a word, courage. And not a one of the healthy young fellows in the classrooms seems to have done that.

Rather than dismiss this as nothing more than heartless tongue-clucking, we have to see Blake’s words as a kind of desperate wingnut mating call. “I’m an alpha male! My seed is strong and vital!”

Then, like a rutting panda, Blake stands on his head an pees against the wall, proving that he is indeed the most prodigious male in the area.

And as for John Derbyshire, his motives are even more transparent. After all, what better way to score with a young woman in her physical prime than to rush a guy who only “[has] two handguns for goodness’ sake!” Damn. The thought of Derb rushing a crazed gunman, taking harmless .22 slugs to non-vital regions of the body . . . well, that gives even a weakling American male like myself strange feelings I don’t quite understand.

Against Unilateral Disarmament

[ 0 ] April 19, 2007 | Scott Lemieux

It may not come as a shock that I agree with Matt’s conclusion that Roe was correctly decided on the merits. (For those who haven’t seen it, I lay out a three-part case for Roe here, here, and here.) Matt makes another important point about the pro-choice anti-Roe crowd who base their claims not so much on doctrinal analysis as a general claim about whether courts rather than legislatures should decide “cultural issues”:

The primary motive for this, I think, is that people find it odd that such a controversial issue as abortion rights should be decided primarily by the courts. They also feel, intuitively, that it’s weird to leap so suddenly from one stance to another. I tend to agree that this is odd. The oddness, however, is right at the heart of the institution of judicial review as practiced in the United States. I’m of the opinion that this institution isn’t a great idea and that many other countries have found more satisfactory institutional mechanisms for the relationship between courts and legislatures. There’s no question, however, that strong judicial review is the system we actually have and reproductive freedom advocates have every reason to press our case vigorously through America’s actual institutions rather than act in some make-believe universe where the United States has a generally majoritarian set of political institutions.

Like Matt, I am skeptical of judicial supremacy as a normative matter, and I certainly don’t believe that it’s necessary for liberal democracy. But Roe has to be evaluated within the set of institutions the United States actually has, not the one some analysts wish we had. (Moreover, it should be noted that given the Madisionian legislative framework abandoning judicial review would not create reliably more “majoritarian” outcomes.) Liberals shouldn’t unilaterally disarm. And within this framework, Roe is a logical application of long-standing precedents that prevents bad legislation that is often arbitrary in form and in application, and it should be defended vigorously.

The Risk of Legislative Deferral

[ 0 ] April 19, 2007 | Scott Lemieux

Great point here by Brad Plumer. It’s hard to take Harry Reid’s criticism of the Supreme Court’s appalling decision yesterday seriously given that he voted for it in the first place. It’s a dismaying abrogation of responsibility to score cynical political points by voting for legislation that is not only bad but arbitrary and hope that the Courts will bail you out. (One can say something similar about George Bush signing campaign finance legislation he believed to be unconstitutional.) Not only because the courts have significant discretion that may cause the tactic to blow up in your face, but because it’s inherently wrong. All political branches are bound by the Constitution, and the legislators should not pass (and Presidents should not sign) legislation they consider unconstitutional.

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