Carhart, Ayotte, and the Puzzle of "Minimalism"

I’ve been reading over the oral arguments in the two federal D&X ban cases; if I see any nuggets that don’t fit into my larger article I’ll pass them along. Although Pithlord seems to hold out hope, I continue to maintain that this case will not be decided on federalism grounds, which played very little role in the oral argument. (We’ve had this discussion before, but I think he’s misreading Scalia–in context, I think he’s referring to courts, not Congress. Raich essentially ends any chance of 5 votes to strike the law on Commerce Clause grounds.) Indeed, I think it is almost certain that the law will be upheld, although in what form remains unclear–I’ll get into why in the Prospect piece.

To take a bit of a tangent, one aspect of the arguments in this case is the question of exactly what “minimalism”–which has become a popular way of describing the median votes of the recent court–means. Althouse, for example, reads the argument as “Roberts was looking for a minimalist theory for upholding the federal law, while perhaps Kennedy was looking for a minimalist way to provide the fifth vote for striking it down.” It would be odd if Kennedy voted to strike the law (and I certainly don’t see how such an outcome could be squared with his decision in the Carhart I), but I guess it’s possible. But what are the “minimalist” options? The first option–whether the case is distinguished to uphold ot strike–would be to make distinctions between the Nebraska law and the federal law. But 1)given that the controlling case explicitly turned not just on the vagueness of the statute but on its lack of health exception, and 2)as Stevens points out the factual assertion of Congress that the procedure is never required for health reasons are plainly erroneous, no fair application of Carhart I could uphold the federal statute. The other “minimalist” upholding of the law, I presume, would be a repeat of his suggested Ayotte strategy of reading a health exemption into the federal statute, which could then be upheld without affecting the Casey framework. Whatever one thinks of this–I think very little of it: it seems to me to cross the line from the legitimate act of narrowly construing a statute to save it and simply distorting it–I’m not sure “minimalism” is a useful way of describing the action. Wouldn’t the “minimalist” action be to strike the law, given its transparent inconsistency with precedent, but to give Congress the opportunity to conform to precedent as it chooses? Simply skipping the middleman and inserting a health exemption Congress specifically choose not to include seems to me the opposite of minimalism.

But, at any rate, that’s a semantic issue. The larger point I wish to make is that it’s quite incorrect to equate “minimalism” with “judicial deference.” The Casey “undue burden” standard is, I guess, “minimalist” in the sense of having virtually no content. But the latitude this gives legislatures is largely illusory. The standard does allow courts to plausibly uphold virtually any regulation of abortion short of an outright ban–but is also allows courts to plausibly strike down any significant abortion regulation. Clear rules from the Supreme Court can often increase the latitude of legislatures by constraining the lower courts, which after all is where most decisions are made. Similarly, whatever reading legislation to include exemptions the legislature deliberately excluded is, it’s not deferential. And, of course, Sandra Day O’Connor–the justice most commonly identified with minimalism–was also probably the least deferential and most “legislative” judge of the Rehnquist era. Minimalism has its virtues and its problems, but I don’t think increasing the decision-making authority of elected officials is typically one of them.

Anyway, my preferred solution to these cases is Stevens’ approach in Carhart I, which like good minimalism should allows us to avoid the fraught question of whether reproductive freedom is a fundamental right altogether by noting that the statutes bears no rational relationship with any legitimate state interest:

Although much ink is spilled today describing the gruesome nature of late-term abortion procedures, that rhetoric does not provide me a reason to believe that the procedure Nebraska here claims it seeks to ban is more brutal, more gruesome, or less respectful of “potential life” than the equally gruesome procedure Nebraska claims it still allows. Justice Ginsburg and Judge Posner have, I believe, correctly diagnosed the underlying reason for the enactment of this legislation–a reason that also explains much of the Court’s rhetoric directed at an objective that extends well beyond the narrow issue that this case presents. The rhetoric is almost, but not quite, loud enough to obscure the quiet fact that during the past 27 years, the central holding of Roe v. Wade has been endorsed by all but 4 of the 17 Justices who have addressed the issue. That holding–that the word “liberty” in the Fourteenth Amendment includes a woman’s right to make this difficult and extremely personal decision–makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty. But one need not even approach this view today to conclude that Nebraska’s law must fall. For the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational. See U.S. Const., Amdt. 14.

Indeed.

Friday Cat Blogging… Frodo

Quite Frankly, Goodridge Was Right

I was lucky enough to have a brief chat with Congressman Barney Frank, who was visiting Hunter to teach two classes, last night. He confirmed my analysis of Massachusetts politics after Goodridge–it’s highly unlikely that a constitutional amendment to overturn the decision will pass, and it it does it will almost certainly lose.

As he pointed out, this points to a small-d democratic justification for judicial review: it can change an ossified political dynamic that makes changes to systematic injustices difficult. Courts (and this is probably a good thing) cannot effect major social changes alone, and if they’re left politically isolated they will inevitably lose, but their ability to act first can provide an important impetus. All anti-discrimination and civil rights movements face accusations that changes will produce chaos and dislocation, and it makes it very difficult to overcome entrenched interests. Brown did not, in itself, lead to significant desegregation in the Deep South (although it did matter in the border states), but without it the executive and legislative branches wouldn’t have been compelled to end Jim Crow. An when it comes to gay rights, judicial action is likely to be more effectual, because their won’t be chaos at all. (Indeed, one reason why many supporters of anti-gay discrimination are presumably pushing for a constitutional amendment is that they recognize that when some states legalize gay marriage, citizens will notice that their apocalyptic predictions are conspicuously failing to come true. Framing it as being about “activist courts” rather than the substantive outcomes is a convenient way of dodging the issue.)

And, as I’ve said before, this is why I write more about nominal “moderates” of the Reynolds/Althouse variety than outright reactionaries. When it comes to obstructing social change, people who favor change in the abstract but for whom it’s somehow never being done in the right way or at the right time are in some ways more pernicious than outright reactionaries. To the extent that judicial decisions can change the status quo in ways that make this kind of phony moderation increasingly untenable, they are a good thing.

Um. Run That By Me Again?

A meaningful college game in the metropolitan area? Because Rutgers is undefeated? And they stay that way because they beat the (admittedly dubious) #3 BCS team? What’s next, the Royals win 115 games? Kevin Federline named greatest artist of the 21st century? The Democrats take over the Senate?

Good for them…

Our Long National Nightmare Is Over

I’m not sure what Atrios is so upset about. Personally, I’m relieved that we’ll finally be able to see John McCain and Joe Lieberman on a Sunday talk show. I never thought I’d see the day! Hopefully for a change they’ll bring in David Broder, Joe Klein and two wingnuts to discuss the tragic election results too…

Chortle chortle

Modestly proposed by Jon Swift:

Unfortunately, misconceptions about the Vietnam War and the War in Iraq have led some to criticize McNamara and Rumsfeld, but I think history will show that while they made all the right decisions, the generals and soldiers on the ground did a poor job executing many of their directives so they really shouldn’t be blamed. They also would have done better if they didn’t have to contend with being second-guessed by the liberal media. Rumsfeld revealed some of his irritation at having to be judged by people who are a lot less intelligent than he is when he said at yesterday’s press conference that the War in Iraq is “complex for people to comprehend.” But I don’t think the fact that they had to deal with so many people who just weren’t as smart as they are should be held against them.

Both McNamara and Rumsfeld subscribed to the doctrine of “underwhelming force,” that is, using as few resources as possible in prosecuting a war in order to lose less. That is why Rumsfeld and McNamara both overruled their generals, who believed that more troops were needed, in favor of smaller, nimbler fighting forces. Rumsfeld also didn’t believe in expending a lot of scarce Pentagon funds on such equipment as body armor or armored vehicles, which would just have drained the funds available for sophisticated weapons systems.

The whole thing, I promise, will crack you up.

On a completely unrelated note, blogging on my end will be light for the next few days. Ted Stevens has somehow gotten all the tubes in my house completely clogged with information — it’s not a big truck, you know — and the whole system has gone completely screwy. And because I live in one of the most incompetent states in the union, no one from my internet provider can come with a plunger to clear the tubes until Monday. Unbelievable.

Frankly,That’s An Issue I’ve Never Considered

Shorter Verbatim Dan “How can I be homophobic? I left my gay brother to die alone in a San Francisco flophouse” Riehl: “I’d rather the enemy wore the right uniform. With Chafee, I always had the sense Catholic Schoolgirl was his uniform of choice – for wearing, not chasing.”

Um, gee, that’s fascinating, Dan [backs slowly away...]

When "Character" Was King

As Donald Rumsfeld is finally thrown under the bus, it seems appropriate to return to Jon Chait’s recent account of the Rumsfeld-worship of the early Bush era. (The nadir was probably Midge Decter’s book, which seems to have been expanded after Seventeen rejected her initial article because it was too puerile and starry-eyed.) Here’s one characteristic example:

To plunge back into the conservative idealization of Rumsfeld, given what we know today, is a bizarre experience. You enter an upside-down world in which the defense secretary is a thoughtful, fair-minded, eminently reasonable man who has been vindicated by history–and his critics utterly repudiated. The pioneering specimen of the genre was a National Review cover story from December 31, 2001, by Jay Nordlinger, cover-lined “The Stud: Don Rumsfeld, America’s New Pin-up,” with a cartoon portraying the defense secretary as Betty Grable in her iconic World War II image. The central premise of the article was that Rumsfeld epitomized manliness and virility. (This turned out to be a recurring theme in the Rumsfeld iconography.)

Nordlinger’s article consisted mostly of the sort of unprovable, impressionistic personal assessments that are the usual grist of the conservative character industry. As one Rumsfeld friend was quoted as saying, “People look for a different kind of person to run Washington–as far away from the Clinton type as you can get.” (This was largely a continuation of a conservative theme that President Clinton had surrounded himself with wusses–”pear-shaped” men, as conservative author Gary Aldrich described them, or, as Bob Dole put it in his 1996 presidential nomination acceptance speech, “the elite who never grew up, never did anything real, never sacrificed.”)

This kind of silliness makes it doubly appropriate that it was George Allen’s defeat which finally put an end to Republican rule in the Senate. You may recall that the National Review ran a similar hagiography of Allen which said little about his substantive merits but a great deal about the character that could be inferred from his football-throwing and tobacco-chewing abilities. I would like to hope that if the spectacular policy and political flameout of Bushism teaches conservatives anything, it’s that propping up mediocrities and empty suits based on unfalsifiable attributions of “character” is good in the long run for neither the country nor the Republican Party.

[Cross-posted at TAPPED.]

But If Ed Koch Says It, It Must Be True!

Shorter Michelle Malkin: The fact that an obscure ex-Congresswoman wrote a book about impeachment provides irrefutable evidence that the Democratic leadership will try to impeach President Bush. Similarly, my book proves that the Bush administration has already rounded up every Muslim in the United States and put them in concentration camps.

Yeah, we’re going to be seeing a lot of this stuff.

Simply the Best

Markus Wolf has shuffled off his mortal coil. In addition to having the best name ever for an elusive super-spy, Wolf placed over 4000 agents in the west, including most famously a top advisor to Willy Brandt. That one brought down a West German government. Many of his spies in NATO weren’t uncovered until after the end of the Cold War and the collapse of East Germany. Wolf rejected offers to work for the CIA as the GDR fell apart.

Of course, Wolf also participated in and helped enable the murderous tyranny of the security services of the German Democratic Republic, activities for which he received a two years suspended sentence. Nevertheless, credit where due. Farewell, master spy.

A Question

Aside from sportswriting, is there a species of news coverage more thick and swampy with ignorance than financial journalism?

Sweet

Aside from watching Rumsfeld walk the plank, do you know what I really love?

Catching my first plagiarist of the year. It never fails to satisfy my inner rent-a-cop, that little, irrelevant man with a badge and a minimal sphere of authority. From what I hear on the street, the anti-plagiarism speech I deliver on the first day of class is nothing short of terrifying; depending on my judgment of the audience, the phrase “I will post your head on a spike” may or may not actually be used, but I do explain to my students that I have a long and successful record of identifying academic misconduct, and that I will treat such cases with a cold, inhuman lack of sympathy for the accused. Nevertheless, there’s always someone who takes up the challenge and tries to put one over on me. Today’s catch was easy — five seconds with my good friend Google turned up two web pages from which every single word of the student’s paper had been pilfered. S/he didn’t even bother writing an original introduction, a transitional sentence, or a conclusion. Like the Fiji Mermaid, this paper looked like a monkey’s head sewn to the body of a fish. I could have been half asleep or even — just speaking hypothetically here — terribly, terribly hung over and I would still have rooted out the fraud.

All this, of course, made me think of that lovable scamp Ben Domenech (whom I see has his own entry in Wikipedia. Born in Jackson, Mississippi? Who knew?) In case you’re wondering what the hell ever became of the man formerly known as “Augustine,” he appears to have started a new project called The Critical — a print journal with an unbearably awful title that compiles some of “the best online writing” and asks you (and the phrase “I shit you not” leaps to mind here) to actually pay for it. As near as I can tell from the journal’s website, this brilliant idea didn’t make it past the first issue and the launch party in August (which appears nevertheless to have boasted some compelling appetizers and — am I to assume illegal? — Cuban cigars). I mean, who would want to cough up $9 to read Josh Trevino’s comparison of DKos to the John Birch Society?