Dahlia Lithwick on Conservatives:
Dahlia Lithwick is a very funny writer, but she often leaves behind her normally sharp analytical skills when she writes about conservatives. Her latest Slate article offers a good example.

  Lithwick's piece argues that conservatives criticize Justice Kennedy for every position Kennedy takes, and that the criticisms are internally inconsistent and unprincipled. She uses two primary examples. First, former Alabama Supreme Court Justice Tom Parker based his election campaign on his opposition to Roper v. Simmons, and particularly on the fact that Kennedy's opinion trumps the will of state legislatures that wanted to allow the death penalty for 16 and 17 year-olds. Second, the Wall Street Journal editorial page recently wrote a piece invoking Justice Kennedy's opinion in Lawrence v. Texas as justifying the need for a constitutional amendment on same-sex marriages. In particular, the Journal argues that Kennedy's opinion makes it more likely that courts will trump the will of state legislatures that want to define marriage in a particular way.

  According to Lithwick, the fact that these two criticisms are both being made by conservatives against the opinions of Justice Kennedy shows that conservatives are inconsistent and unprincipled:
Just so we're perfectly clear here: Conservatives are bellowing at Anthony Kennedy because in Roper he ignored the Constitution and attempted to divine the will of the majority of the people. But they also hate him because in Lawrence he ignored the will of the people as he attempted to divine what was constitutional.

Not a whole lot of wiggle room there, really.
  The writing here is sharp, and if you don't look too closely it might even seem kind of witty. But if you actually think about the argument Lithwick is making, it quickly becomes clear that it makes no sense.

  Whether you agree or disagree with the criticisms Parker and the WSJ are making — for that matter, even if you think Parker and the WSJ are totally nuts — it's not hard to see that they are making the same point. They both criticize Justice Kennedy for writing opinions that trump the will of the people as expressed through the legislative process. Both Parker and the WSJ want the law in these areas to be made by state legislatures instead of the U.S. Supreme Court, and they oppose opinions Kennedy wrote that ruled that legislative decisionmaking on the issue was prohibited by the Constitution. Again, you can agree or disagree. But these two criticisms make the same basic point, and seem to follow from a consistent perspective.

  Lithwick misses this — or, perhaps, tries to hide this — by comparing apples and oranges. In the snippet above, she compares complaints that Kennedy ignored the will of the people with complaints that Kennedy was trying to divine the will of the people. But as far as I know, no conservative has criticized Justice Kennedy on the ground that Roper "attempted to divine the will of the majority of the people." Rather, conservatives have criticized Roper on the ground that it ignored the will of the people as expressed in state law, and its analysis of the emerging national consensus was quite plainly unconvincing. Again, the criticism in the two contexts seems to be pretty much the same.

  (originally posted at
Reg (mail):
Lithwick's writing is often entertaining, but her inability to make the most basic of distinctions when considering conservative legal arguments suggests she isn't qualified to comment on the often complex doings of the Supreme Court or that she is not attempting to deal with conservative viewpoints in good faith. (Or both.)
6.9.2006 1:13am
M. Stack (mail):
Excellent analysis Professor Kerr. I guess liberals just don't understand conservative jurists. It is not the justices responsiblity to create new rights like the right to engage in sodomy, but instead, if a state legislature wants to make said right, all the power to them.
6.9.2006 2:11am
Stephen C. Carlson (www):
Lithwick is indeed comparing apples and oranges--twice. Two different constitutional provisions, and two different "wills of the people" (one of which is the evolving standards of decency).

Structurally, her analysis is like this:

Suppose someone says she prefers broccoli to lemons but also prefers oranges to brussell sprouts. On the one hand, she is preferring vegetables to fruits, but, on the other hand, she is preferring fruits to vegetables. (In this contrived example, one could even find a botanist to testify that these vegetables belong to the same species, as do the fruits.) "Not a whole lot of wiggle room there", except that they all taste differently.
6.9.2006 2:29am
Roger Schlafly (www):
You and Eugene give Lithwick too much credit. She has embarrassing errors in every column.
6.9.2006 2:47am
"Ann Coulter's breasts" looks to me like a typical word processing typo, where a passage gets partially deleted and the left-over words float around creating chaos. I suggest the original might have been something like "The milk of human kindness doesn't flow from Ann Coulter's breasts."
6.9.2006 7:28am
Appellate Attorney:
Actually, Justice Parker is currently a Justice of the Alabama Supreme Court. He has more than four years remaining in his term.
6.9.2006 8:39am
I think Lithwick overstates her case (as she very often does--but one should understand that she intends her articles to be light reading, and in that sense is actually much like Coulter--but I digress).

But I think this analysis is a bit unfair because there are two parts to her comparison: the part about the will of the people, but also the part about the Constitution. And although she does not articulate the point well, I think there is a point here to be made.

It does seem to me that some people--often self-described "conservatives", but not always--like to argue on occasion that pro-majoritarian principles should play a strong role in constitutional interpretation (a notion that I personally find somewhat dubious, since so much of the original Constitution in particular was deliberately counter-majoritarian). But they tend to drop that argument when such principles might lead to a constitutional interpretation that they don't like, and instead insist on a stricter reading of the Constitution.

So, I think there is indeed a deep inconsistency within certain people when it comes to what role, if any, the "will of the people" should play in determining constitutional interpretation.

That said, I don't think Roper and Lawrence tee up this issue particularly well.
6.9.2006 10:14am
Marcus1 (mail) (www):
To elaborate on Medis, I think Lithwick's question would have been "Why does it matter that 70% approved of this Alabama law?" If the question is merely whether a law was passed, that shouldn't matter. Thus her pithy point to the effect of, what, now popularity matters when in Roeper it shouldn't have?

I think you reconcile the Conservative argument, but I don't think it was really unreasonable for Lithwick to make the point. After all, your argument went beyond the WSJ article, which wasn't necessarily so precise itself.
6.9.2006 10:25am
You criticize a relatively minor point in an otherwise cogent article.

Among other things Lithwick seems to be saying:

1) Basing charges of activism on the fact that a decision trumps 70% of the vote isn't a coherent, logical argument. Voter approval does NOT equal "constitutional." We don't vote on the constitution.

2) Encouraging other courts to simply ignore Supreme Court precedent is dumb. It's AT LEAST dumb.

I think you're right about the paragraph you quote. But those criticisms don't actually apply to the rest of the piece.
6.9.2006 10:55am
Freder Frederson (mail):
I hardly think anti-sodomy laws are "the will of the people" as they are generally broadly written and cover both heterosexual and homosexual acts. I don't know about the law at issue in Lawrence but the Georgia law in Bowers v. Hardwick applied to both heterosexuals and male homosexuals (oddly, as written it did not contemplate sexual acts between females, apparently the legislature that wrote the law back in the 1930's just couldn't imagine such a thing) and covered both anal and oral sex.

In fact, while I was in law school (this was '90 or '91), a man was actually convicted in Georgia and sent to jail for consensual sodomy with his ex-wife. His ex was apparently quite bitter and invited him over and seduced him and they had sex. Subsequently, she accused him of rape. The jury didn't buy her rape story, but the Judge informed the jury that since the man admitted to performing oral sex on his ex during the incident, even if the sex was consensual, the must still find him guilty of sodomy, which they did. He was stuck in prison for a year before he finally got an ACLU lawyer who sufficiently embaressed the state and got him released.

I don't think the "will of the people" wants to ban activities that most of us consider quite normal and don't consider any of the government's business, even in Texas.
6.9.2006 11:04am

You are right that there are individual sentences in Lithwick's article that are coherent. However, that does not make the article "otherwise cogent," as those individual sentences are not related to the core theory of the essay.
6.9.2006 11:47am
Barry P. (mail):

Do you honestly believe that governments create rights? I always thought that people have the right to do whatever they please, and then legislatures write laws that restrict those rights. I also always thought it was the proper role of the Supreme Court to tell those legislatures when they had passed laws that violated the Constitution.

Is the Constitution an enumeration of the rights that government gives to the citizens, or is it an enumeration of the powers that citizens give to the government? Your post would imply that you believe it to be the former. Is that the position of "conservative jurists"?
6.9.2006 12:33pm
Bryan DB:
Justice Scalia quite plainly criticizes Roper for attempting to divine the will of the people in his dissent in that same case. First the majority divines the will of the people, to fulfill the evolving standards of decency, and then it disregards prior state laws.
"the Court first considers, in accordance with our modern (though in my view mistaken) jurisprudence, whether there is a “national consensus,”..." Scalia's scoffing has two prongs, and one of them is quite clearly what you say conservatives haven't done.
6.9.2006 1:01pm
Bryan DB:
Less than 30 seconds of searching found a detailed conservative criticism of divining the will of the people in Roper.
6.9.2006 1:27pm

Do you see the difference between a) deferring to legislative decisionmaking and b) trumping legislative decisionmaking using a judge-made test that purports to "divine the will of the people" as one of the steps? It seems to me that you have to play games to pretend they are the same thing -- and that is precisely what Lithwick is doing, right?
6.9.2006 1:31pm
Eh Nonymous (mail) (www):
Orin: one would also have to play games to pretend that Kennedy was relying on foreign law to divine what the U.S. Constitution requires, but that's also been a favored conservative finesse.

Of course, such a criticism is as flawed as Dahlia's clever use of the phrase "will of the people."

Lithwick is not reporting, she is analyzing. Since she's both funnier and more honest than Ann Coulter's breasts, I'm going to keep reading her, Porlock and Shlafly's objections notwithstanding.
6.9.2006 3:23pm
Christopher Cooke (mail):
The bulk of Lithwick's article seemed to me to try to cite examples that support her thesis that conservatives are so mad at Kennedy for straying from conservative orthodoxy that they frequently say stupid things about him. Her thesis is well supported by the Judge Parker positions she cites, but less well supported by her description of the WSJ example. Finding examples from Parker's quotes is easy, though, as he appears to be a wild man, at least for a someone who is a justice on a state supreme court. I think the "Ann Coulter's breast" point was a dig at the covershot on Ms. Coulter's book.
6.9.2006 4:42pm
M. Stack (mail):
Barry P:

Of course people have the right to do what they please if it is not outlawed by either a state or federal government. But at the same time, governments can create rights, i.e. the right for women to vote, if there is an absence of it.

If the Constitution is silent on sodomy, privacy, or abortion, which it is, then it is up to the legislature to pass a constitutional amendment if they desire a so-called "constitutional right" to engage in said acts. Anything else would be judicial activism.
6.9.2006 4:53pm

If the Constitution is silent on sodomy, privacy, or abortion, which it is, then it is up to the legislature to pass a constitutional amendment if they desire a so-called "constitutional right" to engage in said acts. Anything else would be judicial activism.

Tenth Amendment. I take it you're being deliberately obtuse.
6.9.2006 5:35pm
KeithK (mail):
The Declaration of Independance makes clear what the founders thought about who or what created rights:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

Governments, legislatures and constiutions do not create rights, they protect the rights that God (or nature) has endowed us with.

Legislatures certainly do give privleges, but that's different from rights.
6.9.2006 7:44pm
KeithK (mail):
Freder, laws on the book are indeed an expression of the will of the people. Legislatures and referenda create laws based on what the citizenry want - that's democracy (representative or direct). It's an imperfect expression certainly. Legislators don't have to vote how their constituents would like and it's up to the reader to decide whether the will of 50% + 1 is the "will of the people".

In the case of sodomy laws, I'm pretty confident that these laws did reflect the opinion of the citizenry when they were enacted. Just because the average person today might think oral sex is normal and none of the government's business doesn't mean that that has always been the case. But that's another aspect of the imperfect expression - there's often a time lag between changes in "will" and changes in the law.
6.9.2006 7:51pm
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6.10.2006 4:04am