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Alliance for Justice Video:
Via my cousin Nan Aron, I see that the left/liberal Alliance for Justice has released a 22-minute documentary film that takes on the conservative legal movement, Quiet Revolution (.wmv file). The video is kind of a mix between Cass Sunstein's Radicals in Robes and Herman Schwartz's Right Wing Justice with a bit of Article II sprinkled on at the end for seasoning. It features lots of prominent figures that many VC readers will recognize, including Harold Koh, Cass Sunstein, Drew Days, Barack Obama, and Dahlia Lithwick.

  Perhaps the most interesting aspect of the video is that its left critique of the legal right is so similar to the traditional right critique of the legal left. You know the arguments: the other side wants to overturn precedent; they are judicial activists; they have a radical agenda; they want to depart from the Framers' vision of the Constitution; they are trying to get their unpopular political preferences enacted through the courts instead of the people, etc. Of course, readers will disagree on which side has it right, or whether either or both of them do, or even whether these criticisms make any sense at all. But the similar rhetoric is interesting.

  My vote for the most over-the-top commenter probably goes to Slate/WaPo/NPR analyst Dahlia Lithwick, for her remarks delivered around the 3:30 mark:
What would happen if Clarence Thomas and Antonin Scalia got their way? What is their vision for America? And if you say to people what their vision is: Say goodbye to worker's rights. Say goodbye to environmental protection. Say goodbye to women's rights. Say goodbye to the rights of the disabled. Say goodbye to all the progress we've made in terms of race and gender in this country, and privacy.
I guess you could say this. I mean, it wouldn't be accurate, but hey, you could still say it.

  UPDATE: A few commenters suggest that Lithwick's claim isn't entirely false, so let me explain a bit more. Lithwick is confusing two claims: (1) Right A would be different in some ways if a particular Justice had a majority, and (2) Right A wouldn't exist at all if that particular Justice had a majority. Justices Thomas and Scalia have stated their views as to the constitutional need for changes in the institutional choices as to which parts of government should provide certain important rights: In some cases, the issue has been state vs. federal, and in others, the issue has been legislatures vs. courts. But as far as I know, all of their views have related to institutional choice, not substantive rights. Thus (1) may be true but (2) is clearly false. I assume Lithwick knows this, and is simply exaggerating her claim to make it seem more powerful: If you want people to rally in opposition to a position, you want to make that position seem as dangerous as possible. But doing so often comes at a cost of accuracy, and I think it did so here.
Mike BUSL07 (mail) (www):
One wonders whether Lithwick actually believes that BS. I suspect she is just preaching from her own authority to the nearly converted. I mean... what a ridiculous set of statements. If we take Lithwick at her word, she is implying that Scalia and Thomas want to:

- resegregate the country
- take away women's suffrage
- invalidate the ADA, FHA, EPA, etc.

ETC.

This falls into the category of "if you masturbate, you will grow hair on your palms."
10.16.2006 2:49am
Cornellian (mail):
Is she all that far off in terms of federal legislation where Thomas is concerned? He's got an extremely restrictive view of the commerce clause. Of course that wouldn't affect state legislation, but if the Court had 9 Thomases on it, I'd expect a whole lot of federal legislation to be declared unconstitutional for being beyond the enumerated powers of the federal government.

Scalia is a different story since he buys into the "everything is Commerce if Congress says it is" approach, at least to a much greater extent than Thomas does.
10.16.2006 2:53am
Lev:
Would that Cass Sunstein be the same Cass Sunstein, "emminent Constitutional scholar," who in open testimony before the Senate said that the Senate should not confirm any judges because Bush stole the 2000 election?
10.16.2006 3:00am
Kovarsky (mail):
MikeBUS,

I think you're taking it a little far. I think it IS fair to say that Scalia and Thomas would vote to overturn roe. I also think it's fair to say that they're amenable to striking down lots of federal legislation under their restricted view of the commerce clause, including much environmental legislation. They did in fact get a majority to overturn the Violence Against Women act in Morrison. Their views on the constitutionality of affirmative action are equally clear.

Yes, Dahlia is exaggerating, but your counterpoint is equally, if not more, fantastic.
10.16.2006 3:14am
Mike BUSL07 (mail) (www):
Whatever your view of the CC, it's hardly fantastic to deny the implication that Scalia et al are out to take away women's vote and to reimplement segregation. I didn't say anything about Roe btw. If Lithwick said, "They want to overturn Roe," she'd be right. She didn't say that. She said, "Say Goodbye to women's rights."

As far as the other federal legislation I named - ADA, etc., fair enough - that's questionable.
10.16.2006 3:31am
LotharoftheHillPeople:
They did in fact get a majority to overturn the Violence Against Women act in Morrison.

Wrong. They overturned a very small part of VAWA, and not a part that any one has thought of as critical to women's rights on a national scale.
10.16.2006 3:35am
DCP:
What is all this griping about the commerce clause?

Could there possibly be a broarder or more lacadasically interpreted power than the commerce clause? So what if Thomas wants to withold a bucket from the ocean as oppossed to the few drops that have thus been denied. You're still giving Congress the power to regulate 99% of everything.

I'm sure when the Framers drafted the clause they invisioned rape as an influential aspect of interstate commerce. Sheesh.

As for Dahlia and Co., it's pathetic that these chicken littles are actually considered scholars and experts. Do they even read Supreme Court opinions?
10.16.2006 3:42am
zooba:
I undertand that some of those criticisms have a grain of truth, but does she really think Scalia would invalidate the NLRA, ADA or EPA? I don't see how you can think that after Raich. And even if they overturned Roe, it would only reverse womens' rights in red states.
10.16.2006 4:06am
Kovarsky (mail):
ugh, my point about was that each of those lithwick remarks had a basis in a decision, not that the remarks were an accurate statement of the appropriate gravity of concern. i don't even remember who was making the morrison point, but that was directed at you.

and i mentioned row in relationship to "women's rights" and to "privacy."

DCP, Dahlia Lithwick is certainly prone to exaggeration, but she's an extremely bright woman and very qualified to do what she does.
10.16.2006 4:15am
eric (mail):
If by "womens rights" you mean the abortion rights, then red states might wish to regulate those "rights." Using the term "womens rights" to mean abortion is silly? Say what you mean.
10.16.2006 4:24am
Hans Gruber:
"The Rhenquist Court was the most activist court EVER!"

LOL
10.16.2006 4:47am
David M. Nieporent (www):
Is she all that far off in terms of federal legislation where Thomas is concerned?
No. Except that there's no connection between "wants to narrowly interpret federal powers" and "has a 'vision for America' where nobody has any rights." Abortion might be restricted in some places, but nobody is going to reinstitute Jim Crow. (And if they did, Thomas would still strike it down, because he doesn't think the fourteenth amendment allows that.)
10.16.2006 5:07am
PersonFromPorlock:

"...there's no connection between "wants to narrowly interpret federal powers" and "has a 'vision for America' where nobody has any rights."

If you believe that 'rights come from government', then any restriction of government power potentially reduces rights. I don't agree with this but it's how Liberals think.
10.16.2006 7:07am
big gus (mail):
I've lived in serveral countries including US and other countries just don't have these problems or issues with their high court. So I'd guess it's not a question of which side is more or less misguided: maybe the problem is with your consitution or your notion of common law or more likely how these institutions are breaking at the seams in an attempt to contain intractable cultural divides.
10.16.2006 8:30am
AppSocRes (mail):
Big Gus: I have to agree that other countries have much more experience at drafting great constitutions than does the US: We've only done it once, the French, Italians, Germans etc. have much more experience.
10.16.2006 9:49am
Gabriel Malor (mail):
Very nice, AppSocRes. I concur.
10.16.2006 10:03am
Anderson (mail) (www):
Say goodbye to worker's rights. Say goodbye to environmental protection. Say goodbye to women's rights. Say goodbye to the rights of the disabled. Say goodbye to all the progress we've made in terms of race and gender in this country, and privacy.

This is so uncontroversially true of Thomas that I don't begin to understand the objections. Nieporent is pretty funny -- "just because the feds don't guarantee rights, doesn't mean you don't have any rights!" Way to demonstrate your ignorance of 150 years of American history, sir. (A Mississippian is speaking.)

Scalia, I dunno -- Raich is certainly a monkey-wrench in our understanding of him, unless you entertain the possibility that Scalia began with the assumption that he was going to rule against medical marijuana, and worked backwards from there.

(Which is exactly what I think he did, but who really knows? Certainly, as outraged ex-Scalia fans explained at length, Raich did not look terribly principled on his part.)
10.16.2006 10:19am
Marcus1 (mail) (www):

Say goodbye to all the progress we've made in terms of race and gender in this country


I guess she could have meant as in "the progress we liberals today have made."
10.16.2006 10:20am
anonVCfan:
Ms. Lithwick forgot to include the phrases "roll back the clock" (not "turn back the clock," but "roll," which conjures up images of used car salesmen tampering with odometers) and "back-alley abortions."

Because what criticism of Scalia and Thomas is complete without rolling back the clock and ordering back-alley abortions?

Segregated lunch counters could probably be used too, but I don't want to be too picky...
10.16.2006 10:44am
JT Wenting (mail):
In most countries the high court has a rather different job from the USSC, big gus.

For example in the Netherlands it's pretty much a normal court except there's no appeal to their decisions.
In other countries it's not even that, but a special court for certain types of cases only.

In the US the supreme court holds the responsibility of testing laws against the constitution as an (officially) independent body held only by that constitution.
Very few countries have a body like that, in most countries such things are left to either regular judges of political commitees appointed by parliament on a case by case basis.
And then there are the countries (like the UK) that don't have a constitution.
10.16.2006 10:46am
John (mail):
The breathtaking stupidity to assume the Supreme Court is the only source of rights is unbelievable. If the Supreme Court simply vanished, do you think this would be true?

"Say goodbye to worker's rights. Say goodbye to environmental protection. Say goodbye to women's rights. Say goodbye to the rights of the disabled. Say goodbye to all the progress we've made in terms of race and gender in this country, and privacy."

Hardly.
10.16.2006 10:48am
Anderson (mail) (www):
The breathtaking stupidity to assume the Supreme Court is the only source of rights is unbelievable.

Right. The South had pretty much desegregated itself by the time of Brown, thanks to Congressional and Presdential leadership, to say nothing of the powerful commitment of the Southern states to racial equality. It was just grandstanding of Warren to jump onto the bandwagon.

--You want to talk "breathtaking stupidity"? Really?
10.16.2006 10:55am
va:
I think I read somewhere about someone having it in for Lithwick ...
10.16.2006 11:07am
Chris Bell (mail):
My favorite was the comment by the law professor (I don't remember which one) protesting limitations on the Commerce Clause.

~"If they do that, then Congress won't be able to pass the laws they think are important!"

So much for enumerated powers....
10.16.2006 11:16am
Thorley Winston (mail) (www):
This is so uncontroversially true of Thomas that I don't begin to understand the objections.


You misspelled "untrue."
10.16.2006 11:39am
Houston Lawyer:
She just reiterates the general leftish view that the Supreme Court is all powerful and good, as long as lefties are in charge.
10.16.2006 11:39am
OrinKerr:
This is so uncontroversially true of Thomas that I don't begin to understand the objections.

Anderson, if you really believe this -- which I suspect you don't, but I'll go along -- please explain in detail, line by line, why you believe it is literally and uncontroversially true. I notice that you simply state it above, without any substantive argument, and I'm sure we could all benefit from you showing your work.
10.16.2006 11:40am
John Rosenberg (mail) (www):
AnonVCfan wrote:

Segregated lunch counters could probably be used too, but I don't want to be too picky...

Don't worry; they have been. Not by Ms. Lithwick here, but by an opponent of the Michigan Civil Rights Initiative who argued that if MCRI passes, preventing state agencies from discriminating for or against anyone because of race, gender, or ethnicity, the state would return (?) to segregated lunch counters. Chapter and verse available upon request.
10.16.2006 11:57am
Thorley Winston (mail) (www):
ugh, my point about was that each of those lithwick remarks had a basis in a decision, not that the remarks were an accurate statement of the appropriate gravity of concern. i don't even remember who was making the morrison point, but that was directed at you.


Please cite the specific opinions authored by Justices Scalia and/or Thomas which substantiate Lithwick's remarks.

DCP, Dahlia Lithwick is certainly prone to exaggeration, but she's an extremely bright woman and very qualified to do what she does.


I didn't realize that (allegedly) being "extremely bright" gave one a pass for poor behavior. I've read her off and on for the last several years and frankly don't see much about her writings to be impressed about. When it comes to judicial nominees and the courts she seems to base her evaluations solely on whether she personally agrees with the outcome rather than being able to intelligently explain the rationale behind the decision. Which IMO is about the same level of "analysis" we see from laypeople who complain about attorneys and courts based on what they've seen on "Boston Legal."
10.16.2006 11:59am
Humble Law Student (mail):
Haha, that video was great.

I have to say that Professor Strauss is at best a great exaggerator - at worst a great liar. (or not so great, because his lie is obvious).

He says (under the conservative vision) "Any state could, if it wanted to, declare an official state supported religion ..." And then he goes on to say it could pay the salaries of the clergymen, etc.

No one that I am aware of, including Falwell, Scalia, and Thomas have ever proposed something like that. I know of no appreciable conservative movement that wants to establish an official church.

What he argues is the exact thing that almost ALL conservatives agree the constitution doesn't allow.

His argument is just a more extreme example of most of the charges in the video.

Another interesting issue is how they use the term "activitist judges." Its interesting because of the context in which it used. The video argues a court is activist because when strikes down precedent and laws. Conservatives argue a court is activist when it creates new rights and so forth. To compare the two definitions is very revealing. The liberal version only retains meaning from a results orientated approach - expanding personal liberty, consumer protection, civil rights, etc. The conservative version is much more process/seperation of powers based. So, the liberal attack is only relevant as a idea against outcomes they disagree with. The conservative one maintains a superior intellectual pedigree because it at least keeps process and seperation of powers arguments relevant in determining whether a court is activist or not.
10.16.2006 12:04pm
Thales (mail) (www):


I have not watched the video, and I agree that Lithwick's quote is exaggerated, though I note that there have been some ugly and intellectually vacuous statements in this comments section that make Lithwick's statement look pretty enlightened by comparison. Having said that, I must take issue with the following quote:

"He says (under the conservative vision) "Any state could, if it wanted to, declare an official state supported religion ..." And then he goes on to say it could pay the salaries of the clergymen, etc.

No one that I am aware of, including Falwell, Scalia, and Thomas have ever proposed something like that. I know of no appreciable conservative movement that wants to establish an official church."

In point of fact, in a dissent or concurrence from the denial of cert. from Michael Newdow's Pledge of Allegiance case a few years ago, Justice Thomas revealed his view that the Establishment Clause of the First Amendment is not incorporated by the Fourteenth Amendment to apply against the states, and this view is shared by some prominent conservative (and some liberal) scholars. The practical effect of Thomas's view on this issue would be that the federal constitution would have nothing at all to say about a state's sponsoring/establishing/financing a religion, unless under the equal protection or due process clauses of the 14th, which it is fair to say Thomas would likely also read as not applying to such an issue.
10.16.2006 12:22pm
Thales (mail) (www):
And I would add, by the quote given, Strauss did not claim conservatives wanted to establish a church, just that their legal vision would not prevent such establishment by the states.
10.16.2006 12:24pm
Humble Law Student (mail):
Thales,

Oh thanks. I misread the quote. I wrongly thought state as in the government. But you are right, he says "any state." my bad.
10.16.2006 12:25pm
Humble Law Student (mail):
*State as in the federal government
10.16.2006 12:26pm
magoo (mail):
OK writes: "Perhaps the most interesting aspect of the video is that its left critique of the legal right is so similar to the traditional right critique of the legal left."

This is especially remarkable when one considers the nature of the arguments 30 years ago, when left-leaning constitutional scholars routinely disparaged reliance on the constitutional text or the Founders' "vision." In a single generation, Ed Meese and Antonin Scalia have changed the terms of the debate.
10.16.2006 12:38pm
va:
Maybe Orin wants to comment on some of the things said by conservatives quoted in the video? For starter's, how about the statement by Pat Robertson at around 2:30? Maybe we could get a line-by-line, detailed explanation, for why that isn't, by a very long margin, the most "over-the-top" claim made by anyone in the video. (And here's to anticipating the: "I was only talking about commentators" objection.)
10.16.2006 12:42pm
Kevin P. (mail):

Right. The South had pretty much desegregated itself by the time of Brown, thanks to Congressional and Presdential leadership, to say nothing of the powerful commitment of the Southern states to racial equality.

Of course, Brown happened decades after the Supreme Court eviscerated the 14th Amendment in the Slaughterhouse cases and condemned two generations of minorities to second class citizenship by accepting the separate but equal doctrine.

What gives you the idea that the Supreme Court is a benevolent champion of civil liberties? In just the last few years, usually led by liberals, it has damaged the First Amendment, the right to private property and the right of individuals to choose their own medication for their own illness.

But hey, as long as lefty goals are met, the Supreme Court rocks.
10.16.2006 12:53pm
Thorley Winston (mail) (www):
In point of fact, in a dissent or concurrence from the denial of cert. from Michael Newdow's Pledge of Allegiance case a few years ago, Justice Thomas revealed his view that the Establishment Clause of the First Amendment is not incorporated by the Fourteenth Amendment to apply against the states, and this view is shared by some prominent conservative (and some liberal) scholars. The practical effect of Thomas's view on this issue would be that the federal constitution would have nothing at all to say about a state's sponsoring/establishing/financing a religion, unless under the equal protection or due process clauses of the 14th, which it is fair to say Thomas would likely also read as not applying to such an issue.


Not quite, Thomas pointed out (correctly IMO) that the Establishment Clause does not protect individual rights; it's a federalism provision which prevents the federal government from trying to establish a national church. If you read his concurring opinion further, you'll note that he states that the Free Exercise clause could be a bar against State coercion to support a church or practice a particular faith. The difference then isn't in whether States can have a taxpayer funded church (an issue unlikely to come up in the foreseeable future) but in things like allowing religious institutions the same access to funding as secular institutions for things like education and voluntarily expressions of faith such as invocations at a high school graduation.
10.16.2006 12:56pm
Thorley Winston (mail) (www):
Of course, Brown happened decades after the Supreme Court eviscerated the 14th Amendment in the Slaughterhouse cases and condemned two generations of minorities to second class citizenship by accepting the separate but equal doctrine.


I'm not sure what the Slaughterhouse Cases (which IIRC dealt with the "privileges and immunities" clause and whether 14A incorporates the federal Bill of Rights) has to do with the Equal Protection Clause (Brown).
10.16.2006 1:06pm
Trevor Morrison (mail):
Orin, I agree that Lithwick's statement is inaccurate to the extent that one uderstands each of her "Say goodbye" sentences to include an implicit "all." I.e., what she says is inaccurate if she's saying, "Say goodbye to ALL worker's rights. Say goodbye to ALL environmental protection." And so on. And in light of the last sentence of the passage, which explicitly refers to "all the progress we've made in terms of race and gender in this country, and privacy," I think it's reasonable (though perhaps not mandatory) to understand each of those previous sentences to include an implict "all."

But suppose Lithwick modified her position (or clarified it, if she never really meant "all") to say something like this:

"Say goodbye to [many important federal] worker's rights. Say goodbye to [many important federal] environmental protection[s]. Say goodbye to [many important federal] women's rights. Say goodbye to [many important federal] rights of the disabled. Say goodbye to [much of] the progress we've made in terms of race and gender in this country, and privacy."

Would that statement be accurate, in your view? If not, what if she said "some" instead of "many"?
10.16.2006 1:09pm
Thorley Winston (mail) (www):
What gives you the idea that the Supreme Court is a benevolent champion of civil liberties? In just the last few years, usually led by liberals, it has damaged the First Amendment, the right to private property and the right of individuals to choose their own medication for their own illness.


I don't think it's fair to lay the blame for these solely at the feet of the Court. In those decisions, the Court held that it was dealing with an issue of public policy (e.g. what is a "public purpose" in an eminent domain case) and that such decisions are better left to the political branches so it deferred to them. The solution IMO is to seek redress at the legislative branch (which we will all have the chance to do in just a little over three weeks) rather than expecting the courts to strike down bad laws. But I agree with your larger point -- the courts are a poor guarantor of civil liberties and those who think that government is far too intrusive on individual rights are better off trying to persuade a majority (or at least a plurality) of their fellow citizens to exercise their franchise accordingly.
10.16.2006 1:14pm
David M. Nieporent (www):
Anderson:
--You want to talk "breathtaking stupidity"? Really?
Yes, Anderson, let's. Is it "breathtaking stupidity" -- or just dishonesty -- to claim that Scalia (let alone Thomas) doesn't think the fourteenth amendment protects blacks from government sponsored racial discrimination?

Way to demonstrate your ignorance of 150 years of American history, sir.
Maybe you didn't realize it, but the U.S. is more than 150 years old; you seem to think history stopped in about 1930. There are no states that don't have environmental protection laws, no states that don't have workers "rights" laws, etc.
10.16.2006 1:15pm
Thorley Winston (mail) (www):
But suppose Lithwick modified her position (or clarified it, if she never really meant "all") to say something like this:

"Say goodbye to [many important federal] worker's rights. Say goodbye to [many important federal] environmental protection[s]. Say goodbye to [many important federal] women's rights. Say goodbye to [many important federal] rights of the disabled. Say goodbye to [much of] the progress we've made in terms of race and gender in this country, and privacy."

Would that statement be accurate, in your view? If not, what if she said "some" instead of "many"?


Then I would say (a) it shows that Lithwick's analysis is based on whether she personally likes a particular outcome rather than a principled legal philosophy, (b) I still haven't seen any evidence (in the forms of opinions authored by either Scalia or Thomas) to support the charge (whether it's "all," "many" or even "some"), and (c) by making silly comments like that, Lithwick's on her way to becoming to legal commentary what Air America is to financially sustainable talk radio.
10.16.2006 1:21pm
Witness (mail):
"it wouldn't be accurate"

To borrow a bit of your own language...Orin, if you really believe this, please explain in detail, line by line, why you believe it would not be accurate. I notice that you simply state it above, without any substantive argument, and I'm sure we could all benefit from you showing your work.
10.16.2006 1:36pm
Mark Field (mail):

Maybe you didn't realize it, but the U.S. is more than 150 years old; you seem to think history stopped in about 1930.


David, I'm pretty sure the reference to "150 years" was to the end of the Civil War.


Anderson, if you really believe this -- which I suspect you don't, but I'll go along -- please explain in detail, line by line, why you believe it is literally and uncontroversially true. I notice that you simply state it above, without any substantive argument, and I'm sure we could all benefit from you showing your work.


Under the sauce for the goose principle, I assume we'll soon be getting the detailed, line by line support for this:

"I guess you could say this. I mean, it wouldn't be accurate, but hey, you could still say it."

Or, for that matter, perhaps an equivalent challenge might issue to statements such as:

""The Rhenquist Court was the most activist court EVER!"

LOL"

"If you believe that 'rights come from government', then any restriction of government power potentially reduces rights. I don't agree with this but it's how Liberals think."

"The breathtaking stupidity to assume the Supreme Court is the only source of rights is unbelievable."

"When it comes to judicial nominees and the courts she seems to base her evaluations solely on whether she personally agrees with the outcome rather than being able to intelligently explain the rationale behind the decision."
10.16.2006 1:43pm
Mark Field (mail):
Damn, Witness beat to the punch.
10.16.2006 1:44pm
Elliot Reed:
still haven't seen any evidence (in the forms of opinions authored by either Scalia or Thomas) to support the charge (whether it's "all," "many" or even "some")
As for Scalia and women's rights, see his abhorrent dissent in the VMI case. He declared that the majority's opinion striking down Virginia's system of separate-but-"equal" higher education would "destroy" VMI and that our country's long history of distriminating against women in higher education (not his words, but those were the facts upon which his analysis relied) was sufficient to justify the program. Such reasoning would, if taken seriously, completely eviscerate any equal protection rights for women, and the man is unfit to serve on any court.
10.16.2006 1:45pm
Kovarsky (mail):
Anderson,

Right. The South had pretty much desegregated itself by the time of Brown, thanks to Congressional and Presdential leadership, to say nothing of the powerful commitment of the Southern states to racial equality. It was just grandstanding of Warren to jump onto the bandwagon.

What are you talking about? That's not just factually inaccurate, it's grossly so. I think you are confusing the idea that many thought the the south WOULD desegregate on its own eventually with the fact that it already was. If this is an area that interests you academically, and if you're not just repeating things that you've read somewhere on powerline, try Mike Klarman's wonderful book "Brown v. Board of Education: 50 years Later."
10.16.2006 1:50pm
Mark Field (mail):

nobody is going to reinstitute Jim Crow. (And if they did, Thomas would still strike it down, because he doesn't think the fourteenth amendment allows that.)


So the defense of Thomas is that he's a pick-and-choose originalist?
10.16.2006 1:55pm
Kovarsky (mail):
I don't think that it's fair to say that they're "anti" some sort of right, and of course that's a way of framing the debate for the audience she is addressing. She's prone to hyperbole, and this is a particularly bad instance of it, but it's hardly anything different than the foot-stomping that went on after, say, Kelo, where the more politically conservative were not quite so interested in the ontology of "rights."

also, her confirmation coverage was in fact poor (although even she gave over to roberts' charm at the end), but she does an excellent job of making legal concepts accessible to non-lawyers, which is a virtue that, unfortunately, most lawyers and legal writers lack.
10.16.2006 1:56pm
Nephtuli (mail) (www):
As for Scalia and women's rights, see his abhorrent dissent in the VMI case. He declared that the majority's opinion striking down Virginia's system of separate-but-"equal" higher education would "destroy" VMI and that our country's long history of distriminating against women in higher education (not his words, but those were the facts upon which his analysis relied) was sufficient to justify the program. Such reasoning would, if taken seriously, completely eviscerate any equal protection rights for women, and the man is unfit to serve on any court.

Even under your mischaracterization, at worst women's rights would need to be protected by the other branches of government (via amendment or executive order) or by the people themselves (via amendment, such as the 19th Amendment).
10.16.2006 1:58pm
Nephtuli (mail) (www):
So the defense of Thomas is that he's a pick-and-choose originalist?

Explain how a principled application of textualism-originalism would lead to the conclusion that Jim Crow laws are constitutional.
10.16.2006 2:00pm
Kovarsky (mail):
Nephtuli,

Explain how a principled application of textualism-originalism would lead to the conclusion that Jim Crow laws are constitutional.

I think that many constitutional historians would tell you that there's a very strong case that the framers of the post civil war amendments would have found separate-but-equal constitutional. That is, of course, not to say that they would have found Jim Crow (which was most certainly not equal) constitutional.

I'm just stating a fact about a certain area of constitutional scholarship. I happen to agree with it, but have no desire to delve into the history here. The point is that it is not a marginal position.
10.16.2006 2:06pm
Thales (mail) (www):
"Not quite, Thomas pointed out (correctly IMO) that the Establishment Clause does not protect individual rights; it's a federalism provision which prevents the federal government from trying to establish a national church. If you read his concurring opinion further, you'll note that he states that the Free Exercise clause could be a bar against State coercion to support a church or practice a particular faith. The difference then isn't in whether States can have a taxpayer funded church (an issue unlikely to come up in the foreseeable future) but in things like allowing religious institutions the same access to funding as secular institutions for things like education and voluntarily expressions of faith such as invocations at a high school graduation."

Yes, well, it's pretty clear that Thomas doesn't believe that an individual can sue to vindicate a federal constitutional right against state establishment of religion, because he believes there is no such individual right. And of course the flip side of no national church is no national interference with established state churches (I agree that this is likely the original meaning of the first amendment, prior to its modification by the 14th, but we don't live in 1791, we live post-1868). And Thomas attaches considerably smaller scope than current establishment clause doctrine to where he thinks the free exercise clause might step in to fill the void left by deincorporation to prevent coercive state practices re religiion. So it's a fair reading of his desired doctrine that substantially more direct state entanglement with religion, and established (but not compulsorily supported, and no forced prayer) state churches are allowed absent a state constitutional bar. Why is this an unfair reading of Thomas's views? I think he's pretty open about them.
10.16.2006 2:17pm
OrinKerr:
Witness,

I assume you're not a lawyer, so let me fill you in a bit. Lithwick is confusing two claims: a) Right A would be different in some ways if Justice A had a majority, and b) Right A wouldn't exist at all if Justice A had a majority. The error is that the Justices she has in mind have only suggested changes in the institutional choices as to which parts of government should provide these rights: In some cases, state vs. federal, and in others, legislatures vs. courts. Thus a) may be true in practice, in the sense that a change in institution may mean a lessening in the substantive right, but b) is false. I assume Lithwick knows this, as does Anderson.

I realize that people like to exaggerate claims to make them more powerful: If you really hate a position, you want to make that position seem as evil as possible. But doing so often comes at a cost of accuracy, and I don't know why we have to pretend it doesn't.
10.16.2006 2:18pm
Nephtuli (mail) (www):
I think that many constitutional historians would tell you that there's a very strong case that the framers of the post civil war amendments would have found separate-but-equal constitutional. That is, of course, not to say that they would have found Jim Crow (which was most certainly not equal) constitutional.

Perhaps (although Michael McConnell and Randy Barnett would disagree). But Robert Bork is right that Jim Crow laws would never create separate but equal institutions, so it's a moot point.
10.16.2006 2:28pm
Mark Field (mail):

I think that many constitutional historians would tell you that there's a very strong case that the framers of the post civil war amendments would have found separate-but-equal constitutional. That is, of course, not to say that they would have found Jim Crow (which was most certainly not equal) constitutional.


Yes. In addition, there are very strong arguments that an originalist reading of the 14A would uphold social discrimination such as miscegenation statutes.
10.16.2006 2:30pm
Anonymous Coward xxx:
Rhetoric, anyone? Metaphor? Hyperbole? Does any of this ring a bell?

Criticizing literal interpretations of utterances not meant literally is, it seems to me, the lowest form of the blogging art.
10.16.2006 2:46pm
Nephtuli (mail) (www):
Yes. In addition, there are very strong arguments that an originalist reading of the 14A would uphold social discrimination such as miscegenation statutes.

That's possible, I admit. But Jim Crow? Highly unlikely.
10.16.2006 2:46pm
Anderson (mail) (www):
What are you talking about? That's not just factually inaccurate, it's grossly so.

Kovarsky, I thought that was pretty clearly ironic language on my part, but evidently, not so clear.

I would be happy to become the first and only commenter on this thread to substantiate my position with citations, and think it would be a useful exercise; but it will have to be on a day when I don't have multiple discovery deadlines looming. Should I get around to doing so, I will e-mail the Thomas Report to Prof. Kerr, and post it at my humble blog.
10.16.2006 2:52pm
OrinKerr:
Anonymous Coward xxx:

My claim was that Lithwick's claim was "over the top." It seems very odd for you to criticize me for calling it "over the top" on the ground that it was really just "hyberbole." Um, like, yeah.
10.16.2006 2:54pm
OrinKerr:
That would be great, Anderson. And please see my update to the original post above.
10.16.2006 3:01pm
David M. Nieporent (www):
Thales, I think that's a fair assessment of Thomas's views on the establishment clause (though Scalia has never gone that far, to my knowledge, and even if he believed that this was the correct interpretation, he has always valued (unlike Thomas) stare decisis).

Which would, today, put us about where England is. I always wonder, given the horror with which the ACLU/AUSCS/AfJ crowd view even tiny breaches in the alleged "wall of separation," if they feel religiously oppressed when they visit the British Isles.

Establishment without a strong free exercise clause would be extremely problematic, but neither Scalia nor Thomas has ever questioned that clause.
10.16.2006 3:07pm
Kovarsky (mail):
Anderson,

Kovarsky, I thought that was pretty clearly ironic language on my part, but evidently, not so clear.

Ha, I'm not on these things frequently enough anymore to detect that. My bad, although in my defense I would not make the mistake if completely outlandish claims like that weren't commonplace.
10.16.2006 3:09pm
Witness (mail):
"Witness, I assume you're not a lawyer"

Um, why would you assume that? Was there something particularly unlawyerly about my comment? You asked Anderson to "explain in detail, line by line" the reasons behind his argument, and so I asked you to do the same for yours.

If you could, please "explain in detail" why this request led you to assume that I am not a lawyer.
10.16.2006 3:12pm
OrinKerr:
Witness,

If you want to use your comments to be nasty, please leave comments at another blog. I gave you a thoughtful substantive response to your first snarky comment, and you responded with another snarky comment. I'm afraid that's not how we do things here.
10.16.2006 3:22pm
Anderson (mail) (www):
Okay, I *really* have to get to work, but I felt my "later" comment was a bit lame (or I just really don't want to draft discovery today) ...

The short version would be that Thomas, like Rehnquist before him, doesn't seem to think that the U.S. should be in the rights-enforcing business:
According to the majority opinion in Morrison, Congress may regulate any act which has a "substantial effect" on interstate commerce, a holding with which only Justice Thomas disagrees. This Commerce Power is perhaps the most comprehensive of all powers granted to Congress, and is essential to many civil rights statues. In Katzenbach v. McClung, for example, the Warren Court upheld a federal prohibition on whites-only lunch counters, holding that such discrimination posed significant burdens on "the interstate flow of food and upon the movement on products generally." Without the Substantial Effects Test, the future of this prohibition is uncertain at best.
The same post links to Jack Balkin's criticism of Morrison, which further supports the point. I don't see why this is uncontroversial. Whether Thomas *should* interpret the law that way is certainly controversial -- he is surely lauded for it by many VC posters &commenters -- but that he does so isn't really open to dispute. (Cf. his work at the EEOC, where he didn't even have the excuse of sitting on the judiciary.)

As for privacy (= "Griswold and Roe," presumably), while you may disagree with Lithwick's notion of privacy, it seems uncontroversial that Thomas would roll these back on the same basis as his opinion in Lawrence v. Texas.

Perhaps someone would like to argue (1) that a court of 9 Thomases *wouldn't* see the consequences that Lithwick describes, &explain why she's wrong; or (2) that the Congress and/or the States would surely jump in to correct for the Thomas Court. I look forward to seeing explanations for why we should expect Thomas to support a strong judicial role in protecting the rights of racial minorities, women, workers, the disabled, etc. (Dunno on Thomas &the environment; someone else pick that up.)

(This debate from Legal Affairs on whether "Chief Justice Thomas" would be a good idea, is also worth a look.)

P.S. -- Anyone else having a hard time getting Preview to work?
10.16.2006 3:28pm
OrinKerr:
Oh, and Witness, having now looked up your IP address, I gather you are in fact a lawyer. My apologies for the error: The two most likely choices were that you were a non-lawyer who didn't understand the issues, or a lawyer who was just being obnoxious. I had guessed you were the former, but I now gather that you are the latter. I regret the error.
10.16.2006 3:30pm
Anderson (mail) (www):
Also, I have a hard time seeing how Witness becomes nasty when quoting Prof. Kerr's presumptively non-nasty language. An interesting problem in linguistic theory, no doubt.

Okay, on to the requests for production ...
10.16.2006 3:31pm
Kovarsky (mail):

He says (under the conservative vision) "Any state could, if it wanted to, declare an official state supported religion ..." And then he goes on to say it could pay the salaries of the clergymen, etc.

No one that I am aware of, including Falwell, Scalia, and Thomas have ever proposed something like that. I know of no appreciable conservative movement that wants to establish an official church.

What he argues is the exact thing that almost ALL conservatives agree the constitution doesn't allow.


I think he's probably just making the point that the first amendment is expressly a limitation on congress, rather than government generally. of course incorporation did this theory in as a matter of jurisprudence, but i can see why it drives hardcore textualists crazy.
10.16.2006 3:31pm
AF:
Orin, your "update" appears to assume that Lithwick's phrases -- worker's rights, women's rights, etc. -- refer to a single right which either will or will not exist under a Scalia/Thomas regime. However, Lithwick used the plural form, "rights." Her statements (with one exception) are therefore accurate so long as Scalia and Thomas want to eliminate some, but not necessarily all, of the set of legal rights possessed by worker's, women, and disabled people. This is uncontroversially the case -- in fact it has already happened. Disabled state workers formerly had the legal right to sue their state employer in federal court for violations of Title I of the ADA. They no longer have that right, due to Garrett, in which Scalia and Thomas were in the majority. Women briefly had the legal right to collect civil damages in federal court for sexual violence. They no longer have that right, due to Morrison, in which Scalia and Thomas were in the majority.

The one inaccurate statement is that Scalia and Thomas want to reverse "all" the "progress" that has been made in race and gender equality. That is not true. But it is true that they have eliminated, or wish to eliminate, some of the legal rights of worker's, women, and the disabled (and that they wish to eliminate some laws that are widely known as "environmental protection" laws).
10.16.2006 3:31pm
AF:
Of course, many people of good character agree with Scalia and Thomas believe that certain legal rights possessed by workers, women, and the disabled should be eliminated. That doesn't make it inaccurate to say that Scalia and Thomas want to eliminate them!
10.16.2006 3:35pm
Kovarsky (mail):
Anderson,

Perhaps someone would like to argue (1) that a court of 9 Thomases *wouldn't* see the consequences that Lithwick describes, &explain why she's wrong; or (2) that the Congress and/or the States would surely jump in to correct for the Thomas Court. I look forward to seeing explanations for why we should expect Thomas to support a strong judicial role in protecting the rights of racial minorities, women, workers, the disabled, etc. (Dunno on Thomas &the environment; someone else pick that up.)

See Thomas in Virginia v. Black. I don't think one should generalize from Thomas's positions on affirmative action that he does not care deeply about the plight of racial minorities. In fact, listen to oral argument in Virginia v. Black, and you'll hear one of the few times when a judge may have actually changed a supreme court outcome through the tone of his interaction with counsel.
10.16.2006 3:37pm
Witness (mail):
Orin,

I apologize if my comments came across as "nasty"; that certainly was not my intent.

In my original comment, I was simply trying to point out the snarkiness of your own response to Anderson's comment and urge that what is good for the goose should be good for the gander. If you thought my comment was nothing more than snarkiness, I'm sorry. (But I suspect you wouldn't have taken the time to give me "a thoughtful substantive response" as you say you did if you genuinely thought I was only trying to be "nasty.")

My second comment was not directed at the substance of your response, but rather to your completely unnecessary statement of assumption at the outset of it. I found that statement a bit nasty itself and simply wanted an explanation for your unwarranted assumption.
10.16.2006 3:38pm
OrinKerr:
AF,

That's an interesting interpretation, but under your theory wouldn't Lithwick's comment apply equally to all of the Justices? Each Justice has some kind of law in each of these areas that they think is not permitted in its current form, right?
10.16.2006 3:39pm
Kovarsky (mail):
I'd also point out that Lithwick omitted "habeas corpus" from the list, which might be the "right" most accurately modified by "eliminate." i don't get the feeling lithwick is really a criminal procedure person though, but I do not know for sure.
10.16.2006 3:44pm
AF:
Orin,

It's possible, although I can't off the top of my head think of any worker's rights, women's rights, or environmental protection that the liberal justices want to eliminate.

But it would certainly be accurate to say that under, say, a Breyer regime certain First Amendment rights (eg, the right to exclude gays from your institution, or the right to advertise, or the right to spend as much money as you want on your political campaign) would be eliminated.
10.16.2006 3:46pm
Nephtuli (mail) (www):
I look forward to seeing explanations for why we should expect Thomas to support a strong judicial role in protecting the rights of racial minorities, women, workers, the disabled, etc.

Thomas would not support (as far as I can recall) any laws that discriminate negatively or positively for racial minorities. He doesn't seem to support heightened scrutiny for discrimination against women, workers, or the disabled (of course he's far from the only one on the last two).

Of course that isn't the issue at hand. Lithwick seems to be saying that if Thomas or Scalia ran the Court, these rights wouldn't exist. Which makes about as much sense as saying that if Roe were reversed that abortion would be illegal all across the country.

And vitiating the substantial effects test would only foreclose one option of enforcing rights. Article 4 of the 14th Amendment is still a very viable tool Congress can use (even though Boerne left things muddled). And of course state courts and legislatures could enforce and create rights as well.
10.16.2006 3:47pm
Nephtuli (mail) (www):
Should say Article 5 above.
10.16.2006 3:53pm
SeaLawyer:
This video is the classic MO of the left. Make up a bunch of lies, and try to force other people to refute them point by point instead of talking about any real issues.
10.16.2006 4:04pm
Mark Field (mail):

Article 4 5 of the 14th Amendment is still a very viable tool Congress can use (even though Boerne left things muddled). And of course state courts and legislatures could enforce and create rights as well.


I think the reason for the emphasis on judicial protection of these rights is precisely that the democratic branches failed so spectacularly during the Jim Crow era.
10.16.2006 4:18pm
Mark Field (mail):
To elaborate on my last comment: the judiciary failed pretty badly too, during much of that time. What people remember is that the courts not only seemed to be the first branch to change, but that they were then willing to support Congress against the screams of "unconstitutional" which opposed all the civil rights legislation.
10.16.2006 4:22pm
Nephtuli (mail) (www):
Mark,

I don't understand your argument. The judiciary is a tool that can either protect or fail to protect rights and can choose to protect some rights (right to abortion) while ignoring other rights (private property). The Court is no more institutionally capable of protecting rights than any other branch.
10.16.2006 4:31pm
David M. Nieporent (www):
But it is true that they have eliminated, or wish to eliminate, some of the legal rights of worker's, women, and the disabled (and that they wish to eliminate some laws that are widely known as "environmental protection" laws).
The problem is not that you're not wrong, AF, but that this statement is so broad that it ceases to have any meaning. If we label everything a person can do as a "right," then every judge wants to remove rights. You might as well say that a verdict against a doctor for malpractice "removes the right of doctors to commit malpractice" and striking down a law on Establishment Clause grounds "removes the right of people to have teacher-led prayers in schools" and striking down a law on Free Speech grounds "removes the right of people to censor other people." None of those statements are wrong, precisely, but they're not very useful.


The short version would be that Thomas, like Rehnquist before him, doesn't seem to think that the U.S. should be in the rights-enforcing business:
No; Thomas feels that the federal government (not "the U.S.") doesn't have the power to (not "shouldn't") to compel private businesses how to behave (not "rights.")

He may or may not think state governments ought to forbid private discrimination -- I don't know how libertarian he is. But he definitely thinks that both federal and state governments have the power to, and should, protect rights.
10.16.2006 4:34pm
Kovarsky (mail):
The Court is no more institutionally capable of protecting rights than any other branch.

You probably don't want to make this argument in the context of takings cases since, you know, the government is the defendant with whom the Court sided in that one.

Also, I think you are way-overclaiming here. Obviously the Court is better at protecting at least some rights than are legislators; the constitution was designed that way, and that's part of the reason they have lifetime tenure, etc. I think what you mean to be saying is that Court's are institutionally less capable of making policy, a la the trimester framework in roe. That is probably true. It is also perhaps true that they are no more qualified to create rights than are legislatures. But you are really pushing it when you argue that other institutional bodies are equally effective constitutional interpreters.

And Scalia is actually a champion of equal protection, at least when it involves chads on ballots.
10.16.2006 4:42pm
Kovarsky (mail):
He may or may not think state governments ought to forbid private discrimination -- I don't know how libertarian he is. But he definitely thinks that both federal and state governments have the power to, and should, protect rights.

I believe he's pretty libertarian. For instance, in Lawrence, I believe he wrote separately to underscore how stupid he thought the state law was. There are also other instances where he's said that paternalism can never, ever be the sole basis for a law, even under rational basis scrutiny (i'll look for the opinion where he says this, but i think it's in the telecom fair use cases somewhere).
10.16.2006 4:45pm
Anderson (mail) (www):
No; Thomas feels that the federal government (not "the U.S.") doesn't have the power to (not "shouldn't") to compel private businesses how to behave (not "rights.")

Point to Lithwick.
10.16.2006 4:49pm
Nephtuli (mail) (www):
Well it depends. When state courts take away rights, the federal government can (sometimes) step in and defend those rights. If the federal government takes away rights, the courts are pretty much the only branch that can defend those rights, but they can easily do so by emphasizing that the federal government exceeded its enumerated powers, rather than defending rights. And of course courts could in theory impinge on rights by denying free association or requiring busing.

The courts are clearly in the rights business more than the other branches, but I see no evidence that they'll defend rights better than those other branches.
10.16.2006 4:50pm
Nephtuli (mail) (www):
No; Thomas feels that the federal government (not "the U.S.") doesn't have the power to (not "shouldn't") to compel private businesses how to behave (not "rights.")

Point to Lithwick.


How does that resemble Lithwick's point? Are their no other means of defending minorities, women or the disabled besides Congress or the Supreme Court?
10.16.2006 4:52pm
Nephtuli (mail) (www):
Well it depends. When state courts take away rights...

'courts' should be omitted.
10.16.2006 4:54pm
AF:
David, I use the word "right" as it is ordinary used in law: legal authorization. There is no law authorizing doctors to commit malpractice, so it doesn't make sense to say that an adverse jury verdict deprives them of "rights." School prayer, on the other hand, was legally authorized in some states before it was found unconstitutional. It would be perfectly accurate to say that the Supreme Court eliminated the right to school prayer.

I agree that this is a broad definition -- it means that little is resolved by declaring that someone or other wants to "say goodbye to rights." But only at this level of generality is it possible to say that such a declaration is or isn't "accurate." If you want to accuse someone of making an inaccurate statement -- rather than simply to disagree with the statement on the merits -- you need to have a relatively uncontroversial definition of the words they allegedly misused.
10.16.2006 4:55pm
Kovarsky (mail):
Nephtuli,

I think several posters have taken the time to point out historical examples of where the Courts have been well ahead of the curve on "rights" issues. Brown is the most conspicuous example, but one could also cite Miranda (and other Warren Court Crim Pro cases) and, I'm pretty confident that 50 years from now, people will cite Lawrence (no matter how poor the reasoning of Kennedy's opinion). You might respond by saying "well, those aren't rights." At that point your logic becomes completely circular, and there's no point in responding anyways.

In fact, I want to underscore the criminal procedure point, which is an area where state courts and legislatures are woefully inadequate. The "rights" the Court has identified in that field are absolutely unthinkable in many state courts and legislatures.
10.16.2006 4:58pm
David M. Nieporent (www):
No; Thomas feels that the federal government (not "the U.S.") doesn't have the power to (not "shouldn't") to compel private businesses how to behave (not "rights.")

Point to Lithwick.
Really? Can you point to all the states that currently allow businesses to discriminate by race?

You seem to confuse the claim that if the federal government had not intervened in the 1950s and 1960s, we'd still have segregation, with Lithwick's claim that if the federal government doesn't continue to intervene now, we'll go back to segregation.
10.16.2006 5:03pm
Nephtuli (mail) (www):
I think several posters have taken the time to point out historical examples of where the Courts have been well ahead of the curve on "rights" issues. Brown is the most conspicuous example, but one could also cite Miranda (and other Warren Court Crim Pro cases) and, I'm pretty confident that 50 years from now, people will cite Lawrence (no matter how poor the reasoning of Kennedy's opinion). You might respond by saying "well, those aren't rights." At that point your logic becomes completely circular, and there's no point in responding anyways.

I could point out examples of where they were behind (Dred Scott is a good example). But that's not the point. Sure the courts can sometimes protect rights better than other branches (though I'm not sure why thinking Miranda isn't a right is circular anymore than thinking it is a right is circular). But the wrong judges on the court could deny the elected branches the means to defend rights (imagine a court ruling that the 14th Amendment protects a fetus and you'll know what I mean).

Of course, as AF pointed out before, what is a right is subject to dispute anyway. Did Roe protect the mother's right to abort or deny the fetus the right to not be arbitrary murdered? Saying the courts protect rights is nothing more than saying that the courts defend my personal definition of what is a right.

A more useful task is to decide whether the courts should be in the business of protecting rights against the will of the majority when the text of the Constitution makes no mention of those rights.
10.16.2006 5:06pm
AF:
Nephtuli,

Actually, what is a right is usually not a matter of dispute. What ought to be a right is.
10.16.2006 5:11pm
The General:
the problem with the whole "protecting rights" notion is that too often the liberal justices "invent rights" rather than just "protect" them. In any event, the court should say what the law is, not what they think it ought to be. Scalia's jurisprudence is not designed to produce the correct "conservative" or "liberal" result, but the correct legal one, which distinguishes itself from the other forms of jurisprudence (or lack thereof) wherein justices and judges consider them lawmakers in charge of implementing "justice" i.e., the correct political outcome, instead of the correct legal one.
10.16.2006 5:13pm
Nephtuli (mail) (www):
Ok, get all philosophical on me. :-)

But you know what I mean.
10.16.2006 5:15pm
Mark Field (mail):

The courts are clearly in the rights business more than the other branches, but I see no evidence that they'll defend rights better than those other branches.


Well, here's one reason they might be:

"It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.

There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable...." Federalist 51, emphasis added.

It's certainly arguable that the SCOTUS could fulfill Madison's suggestion of "a will in the community independent of the majority". Not that it always has done so, but it could.


I want to underscore the criminal procedure point, which is an area where state courts and legislatures are woefully inadequate. The "rights" the Court has identified in that field are absolutely unthinkable in many state courts and legislatures.


I'd add decisions like Baker v. Carr and Wesberry v. Sanders to this list. Also, most 1A and EP cases arise out of state restrictions, reinforcing Madison's theoretical point that the individual states would be less likely to protect rights than the national government. Federalist 10.
10.16.2006 5:22pm
Kovarsky (mail):
Nephtuli,

You're point that rights often bump into eachother and therefore require reconciliation is well-taken. The idea that ex-exterminators orchestrating election bids every other year are better suited to do the reconciling than lifetime constitutional scholars is not.

To run with your fetus example, even if the states decide, they too will be sacrificing one alleged right for another. It is extraordinarily inappropriate to frame the institutional competence discussion using roe, which happens to be a particularly unique and polarizing issue.

I again ask you to locate another example. In fact, I gave you the most appropriate one - rights for criminal defendants - because the context for state and federal protection are similar and easily comparable. State instituations do a fantastically horrid job in this area, and the explanation is largely structural - they are elected officials and don't want to seem soft on crime. So it is precisely the structure of article III decisionmaking that makes it more competent to decide those types of cases, because they don't operate against that electoral backdrop.

Finally, Dred Scott was an atrocious decision, but you should think long and hard before claiming that it's a shining historical example of why states should retain authority over adjudication of civil rights.
10.16.2006 5:23pm
Kovarsky (mail):
AF,

Actually, what is a right is usually not a matter of dispute. What ought to be a right is.

What do you mean? Are you making a metaphysics point or an originalist one?
10.16.2006 5:24pm
The General:
Humble Law Student,

Don't forget that to liberals like the professor, the government allowing students to pray or read or possess a bible during school hours is the equivalent of a state legislature passing a law declaring Christianity to be the Official Religion of that state.

In other words, these people can't be taken seriously.
10.16.2006 5:25pm
Mark Field (mail):

A more useful task is to decide whether the courts should be in the business of protecting rights against the will of the majority when the text of the Constitution makes no mention of those rights.


Randy Barnett's work on the 9A provides one answer.

Another is that your premise is wrong, i.e., courts don't actually "protect rights when the text of the Constitution makes no mention of those rights". I would argue that even cases like Roe involve "mentioned" rights (in that case, liberty). I understand that lots of people disagree with this, and I'm not arguing here that I'm right, but your claim about what courts do is not, as you seem to believe, one of uncontested fact, but the very issue in dispute.
10.16.2006 5:29pm
Kovarsky (mail):
I particularly like the job the executive and legislature have done enforcing the Geneva Convention rights:

"The Geneva Convention applies, but nobody shall have a remedy in the event it is violated."

I like to call it anti-bivens legislation.
10.16.2006 5:30pm
AF:
I am talking about the distinction between an existing legal right and an argument for a legal right. For example, we should all be able to agree that there is now a constitutional right to choose an abortion during the first trimester of pregnancy. We are unlikely to agree whether there should be.
10.16.2006 5:32pm
Nephtuli (mail) (www):
You're point that rights often bump into eachother and therefore require reconciliation is well-taken. The idea that ex-exterminators orchestrating election bids every other year are better suited to do the reconciling than lifetime constitutional scholars is not.

I never said that. I merely argued that there was nothing about the courts that made them better at protecting rights than any other branch. In some cases the courts are better and in others the governments are better.

The whole question hinges on what is a right or which rights should be afforded greater weight in a balance. If you think that Miranda is a right, then the courts are better. If you think that the right of the citizens of the state to be safe from criminals, which is the right protected when defendant protections are more minimal, then the Court infringed on rights in the crim pro area during the Warren Court. Almost all laws decrease and increase rights at the same time.

It's certainly arguable that the SCOTUS could fulfill Madison's suggestion of "a will in the community independent of the majority". Not that it always has done so, but it could.

I'm not sure why under the original Constitution every branch but the House wouldn't fulfill that requirement. The Senate and President were not beholden to the majorities or even the voters for that matter.
10.16.2006 5:39pm
Thorley Winston (mail) (www):
The short version would be that Thomas, like Rehnquist before him, doesn't seem to think that the U.S. should be in the rights-enforcing business:


Um no, Thomas' opinion in Morrison was that Congress' power to regulate interstate power gives it the power to . . . regulate interstate commerce and is not a general grant of police powers which are reserved to the States.

The part about being in the "rights-enforcing business" is just you making up stuff that Justice Thomas never said.
10.16.2006 5:40pm
Nephtuli (mail) (www):
Randy Barnett's work on the 9A provides one answer.

Another is that your premise is wrong, i.e., courts don't actually "protect rights when the text of the Constitution makes no mention of those rights". I would argue that even cases like Roe involve "mentioned" rights (in that case, liberty). I understand that lots of people disagree with this, and I'm not arguing here that I'm right, but your claim about what courts do is not, as you seem to believe, one of uncontested fact, but the very issue in dispute.


I agree that it's disputed and the debate is about what is the proper reading of the text (or any legal text for that matter). Of course under your reading of the 14th Amendment pretty much everything could be found in the Constitution (if abortion is liberty, what can't be grounded in some clause in the Constitution?).

And while the 9th is a good place to find unenumerated rights, it is limited, as even Barnett would agree.
10.16.2006 5:42pm
Kovarsky (mail):
i was wondering, why are you guys spending so much time scrutinizing thomas in morrison when his concurrence is 4 sentences long?
10.16.2006 5:44pm
Nephtuli (mail) (www):
I particularly like the job the executive and legislature have done enforcing the Geneva Convention rights:

"The Geneva Convention applies, but nobody shall have a remedy in the event it is violated."

I like to call it anti-bivens legislation.


No but it has done a good job of protecting its citizen's right to not be murdered when a plane crashes into their building. I think that's a right (you might not, but it's all circular anyway)
10.16.2006 5:44pm
Kovarsky (mail):
Nephtuli,

I think you are missing my point. By saying the Geneva conventions apply, they have admitted the existence of a legally created interest (a "right," if you will), but eliminate most channels for enforcing it. That would seem to me to be a quality of an "inferior rights protector."

As for the planes smashing buildings stuff, please refrain from that, it's tacky.
10.16.2006 5:50pm
Nephtuli (mail) (www):
I think you are missing my point. By saying the Geneva conventions apply, they have admitted the existence of a legally created interest (a "right," if you will), but eliminate most channels for enforcing it. That would seem to me to be a quality of an "inferior rights protector."

Perhaps but that's an isolated example. Can you think of another situation where a right is recognized but all there is no redress?

As for the planes smashing buildings stuff, please refrain from that, it's tacky.

OK, I'll speak on a higher level of generality in the future.
10.16.2006 5:54pm
Anderson (mail) (www):
Thorley: read Balkin's NYT op-ed that I linked, okay?

As for this:

Can you point to all the states that currently allow businesses to discriminate by race?

--can you point to all the states that currently outlaw abortion? Oh, wait, that would be very few (SD is making headlines by trying to), **because that would violate Casey and Roe.**

It's like saying that most people don't cheat on their taxes, irrespective of the fact that it's illegal, so it really doesn't matter if the courts won't enforce that law. We can just expect everyone to do the right thing, eh? And *liberals* get called airy idealists ... sheesh.
10.16.2006 6:01pm
Mark Field (mail):

I'm not sure why under the original Constitution every branch but the House wouldn't fulfill that requirement. The Senate and President were not beholden to the majorities or even the voters for that matter.


Madison's argument in Federalist 10 was that there were two potential sources of protection for rights. One, which I emphasized above, was the Court (to be clear, Madison did not necessarily have the Court in mind when he wrote Fed. 10; I'm just noting that the Court might, and in my opinion, does fit his category). The other was the national government, properly structured.

Your reference to the Senate and President separately isn't what Madison had in mind. He had in mind the fact that the national government as a whole represents greater variation than any state within the nation (a statistical truth), and concluded that the greater variation would lead to better protection of rights.

FWIW, the Senate would NOT be a good protector of rights under Madison's "expand the sphere" theory (it might be, I suppose, under his "will independent of the community" theory, though I doubt it). The reason it wouldn't is that representation in the Senate is not proportional. It therefore "contracts the sphere" rather than expanding it. That's why Madison so vehemently opposed the equal representation in the Senate when that issue came up in the Convention.
10.16.2006 6:05pm
David M. Nieporent (www):
For some reason, everyone has turned this into a judicial-vs-legislative debate, even though the Thomas issue is primarily the scope of the Commerce Clause, which is a federal-vs-state debate.

Anderson: I asked a simple question. Can you not answer it? Do you believe that if the Commerce Clause is properly interpreted as it was for more than a century, there are states that will repeal laws against rape (Morrison)? Do you think that states will abolish all environmental laws? Do you think that states will repeal all minimum wage/maximum hour laws? Do you think that states would abolish anti-discrimination laws? (The kind liberals like, I mean -- not ones like the MCRI which liberals hate because they would actually require full nondiscrimination.)

Other than abortion, which yes, some states would outlaw, can you identify the substantive rights people would lose if Thomas's view of the Constitution were adopted?
10.16.2006 6:18pm
Kovarsky (mail):
David,

As I think I have said several times,

C-R-I-M-I-N-A-L P-R-O-C-E-D-U-R-E.

Everyone who has taken your position keeps ignoring this particular example, and I'm not sure why other than it kind of short-circuits your model.
10.16.2006 6:27pm
chris s (mail):
Anderson, do you truly believe that but for the S Ct states would leap to re-segregate or to permit racial discrimination? You accused someone early in this thread of being ignorant of 150 years of US history, but you seem blind to the past 50.

AF, I think your 230 comment gives a fair critique of the import of Scalia and Thomas' views. but Lithwick said that if those 2 succeeded, the nation could 'say goodbye' to everything good and right. this is nonsense, as orin says and as your prior post seems to concede. maybe this sort of stuff whips up the true believers, but to anyone not already sold it makes her sound hysterical and untrustworthy.
10.16.2006 6:37pm
Nephtuli (mail) (www):
As I think I have said several times,

C-R-I-M-I-N-A-L P-R-O-C-E-D-U-R-E.

Everyone who has taken your position keeps ignoring this particular example, and I'm not sure why other than it kind of short-circuits your model.


Simple, because even if it is true, it's irrelevant to the discussion, which was Lithwick's examples.

No one disagrees that some policies that you identify as rights would be curtailed if the SC left crim pro to the states. But would the end of world scenario envisioned by Lithwick come to rise? I doubt it.
10.16.2006 6:38pm
Kovarsky (mail):
But would the end of world scenario envisioned by Lithwick come to rise? I doubt it.

That's a fairly cavalier attitude to take towards constitutional mandated procedural safeguards in, say, death penalty cases. I sense that you guys regard this as "irrelevant" because it doesn't fit neatly with your roe model of institutional parity. You guys asked for an example and got one.

And I'm not defending the Lithwick scenario. I'm disputing the idea that states are institutions are equally effective guarantors of rights.
10.16.2006 6:44pm
Kovarsky (mail):
Anderson, do you truly believe that but for the S Ct states would leap to re-segregate or to permit racial discrimination? You accused someone early in this thread of being ignorant of 150 years of US history, but you seem blind to the past 50.

no, but you'd have the end of affirmative action and the re-institution of race-based gerrymandering, for starters. that would be enough to get a lot of people's blood boiling.
10.16.2006 6:46pm
Nephtuli (mail) (www):
That's a fairly cavalier attitude to take towards constitutional mandated procedural safeguards in, say, death penalty cases. I sense that you guys regard this as "irrelevant" because it doesn't fit neatly with your roe model of institutional parity. You guys asked for an example and got one.

Huh? I'm making a simple point. Lithwick's view that the world would fall apart if Thomas and Scalia's views took hold is wrong.
10.16.2006 6:55pm
Anderson (mail) (www):
Anderson, do you truly believe that but for the S Ct states would leap to re-segregate or to permit racial discrimination?

All at once? No. But we're not talking either/or here. You refuse to recognize the implications of existing rights where new issues arise. You make it more difficult to enforce existing rights. Soon, whether or not you have rights "on paper" doesn't matter.

Take an example from the U.S. Congress, repealing the provision for recovering atty's fees in some First Amendment cases. That will have a HUGE deterrent effect on legitimate cases. Are we to think the states would show greater discretion? Some would, some most definitely would not.

Anderson: I asked a simple question. Can you not answer it?

Oh, a *simple* question. Must've overlooked that.

Do you believe that if the Commerce Clause is properly interpreted as it was for more than a century, there are states that will repeal laws against rape (Morrison)?

Sure you didn't mean "silly"? See the foregoing part of the comment. The whole point of the VAWA and the Morrison case was the frequent reluctance, documented in the Congressional findings IIRC, of states to enforce the laws on the books.

Murder is illegal in many countries where "honor killings" of women are often perpetrated with little or no legal penalty. Whether or not laws are on the books matters little, where the courts won't apply them, or seek every excuse to avoid them (ex. A, the Civil Rights Cases).

Like I said: it's uncontroversial what a Court o' Thomases would do; the controversy is whether it's a splendid idea or not.
10.16.2006 6:56pm
magoo (mail):
It is amusing that the video credits Professor Dawn Johnson with having "exposed" secret documents (OLP reports) that outline the radical right's legal agenda. OLP sent those reports to law schools, editorial boards, and constitutional scholars across the country. No wonder Johnson was able to unearth those secret reports.

PS -- How many states does a Republican President have to win to insulate himself from the charge of being an ultra-conservative radical?
10.16.2006 6:56pm
Nephtuli (mail) (www):
no, but you'd have the end of affirmative action and the re-institution of race-based gerrymandering, for starters. that would be enough to get a lot of people's blood boiling.

No, you would have the end of government run affirmative action and possible reinstitution of race-based gerrymanering. Not the same thing.
10.16.2006 6:56pm
JRL:

But would the end of world scenario envisioned by Lithwick come to rise? I doubt it.


I doubt it too. But I would like the opportunity to gather some empirical evidence of Lithwick's claims, if you know what I mean.
10.16.2006 6:57pm
Nephtuli (mail) (www):
Sure you didn't mean "silly"? See the foregoing part of the comment. The whole point of the VAWA and the Morrison case was the frequent reluctance, documented in the Congressional findings IIRC, of states to enforce the laws on the books.

Murder is illegal in many countries where "honor killings" of women are often perpetrated with little or no legal penalty. Whether or not laws are on the books matters little, where the courts won't apply them, or seek every excuse to avoid them (ex. A, the Civil Rights Cases).


How does the presence of the Court change that? The Court can't force the executive branch to enforce any law (at least more of the time). What happened then is that the federal government picked up the slack. That had nothing to do with the courts.

The only way to ensure law enforcement is to pick an executive leader who wishes to enforce those laws. If states want their rape laws enforced, they need to pick an executive branch that will do that. There's no value in bringing the courts into it.
10.16.2006 7:03pm
Nephtuli (mail) (www):
Murder is illegal in many countries where "honor killings" of women are often perpetrated with little or no legal penalty.

As an aside, IIRC correcly many countries with honor killings have such exceptions in their murder laws.
10.16.2006 7:04pm
Kovarsky (mail):
Huh? I'm making a simple point. Lithwick's view that the world would fall apart if Thomas and Scalia's views took hold is wrong.

I'm not sure why you keep saying that. My point, with respect to the crim pro stuff, was a response to the developing position in this thread that state institutions were equally effective guarantors of rights. I can't stand listening to every constitutional discussion framed in terms of roe, and so I provided an alternative field of legislation/decisional law in which the Court and the States both operate. I then compared them. That's all, I did not mean to claim the world was going to end, and I don't think I did. I do have a problem with the idea that this is somehow "no big deal." It's every bit as important as those other areas of jurisprudence.

I doubt it too. But I would like the opportunity to gather some empirical evidence of Lithwick's claims, if you know what I mean.

PS -- How many states does a Republican President have to win to insulate himself from the charge of being an ultra-conservative radical?

Huh? That area is an attempt to provide some empirical evidence, since criminal procedure is a unique jurisprudence where federal courts review the constitutionality of state procedure only after states get to try it first.

Take an example from the U.S. Congress, repealing the provision for recovering atty's fees in some First Amendment cases. That will have a HUGE deterrent effect on legitimate cases.

Can I get a cite on that, for my own benefit? Is it an outright repeal, or just a change in the standard?
10.16.2006 7:12pm
Anderson (mail) (www):
Kovarski: Here's a press release thingie:

A new House bill could greatly undermine the constitutional firewall between religion and government, according to civil rights groups.

Congress is currently considering H.R. 2679, the "Veterans' Memorials, Boy Scouts, Public Seals, and Other Public Expressions of Religion Protection Act of 2006." This bill aims to prevent parties that bring up cases under the Establishment Clause from being awarded attorney's fees, making such cases less likely.


I hedged w/ "First Amendment" b/c I couldn't recall whether it was Establishment or Free Exercise that was targeted.

Tht title of the bill alone is a hoot, though somewhat less so when you realize that they don't mean seals, the bewhiskered, blubbery mammals.
10.16.2006 7:18pm
Kovarsky (mail):
i obviously pasted this inadvertantly into my last post:

PS -- How many states does a Republican President have to win to insulate himself from the charge of being an ultra-conservative radical?
10.16.2006 7:22pm
Kovarsky (mail):
Anderson,

Wow, that's bizarre. That will be nice. The establishment clause will be the only constitutional claim with taxpayer standing, so that everyone can sue, and no attorneys fee awards, so that nobody will want to.

That is a strange piece of legislation. Is it stalled somewhere?
10.16.2006 7:28pm
Anderson (mail) (www):
Is it stalled somewhere?

I'd have to check Thomas, but I am late for my dad-in-law's b-day party ... used to be we'd say "oh the Senate will stop it," but I used to think that way about, you know, TORTURE and stuff, so who really knows any more.
10.16.2006 7:36pm
Mark Field (mail):

No, you would have the end of government run affirmative action


I wouldn't be too sure of this. A very good historical argument can be made that the original understanding of the 14A permitted what we'd now call affirmative action.
10.16.2006 9:01pm
Nephtuli (mail) (www):
I'm not sure why you keep saying that.

Well, because it's the topic of the thread, because it's correct, and because no one has disproven it.

The fact that criminals would be afforded less protections isn't the point, since as you correctly noted what constitutes a right is subject to dispute. Do people have a "right" to have their rights read to them or is that requirement merely a judically created prophylactic measure to ensure that criminals are protected? Reasonable minds can disagree. One can justifiably argue that Miranda created protections that infringe on the rights of innocents.
10.16.2006 9:31pm
Average Joe (mail):
All of you have obviously missed the main point of this post, so I guess that I need to comment on it:
Holy Cow! Nan Aron is Orin Kerr's cousin.
10.16.2006 11:49pm
Average Joe (mail):
And, I also must add, does this mean that we lost a potentially brilliant engineering mind to family occupational tradition?
10.16.2006 11:51pm
Eli Rabett (www):
The world is falling apart

George W. Bush is President

Clarence Thomas believes that everything George W. Bush does is wonderful

If there were nine Clarence Thomases on the Supreme Court the world would fall apart faster.

QED
10.17.2006 10:27am
Elais:

Of course that isn't the issue at hand. Lithwick seems to be saying that if Thomas or Scalia ran the Court, these rights wouldn't exist. Which makes about as much sense as saying that if Roe were reversed that abortion would be illegal all across the country.



I believe Lithwick is correct.

If Roe were reversed, abortion would be easily illegal all across the country. Not every state would let abortion remain legal, but I'm pretty confident most states across the country would make it illegal.
10.17.2006 10:27am
Nephtuli (mail) (www):
If Roe were reversed, abortion would be easily illegal all across the country. Not every state would let abortion remain legal, but I'm pretty confident most states across the country would make it illegal.

No, abortion would be restricted in many states. How many states would ban abortion in all circumstances?

Yes, I can nitpick too.
10.17.2006 10:31am
chris s (mail):
so we've moved from Lithwick's prophecy of the end of laws vs racial discrimination to cautious predictions that govt mandated aff action might be curtailed. those are two very diff things. and many people believe that laws vs racial disc dictate that the govt shouldn't engage in racial preferences.

I will concede that the commenters here make a far better case vs Scalia and Thomas than Lithwick ever manages to build.
10.17.2006 10:31am
magoo (mail):
Having now watched the entire video, my vote for the most over-the-top comment goes to Prof. Sunstein's assertion that originalism is a "lie."

For a more edifying conversation on originalism, I recommend the exchange between ACLU President Nadine Strossen and Justice Scalia, available at cspan.org
10.17.2006 11:06am
TDPerkins (mail):
In response to this quote:

"nobody is going to reinstitute Jim Crow. (And if they did, Thomas would still strike it down, because he doesn't think the fourteenth amendment allows that.)"


Mark Field wrote:

So the defense of Thomas is that he's a pick-and-choose originalist?


In that case at least, he'd be a "correctly apply" originalist.

Yours, TDP, ml, msl, &pfpp
10.17.2006 12:18pm
TDPerkins (mail):
Kovarsky wrote:

no, but you'd have the end of affirmative action and the re-institution of race-based gerrymandering


Affirmative action as quota should be ended, it's unconstituional. Race based gerrymendering is already enforced by the federal courts, to create districts in which minorities are majorities*.

*That crime against humanity may have been eliminated.

Yours, TDP, ml, msl, &pfpp
10.17.2006 12:47pm
Kovarsky (mail):
TDPerkins,

Racial gerrymandering is unconstitutional. 1993 decision, can't remember the name. You might be thinking of the 2001 north carolina case, which said a political gerrymander is ok even if the correlation with race is overwhelming, as long as race wasn't the motivation.
10.17.2006 1:45pm
Friedrich Foresight (mail):
Finally worked out how to load and play the video. The unintentional irony factor is indeed quite high. I'd almost think it was a parody put together by Iowahawk.

The highlights would have to be (I'm quoting/ paraphrasing slightly):

[1] "The Radical Right will overturn abortion rights and gay rights! It all began with the notorious far-Right extremofascist Barry Goldwater in 1964..." Uh, yeah, and go Google what Barry Goldwater himself actually thinks about abortion rights and gay rights, huh?

[2] "Our Founders distrusted government, because they knew what tyranny was like! We need to preserve their, uh... their commitment to FDR's New Deal economic policies!"

[3] "These radical judges might issue far-reaching judgments overturning decades of settled expectations! Why, they might even overturn Roe v Wade! They want to legislate their unpopular agenda from the bench without informing the American people in advance!"

Indeed, a pretty funny satire of the "The US Constitution requires judicial activism whenever that favours the political causes I support, and demands expanded legislative power whenever that favours the political causes I support" mentality."

Using background music from Dune II: Battle for Arrakis to get the required ominous sound, just ices the cake.
10.20.2006 4:07am