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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 orinkerr.com)
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Lithwick on Coulter on Kennedy:

I think Orin's take on Slate's Dahlia Lithwick is quite right, both on the positive and on the negative. One other item from her column I noticed:

And an excerpt from the new book by Ann Coulter's breasts suggests that he is somehow responsible for the ban on prayer in public schools.

Now I've disagreed with a great deal of what Ann Coulter has said (though I generally try not to bring up her breasts in the process). But I don't quite see the aptness of Lithwick's criticism. Here's the linked-to paragraph from Ann Coulter's column, which is also the only mention of Justice Kennedy in that column:

Among the things the Supreme Court has held "unconstitutional" are prayer in public schools, moments of silence in public schools (which the Court cleverly recognized as an invidious invitation to engage in "silent prayer"), and displays of the Ten Commandments in public schools. In 1992, the Court ruled it "unconstitutional" for a Reform rabbi to give a nonsectarian invocation at a high school graduation ceremony on the perfectly plausible grounds that Rhode Island was trying to establish Reform Judaism as the official state religion. (Opinion by Justice Anthony Kennedy.)

Ann Coulter starts out by talking about the school prayer cases and some other cases. Then she moves on to talk about the graduation prayer case, and correctly notes that this case was written by Justice Kennedy. Coulter is certainly faulting Justice Kennedy's position on graduation prayer, but for the life of me I can't see how she's "suggest[ing] that [Justice Kennedy] is somehow responsible for the ban on prayer in public schools."

Lithwick's work is always very readable, and sometimes quite incisive. But at times she seems to write with less care than the subject deserves, and with not enough attention to possible weaknesses in her argument.

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One Last Thought About Lithwick's Column: I'm glad to see that Eugene and I are on the same page on the issue of Lithwick's writing. While we're on the topic I thought I would add one more oddity about her latest column: the ending. Here it is:
Clearly, critics on the right are hoping to nudge the justice back into the fold with all the unremitting scorn and abuse. Note to Ann Coulter's breasts: It's not working.
  Again, this is very zippy. It also sneaks in another mention of Ann Coulter's breasts, which creates the impression (among other things) of a connection between the end and beginning of the piece.

  There's just one problem: Lithwick knows that her statement is false. It is rather hard to believe that Ann Coulter, Tom Parker, and the Wall Street Journal editorial page have unleashed their "unremitting scorn and abuse" against Justice Kennedy with the subjective intent of "nudging" him to vote in a way that they like. Indeed, the entire point of Lithwick's column is that conservatives have an irrational instinct to lash out and blame Kennedy for everything, no matter what he does. If that's right, it makes no sense to suggest in the last paragraph that this irrational lashing out is actually an effort to persuade Justice Kennedy to change his votes. Still, the conclusion makes conservatives look silly and mentions breasts. So it stays in.

  Anyway, I hope I'm not being too critical. I have enjoyed Lithwick's writing a great deal in the past, and I know she can be very sharp. But I think a little less zing and a little more effort to be accurate and true would improve her columns considerably.

Related Posts (on one page):

  1. One Last Thought About Lithwick's Column:
  2. Lithwick on Coulter on Kennedy:
  3. Dahlia Lithwick on Conservatives:
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