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Monday, June 30, 2003

[Will, 10:32 PM]
Marriage:

The Hoosier Review has just discovered what we've known for quite some time.

[Will, 10:05 PM]
Richard Posner:

[Full Disclosure: I worked for Judge Richard Posner for two school years, and I'm therefore not even close to objective in the following post]

(via How Appealing) The Economist reviews the latest book by Judge Posner (next up is a book on the economics of intellectual property). The review is too short to quote it at length, but they call The Judge "loony," "incoheren(t)," and "inappropriate."

As I understand them, the objections to Judge Posner and his work are that he advocates unconventional things (like bringing market forces to bear in the adoptions market), that his description of "everyday pragmatism" is hard to understand, and that he blatantly propounds what most Judges keep under wraps.

I won't much deal with the charge that his system of pragmatism makes little sense. The Judge explains it in several of his books and a blog post can hardly do it justice. As to the claim that he is "loony," it seems that there's little substance to this. I haven't yet heard a good argument for why we shouldn't introduce market forces to the abortion black market, or heard an explanation for why his suggestion about high heels is wrong, let alone loony. The Economist's conservative bent has accidentally led it to assume that the unusual must also be the incorrect.

And what about the final charge, that a "senior judge" (as The Economist calls him, not a Judge on senior status) ought not dare say such things? Leaving aside the point that the Supreme Court has decided that Judges have pretty extensive free speech rights, I think The Economist is making the same "noble lie" argument that we've discussed earlier in another context.

But obviously there's no particular reason this should be so. If it is the case that "Many judges do this (judicial activism), though nearly all deny it," then why should a public academic (which Judge Posner is) refuse to cast a stone merely because he stands among the accused?

All of this summons up the broader question-- if Judges are going to bring outside policy preferences and judgments to bear in their legal decision-making, should they do so blatantly or without admitting it? While The Economist thinks such legal smuggling should be kept under wraps, I heartily disagree. Many Judges (although thankfully not Judge Posner) are not particularly literate in complex policy arguments. Because of this, their own intuitions (or the intuitions of their clerks) may well lead them to incorrect or hasty policy judgments. (One example is the host of people chomping at the bit to remove First Amendment protection to Virtual Child Pornography, without consideration of whether Virtual Child Pornography and Child Abuse are substitute or complement goods).

If Judges are going to bring policy analysis to bear, then I think parties ought to be given fair notice that they ought to brief and argue the policy analysis. (And while the Seventh Circuit doesn't announce panels in advance, as I've discussed before, lawyers arguing before Judge Posner usually know that they may be called upon to delve into policy).

The only major risk of this frank discussion that I can see is that it might make it even harder to turn back to purely textual analysis (if ever that was done) from personal and policy analysis. But for reasons I'll make clear at a later, more thoughtful post, I think textualism(a slightly inaccurate shorthand for keeping one's own views out of the Constitution) is never an equilibrium strategy without independently believed norms.

All of which is to say, while I usually like The Economist, I'm a little surprised at how thoughtless the criticisms are. Usually, thoughtless responses to Law-and-Economists come from those with a lot of Law training and very little Economics training. I only assume that's not the case at The Economist, but in that case I'm at a loss for the true explanation.

(and incidentally, here is a link to Judge Posner's Aimster opinion released today.

[Will, 9:35 PM]
Collapse:

Cold Springs Shops wants commentary on the Chicago porch collapse. But I don't really have much to say. Of course it's a tragedy when partying people do things unwise. And it's a much bigger tragedy when those who aren't doing anything wrong get crushed by the fallout from their neighbors. I know nothing about tort law, but my instinct is that a series of lawsuits apportions blame properly (is the porch designed to specification? were its specifications clear? were the people below on fair notice about this sort of thing? etc.).

So, yes, this is tragic. That's really all I have to say. I don't know any of the poor souls who died.

[Will, 9:32 PM]
My kind of guy:

Robin Hanson, at GMU, makes some interesting guesses about the future.

[Will, 9:06 PM]
Blegging:

Incidentally if anybody knows of a more definitive source on theater and music in D.C. than the Washington Post, please sent your suggestion along. Specifically, I'm looking for a way to find out about any showings of Stoppard plays, Turandot, or RENT. In a few months I'm going to be looking for similar suggestions for England.

[Will, 8:58 PM]
Thomas five:

Another defense of Clarence Thomas...

Incidentally has anybody noticed the tactic many bloggers use (from Instapundit to Jon Ryan Quinn) of providing a link with a tantalizing name, but refusing to explain what lies beneath? Is this a shabby ploy for getting people to click to one's linkees thereby making one's links more valuable?

[Will, 8:56 PM]
Shabby Criticism:

Another 1-L is a great blog (even if he's no longer a 1-L) but his brief shot at Scalia's dissent in Lawrence v. Texas misses the mark. He writes:
Justice Scalia's dissent in Lawrence v. Texas is a fascinating exercise in logical deduction: If A then B; not B; therefore not A. If the Court strikes down a ban on sodomy, then "[s]tate laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity" have to go too. (539 U.S. __, slip op. at 5 (2003) (Scalia, J., dissenting)). Since we like those laws (and this is the part that is merely implicit in Scalia's opinion), we have to uphold laws against sodomy too.

The problem with that, of course, is in that last step: it's not at all clear why we should uphold laws against any of those things.

But this takes Justice Scalia ought of context. The parade of horribles he quotes isn't just in some passage about how Lawrence destroys the fabric of society, rather, he's challenging the claim Justice Kennedy makes that Bowers caused no "societal reliance." What words surround the parade of horribles that 1-L extracts? Scalia writes:
(3) That leaves, to distinguish the rock-solid, unamendable disposition of Roe from the readily overrulable Bowers, only the third factor. “[T]here has been,” the Court says, “no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding . . . .” Ante, at 16. It seems to me that the “societal reliance” on the principles confirmed in Bowers and discarded today has been overwhelming. Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is “immoral and unacceptable” constitutes a rational basis for regulation. See, e.g., Williams v. Pryor, 240 F. 3d 944, 949 (CA11 2001) (citing Bowers in upholding Alabama’s prohibition on the sale of sex toys on the ground that “[t]he crafting and safeguarding of public morality . . . indisputably is a legitimate government interest under rational basis scrutiny”); Milner v. Apfel, 148 F. 3d 812, 814 (CA7 1998) (citing Bowers for the proposition that “[l]egislatures are permitted to legislate with regard to morality . . . rather than confined to preventing demonstrable harms”); Holmes v. California
Army National Guard 124 F. 3d 1126, 1136 (CA9 1997) (relying on Bowers in upholding the federal statute and regulations banning from military service those who engage in homosexual conduct); Owens v. State, 352 Md. 663,
683, 724 A. 2d 43, 53 (1999) (relying on Bowers in holding that “a person has no constitutional right to engage in
sexual intercourse, at least outside of marriage”); Sherman v. Henry, 928 S. W. 2d 464, 469–473 (Tex. 1996) (relying on Bowers in rejecting a claimed constitutional right to commit adultery). We ourselves relied extensively on Bowers when we concluded, in Barnes v. Glen Theatre, Inc., 501 U. S. 560, 569 (1991), that Indiana’s public indecency statute furthered “a substantial government interest in protecting order and morality,” ibid., (plurality opinion); see also id., at 575 (SCALIA, J., concurring in judgment). State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 11 (noting “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex” (emphasis added)). The impossibility of distinguishing homosexuality from other traditional “morals” offenses is precisely why Bowers rejected the rational-basis challenge. “The law,” it said, “is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.” 478 U. S., at 196.2

In other words, Scalia isn't parading the horribles out there on the assumption that people will say "oh well, I was pro-homosexual, but if the masturbation law has to go, never mind." Rather, he's debunking the only thing that Kennedy does to set Lawrence apart from Roe, which is the notion of individual/societal reliance.

Incidentally, Kennedy would have been wiser to simply refer to "individual reliance," which Bowers has not particularly engendered. What underlies the difference between Roe and Casey, I think, is that the court treats a past opinion different depending on whether it guaranteed a constitutional right to the people or struck it down. There are various arguments about whether this distinction makes sense, but I do think it's the distinction that goes on in the minds of those who cheer both Casey and Lawrence.

[Will, 8:35 PM]
A new find:

Stanley Fish stands up for Clarence Thomas, then challenges the idea that neutral ahistorical principles ought to govern the judicial review the court makes. Without meaning to discuss the idea of whether a court's analysis of criminal trials or statutory interpretation ought to be changed with the time, if the Constitution wasn't meant to express transcendant principles that would constrain future generations, why did they bother to write the darn thing down?

[Amanda Butler, 3:19 PM]
Sitemeter stalking:

It's such a useful tool. From what domains do our visitors come? 18% miscellaneous, 13% U Chicago, 5% uscourts.gov, and a special welcome to our visitor from harley-davidson.com.

[Will, 9:54 AM]
The (Court's) Year in (Brief) Review:

So what were the "most important" majority opinions that each side got to write? Scalia and Thomas were of course foreclosed from most of the goodies at the end of the term, and must have spent a sizable portion of their time on the dissents in Lawrence and Grutter respectively. But for the year?

The Chief Justice wrote majority opinion in Gratz v. Bollinger, Nevada Dept. of Human Resources v. Hibbs, Connecticut Dept. of Public Safety v. Doe, Scheidler v. NOW, and the plurality in United States v. American Library Association; Ginsburg got Eldred v. Ashcroft, Thomas wrote Chavez v. Martinez, Stevens wrote Moseley v. Victoria's Secret; Kennedy, of course, got Lawrence v. Texas as well as Smith v. Doe, and O'Connor (who wrote no dissenting opinions at all) wrote majority opinions in Ewing v. California and Lockyer v. Andrade as well as earning her race creds in Georgia v. Ashcroft, Virginia v. Black, and Grutter v. Bollinger.

And what were the most important opinions for Scalia, Breyer, and Souter? Well, Scalia got FCC v. Nextwave Communications , and Breyer got Stogner v. California . . . . . . Any thoughts are welcome.

And obviously, I don't have legal training, so the "importance" of cases noted above is pretty much a reflection of whether I thought they were interesting enough to read, or whether the corner of the law-blogosphere I read much thought them worthy of a lot of commentary. Suggestions are welcome.

UPDATE:
Ask and ye shall receive. An Article III employee who wishes to remain anonymous has sent along some suggestions. He suggests Jinks v. Richland County and Dastar v. Twentieth Century Fox for Scalia (the latter particularly for Lessig fans). He also offers Sell v. U.S. (about forced medication) for Breyer, confirming my own intuition, and FEC v. Beaumont for Souter. Finally, he points out my own personal favorite sleeper case of the year, Justice Stevens's opinion in Brown v. Legal Foundation of Washington, a fascinating case on the takings clause (okay, fascinating so far as weird takings cases go....). My previous post on Brown v LFW is available here, as well as choice quotes from Scalia including the "(hurrah!) legal services for the indigent . . ." line.

[Will, 8:41 AM]
Uh-Oh:

My LSAT score has just been emailed to me by the LSAC. I'm normally of the "better off knowing" school, but currently trying to get up the nerve to look.

Sunday, June 29, 2003

[Will, 10:51 PM]
God:

The deeper point of Thomas Friedman's latest is his usual "we're all connected" bit (a bit I agree with, by the way). But in the interim he questions whether Google is God.

The answer, of course, is no (you're shocked, I know). While Google certainly is omnipresent and sees all, it isn't yet all-powerful not does it punish the good and reward the evil, or vice versa. For that you'd need to add Microsoft...

[Will, 10:46 PM]
Gadflies:

Le Taon notes a study reported in the New York Times predicting that in 2050, the U.S.'s median age will be 35 while Europe's will be 52. Now I know as a mathematical economist I'm supposed to be a big believer in models and all, but color me really darn skeptical. Forty-seven years is a long time, and the prediction therefore amounts to a guess about what immigration policies and child-bearing proclivities today's European five-year-olds will have. But the first person to resurrect this post in 47 years if I'm wrong gets $100 (not adjusted for inflation).

[Will, 9:24 PM]
Lawrence, Once More:

If you read only one piece of commentary on Lawrence v. Texas, read Jacob Levy's politics-and-not-law post at the Volokh Conspiracy. I think it may be the first piece that might satisfy Jeff Wall. (A brief and not particularly noteworthy excerpt):
The National Review- Clarence Thomas position-- that Lawrence represents judicial overreach in its abolition of a law that should be abolished-- is intellectually coherent, consistent, and admirable. It is also not the stuff of political energy.

As somebody with both Libertarian and originalist sympathies, I can certainly say that Professor Levy's observations describe my own feelings of the past few days. I never would have thought that the most Libertarian-sounding Supreme Court opinion in years would leave me feeling so enervated.

[Will, 9:01 PM]
Uniqueness:

Compare and Contrast: Justice Scalia's 1996 dissent in the VMI admissions case
the Court creates the illusion that government officials in some future case will have a clear shot at justifying some sort of single sex public education. Indeed, the Court seeks to create even a greater illusion than that: It purports to have said nothing of relevance to other public schools at all. "We address specifically and only an educational opportunity recognized . . . as `unique' . . . ." Ante, at 16, n. 7.
The Supreme Court of the United States does not sit to announce "unique" dispositions. Its principal function is to establish precedent--that is, to set forth principles of law that every court in America must follow. As we said only this Term, we expect both ourselves and lower courts to adhere to the "rationale upon which the Court based the results of its earlier decisions."

with Chief Justice Rehnquist's 2000 concurrence (jonied by Scalia) in Bush v. Gore
We deal here not with an ordinary election, but with an election for the President of the United States. In Burroughs v. United States, 290 U.S. 534, 545 (1934), we said:
“While presidential electors are not officers or agents of the federal government (In re Green, 134 U.S. 377, 379), they exercise federal functions under, and discharge duties in virtue of authority conferred by, the Constitution of the United States. The President is vested with the executive power of the nation. The importance of his election and the vital character of its relationship to and effect upon the welfare and safety of the whole people cannot be too strongly stated.”

[Will, 2:28 AM]
Dowd Redux:

Not content to launch just dumb attacks at Justice Thomas, Maureen Dowd is back, this time taking up aim at "Nino". I don't believe in symbolic de-linking (the net is about the spread of argument, both good and bad). But I don't remember Maureen Dowd ever making me this mad before. It's one thing to think that the Constitution embodies principles of inchoate liberty and that it doesn't demand complete race-blindness. These are legitimately debatable points, and the Court and the country debate them. But she's just plain mean, and not particularly convincing, (and I didn't even think it was funny).

Have I gotten curmudgeonly, or has she gotten less amusing?

[Will, 2:15 AM]
Rhetoric:

Later this summer the Koch Fellows have to attend a lecture called "Campaign Finance Reform or Citizen Speech Regulation?" Why do I feel like I know what their answer will be?

[Will, 2:13 AM]
Radio Silence:

Sorry for the light posting tonight. I've been wandering almost directionlessly around the Lincoln Memorial with the Diotima girls. But all exciting discoveries are going to stay off the record.

Saturday, June 28, 2003

[Will, 1:02 PM]
Oh Glories:

Dennis Hutchinson, my First Amendment instructor, Rhodes Scholar, two-time Supreme Court clerk, and all-round amazing guy, has a review of Sandra Day O'Connor's book: The Majesty of the Law in the New York Times.

The Magazine also features a very strange article about Atlas Shrugged and Bridge. It's not quite as weird as all of those "Jesus as CEO" books, but disturbingly close.

[Will, 12:49 PM]
Secession:

Sara Butler asked me last night whether or not the South had a constitutional right to concede. (Well, actually she recounted her Heritage Fellows asking Clarence Thomas that question on Thursday). Well, Timothy Sandefur has an answer.

[Will, 11:10 AM]
Morality and Law:

As Andrew Sullivan (among others) points out, it seems unsatisfactory to let "morality" satisfy as a justification for a law. (Sullivan doesn't make the argument, which I've heard before, that morality should only count as a justification when the "moral" judgment is supported by the weight of history.)

Some things to think about: the test that a law is supposed to undergo when it "burdens liberty" or "unequally affects a class of people" is called the rational-basis test. This test is supposed to be a fairly easy bar to pass, because every law burdens libery and unequally affects a class of people (Within Lawrence's definition). Anybody punished by the law has had their liberty to do whatever the law forbids burdened. Anybody particularly likely to engage in the conduct named by the law is unequally affected.

As many have noted, allowing "moral reasons" to satisfy the rational basis test eviscerates it, because one can always put forth a "moral basis" for the law. "Our people don't like X, so they passed a law forbidding it. They think X is immoral. Thus, the law."

But what people fail to recognize, I think, is that pretty much the only reasons available for a law are fundamentally moral ones. Why do we think it's rational to stop marijuana use? Because we think marijuana use is too harmful to those who do it, or leads to societal breakdown, or whatever. But what are those judgments? Normative expressions of societal morality.

Why is pedophilia forbidden? Because it's immoral to engage in non-consensual sexual acts, and children are defined, by the state, as being morally incapable of consent. What about anti-discrimination laws? Again, a moral judgment about discrimination. The progressive income tax? A moral judgment about inequality of wealth. All laws are passed to do something. But the decision about whether that "something" is good or bad is always a purely normative one, and therefore a moral one.

Of course, the court won't take things like this. It means that when the morality is nearly unanimous, it's a good enough rational basis (murder is bad; theft is bad; rape is bad; drug abuse is bad; intolerance of homosexuals is bad) but when not . . . not. But ask yourself how the court will know (without a history analysis) when a moral reason is an impermissible moral reason and when it isn't? Now, if I were in the majority, I would encourage them to adopt a test that said that doing things directly to people without their consent counted as rational harms to prevent (thus the rape, murder, theft laws) but that non-action and consensual action was only harmful if one harbored a moral disapproval of the conduct. Of course, that would invalidate drug laws, antitrust laws, and hundreds of others. And would pretty much constitutionalize Libertarianism.

[Will, 10:44 AM]
Terror and Line-Drawing:

Daveed Gartenstein-Ross has called my attention to an article he has up called "A Critique of the Terrorism Exception to the Foreign Sovereign Immunities Act." His claim is that, well, removing FSIA protection (against lawsuits in US Courts) for some states (those the State Department doesn't like) is a bad idea. The piece is a little long and technical but definitely worth a look if you like law or foreign policy.

[Will, 10:35 AM]
Things that will surprise no-one:

A little LSAT trivia for those of you (like me!) who are nervously awaiting the results of the June 9th LSAT. The majors that do the best on the LSAT? Math and physics. The worst? Pre-law and Criminology.

[Will, 12:59 AM]
Principals and Punishment:

Skip over all of my boring law posts and go read Amy blogging interesting things about the California recall effot. She agrees that it would be good to punish politicians for irresponsibility but worries about the ability to tell when a budget crisis has been caused by irresponsibility and when it has been caused by bad luck. Economic game theorists come to the rescue.

The problem is known as the principal-agent problem. The agent (the governor) is hired by the principal (the populace) to do a job (let's call it "run the economy," leaving aside whether politicians should "run" economies at all). The effort and integrity and intelligence that the agent puts forward influences his chance of succes (getting a good economy). But for the most part those variables are unobservable, so voters run into just the problems Amy and Kaus note. When a politician passes a complicated tax cut, it's hard to tell whether he's being purposefully corrupt or enacting a complex economic policy. When the economy tanks, it's usually nearly impossible to tell why. What to do?

It's simple. Throw the politician out of office whenever the economy tanks, no matter why. Sure, you lose some good politicians this way, but you'll more than make up for it in throwing lots of bad politicians out of office. The only thing is that you have to make the wages (and power, and so on) of being a politician high enough that politicians have an incentive to work hard to stay in office. This is precisely the reason corporate CEOs get paid so much money-- because it's so important that they put forth unobservable effort and integrity even though they will be blamed for anything that goes wrong, their fault or no.

I repeat: the simple solution-- give politicians a lot of perks, then kick them out when anything goes wrong, if it's even possible it's their fault.

[Will, 12:32 AM]
Test!

Friday, June 27, 2003

[Will, 10:07 PM]
Dahlia Lithwick and Context:

In Dahlia Lithwick's exchange with Walter Dellinger she accuses Scalia of living in "limbaugh-land". She writes:
Here is where Scalia invokes the term "culture war"—echoing his complaint about the "kulturkampf" in Romer v. Evans, the gay rights case decided in 1996, on which he was also on the losing side. He's referring to a theory that society is constantly undergoing a process of renewal, wherein subcultures try to overturn the Judeo-Christian establishment using words, then law, and then military action. Certainly if one worries that feminists, homosexuals, and abortionists are at any moment going to give up their legal appeals and roll out the tanks, Scalia's fears are understandable. Of course, then you're living in Limbaugh-land.

But is that what Scalia said about kulturkampf? The findlaw edition of Romer v. Evans is missing a few lines, but it begins "The Court has mistaken a Kulturkampf for a fit of spite." If you read on, it's clear that a kulturkampf is the milder of the two (the court holds "fits of spite" to be unconstitutional, when this is a mere kulturkampf). So Scalia isn't claiming that the homosexuals are going to roll out the tanks-- he's claiming that what's really going on is not the attempt of one majority to unconstitutionally suppress another but simply a lot of legitimate legislative dickering over what should and should not be allowed in a free society.

I don't really have a problem with exaggerating the views of people who have extreme views, but quoting them out of context seems both unfair and unnecessary. Now, like Howard Bashman and Eugene Volokh I'm a big fan of Ms. Lithwick, and her reporting on the Supreme Court is always both excellent and hilarious. But long-time readers (all three of them) will remember this to be the second time we've caught Ms. Lithwick out in an error. And, unsurprisingly, the errors have both been to make hard-core conservatives look even crazier than they are. (Click here and here for the "bedroom door" error).

But for that matter, what of her claim that Scalia does "take sides in the culture war," by dint of upholding flag-burning, or school prayer, or vouchers, and that his claim to "originalism" is just a convenient way of masking his personally reactionary philosophy? This is the least convincing critique of originalism which really ought to be met on its own terms. Justice Thomas, whose sodomy vote was the same as Scalia's, seems like a perfect example. He readily acknowledges that he is on the other side of the culture war (he would overturn the Texas statute if he were in the legislature) but believes that a Justice's authority to use Judicial Review only extends to striking down those laws that directly contravene the rights and powers listed in the constitution. The argument that Scalia is using is that Justices' power of Judicial Review comes from the notion that the Court can strike down laws that contradict other, more primary, laws. And other than that, the Court shouldn't be in the business of striking down or upholding statutes outside of that mandate. So since neither vouchers nor prayer consist of an "Establishment" of religion as the Constitution meant the word . . . well, you get the idea. I'll grant that Scalia does sometimes vote with his own preferences rather than a strictly originalist interpretation (as in Employment Division v. Smith) and that the cases where he fails to meet his own policy goals are rare (Kyllo v. U.S. and Johnson v. Texas not withstanding), but to belittle the very idea that Justices could not take sides in the culture war . . .

Well, this is true only if you think that Justices follow the Constitution only when they like the outcome, which is a little too legal realist for me. It's only available on Lexis, but if you get a chance, read Alex Kozinski's "What I Ate for Breakfast and Other Mysteries of Judicial Decision Making."

[Will, 8:04 PM]
Wax:

Stuart Buck complains about Justice Kennedy's purple prose in praise of liberty. Long-time readers of Justice Kennedy's opinions will not find this unique to Lawrence. Planned Parenthood v. Casey continued similar invokations of liberty and Rosenberg v. Rector included the creation of a "metaphysical public forum."

I don't find this nearly as problematic as Mr. Buck does, I don't think. Indeed, the first paragraph of Lawrence is something I wholeheartedly endorse-- as moral philosophy:
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.

All the same, I would be more impressed if I thought the court was going to extend this liberty to other "intimate conduct." At the risk of creating a "parade of horribles" I won't write up my laundry list of desired liberties.

On a side note, does anybody have any theories about the Court's latest internationalism? What once was an unheard-of bit of Atkins v. Virginia has now been reproduced in Grutter v. Bollinger and in Lawrence v. Texas. Is this another step helping to pave the way to the gay marriage decision (allowing the court to cite Canada with approval)?

And incidentally, it's commentary like this that makes it tempting to hail Lawrence as "an occasion for dancing in the streets." My co-worker's father writes:
Justice Kennedy, the author of this nauseating palaver, is obviously so in love with what he thinks is his own eloquent rhetoric that he fails to notice his laughable double entendre. What is not funny, however, is the destruction of the recognition of the laws of nature and nature's God on which our true rights depend. The Supreme Court's opinion today is an act of political destruction that should be recognized as such.

As I've said, I think there's good reason to uphold the statute in Lawrence v. Texas despite it being a terrible law. But none of those reasons have to do with "laws of nature and nature's God on which our true rights depend." Dear me.

[Will, 7:55 PM]
Justice Thomas:

Eugene Volokh and Lexis defend Thomas against unfounded charges of being a puppy dog.

[Will, 7:50 PM]
Wine:

The Fifth Circuit today has issued an opinion in Dickerson v. Bailey, which holds that it is unconstitutional for a state to give in-state wineries large exemptions from the wholesale-regulation system without providing those benefits to out-of-state wineries. In practice, such legislation has generally been used by states with lousy wine industries to keep small wineries in California and other states from shipping wine directly to customers in the states.

Since the case is a Texas constitutional case, I wonder if the the Clerk has thoughts.

I'm going to avoid my own analysis of whether the case is rightly decided, partially because I'm so happy with the result from a policy standpoint, partially because the subtleties of the dormant interstate commerce clause and the 21st Amendment aren't what I know much about, and lastly because my father defended wine-shippers and consumers in a similar case before the 7th circuit.

[Amanda Butler, 1:03 PM]
Troubleshooting help:

ok, does anyone know what Blogger's problem is? We're on the newer version of blogger. I just can't get anything remotely long to post. It's not that long, certainly shorter than some things from old Blogger. Mac OSX with Safari and IE, if that's the source of any problems.

[Amanda Butler, 12:35 PM]
And for Kennedy, this
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our life and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.


This liberty troubles Justice Scalia. At oral arguments, Justice O'Connor asked counsel for Lawrence (LAMBDA's legal defense fund, if I remember rightly) if she would see them back before her in another few years, petitioning for the right to homosexual marriage. She was assured that they were here to argue the case before them. Well, that was their purpose on that day, but Scalia seems to fill that the wool was pulled over O'Connor's eyes.
At the end of its opinion. . . the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of a thought displayed by an earlier passage in the Court's opinion, which notes that the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that [p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 13 (emphasis added). Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.


Homosexual marriage? Well, Justice Scalia and I differ on what constitutes hell in a handbasket. As I said way back when, I think government should not interfere much with people's marriages. And I must admit, Scalia's emphasis that homosexuals aren't pursuing their agendas through the proper democratic means is slightly baffling to me -- ie, they're using the wrong branch of the government. The Courts (not Scalia himself, but in this whole train of substantive due process cases) have left such an appealing option open to them. You'd be a fool not to seek recognition and rights through both votes (Scalia's preferred method) and through the legal process, especially so long as using the legal process is getting you what you want.

[Will, 10:14 AM]
Race:

Josh Chafetz makes a very good point about Dowd's column on Clarence thomas. If it's true that those who benefit from a system of racial preferences have no right to oppose those preferences, then what about southern white abolitionists, who also benefitted from a a system of racial preferences, then opposed those very ones?

This is not to say that Affirmative Action is slavery, just to say that being the beneficiary of an unjust system (which Thomas may or may not be) doesn't automatically sign away your rights of criticism.

[Amanda Butler, 7:43 AM]
Pasting post by parts (blog-eaten), part 2:

As one of the main prongs of his argument, Kennedy looks to history, finding "there is no long-standing history in this country of laws directed at homosexual conduct as a distinct matter." Rather, the history is one of laws against sexual conduct that is non-procreative or forced. He also notes that "[t]he absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century." To Kennedy, Bowers got the history wrong; the history is inconclusive; and "[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry" (quoting his own concurrence in County of Sacramento v. Lewis, 1998). [This of course infuriates our historian Scalia, who angrily points out the opinion which he authored for the Court in Washington v. Glucksberg, 1997, holding that the only fundamental rights that got higher than rational-basis review were those "deeply rooted in this Nation's history and tradition."]

"The issue is whether the majority may use the power of the State to enforce these views [ie, their ethical and moral principles that condemn homosexual conduct as immoral] on the whole society through operation of the criminal law. 'Our obligation is to define the liberty of all, not to mandate our own moral code' [Planned Parenthood]."

And for Kennedy, this
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our life and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.

[Amanda Butler, 6:48 AM]
"Liberty finds no refuge in a jurisprudence of doubt.":

This was (curses) eaten by Blogger the first time around, but here’s a copy.

[Howard Bashman of How Appealing provides links to all of today's opinions here, so I won't bother.]

That line is quoted three times in the Court's opinion today in Lawrence v. Texas, which I just finished reading. As some of you may recall, Will and I attended oral arguments for that case. It comes from Planned Parenthood v. Casey (505 U.S. 833, 844 (1992), if you care for the cite). Justice Kennedy quotes it twice in his majority opinion, and Scalia opens his dissent with it.

I first approached the Texas sodomy statute assuming that a statute so ridiculous and so discriminatory simply must be unconstitutional. Young and naive... It is a ridiculous statute and I'm not soothed by those who reassure me that the law applies equally to straight people who chose to engage in homosexual behavior and homosexuals who chose to engage in homosexual behavior. Yet now I find myself more on the side of Justice Thomas's short dissent (he also joined Scalia's dissent); I would be more fully convinced if everyone acted like he does.

Justice Thomas's dissent is, in full:
I join Justice Scalia's dissenting opinion. I write separately to note that the law before the Court today "is. . . uncommonly silly." Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases 'agreeably to the Constitution and laws of the United States.'" Id., at 530. And, just like Justice Stewart, I "can find [neither in the Bill of Rights nor any other part of the Constitution a] general right to privacy," ibid., or as the Court terms it today, the "liberty of the person both in its spatial and more transcendent dimensions," ante, at 1.


Both Kennedy's opinion for the Court and Scalia's dissent are worth reading. O'Connor's concurrence refers to Yick Wo v. Hopkins to say "[w]hether a sodomy law that is neutral both in effect and application... would violate the substantive component of the Due Process Clause is an issue that need not be decided today."

In Kennedy's opinion for Romer v. Evans (invalidating a Colorado state amendment that singled out homosexuals in order to categorically deny them protection as a class under state anti-discrimination laws), he hinted that he saw homosexuals as a suspect class, deserving of some sort of heightened protection, slightly less than the protection accorded gender, and certainly less than the strict scrutiny protection which race receives. However, he didn't come out so far as to say that he was declaring homosexuals a suspect class. What he did was invalidate the law by saying there was no justifiable rational basis for it. But rational basis admits of many reasons; Kennedy actually invalidated the law by applying a higher level of scrutiny than the one he claimed to be using. Therefore, I approached his opinion with the question in mind, "will he openly declare homosexuals to be a suspect class?"

No.

To deal with precedent first, Kennedy announces that "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled." Bowers is a 1986 case out of Georgia upholding a sodomy law applicable to heterosexual and homosexual sodomy; Justice White approached the case, in the decision for the Court, by finding no fundamental right to homosexual sodomy. Kennedy does not find that stare decicis compels him to follow Bowers: "there has been no individual or societal reliance" on it; it "causes uncertainty," it mis-read any of the modern Western tradition on which it may have claimed to rest.

Thursday, June 26, 2003

[Will, 11:42 PM]
It's The End of the World as We Know It:

Nick Tarasen posts about my apocalyptic predictions, and demands a clarification. The world (and life) will go on just fine for a very very long time. I just suspect a whole lot of people will die.

[Amanda Butler, 11:37 PM]
Strom Thurmond is dead.

[Will, 11:32 PM]
Islam and Democracy, once more:

Brian Ulrich is still unhappy with my report on the Islam and Democracy chat. Now Zack Ajmal has also emailed me to correct some facts and weigh in with Brian on this.

First let's get on to important business: corrections and clarifications: India's Muslim population is smaller than that of Indonesia or Pakistan. Saudi Arabia is the only Arab country where women can't drive cars.

Criticism seems to be on two general points-- the first is that it's not fair to blame Islam for democracy problems in the Middle East. The second is that my flippant dismissal of historical understanding is unfair and wrong. Before dragging the other Nathan Hale folks into trouble, let me remind everybody that my thoughts are both relatively un-formed and also my own. Many people offered more nuanced views of the world, but without taking notes there was a limit to what I could retain.

That said, I do think it's fair to ask how to make Islam and democracy compatible. A number of people argue about this-- whether the concept of God's rule contradicts with the concept of that of the people's rule but it's certainly not settled yet and there's no point pretending it is. And in any case, Islam is a powerful, powerful, force in the Middle East, and a "problem" to those who want to wreak massive overhauls there, just like any stabilizing cultural force is. No need to argue about whether this is a good or a bad thing, the question is what one would do about it if one wanted.

What about history? I remain skeptical. Yes, of course, sometimes one needs to know about the things that are important in people's lives, but certainly not all the time. For those who enjoy studying the culture and the like of the Middle East, more power to you. To the extent that these observations can be used to influence cogent policy recommendations, I applaud them. But I'm simply not convinced that one's respect or understanding of a culture has to be particularly deep to be able to make a positive difference there. Color me optimistic.

And once again, let me remind everybody here that Patrick Belton and his wife Rachel and most of the other people I'm learning from there know a heck of a lot more about this stuff than me, and none of my ignorance or flippancy should indict them in the slightest.


[Will, 2:30 PM]
Oh Just One:

I said I wasn't going to write more about Lawrence, but . . . Dahlia Lithwick writes:
By coming at the question backward, they arrived at the (wrong) answer they sought at the time. Exhibit D in the trial of legal "pragmatism" (aka judges' moral preferences) versus legal rigor.

She is writing about Bowers v. Hardwick.

Now, there are a lot of defenses of the decision today, many of which are pretty interesting and nuanced and persuasive. That it marks the victory of legal rigor over "judges moral preferences" is simply not one of them.

[Will, 2:17 PM]
Sodomy:

To Sodomy-- It's between God and me...
--Jonathan Larsen, RENT

So the Supreme Court has released an opinion in Lawrence v. Texas, declaring not, so far as I can tell, that there is a fundamental right to engage in sodomy, but rather that whether there is or not, it is unconstitutionally irrational for a state to ban it.

The opinion is written by Justice Kennedy, who wrote a similar opinion in Romer v. Evans, which held that it was unconstitutionally irrational for the citizens of Colorado to amend their constitution to prohibit discrimination legislation that would protect homosexuals. As I predicted, Justice Scalia has produced a long and involved dissent that rivals his Planned Parenthood v. Casey dissent both in breadth and depth.

This case has been sticking point for Libertarians, (I am living with a bunch this summer) I think, because Libertarians uniformly agree that sodomy laws are a bad idea (unlike, say, abortion), so the argument becomes purely formal. To what extent should the court grab at any available legal handle to do the right thing?

Indeed, I've admitted to finding the Institute for Justice's brief on this topic profoundly moving, emotionally at least. I express no opinion on whether it's intellectually or legally moving.

I think there's a lot to be said against sodomy laws. And I'll be further dispirited if the court refuses to extend the benefits it extends to homosexual sodomy to other, less faddish, types of consensual sexual intercourse-- prostitution, consensual necrophilia, bestiality, adult consensual incest, and all the rest. I feel about this case much as I do about the affirmative action case. If the court means what it says . . . okay. Let's do it. If not, let's not kid ourselves.

Where do I stand? Barring any particularly egregious errors in the blogosphere I'm not going to go into the merits of substantive due process claims, history, or the proper limits of the police power of the state. I'll simply join Amanda in endorsing Justice Thomas's dissent:
I join Justice Scalia's dissenting opinion. I write separately to note that the law before the Court today "is. . . uncommonly silly." Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similiarly situated. My duty, rather, is to "decide cases 'agreeably to the Constitution and laws of the United States.'" Id., at 530. And, just like Justice Stewart, I "can find [neither in the Bill of Rights nor any other part of the Constitution a] general right to privacy," ibid., or as the Court terms it today, the "liberty of tte person both in its spatial and more transcendent dimensions," ante, at 1.

[Will, 1:33 PM]
Test

[Amy, 1:21 PM]
More on the California Recall Effort:

Micky Kaus has posted some thoughts on the recall effort, arguing that while it would be bad if the recall punishes governors for a bad economy they can't help, it's good if it punishes improvident spenders. He writes:

Wouldn't it be a good thing if politicians knew there was a heavy price to pay for this crowd-pleasing irresponsibility--not just an inevitable fiscal crisis that can be put off until after the next election and then forgotten before the election after that, but a swift mid-term hammer that might crush their careers? I tend to think yes.

Under the current system, after all, state legislatures binge with tax cuts and spending during boom times and then go on a harsh budget-cutting, tax-hiking jag when the economy slows. That's exactly the opposite of what you'd want them to do in Keynesian, countercyclical terms. The fiscal drag from all the formerly big-spending states grimly cutting their budgets and raising taxes is currently a big factor nullifying the strenuous efforts of the Fed, Congress, and the White House to pump some life into the economy. In an easy-recall regime, in contrast, states would tend to be model Keynesian citizens, saving up money in rainy day funds during booms and spending that money during busts, avoiding recall-inducing budget crunches at all costs. ...

While I worry a bit about the ability of voters to distinguish between budget crises caused by outside forces, and those caused by bad policy, I do remember, from the dawn of my political consciousness, that in the recession of the early ninties, budget disagreements held up legislation for something like two months, during which time state employees were paid with vouchers rather than checks. However, while I do remember the governor, Pete Wilson, losing a lot of popularity, I don't remember a recall effort. So either the political culture has greatly changed in the past ten years, or else we can safely assume that recession will not automatically equal recall.

And on an unrelated note, how on earth does a blogger working for the most powerful software corporation on the planet manage not to have permalinks?

[Will, 7:09 AM]
Proof of Life:

And there's a brief blast of posts from Sara Butler at Diotima. She writes:
"...[B]oobs! Boobs!"

Click here for context.

[Will, 7:05 AM]
Numbers:

So this mathematician concluded that Supreme Court Justices don't vote independently. Dahlia Lithwick seems to think that this is a bad thing:
The fact that the judges vote in blocs so disproportionately suggests that they aren't deciding cases as isolated individuals, but as two distinct political factions.

No, no, no. Just becasue the judges votes correlate to one another does not mean any of them are politically motivated. Indeed, what it probably means is that some of the Justices use the same legal principles as some of the other Justices. This should come as neither a shock nor a disappointment to anybody, I should hope.

Heck, what would it imply if all 9 Justices were independent? Then it would be highly likely that they were all just voting their personal (if non-partisan) preferences. That would mean that the facts that cause one Justice to vote yes or no had no effect on any of the other Justices at all. That would be kind of alarming.

So this research is kind of interesting, and generally speaks well of the court; there's some method, but not too much, to their madness.

[Will, 7:05 AM]
One Man, One Vote, Once:

All Deliberate Speed defends Estrada but attacks Owen, on the grounds that she "got her chance" once and should never ever get a vote again. I actually can't see why this should be so. Indeed, I think this gets it very very wrong.

The reason I'm so non-chalant about letting Senators vote down nominees whenever they feel like it is because Senators are politically accountable. If people don't like their Senator's choice, they can throw her out of office. Bush brought Priscilla Owen back after the midterm elections, interpreting the midterm gain as a sign that the new Senate would be more ready to consent than the old Senate. Sure enough, they were. What's so bad about that? Indeed, that sort of thing might well be why the people voted in Republicans in the first place.

There's no particular reason every Senator should get an "up or down" vote. But there's also no particular reason every Senator should get only one "up or down" vote. We let people keep reintroducing the same legislation over and over again, don't we?

The old Senate didn't consent. The new one might. Why not ask it?

Incidentally, none of this is to imply that my vote on Priscilla Owen would be "up" rather than "down".

[Will, 7:05 AM]
Medians:

In an off-blog discussion with co-bloggers Peter and Amy, we discovered, to no particular surprise, that Amy prefers a sort of "single member first-past-the-post" system of representation, while Peter and I both favor more complicated systems of proportional representation.

Why? Well, Amy's plan tends to lead to a moderate candidate defined by the median voter, while proportional representation plans tend to give a handful of seats to the semi-popular loonies on all edges. Why isn't this surprising? Because Amy is a median voter while Peter and I are semi-popular loonies.

And speaking of median voters, How Appealing notes that Sandra Day O'Connor has been in the majority of all 11 of this term's 5-4 splits. And just think . . . if she were made the first female Chief Justice, she could assign the opinion in every case too.

[Will, 7:04 AM]
A Rejoinder to Scott Dillon:

An email has come to me from Professor Jeff Stake of the Indiana School of Law, the Admissions Committee member that Scott Dillon refers to in his comments. I reproduce his letter with Professor Stake's permission:
...I thought you might be interested to know that Dillon is being selective in the data he serves up.

Dillon mentions 52, 52, 53, for the numbers of black students admitted over three years, but fails to mention that 41 were admitted in the previous year. Going back from the data he presented, the numbers were 41, 54, 40, 34, 64, 50, 76, 59, 48, 47. [He had all of this data.] That does not look like "damning evidence" to my biased eye. [Unfortunately, when he confronted me with the 52,52,53 in a public forum, I was not aware of any of those numbers and was therefore unable to cite them in rebuttal. [I looked up the numbers after he confronted me with them.]]

Dillon mentions that I was a math major and that I said I would use similar data if I were representing a plaintiff challenging affirmative action, but does not mention that I also said that such data would not prove the use of a quota. The evidence a lawyer would use on behalf of a plaintiff is a lot larger set than the evidence a disinterested person would use to find the truth.

As you both recognized, the data Dillon cites cannot distinguish between quota and non-quota processes for giving extra credit for minority status. I tried to make that point to him at the time. [I showed him that the number of IU hoops victories was more consistent over the last 20 years than the number of black students. No one would claim that we had a quota for basketball victories.] That is why I told him it would take evidence of the actual process used, a smoking gun in his words, to prove that we had a quota. I also told him the actual truth, which is that we did not and do not use a quota for any ethnic or racial group. The unsurprising fact is that we want our process to be completely and clearly within the bounds of the law.

Let me also note that Dillon told Lauren Robel and me that he did not want to do any harm to his school, he just wanted to find out the truth. He said he was doing research for an article to be published in the Indiana Daily Student [which I assumed would check its facts first] and that he would allow us to see his article before he published it. He lived up to neither of those representations. After a few attempts to correct his misinterpretations of me, I told him that he did not have permission to attribute anything to me because he could not get it right.

Thanks for being interested in the issue of affirmative action, and the truth.

[Will, 7:04 AM]
Of Compromise and Kings:

In a bout of reasonableness, Slate's Chatterbox suggests an intelligent Judicial compromise. The democrats put down their sword and the republicans will put down their rock. I think this is exactly the way to break our so-called Constitutional crisis. Alternatively, Bush could just offer to nominate a left-winger or two for every handful of right-wingers he gets. What's wrong with trading horses? Doesn't trade make everybody better off?

[Will, 7:04 AM]
Graves:

And further thanks to the Political Graveyard for discovering us. I think that's the most popular site to link to us yet.

[Will, 7:03 AM]
Evolution:

Sorry for the brief posting dearth. We have now been converted over to the new blogger. Let's see if we can avoid joining the Movable Type revolution.

Wednesday, June 25, 2003

[Will, 1:25 PM]
Buck:

And thanks, of course, to Stuart Buck, for adding us to his blogroll. It's an honor.

[Will, 1:14 PM]
Executive Orders and Colorblindness:

For those of you who believe that affirmative action is generally wrong, here's a question: at what level of generality does that hold? Which is to say, if the president announced publicly that he would only nominate a Supreme Court Justice who was black, would that run afoul of the Constitution's guarantee of colorblindness? (Suppose he used the same diversity argument that Michigan does).

What if the president declared that 20% of his cabinet nominees would be black? What about sub-cabinet officials, under secretaries and the like? What about district court judgeships?

My question isn't whether these executive quotas would be desirable or undesirable, it seems clear to me that they would probably be a pretty bad idea. But would they be unconstitutional? And if so, what would the remedy be? At its limit, suppose a president (with the assent of an antediluvian Senate supermajority) announced that he would not give an appointment of any sort to anybody who was not white. Suppose that some various courts didn't grant preliminary injunctions, and it took a long time for the case to work its way through the court systems. If the court held this presidential preference to violate the 14th Amendment, what would the remedy be? (Unlike Gratz and Grutter, petitioners couldn't just demand to be spontaneously "instated" for many appointments without funding and the like to create a new seat). When should the court hold such a preference to be unconstitutional?

[Will, 11:13 AM]
Pulling up the Ladder:

(via How Appealing) Usually, I leave the pleasure and chore of fisking Maureen Dowd to the OxBloggers or on occasional outside contributor. But then, usually Maureen Dowd confines herself to mocking conservative politicians rather than one of the most principled Supreme Court Justices to sit the bench. Her Op-Ed in the New York Times is full of the characteristic Dowd savagery. By agreeing with the facial claim that affirmative action is a terrible idea, she uses it to mock Thomas's competence, honesty, and quality. For a much better piece on the confirmation piece, see this 1992 piece in Reason-- Native Son: Why a Black Supreme Court Justice Has No Rights A White Man Need Respect. But on to Dowd . . .
What a cunning man Clarence Thomas is.

He knew that he could not make a powerful legal argument against racial preferences, given the fact that he got into Yale Law School and got picked for the Supreme Court thanks to his race.

It might well be the case that he was picked for the SC because of his race. It's probably even the case that he got into college at Holy Cross for a program designed to increase black enrollment in the church. It's far from clear, I think, that he wasn't qualified to get into Yale Law. Further, it's pretty painful that Maureen Dowd assumes that a black admit to Yale must have been a "black" admit, not actually qualified.

But even if he was . . . what was Thomas supposed to do? Pretty much all good Law Schools used a system like Yale's. There's nothing unprincipled about accepting an admission you think you deserve, espcially when the school won't even tell you that you're a pity-case.

And yes, it's true that his dissent in Grutter is long on rhetoric, on social science, on policy arguments, (though it also contains a lot of law). But that's because Chief Justice Rehnquist has already marshalled the legal argument (which Thomas joined). When the majority lets other considerations influence Constitutional interpretation (which could be good or bad), then it's perfectly fair for the dissent to point out all the faulty assumptions and reasoning in even those considerations.
So he made a powerful psychological argument against what the British call "positive discrimination," known here as affirmative action.

Oh those British. Of course, Thomas makes two points relevant here. One is that discrimination "in favor" of blacks doesn't actually help them that much. Elite law schools aren't some magical factory that turns anybody into a qualified lawyer, nor even a magic credentialing machine whose imprimatur of approval brings automatic success in life, business, and the world. Law School is an opportunity to learn the law, and Elite law schools usually attempt to focus on those who will learn the law the best. It's because of this-- not because Law School is some prize like a Nobel-- that Law Schools use GPAs and LSATs to focus on the candidates they think will either bring the most to the table, or take the most away from it.
And yes, Law School is a benefit to those who get in, and the average student at Northwestern might very well learn more at Yale (though he probably wouldn't learn as much as the person who got in to Yale). So in that sense, Law School can sometimes "benefit people" just by admitting them. But "Positive Discrimination" is a terrible way to twist it. After all, discrimination is almost always positive to the people who get in in disproportionate numbers. That's why it happens.

VMI's discrimination against women was, after all, "positive discrimination" for the men. Admitting a race in disproportionately many numbers to a limited-space program means admitting another race in disproportionately few numbers to the same program. That is mathematics. (It's still a legal question whether this disproportionality is legal or not, and a political question whether it's good or not). But pretending that pro-minority discrimination is beneficial to all while other discrimination is not is disingenuous.

Of course diversity proponents sometimes maintain that "positive discrimination" (aka Affirmative Action) is beneficial to all, because minorities bring lots more viewpoints to the table, and the increased intellectual diversity is beneficial to all. Maybe. Note firstly that this same argument could hold in other contexts (it might well be that adding a few women to VMI causes a lot of fuss and bother and violation of academic freedom to everybody involved-- including the women admitted-- without much real benefit to anybody), and secondly that the increased diversity of viewpoints in U Mich classrooms is of very little consolation to the "un-diverse" applicants shunted off to Wayne State.

Discussion of Dahlia Lithwick's argument that Law Schools are not petting zoos is left to the reader.
Justice Thomas's dissent in the 5-4 decision preserving affirmative action in university admissions has persuaded me that affirmative action is not the way to go.

The dissent is a clinical study of a man who has been driven barking mad by the beneficial treatment he has received.

No. Indeed, I doubt he's even been driven mad by arrogant white liberals like Dowd or their brand of borderline racism. But the notion that the Black Justice ought to be down on his hands and knees, thanking the benevolent Liberal masters for their munificience? The notion that a Black who's not a liberal has sold out? The notion that Frederick Douglass's world is a frightening one? The notion that Thurgood Marshall is a "good" Black Justice and he is a "bad" Black Justice? I can see how that might wear.

Indeed, there's something very Ayn-Randian about the whole thing. "We gave you a hand up, without asking you, and now you have no right to complain, you little ingrate."
It's poignant, really. It makes him crazy that people think he is where he is because of his race, but he is where he is because of his race.

Other justices rely on clerks and legal footnotes to help with their opinions; Justice Thomas relies on his id, turning an opinion on race into a therapeutic outburst.

In his dissent, he snidely dismisses the University of Michigan Law School's desire to see minority faces in the mix as "racial aesthetics," giving the effort to balance bigotry in society the moral weight of a Benetton ad. The phrase "racial aesthetics" would be more appropriately applied to W.'s nominating convention in Philadelphia, when the Republicans put on a minstrel show for the white fat cats in the audience.

Oh, maybe so. You won't find me defending the Republican nominating convention, and I don't recall Clarence Thomas making a big deal out of it either. But even so the two cases aren't that analagous. A presidential nominating convention is supposed to be a political circus, where the party signals to its supporters where it stands, and shows the kind of image (aesthetics again) it wants to have.

Law School, I had thought, was a place where people went and argued and learned and wrote and talked . . . mostly about law. Thomas's point, which I think is often missed, is how strange it is to insist that intellectual diversity requires racial engineering. Is is true that Blacks will have ideas that no Hispanic will ever have thought of? Maybe. But then affirmative action programs ought to be measured by the ideas that come out of the school, not by the racial makeup they achieve, which was supposedly only a proxy in the first place.

But of course, schools do care about their racial makeup, whatever the ideas. A school would rather have a diverse set of views from racially diverse students than the same set of views from a sea of solid white faces. Wouldn't it? And that is what Thomas (rightly) terms "aesthetics".
Justice Thomas scorns affirmative action as "a faddish slogan of the cognoscenti."

And of course Maureen Dowd is the case in point.
Quoting Frederick Douglass on the "Negro" 140 years ago, he urges: " `All I ask is, give him a chance to stand on his own legs! Let him alone! . . . Your interference is doing him positive injury.' "

He is at the pinnacle, an African-American who succeeded in getting past the Anita Hill sexual harassment scandal by playing the race card, calling the hearing "a high-tech lynching," and who got a $1.5 million advance to write his African-American Horatio Alger story, "From Pin Point to Points After."

Now I was really young when the Anita Hill thing came about, so I have only the vaguest memories of it, plus some reading, during my research on the psychology of lying and the technology of the polygraph. But my understanding is that Anita Hill levelled allegations that Thomas said some things, which might well be First Amendment protected, that made her feel harrassed, and that she had little to no evidence other than that. No diary of the allegations, no close confidante she had told, and nobody else who found such behavior very plausible. Go back and read the Reason piece on this, really.
So why, despite his racial blessings, does he come across as an angry, bitter, self-pitying victim?

It's impossible not to be disgusted at someone who could benefit so much from affirmative action and then pull up the ladder after himself. So maybe he is disgusted with his own great historic ingratitude.

Disgusted? How dare she? How dare she?

Leaving aside whether Thomas's views on affirmative action, or on anything else, are right or wrong, guiding or misguided, here is Dowd at her racist worst. The belief that having racial handouts forced upon blacks indebts them to support the system is merely a little disgusting by itself, but couple with the notion that trying to break free of the system is "disgusting" . . . it's positively revolting.
When he switched from a Democrat to a conservative as a young man, he knew that he would be a hotter commodity in politics. But he also knew that it would bring him the scorn of blacks who deemed him a pawn of the white establishment — people like Justice Thurgood Marshall, who ridiculed Clarence Thomas and others as "goddamn black sellouts" for benefiting from affirmative action and then denigrating it.

As Jill Abramson and Jane Mayer write in "Strange Justice," Mr. Thomas himself complained in a 1987 speech that, to win acceptance in conservative ranks, "a black was required to become a caricature of sorts, providing sideshows of anti-black quips and attacks." (Just as blonde conservative pundettes flash long legs and sneer at feminism.)

When the 43-year-old was nominated by Bush 41 with the preposterous claim that he was "the best qualified" man for the job, G.O.P. strategists diverted attention away from the judge's scant credentials and controversial record by pushing his inspiring life story, grandson of a sharecropper and son of a Georgia woman who picked the meat out of crabshells.

Yes, and maybe they shouldn't have. Indeed, Thomas has pretty much eschewed such a strategy ever since that betrayal at the hands of his handlers. But is the claim that Thomas is qualified a preposterous one? Simply put, his jurisprudence may not be to your tastes at all, but it bears serious historical and philosophical scrutiny. Thomas may be many things, but a lightweight he is not.
But it's as if Justice Thomas has been swallowed by his own personal drama, just as Bob Dole and Bob Kerrey were swallowed by their gripping personal dramas on the presidential campaign trail. Mr. Thomas is so blinded by his own autobiography he can no longer focus on bigger issues of morality and justice. Having used his personal story to get on the court, he is now left to worry that his success is not personal enough.

Justice Thomas was nominated to the Supreme Court by a president who insisted that the nomination was not based on race, and confirmed by the Senate. Knowing that he was brilliant, ready, and able to do the job, what would Dowd have had Thomas do? "Oh, no, sir, I'm hardly qualified . . ."?
President Bush, the Yale legacy who also disdains affirmative action, is playing affirmative action politics in the preliminary vetting of a prospective Supreme Court nominee, Alberto Gonzales. No doubt Bush 43 will call Mr. Gonzales the best qualified man for the job, rather than the one best qualified to help harvest the 2004 Hispanic vote.

President Bush and Justice Thomas have brought me around. I don't want affirmative action. I want whatever they got.

It's really no fair dragging George W into this, especially given that Thomas doesn't particularly support legacies, and his view of affirmative action is much more hostile than the president's. But how could Dowd resist a dig?

And what about the hypothetical Gonzales nomination? Some posters on Volokh brought this up a while back, but remember that the president has to undergo confirmation (and resist filibustering) from the opposite party. If the president knows that the most qualified candidates are unconfirmable, but that Gonzales, a very well candidate, will be confirmed (whether because of his moderate-ness, or his race, or whatever), is he wrong to nominate him?

In truth, I doubt Thomas cares what Dowd thinks. Indeed, I'm almost sure he doesn't care, that her views don't matter in the slightest. But this kind of arrogance still makes me pretty angry.

Whatever you think of Thomas's views on affirmative action or anything else, their intellectual legitimacy, Thomas's intellectual legitimacy, should not be determined by his race. And it's not at all inconsistent for somebody to embrace affirmative action at a sorrier point in our history, and then think it is no longer necessary. But Thomas has never even doen that. Nobody ever asked him to take a Yale degree and shut up about preferences. I don't think he would have agreed.

In any case, the truth or falsity of Clarence Thomas's arguments has nothing whatsoever to do with his race. The liberals, I had thought, were the ones who promised to understand that.




Tuesday, June 24, 2003

[Will, 11:29 PM]
Horses and Carts:

The eternal question-- which comes first, the colorblind society or the colorblind academy? On the one hand, if race matters to people in a society, it's ludicrous not to study it. On the other hand, so long as academics study race, write about race, talk about the ways in which it matters, it will matter. Welcome to the vicious cycle that gives you Justice Clarence Thomas's staunch and absolute opposition to government consideration of race.

I do think Amanda's right that it depends on what we mean by "race" studies. To the extent that these disciplines evolve their own language, prejudices, prerequisites for entry, and all the rest, I tend to think they do more harm than good. To the extent they're just a bunch of folks interested in the same questions-- "why do so few black men go the U of M Law School?" "Why do white people cross the street in bad neighborhoods?" "Is the SAT racially-biased" (or whatever it is they study....), I think it's a legitimate confluence of interest, just like environmentalism, or France, or Libertarianism.

I should add that this view stems from my own hostility towards disciplines in general. I think the natural tendency is for Historians to shoo out Philosophers, Philosophers to shoo out Political Scientists, Political Scientists to fend off Economists, and Economists to fend off Business-school types (the other, myriad, links in the "[discipline] imperialism" chain are left as an exercise to the reader). Of course it's nice to have a set of shared assumptions and common knowledge, because most philosophers can't figure out whether their political system can withstand game-theoretic attack. But it's very important to have other disciplines constantly poking at those shared assumption, and subjecting analyses to unexpected attack. Otherwise we'll all end up like English Grad Students, smug and self-assured in our own special way, making claims that can only be analyzed according to the special rules by which they were created in the first place.

So bring on the mish-mash of disciplines-- literature and language, politics and history, law and economics, all rolled into one. Sometimes these disciplines will pass each other like trains in the night (the economic analysis of Ada will never touch the literary analysis of Ada), but true academic integrity often involves using many tools on a single problem, not tossing aside inconvenient wells of scholarship as "imperialistic". Does this require scholars in these border regions to be jacks-of-all-trades? Absolutely. Does this preclude them from mastering one or all of them? Absolutely not.

[Will, 11:08 PM]
Islam and Democracy, Redux:

Why, Brian Ulrich wants to know, does everybody pick on Islam? He has two major worries about omissions from our little Sunday discussion. Why do we act as if the problem is a problem with Islam? And did we have any respect for the structures that Muslims have built up themselves?

Judge Kleinfeld spoke a bit to both of these concerns, if my memory serves. The Judge rightly pointed out that what we have is not an "Islam problem" but rather an "Arab problem." India has more Muslims than any other nations, after all, and doesn't have this sort of problem. That said, I think that it's fair to characterize this as an "Islam problem" anyway. It isn't that Islam invariably brings plague and destruction with it, but in the countries where this problem exists (Iran, etc.) a great deal of the problem appears to be the Muslim church. We don't talk about the Buddhist problem because . . . so far as I know, there isn't a Buddhist problem anywhere. Centuries have (mostly) done away with the Catholic problem, and so on. It isn't just that there's some accidental correlation between Muslim citizens and anti-democratic sentiment. It's that in several arabic countries, powerful anti-democratic elements are Muslim, and may the question is whether (and to what extent) they are anti-democratic because they are Muslim.

And what about the structures of the Arab world? The institution-building comment Brian refers to was the general observation that Islamists (not just Muslims) are particularly adept at creating Western-style institutions and NGOs, capable of accomplish things in a global world, while non Islamists are often just baffled by the basics of modern industrial organization, and how to create a group in the first place and all of that.

Judge Kleinfeld also pointed out that we ought not think of the Arab world as a "backward" people playing catch-up to the West. They've known about the Western way of doing things for centuries upon centuries, and they've made different choices than we have. It's just that we find a lot of those choices intolerable. And hard as it is to disagree with statements like "having an idea of how something works is a good idea before you try to fix it" and "in order to really start to understand, it helps to go back before the beginning and watch it being built brick by brick," I'm not convinced. My understanding of Brian's argument is that to "fix" a system you have to understand how it works, and to understand how it works we have to understand its history. But I simply don't think that's the case.

Subtle, cultural, anthropological fixes may require an understanding of the formation of Islamic society, but they do not require respect for the choices of that society at all. This is how the NAACP and Clarence Thomas can fight against the legacies of Southern slavery, without having "much respect for" institutions of black subjugation. Indeed, it's not even clear that one would have to have a decent understanding of some of those institutions. To know what is being done now and how people might be convinced to change-- that is what is necessary. This might involve complex historical understanding, but it might instead involve theology, or public choice theory, or mob psychology, economics, or any number of things.

Most fundamentally, a lot of people want to install some European ideas and values and make them take root. Freedom of speech, worship and of the press, the legal right of women to drive cars, many things may be outside of the Islamic traditions that have evolved on their own. But other than the nebulous charge of "cultural (or political) imperialism," what's so bad about bringing European liberalism to a world that hasn't known it?

[Will, 11:08 PM]
Islam and Democracy, Redux:

Why, Brian Ulrich wants to know, does everybody pick on Islam? He has two major worries about omissions from our little Sunday discussion. Why do we act as if the problem is a problem with Islam? And did we have any respect for the structures that Muslims have built up themselves?

Judge Kleinfeld spoke a bit to both of these concerns, if my memory serves. The Judge rightly pointed out that what we have is not an "Islam problem" but rather an "Arab problem." India has more Muslims than any other nations, after all, and doesn't have this sort of problem. That said, I think that it's fair to characterize this as an "Islam problem" anyway. It isn't that Islam invariably brings plague and destruction with it, but in the countries where this problem exists (Iran, etc.) a great deal of the problem appears to be the Muslim church. We don't talk about the Buddhist problem because . . . so far as I know, there isn't a Buddhist problem anywhere. Centuries have (mostly) done away with the Catholic problem, and so on. It isn't just that there's some accidental correlation between Muslim citizens and anti-democratic sentiment. It's that in several arabic countries, powerful anti-democratic elements are Muslim, and may the question is whether (and to what extent) they are anti-democratic because they are Muslim.

And what about the structures of the Arab world? The institution-building comment Brian refers to was the general observation that Islamists (not just Muslims) are particularly adept at creating Western-style institutions and NGOs, capable of accomplish things in a global world, while non Islamists are often just baffled by the basics of modern industrial organization, and how to create a group in the first place and all of that.

Judge Kleinfeld also pointed out that we ought not think of the Arab world as a "backward" people playing catch-up to the West. They've known about the Western way of doing things for centuries upon centuries, and they've made different choices than we have. It's just that we find a lot of those choices intolerable. And hard as it is to disagree with statements like "having an idea of how something works is a good idea before you try to fix it" and "in order to really start to understand, it helps to go back before the beginning and watch it being built brick by brick," I'm not convinced. My understanding of Brian's argument is that to "fix" a system you have to understand how it works, and to understand how it works we have to understand its history. But I simply don't think that's the case.

Subtle, cultural, anthropological fixes may require an understanding of the formation of Islamic society, but they do not require respect for the choices of that society at all. This is how the NAACP and Clarence Thomas can fight against the legacies of Southern slavery, without having "much respect for" institutions of black subjugation. Indeed, it's not even clear that one would have to have a decent understanding of some of those institutions. To know what is being done now and how people might be convinced to change-- that is what is necessary. This might involve complex historical understanding, but it might instead involve theology, or public choice theory, or mob psychology, economics, or any number of things.

Most fundamentally, a lot of people want to install some European ideas and values and make them take root. Freedom of speech, worship and of the press, the legal right of women to drive cars, many things may be outside of the Islamic traditions that have evolved on their own. But other than the nebulous charge of "cultural (or political) imperialism," what's so bad about bringing European liberalism to a world that hasn't known it?

[Will, 10:49 PM]
How to Vote:

Amy ponders the rational strategic voting dilemma. One answer, of course, is that this is what advertising campaigns are for. If everybody thinks that one moderate candidate will seem like the obvious choice to everybody else, then that candidate can become a self-fulfilling prophecy. I suspect the trick is to get all moderate groups to back the same moderate candidate to avoid a Le Pen. Incidentally, have I mentioned how ridiculous California seems?

But there's a bigger point. Amy keeps asking how she ought to vote to avoid various terrible things. The simple answer is that her vote will never, ever matter, even in a mere state-wide vote rather than a national vote. I don't know if she's going to vote absentee; if not, her odds of being struck by a car on the way to vote are probably not much smaller than her odds of making a difference. Her vote just won't influence the election. (Though her success at persuading other people how to vote might.)

What does this mean? That it's probably not worth voting strategically, if she'll derive any personal pleasure at all from voting her conscience. For all that Nader voters in Florida may have kicked themselves, there was no point. No Nader-trader's vote made a difference. Not one.

What if everybody thought this way? Well it hardly matters. If everybody thought this way, then nobody would vote and one vote would matter. I think Volokh has called this the "reverse-tinkerbell-effect." But everybody doesn't think this way, and they won't.

Does Eugene Volokh qualify as a sufficiently independent candidate? Hmm. Well there is the little matter of his $1000 donation to George W Bush's 2000 campaign . . .

[Amanda Butler, 9:17 PM]
Nepotism:

From the NYT Week in Review comes A Nepotism That Insists on Worth.

For Adam (son of Saul) Bellow, America is "a land where blood loyalty runs deep and the once frowned-upon practice of dynastic succession is no longer the exception but the rule. From politics and business to movies, literature and sports, Mr. Bellow argues in his new book, "In Praise of Nepotism: A Natural History," to be published by Doubleday next month, clannishness increasingly prevails. The United States, he says, is undergoing a vast revival of what he calls 'the hereditary principle,' or, more bluntly, nepotism."

In Adam Bellow's own words:
"I too am an example of the New Nepotism and am thoroughly familiar with the peculiar strains of 21st-century heirship."
[As an editor at Doubleday, his employers] "undoubtedly assumed not only that I had `the right stuff' to be an editor by virtue of my parentage, but that my name and social background would be useful in my publishing career."
"Nepotism has evolved culturally in the United States to become what I call the New Nepotism, which is to say meritocratic nepotism. That's our great achievement. I think that's well worth praising."
"A famous name gets your foot in the door, but if the door slams on your face, it's you who says ouch."

Aigh. Name and social background. Perhaps this is the grumbling jealousy of a person who, through family connections, has achieved approx. 1 yr. of free access to dry ice and liquid nitrogen (and that itself was a form of payment for services rendered), but I don't care for this "metritocratic nepotism." The term strikes me, not as a modification of the traditional terms by which nepotism operates, but as an oxymoron. And I simply am not interested to know that the Founding Fathers handed out jobs to their friends and relatives.

Nepotism and politics have been traditionally linked, but as the article points out, direct appointments have become far more rare. Political families can rack up a long list of relatives in office (130 if you're the Livingston-Harrison-Lee's of Virginia and New York), but even though the name can help, the electoral process still stands in the way of direct assent by mere power of a name. And if Laila Ali doesn't prove a good boxer, then she'll suffer her own wounds.

It's cases precisely like Adam Bellow's that trouble me the most. Scores of English or Renaissance Studies concentrators could probably serve Doubleday well as an editor -- some doing better or worse than he. And yet by his own admission, it's his name that helped cast a deciding factor in his hiring. Affirmative action for the children of the successful. Why do these people need any more privileges? If we're looking at life experiences, I have no doubt that his lunches with great writers and his apparently quite strong education (driven by a desire to be able to converse on an equal level with his father, but I won't quibble with his motives) have made him well-prepared for positions at the Free Press and at Doubleday. Perhaps, out of the candidate pool, the knowing assumption that he may have had such experiences left Adam Bellow the best-qualified candidate for the job. But it just burns me that meritocratic nepotism may be the fact of American life, because nothing I can do for myself can ever get me such inherited benefits.

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