November 18, 2007
Questioning The Court
It's interesting, as a liberal, to watch Ross Douthat and Daniel Larison argue over whether the judicial choices of recent Republican presidents have actually achieved anything for social conservatives. On the Left, there's very little ambiguity as to the Court's shift; the view looks much more like the picture Cass Sunstein recently painted in The American Prospect: "In 1980," writes Sunstein, "John Paul Stevens stood at the center of the Supreme Court. Today, he is its most left-wing member -- and he hasn't changed."
Granted, much of the Court's right-wingery is economic, rather than social, in nature. Their decision in Ledbetter was far more radical than anything they've offered on abortion. But I think, in the ferociousness of Larison's discontent, I see the seeds of a compromise. In the next issue of TAP, Ted Kennedy has a piece arguing that we're choosing Supreme Court justices in a tremendously illogical and unhelpful way, focusing on their personal qualities and stated "philosophies" rather than concrete explanations of how they would rule on important cases of the recent past. It's time, Kennedy argues, to end that bizarre custom, stop letting nominees hide behind "precedent," and begin uncovering what these men and women really think. And if the Right is growing as restive as the Left with the surprising behavior justices exhibit once confirmed, maybe Kenney's argument has a chance....
The right will never go for it. They know that a lot of right wing positions wouldn't sell well if openly expressed (this is not completely a right-wing problem; I think that a liberal opponent of the death penalty or someone seen as overly sympathetic to criminals would have problems as well).
That said, while the Supreme Court has shifted right, I think that Roe may be one of those situations where the Republican Party would rather have the issue-- i.e., their interests lie in chipping away at it but never overturning it. Roberts and Alito are perfect in that regard.
Posted by: Dilan Esper | Nov 18, 2007 5:56:48 AM
Ted Kennedy has a piece arguing that we're choosing Supreme Court justices in a tremendously illogical and unhelpful way, focusing on their personal qualities and stated "philosophies" rather than concrete explanations of how they would rule on important cases of the recent past.
Few cases are truly about the issues that we think they are--the actual questions for SCOTUS are rarely what's being reported on by the media and are a much more nuanced version, typically a partial question on the broader issue, wrapped up in specific federal and state laws. Having followed health care cases very closely in the last 10 years or so, (e.g. physician assisted suicide, etc.) I can tell you that while many probably think that SCOTUS has ruled against PAS, for example, they actually haven't.
As you can imagine, the subtelty would be lost in a political process, the legal rationale for the pro/con of a recent decision would be completely misunderstood by politicians, the media and the public-at-large. In other words, these cases would end up actually being about prospective nominees' "general philosophy" anyways (i.e. yay or nay on case X, not the reasons why), so we probably shouldn't complicate it with specific cases that will end up confusing things more than helping.
Posted by: wisewon | Nov 18, 2007 7:28:21 AM
Why would the right be growing restive?
We've had a series of Justices appointed, ranging from conservative (Democratic appointees) to ultra-nut-job (Republican appointees). It takes time for a shift to be recognized, because cases don't magically come up each year that target the right areas. But when these cases do come up, the rulings will follow and the legal changes will follow. They certainly have so far. All the right-wing needs to do at this point is send up the right cases, which they are doing.
Articles like this one from Kennedy:
are pure and unadulterated bullshit. Kennedy knew what Alito and Roberts were. The better Senate Democrats voted against these two; the worse Senate Democrats voted for them. But everyone knew exactly what they were.
Posted by: Anon | Nov 18, 2007 9:43:50 AM
This other post by Larison here is also kind of interesting from a liberal perspective. He's complaining about Bush's speech at the Federalist Society combining strict constructionism with executive overreach.
Giuliani is playing the same game now during the campaign, telling people that he will appoint strict constructionists and oppose judicial activism and all the rest. This is seen mainly as a way to placate social conservatives, but it should be understood as an attempted deception of anyone on the right who still attaches some importance to constitutionalism. Should he somehow be elected (God forbid), he will continue the same dual-track approach to the Constitution, mouthing Jeffersonian phrases and insisting on enumerated powers in the morning and embracing the most abusive policies possible under the President’s supposed (non-existent) “inherent powers” as “Commander-in-Chief” in the afternoon.
The paleocons seem to be as pissed off about executive fetishism as some of us lefties. It seems like they're in a really bad place, though--the idea that strict constructionism implies imaginary Article II powers, though not necessarily bought into by social conservative voters, seems to pervade not just GOP politicians but conservative judges and lawyers as well. Though there are executive lovers who aren't strict constructionists (e.g. Richard Posner), I'm not sure there is a great pool of strict constructionist limited executive jurists to choose from--despite that position's logical consistency.
So Larison's in a tough spot--for judges, pro-life implies authoritarian. He's stuck choosing between "judicial tyranny" and the regular kind of tyranny. It's like you were given a choice between Hitler or the Holocaust. It would be a damn depressing choice.
I don't think I've seen Douthat say much about executive power/civil liberty issues at all, so this trade-off might not be as much of a dilemma for him. I suspect most social cons will side with Douthat, because neither conservative nor liberal voters pay much attention to executive power issues. (Otherwise we wouldn't be stuck with a Clinton/Giuliani match up.)
Posted by: Consumatopia | Nov 18, 2007 10:55:40 AM
Few cases are truly about the issues that we think they are--the actual questions for SCOTUS are rarely what's being reported on by the media and are a much more nuanced version, typically a partial question on the broader issue, wrapped up in specific federal and state laws.
Odd, then, that so many of them are decided exactly in accordance with the justices' political predispositions.
Posted by: Jason C. | Nov 18, 2007 11:09:23 AM
Larison, I think, makes a typical lefty argument for why social conservatives have been sold a bum steer; I'm not sure that's the same way conservatives look at any of this. Douthat, meanwhile, revives this notion that somehow the rejection of Robert Bork over his opinions amounted to a "smear" of him, whereas I tend to think of it as an assessment that he was simply unacceptable. As for what social conservatives hope to accomplish, I think the reality is that much of what they espouse is simply unpopular, something they refuse to face, and the GOP has spent years assuring a lot of people with some pretty "out there" opinions that it's all good and it can all happen. And it can't, not least of which because some social conservative goals really conflict with each other (on the most fundamental level, you can't really reconcile a general desire for less government control with greater government intervention into our social lives). I think the mistakes conservatives have made regarding the Court - and liberals buy into it too - is this notion that a person arrives on the Court, views fixed, never to change. Experience, though, suggests that almost all justices evolve their thinking, grow, and change. It's why "strict constructionism" can't really work - the world moves, we learn things, new ideas come into play. And really, judges picked for an opinion on one string of cases (like Roe and abortion), don't necessarily tell us how they'll rule on other, really very unrelated topics, ones that no one can anticipate coming up to the Court, even. Americans, I think, are not a harsh, mean, or deliberately unkind people; and to the extent that the social conservative agenda comes off that way, it can't really ever find true success. How the GOP adapts this year will be interesting to watch (nominating Giuliani will be a fairly clear sign of moving in a different direction, but if he fails in the general, I think it's hard to say how the GOP will react to it), but I don't think most people elect Presidents for judicial picks (despite some polls). I think as long we see the battle as only about finding the ideologue who agrees with us, we're not just messing up the selection process, we're giving into the notion that people's views are fixed, rigid and never to change. Outside of Clarence Thomas, I'm not sure that's going to be true of this Court, and I think it will be less true over time.
Posted by: weboy | Nov 18, 2007 11:19:48 AM
weboy, strict constructionism works very well, if you don't confuse your branches of government. Judicial doesn't set laws the legislative does. If the world moves or we learn things it is the job of the legislature to address those issues not the courts job to guess how our forefathers 200 years ago would have handled it.
Your comment that what conservatives hope to accomplish is unpopular is hilarious. Why was abortion settled by the courts? Because liberals don’t have the votes, i.e. popularity, to pass a law that says abortion is legal. Please put late term abortion to the populous for a vote, I challenge you make that part of the Democratic Platform for 2008 if you think it’s popular. Liberals have always turned to the courts to pass the laws they can’t.
Liberal abuse of our Judicial system and a Legislative branch that is dysfunctional is the problem. SCOTUS “makes” way too many laws, we need to kick the legislative branch in the ass and tell them to start doing their job. Issues like abortion are their job to debate and settle not the courts.
Posted by: Nate O | Nov 18, 2007 12:07:20 PM
"Why was abortion settled by the courts? Because liberals don’t have the votes, i.e. popularity, to pass a law that says abortion is legal."
Please put late term abortion to the populous for a vote
is disingenous and supremely unconvincing.
Posted by: keatssycamore | Nov 18, 2007 12:16:34 PM
Consumatopia: So Larison's in a tough spot--for judges, pro-life implies authoritarian.
It shouldn't be a tough spot, though, should it. Pro-life IS authoritarian, and misogyny. (Men's surgical procedures will never be an issue.) America was clearly established on civil rights issues as an alternative to an authoritarian British rule.
The Declaration of Independence makes clear that our rights are inherent, and the Constitution establishes a government to protect (not prescribe) those inherent rights. Not remove them--protect them. That's why we have a government. And what could be a more inherent right than one's own surgical procedures. Now if life really begins at conception then conception certificates should be substituted for birth certificates, and that's silly.
Lefties should ally with libertarians on civil rights, demanding that "inherent rights" should trump "inherent power". It's the American way. The King George way is un-American.
Posted by: Don Bacon | Nov 18, 2007 12:30:40 PM
"It's time, Kennedy argues, to end that bizarre custom, stop letting nominees hide behind "precedent," and begin uncovering what these men and women really think."
OK, Ted, I'm with you, but HOW? These nominees have been lawyers all their working lives -- if you think you've found the smoking memo they'll just use the "as a lawyer I adopt the mores of my client" dodge. Few will accommodate us with paid-up memberships in the KKK or SDS. What else is there but what we're looking at now?
If all Kennedy means is that we should not bother with the Senate hearing, well, maybe. We for sure should keep all the nominee's family members out of the hearing room.
Posted by: Stuart Eugene Thiel | Nov 18, 2007 12:52:40 PM
Pro-life IS authoritarian, and misogyny.
I can see why you'd think that, but put it another way--the pro-lifer wants to enable Congress and state legislatures to write laws restricting abortion. The John Yoo torture-gang wants to enable the president to ignore Congressional law. So we have pro- and anti-legislature folks joined together behind conservative judges. This is a long-standing contradiction (for several decades) that is only now becoming apparent as judicial power wanes and executive power waxes.
Moreover, given that same waning and waxing, liberals ought to consider whether the old battle lines still make sense. I'm sorry to say, I'd be happy to give up Roe v. Wade if it meant restoring habeas corpus, ending torture, and forcing the president to act within the law--presumably, abortions would still be legal in most states. It's possible that a lot of social conservatives feel the same way--Larison obviously would. Maybe this is an actual instance of Arrow's Impossibility Theorem run amok.
Posted by: Consumatopia | Nov 18, 2007 1:42:05 PM
Lefties should ally with libertarians on civil rights, demanding that "inherent rights" should trump "inherent power".
Plenty of libertarians are prolife. If you happen to think that a fetus is a human person -- or is at least sufficiently a human person to deserve protection from being killed -- the obvious default libertarian position in your particular case is that the law should err on the side of the fetus. The 21st century's greatest civil rights cause will be that of the unborn.
Posted by: Pro-life lib | Nov 18, 2007 1:47:41 PM
Wow, Nate O's comment is like black hole-dense with fallacious arguments. How you managed to pack so many in to one little comment is truly impressive.
Judicial doesn't set laws the legislative does. If the world moves or we learn things it is the job of the legislature to address those issues not the courts job to guess how our forefathers 200 years ago would have handled it.
Except that the judiciary does and ALWAYS HAS created legal doctrine. It's called the common law system, and it was written into the Constitution itself!
FURTHERMORE, you're correct that the job of the courts is not to "guess how our forefathers 200 years ago would have handled" a case, because what the forefathers 200 years ago might have thought about something is thoroughly irrelevant. It might be interesting to know what Jefferson thought about due process, but it wouldn't be binding in any way.
Should I go on?
Posted by: Jason C. | Nov 18, 2007 2:15:17 PM
Lefties should ally with libertarians on civil rights
Other way round, really. Libertarians are the ones who have been supporting the authoritarian Republicans. If you really care about preserving your civil liberties, as opposed to going on a quixotic quest to eliminate the income tax, you should have been voting Democratic since at least 2002.
Incidentally, Kennedy is right about judicial nominations. I wish this would have occurred to him before Roberts and Alito got confirmed.
Posted by: Tom | Nov 18, 2007 2:20:14 PM
Real libertarians, who care about civil liberties more than their tax rate, are irrelevant. Progressives can ally with them if we want, but it won't do us much good as there are only about four of them.
Posted by: Jason C. | Nov 18, 2007 3:40:23 PM
Having read Mr. Larison's post, I have come to the conclusion that he is smoking crack. Take this passage:
Roe is realistically farther away than ever from being overturned than it was fifteen years ago. The latest two justices made it clear in their confirmation hearings that they accepted Roe as established precedent–and their nominations are supposed to represent the great clout and triumph of pro-life voters!
Crazy talk. In the past fifteen years, we have swapped:
- an anti-Roe justice (White) for a pro-Roe justice (Ginsberg)
- a pro-Roe justice (Blackmun) for another one (Breyer)
- an anti-Roe justice (Rehnquist) for another one (Roberts)
- a pro-Roe justice (O'Connor) for an anti-Roe justice (Alito)
Which, if I'm doing my math right, is essentially a wash. Four justices voted to overturn Roe in Casey, and four justices (Scalia, Thomas, Alito, Roberts) would likely vote to overturn it today.
Alito and Roberts may have said that they "accepted Roe as established precedent," but that's just an empty truism, and is not the same thing as saying they wouldn't vote to overturn that established precedent.
Posted by: Jason C. | Nov 18, 2007 5:34:58 PM
35 states recognize the unlawful killing of an unborn child as homicide in at least some circumstances.
So in 35 states if someone other then the mother ends the viability of a fetus it is potentially homicide. If they mother request it, then it’s nothing but a medical procedure. What’s the legal explanation for this?
Keatssycamore, what exactly is disingenuous and unconvincing? It’s a legitimate response to two specific statements made by someone else. Your non-rebuttal on the other fits both making your reply hypocritical. Abortion was legalized in the courts because liberals couldn’t, and still can not, pass a law to do so. Late term abortion is a specific example of a hugely unpopular interpretation that would never pass as a law.
Consumatopia what torture law has the President ignored? Congress has had years to outlaw water boarding if they think it is torture and have chosen not to. Another perfect example of cowards in congress looking to the courts to make law they are afraid to pass.
Jason C, yes please do go on. Societies don’t rely on common law for matters as important as slavery, voting rights, equality, and such. If we abided by common law we would still have slaves, women wouldn’t vote and numerous other medieval practices would still be common. If your of the legal opinion that whenever we are faced with daunting moral questions we should defer to the Romans and early English then hell lets go for it, should make these blog disagreements a whole lot more interesting when done in a stadium to the death. I was always under the opinion part of our evolution politically from monarchy was we elected our legislatures and they acted on our behalf not that of the throne. As such when it comes to matters like abortion and torture I would prefer those I elect not appointed, or sometimes elected, judges be “making” law.
Posted by: Nate O | Nov 18, 2007 5:52:11 PM
It's not really a contradiction that an authoritarian would press for and support laws that restrict personal freedom, and violate laws that enable liberty. And if you'd be happy to give up Roe then you are probably not a woman.
Pro-life lib,--the Libertarian platform:
As Libertarians, we seek a world of liberty; a world in which all individuals are sovereign over their own lives and no one is forced to sacrifice his or her values for the benefit of others. . .We oppose government actions that either compel or prohibit abortion, sterilization or any other form of birth control.
Tom: Libertarians are the ones who have been supporting the authoritarian Republicans.
Do you have any evidence of that? Notable libertarians on the web such as Lew Rockwell, Jacob Hornberger and Justin Raimondo are anti-authoritarian, naturally, because that's what libertarians believe. Also Ron Paul in the Congress.
What's wrong with the libertarians worrying more about civil liberties than about their tax rate? Shouldn't we all? Also, I agree that libertarians lack significant political power--the two major parties see to that--but we're talking about ideas here, and it is in this sense that I suggested that on civil rights libertarians and lefties have (I hope) something in common.
Posted by: Don Bacon | Nov 18, 2007 5:59:47 PM
Congress has had years to outlaw water boarding if they think it is torture and have chosen not to.
Torture is already illegal under the Geneva conventions. Such a law would be redundant, and would just be waved away with signing statements anyway--even by the letter of the MCA it would already be illegal. So much for strictly following the law.
In the past, people who were sick of judges restraining legislatures teamed up with people who were sick of judges restraining executives. This was an alliance of convenience--there is no common logical premise between these groups, but a lot of people have become emotionally invested in pretending that there was. Some conservative voters are starting to realize this, realizing that if it's not okay for judges to make up laws it shouldn't be okay for presidents to ignore them.
And if you'd be happy to give up Roe then you are probably not a woman.
And if you're happy not having habeas corpus you're probably not being tortured right now.
Posted by: Consumatopia | Nov 18, 2007 6:21:05 PM
Don Bacon, I’m curious as a Libertarian what do you feel the fathers rights/obligations are when it comes to a fetus? I've always been bothered by the father being at the complete mercy of the mother, she can take the fetus he helped create or indenture him to 18 years of labor and he has zero say.
Consumatopia, yes I’m aware torture is illegal, if you will refer back to the couple times I belittled our legislative branch for dereliction of duty, they have never defined torture to include water boarding. Do you have a single example of Bush every breaking the law in regards to torture? I have never seen any proof he has ever ordered or authorized torture as defined by our laws. If you don’t like the laws as written take that up with the legislature but the fact still stands Bush didn’t break them.
What laws is the President ignoring? I hear the same talking points but never anything to back them up. What specific law did Bush ignore with what specific act?
Posted by: Nate O | Nov 18, 2007 8:21:01 PM
I didn't say that I was a Libertarian. I don't think that the government has a right to tell a woman what surgical procedures she can or cannot have on her own body. We all have inherent rights and the government is supposed to protect them, not remove them. The people who do want to restrict a woman's rights generally do so for religious reasons. They think abortion is wrong. I don't want to live my life according to what another person thinks, do you? That applies to spouses too. Men being harmed by their relationships with men? Generally it's the opposite.
I never said that I was happy without habeus. You made that up. Do you fabricate a lot?
Posted by: Don Bacon | Nov 18, 2007 9:02:24 PM
The Geneva Convention is an international treaty. The American Congress doesn't have either the responsibility or the privilege to redefine the plain meaning of the word "torture", anymore than it's up to Bill Clinton to redefine the word "is". In any event, Bush has asserted multiple times that as Commander in Chief he's not bound by those laws anyway. He's also working hard to make sure his administration isn't held responsible by future administrations for violating laws. Geez, this is getting to be like when Santorum bitches that the White House is sitting on evidence that Saddam had WMDs.
When you redefine the plain meanings of words like this, you lose all credibility in all legal interpretation issues. Which for anyone wanting to overturn Roe v. Wade should be a problem.
Posted by: Consumatopia | Nov 18, 2007 9:06:05 PM
I never said that I was happy without habeus.
I posited a trade off between Roe and the rule of law including habeas. So if you're going to complain that I'm giving Roe, that implies you'd give up habeas given the same trade off.
Posted by: Consumatopia | Nov 18, 2007 9:10:27 PM
Nate, if you're still checking, I'd say this:
a)It's sort of telling that you sum up the conservative social agenda as abortion, when really there's a host of issues - prayer in schools, gay rights, education of kids, etc - that are part of the agenda. And time after time, conservatives have failed to win popular backing for their ideas (that, for instance they can get "marriage is for a man and a woman" laws passed and still not be able to slow down the rather inexorable move towards gay marriage). Abortion is one aspect. It's not the only one.
b) However, on abortion, serious hardcore pro-lifers have made little, if any, real progress on bringing people over to anti-abortion absolutism. 90% of abortions are first trimester, prior to fetal viability (which despite extravagent claims, remains at about 20 weeks), and most people have, whatever way, reconciled themselves to the notion that women should have access to abortion at least for that time. Absolutist bans on all abortions, while rammed through some legislatures under GOP control, have little real public support. Which is why antiabortion activists now sell the "if Roe is overturned it just goes back to the states" line - a soft-pedaling of their hopes that most states would ban abortions (which would likely bring the whole thing back to the Supreme Court over some question of interstate commerce). I think the problem that the GOP has right now, really, is simply taht it can't say some things go too far, that some things - like absolute abortion bans - are unlikely, and can't be supported by a national party. But hey, don't use abortion; pick another issue, for all it matters to me.
As for making strict constructionism work... I think it depends on one's definition of "strict", really.
Posted by: weboy | Nov 18, 2007 9:52:40 PM
Don Bacon, I'm still curious what a man's right are when it comes to pregnancy. You say the state doesn't have the right to say what surgery a women has on her body, do they have a right to tell a man where the fruits of his labor go then? How do you justify a women have sole discretion over a fetus she created with a man, then further being able to attach his earnings to support a decision that was her's solely? Religion hasn't been raised as an argument at all. It's purely a legal, equal rights/protection question.
Last I checked we where still sovereign from “the one world body”. Treaties do not supersede US law for US citizens on US soil. By your logic the US would not have the death penalty yet it is still very much law. Assertions are not crimes. Working hard to try and do something is again not breaking the law, unless it’s an intent law which is not what you where implying. The point still stands he has not broken a single law in regards to torture as set by the US Congress which HAS defined the word torture and intentionally left water boarding out.
“The debate shifted to the House Thursday, as the subcommittee, chaired by Rep. Jerrold Nadler, a Democrat, convened a hearing on how the procedure is carried out and whether it meets the legal definition of torture.”
If Congress can’t make up their mind if it is legal how are you going to accuse Bush of breaking the law?
Posted by: Nate O | Nov 18, 2007 10:07:59 PM
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