Margie J. Phelps represents Westboro Baptist Church, and yes, before you ask, she hates you, she really hates you. She most likely hates the six Catholics and three Jews up there on the bench, too. But she hides it well....I absolutely agree with Dahlia Lithwick about this.
Scalia wonders whether these signs and Web posts could be unprotected words under the fighting words exception to the First Amendment, but Phelps says this protest was never intended to provoke a fight. Channeling Stephen Colbert, she says their message is just this: "Nation. Hear this little church. If you want them to stop dying, stop sinning."...
The headline writers are going to say that the justices "struggled" with this case. That may be so, but what they struggled with has very little to do with the law, which rather clearly protects even the most offensive speech about public matters such as war and morality. They are struggling here with the facts, which they hate. Which we all hate. But looking at the parties through hate-colored glasses has never been the best way to think about the First Amendment. In fact, as I understand it, that's why we needed a First Amendment in the first place.
Showing posts with label Dahlia Lithwick. Show all posts
Showing posts with label Dahlia Lithwick. Show all posts
"It appears that at least a few of the justices really, really, really just hate the Phelps family and its manner of protest..."
"... and they might even be willing to whip up a little new First Amendment law to prove it."
It's the first Monday in October, time for people like Barry Friedman and Dahlia Lithwick to tell us "the court has taken the law for a sharp turn to the ideological right..."
"... while at the same time masterfully concealing it." And, annoyingly enough — to them, anyway — ordinary Americans still think the Supreme Court is too liberal.
Like TV's "Masked Magician," Friedman and Lithwick want to reveal the secrets behind what they'd like you to think are magic tricks the Court uses to conceal its terrible right-wingitude.
First, they say, there's "stacking the deck": "picking cases with facts so extreme that only one outcome seems possible." One of only 2 examples they give is Gonzales v. Carhart, in which the Supreme Court, in 2005, upheld the federal law banning so-called partial-birth abortion. Friedman and Litwick say:
That it came to the Supreme Court in 2005 has nothing to do with the Court "stacking the deck"! Friedman and Lithwick just don't like what the case said about abortion rights, but the truth is that Gonzales v. Carhart was a moderate decision that avoided both extremes and, because of that, produced a separate opinion by Justices Thomas, joined by Justice Scalia (rejecting abortion rights altogether and questioning Congress's use of the Commerce Clause to regulate abortion), as well as a dissenting opinion consisting of the 4 Justices who, with the now-retired Justice O'Connor, had formed the majority in Stenberg.
The second "trick" Friedman and Lithwick identify is "misdirection":
Friedman and Lithwick have 3 more tricks to reveal/do, so if you're up for their whole show, click through and read.
How to explain the justices shoving the law rightward, while everyone thinks it is dead center or too far left?Their metaphor is magic — the article is accompanied by a photoshop of the Chief Justice in magician garb about to pull something out of a hat — and that question fails to acknowledge the difference between absolute and relative position. Obviously you can push — or shove as the exaggerated language of anguished liberals will have it — something to the right and have it still be on the left if the thing started out way the hell to the left. And obviously liberals know this: Tell Friedman/Lithwick that Anthony Kennedy is in the legal/political center because he's at the center of the current array of Supreme Court Justices. It will take them much less than a second to decide to inform you of the distinction between absolute and relative position.
Like TV's "Masked Magician," Friedman and Lithwick want to reveal the secrets behind what they'd like you to think are magic tricks the Court uses to conceal its terrible right-wingitude.
First, they say, there's "stacking the deck": "picking cases with facts so extreme that only one outcome seems possible." One of only 2 examples they give is Gonzales v. Carhart, in which the Supreme Court, in 2005, upheld the federal law banning so-called partial-birth abortion. Friedman and Litwick say:
The law bans late-term abortions in which the fetus is partially delivered before its brains are sucked out and skull collapsed. If you find it hard even to read that, you've caught the point: That's deck-stacking.But the Court didn't choose that case out of a big pool of abortion cases in order to get something with "gruesome facts" that would keep us from "notic[ing] the major inroads the case makes on women's rights more generally." Congress passed the Partial-Birth Abortion Ban Act in 2003, right after the Supreme Court had stricken down Nebraska's partial-birth abortion law in 2000, in Stenberg v. Carhart. The Court in Stenberg showed legislatures what would be needed to pass a law against these abortions that would avoid the same constitutional flaw and Congress responded with a statute that we knew would have to go through judicial scrutiny and end up in the Supreme Court.
That it came to the Supreme Court in 2005 has nothing to do with the Court "stacking the deck"! Friedman and Lithwick just don't like what the case said about abortion rights, but the truth is that Gonzales v. Carhart was a moderate decision that avoided both extremes and, because of that, produced a separate opinion by Justices Thomas, joined by Justice Scalia (rejecting abortion rights altogether and questioning Congress's use of the Commerce Clause to regulate abortion), as well as a dissenting opinion consisting of the 4 Justices who, with the now-retired Justice O'Connor, had formed the majority in Stenberg.
The second "trick" Friedman and Lithwick identify is "misdirection":
While we are watching the term's "big" cases, it works its magic on the ones we aren't paying attention to, which often matter more. In this enterprise, the court is aided and abetted by the media.Speaking of tricks, calling this a trick is itself a trick! It lets Friedman and Lithwick discount all the big cases that came out liberal and cherry pick any and every case that came out conservative. Hey! Look what the Court did in here! They proceed to tell you about their least-favorite recent cases.
Iqbal, Twombley, Garrett, Gross, Rapanos, Rent-a-Center. Maybe you haven't heard of most of those. But these are the cases that, read together, are making it harder and harder for everyday litigants to walk into a courthouse and hold unscrupulous employers, manufacturers of defective products, or polluters to account.And you could pull out an equivalent list of little cases that make it easier. So what?
Friedman and Lithwick have 3 more tricks to reveal/do, so if you're up for their whole show, click through and read.
"Judge Vaughn R. Walker is not Anthony Kennedy. But when the chips are down, he certainly knows how to write like him."
Writes Dahlia Lithwick, seemingly knowingly...
No other Justice joined O'Connor, who rested on the Equal Protection ground. Justice Kennedy wrote the majority opinion relying on the Due Process ground — talking about "the heart of liberty" being "the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life." That's what Lithwick refers to in her last sentence about writing "eloquently about dignity and freedom." But the O'Connor opinion in Lawrence will be more important in determining the same-sex marriage question, because that isn't a request to be left alone. It's a request for equal legal status — for recognition from the state.
O'Connor wrote:
ADDED: Indeed, the language from Kennedy's Lawrence opinion that speaks "most eloquently about dignity and freedom and the right to determine one's own humanity" is itself a quote from the plurality opinion in Planned Parenthood v. Casey — which was jointly written by O'Connor, Kennedy, and Souter. Here's Kennedy in Lawrence:
I count—in his opinion today—seven citations to Justice Kennedy's 1996 opinion in Romer v. Evans (striking down an anti-gay Colorado ballot initiative) and eight citations to his 2003 decision in Lawrence v. Texas (striking down Texas' gay-sodomy law). In a stunning decision this afternoon, finding California's Proposition 8 ballot initiative banning gay marriage unconstitutional, Walker trod heavily on the path Kennedy has blazed on gay rights: "[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse," quotes Walker. "'[M]oral disapproval, without any other asserted state interest,' has never been a rational basis for legislation," cites Walker. "Animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate," Walker notes, with a jerk of the thumb at Kennedy.
Justice Kennedy? Hot sauce to go with those words?...
Any way you look at it, today's decision was written for a court of one—Kennedy—the man who has written most eloquently about dignity and freedom and the right to determine one's own humanity.Justice Kennedy is certainly very important in the prediction of what the Supreme Court will do, and Walker may have written with the intent to influence him, but let's give Sandra Day O'Connor the respect she deserves. The line "moral disapproval, without any other asserted state interest,' has never been a rational basis for legislation" is from O'Connor's concurring opinion in Lawrence — and Walker's opinion is clear about that (on p. 133).
No other Justice joined O'Connor, who rested on the Equal Protection ground. Justice Kennedy wrote the majority opinion relying on the Due Process ground — talking about "the heart of liberty" being "the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life." That's what Lithwick refers to in her last sentence about writing "eloquently about dignity and freedom." But the O'Connor opinion in Lawrence will be more important in determining the same-sex marriage question, because that isn't a request to be left alone. It's a request for equal legal status — for recognition from the state.
O'Connor wrote:
Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.... Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.
Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be “drawn for the purpose of disadvantaging the group burdened by the law.” Texas’ invocation of moral disapproval as a legitimate state interest proves nothing more than Texas’ desire to criminalize homosexual sodomy. But the Equal Protection Clause prevents a State from creating “a classification of persons undertaken for its own sake.” And because Texas so rarely enforces its sodomy law as applied to private, consensual acts, the law serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior. The Texas sodomy law “raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”
... The Equal Protection Clause “ ‘neither knows nor tolerates classes among citizens.’ ” Id., at 623 (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J. dissenting)).Let's give Sandra Day O'Connor her due. She said some things no one else said.
ADDED: Indeed, the language from Kennedy's Lawrence opinion that speaks "most eloquently about dignity and freedom and the right to determine one's own humanity" is itself a quote from the plurality opinion in Planned Parenthood v. Casey — which was jointly written by O'Connor, Kennedy, and Souter. Here's Kennedy in Lawrence:
In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:
“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Ibid.
Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.
Clarence Thomas is not here to entertain you, and Elena Kagan isn't very popular.
"I am not there to entertain anybody," says Clarence Thomas, disparaging Supreme Court oral argument, in which he famously refrains from participating:
[At the Utah State Bar’s 2010 summer convention yesterday, Thomas said], oral argument was an opportunity for attorneys to tease out their case.Here's another analogy: "I would equate trying to get the members of the court to do what you want them to do with herding gnats in a hurricane." That's especially interesting in light of the way some people imagine that Elena Kagan will somehow coax or cajole the others — or Anthony Kennedy — to go her way. Here's what Dahlia Lithwick said about that, back in May:
When he first arrived on the court, members “actually listened to lawyers,” Thomas said. “We have ceased doing that. Now it’s become a debate or seminar. I don’t find that particularly helpful. It may be entertaining, but I am not there to entertain anybody.”
“There can be some questions to clarify things, to challenge it, but you don’t need 50 questions per case,” Thomas said. “That becomes more like “Family Feud” than oral argument.”
Obama—who could announce his pick as soon as this week, and the heavy betting is on Solicitor General Elena Kagan—is looking for a diplomat who will forge consensus, build bridges, and bring together a polarized court....So the liberal Lithwick wanted more of prickly hothead. Instead, she and we got the supposedly charming Kagan, who, for some reason, is the least popular Supreme Court nominee — successful nominee — since Gallup started polling people, at the time of the Bork nomination. (Bork and Harriet Miers, unsuccessful nominees, were less popular than Kagan.) Why is that? Could it possibly be that Americans don't like the idea of a Supreme Court Justice who is best known for social skills?
[J]ust because Kagan hired several conservative scholars when she was dean at Harvard Law School doesn't mean she'll have some kind of stunning intellectual influence over the Roberts Court's conservatives....
[R]educing the search for a Stevens replacement to a quest for the most able logroller on the left does nothing to dispel the widespread public perception that conservative judges closely read the Constitution and apply the law, while liberals stick a finger in the wind and then work the room. The selection of a new Supreme Court candidate should be an opportunity for the president to answer that claim with a crystal-clear message about the nature of liberal jurisprudence. "We think she might be able to flip Kennedy," is neither a powerful nor inspiring judicial vision....
Perhaps President Obama shouldn't be so quick to denigrate a nominee whose greatest impact on the court will be writing passionate dissents. Once upon a time that passionate dissenter was Justice Antonin Scalia. And if the sometimes-prickly justice has proved anything in recent years, it's that decades of bitter and brilliant dissenting opinions can be more influential over the long haul than all the negotiation skills in the world.
"Hi I'm just like you I worry about getting fat and finding the right man to validate my pointless existence where all I do is worry about getting fat and finding the right man to validate my pointless existence..."
"... but also the difference is that I invariably live in New York (or London if I must) where I am a struggling intern/PR lackey/copywriter/journalist and I live in a small apartment with either a cat or a hilarious gay man or a hilarious gay cat and it's ever so cosmopolitan and fun and just when I think I will always be dating a series of Mr. Wrongs for the rest of my life I meet BRAD/JULIO/LAWRENCE/SEPHIROTH depending on if I am from Oklahoma, Florida, Georgia, or Final Fantasy fanfic and then after that we have some fun misunderstandings and then my bitch of a boss (because female bosses are always bitches) steals my man (never trust a woman in a position of power, you see, is the moral here) and I have to do some CRAZY THINGS to have my revenge and then I level up and I get the boss bitch's job and my man back all at once and THE END i high-five my gay cat and off we go to the sequel where we are sexy ore miners on a distant asteroid (but we still love shoes!!!!!)"
No, that's the joke. Here's the real:
No, that's the joke. Here's the real:
While the kids are fed and then wiped down and diverted with Play-Doh, I load the washing machine with armloads of my new clothes. As I stuff in a size 4 blouse, my iPhone beeps to tell me someone I know has just updated their Facebook status.
Jeffrey Goldberg says "Dahlia Lithwick is a Haiku Genius."
"She's condensed a week of Senate blather about Sotomayor into exquisite little poems."
I'm no poetry expert — maybe you are — but I don't see why these should count as even marginally good haiku. I suppose the whole thing is that it was done at all — making Senators' statements about Sotomayor into haiku.
Here are some teaching materials on haiku, focusing specifically on haiku in English:
And I know, I know, I know: How can you take advice about taste from someone who writes "S/he" and "her/himself"?
UPDATE: And curses! What a missed opportunity to keep up what began as an accidental Theme of the Day. Permit me to compensate via this update:
UPDATE #2: Jeffrey Goldberg is not amused.
I'm no poetry expert — maybe you are — but I don't see why these should count as even marginally good haiku. I suppose the whole thing is that it was done at all — making Senators' statements about Sotomayor into haiku.
Here are some teaching materials on haiku, focusing specifically on haiku in English:
The haiku poet cultivates awareness so that s/he may experience some unusually forceful impact coming from ordinary life or from everyday surroundings....Now, those "typical attitudes" are so obviously not what one finds among Senators that the idea of writing bad haiku in the voice of a Senator is a very good one, but if you're doing bad, be really bad — there's a blog, Bad Haiku — and I think — I think — that would have to exclude anything that Jeffrey Goldberg would proclaim as the work of a genius.
In 'haiku spirit' the poet adopts a self-effacing and faithful attitude towards the object s/he perceives. S/he does not set out to be moralistic or didactic or judgemental. The haiku form has been used successfully to write adages and epigrams, but because the aim of adages and epigrams is to mould opinion they are not haiku in spirit....
[M]any successful haiku result from a long process of draughting and re-writing, during which the poet clings hard to the original perception.
The pain is to give readers the means to feel as the poet her/himself felt at the time, or maybe differently, without any explicit (and so directive) statements about actual feelings. Some typical attitudes are humility, serenity, compassion, acceptance of transience and man's lonely state, joy in resurgence and company, wonder, wistfulness, as well as humour of a whimsical and sometimes paradoxical kind.
***
And I know, I know, I know: How can you take advice about taste from someone who writes "S/he" and "her/himself"?
UPDATE: And curses! What a missed opportunity to keep up what began as an accidental Theme of the Day. Permit me to compensate via this update:
1.All right. Enough. I am satisfied.
Dead Sea Shells Worship
Lobster Fangs In Hades Door
While I Sleep Dead
2.
Lobster and artichokes
Slather with spirits
Canine hurls protein yak
3.
Snip my buttons off,
With your shearing claw, my sweet
Lobster in my pants
4.
Though warm tasty and
delicious, urine should not
be served with lobster
5.
Such a tasty meat,
Drenched in succulent butter
Lobster dies for me
UPDATE #2: Jeffrey Goldberg is not amused.
"Congress can impose this disparate treatment forever because of the history in the South?"
Chief Justice Roberts in argument in the Voting Rights Act case, which Dahlia Lithwick summarizes — with unusually labored breeziness — here.
[Justice Scalia] insists that the judgment of Congress is not to be trusted because when it came to reauthorizing the Voting Rights Act, "they get elected under this system. Why should they take it away?" Oh. My. God. You mean legislators are self-interested!?! That must mean the court is free to substitute its judgment for that of Congress.This is a too-cheap laugh for Lithwick. Obviously, this is not a typical case for deferring to Congress. The challenged law structures the election of members of Congress, and it applies to some states and not others.
Debo Adegbile is in the case representing the NAACP Legal Defense Fund. When he reminds the court that "Congress is permitted to use so much of its power as is necessary" to remedy racial discrimination, the Chief Justice clobbers him with: "Is it your position that today Southerners are more likely to discriminate than Northerners?" When Adegbile replies that the covered states tend to be repeat offenders in this area, Roberts comes back with, "So your answer is yes?"Well, think about it. They're all there — from all the states — and they all got elected under the existing system, a system that is not uniform among the states. Doesn't that mean something?
Scalia asks Adegbile what the vote was when Congress reauthorized Section 5 in 2006.
Answer: 390-33 in the House, 98-0 in the Senate. Scalia retorts that "the Israeli Supreme Court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there." (And before you liberals start crowing that Scalia is citing foreign law, let it be noted that he is citing religious law, which is totally cool and different than foreign law.) Today Scalia seems to have fashioned a new constitutional principle: The courts should always defer to Congress unless Congress is unanimous, in which case Congress is a sack of self-interested liars. Fascinating.
How Dahlia Lithwick would like you to think about Supreme Court appointments: liberal = moderate, conservative = extreme.
Dahlia Lithwick has this new piece about the kind of Justices we might expect Barack Obama to appoint to U.S. Supreme Court:
Now, here's Lithwick just about exactly one year ago, talking about what sort of Supreme Court Justice John McCain would be likely to inflict on us:
You know, it's not just Dahlia Lithwick. This is the stock argument that you hear again and again from people who want the Supreme Court to move to the left: liberal = moderate, conservative = extreme. I'm just writing this up as a blog post because I happened to run across that old McCain item on the same day I read the Obama thing. Usually, I just sigh and think, yeah, that again.
By the way, did you know there have only been 2 Supreme Court Justices named Henry? The first was Henry Baldwin (1780 - 1844), appointed by Andrew Jackson:
The other Henry was Henry Billings Brown (1836 - 1913), appointed by Benjamin Harrison:
The prospect of a liberal slot on the court being filled by a liberal president has some liberals dreaming big—as was evidenced in a piece last weekend, by Adam Liptak, asking whether President Obama should appoint someone "who by historical standards is a full-throated liberal, a lion like Justice William J. Brennan Jr. or Justice Thurgood Marshall?"...[So Lithwick's read of Obama is that he's a centrist, and he's not going to give us The Scalia of the Left/The Resurrection of William O. Douglas.
[Liberals tend to grouse] that there is no left-wing counterpart for Justice Antonin Scalia.... [The complain that the] court's liberals are just not very persuasive.... [that they] lack a revelatory constitutional vision.... [and that they lack fervor].....
If, then, we're totting up all the qualities the current court's liberals ostensibly lack, we'd need to blend boldness with passion and persuasiveness with volume and then hope the next candidate also comes with some sort of just-add-water Sweeping Constitutional Vision kit....
My own guess is that moderate, centrist Barack Obama is unlikely to name any such creature to the high court, even if she did exist, and that we need to yank our wish list out from under the enormous shadow cast by Antonin Scalia, William Brennan, and Thurgood Marshall, anyhow. Yes, they are forces of nature, and the court is a better place for having each of them. But pining for a liberal Scalia isn't the way to push the Roberts Court into the future. The day of the lions may be ending at the court. And that might not be a terrible thing.
Now, here's Lithwick just about exactly one year ago, talking about what sort of Supreme Court Justice John McCain would be likely to inflict on us:
[The conservative legal movement is] a multifaceted organizational and institutional structure that has become the only game in town. Despite some missteps, today's conservative legal movement has become as powerful as it is through coordinated and careful effort.I wrote at the time that that didn't make sense to me:
The practical upshot is that when McCain constructs his legal team, he will have just one institutional framework from which to pick—the same movement conservatives that produced Roberts and Alito.... [And] McCain has already agreed to fall in line....
McCain has embraced the generality of a conservative judge, but within that category, there will always be an array of judicial minds. Once he is elected, he'll be choosing from that array, and it remains fair to wonder whether he will pick more flexible pragmatic judges like O'Connor and Kennedy.What's striking me now is the difference between the way Lithwick thought about Obama and the way she thought about McCain. What can account for it other than a preference that she has for a strong liberal judge? Why is it that Obama is seen as having centrist, pragmatic inclinations and McCain was not? I can't help thinking Lithwick is running interference for some very liberal nominee to come. She has a strategy to portray that person as actually a moderate, someone to whom fair-minded conservatives should not object. But when faced with McCain, back when the presidency was still up for grabs, she had reason to scare readers that McCain would appoint a hardcore conservative.
In fact, I think that is the line he probably perceived between Roberts and Alito... [McCain had seemed to express a preference for Roberts over Alito.] I think people at the time did see a distinction like that, and even if McCain doesn't have a deep, lawyerly knowledge of law, he very well may have heard talk that Alito was more of an ideological conservative and Roberts had a instinct toward moderation and consensus.
You know, it's not just Dahlia Lithwick. This is the stock argument that you hear again and again from people who want the Supreme Court to move to the left: liberal = moderate, conservative = extreme. I'm just writing this up as a blog post because I happened to run across that old McCain item on the same day I read the Obama thing. Usually, I just sigh and think, yeah, that again.
***
By the way, did you know there have only been 2 Supreme Court Justices named Henry? The first was Henry Baldwin (1780 - 1844), appointed by Andrew Jackson:
Baldwin found himself at odds with the dominant personalities on the Court he joined, especially Joseph Story. Within a year of his appointment, Baldwin expressed the wish to resign. He missed an entire Term due to illness; and, a mental condition progressively disabled him....Well, that didn't go very well!
Baldwin wrote almost nothing of interest for the Court on the Constitution...
He appeared to suffer from occasional bouts of mental illness that made him obstreperous and even offensive to others. He did not get along with his fellow justices; and he was violent and ungovernable on the bench in his last years.
The other Henry was Henry Billings Brown (1836 - 1913), appointed by Benjamin Harrison:
Brown authored in excess of 450 majority opinions during his years on the Court....Ah, my... Things did not go well for the Justice Henrys.
Brown will probably be forever marked by a single opinion he authored for a majority: Plessy v. Ferguson....
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