Here's the news about the professor, David Epstein, who is accused of having a sexual relationship with his 24-year-old daughter. Now, let's read Justice Scalia's dissenting opinion in Lawrence v. Texas (the case that found a substantive due process right to engage in sodomy). Justice Scalia quotes the majority opinion (and adds italics):
“[W]e think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”
Scalia then writes (and I'm adding the boldface):
Apart from the fact that such an “emerging awareness” does not establish a “fundamental right,” the statement is factually false. States continue to prosecute all sorts of crimes by adults “in matters pertaining to sex”: prostitution, adult incest, adultery, obscenity, and child pornography. Sodomy laws, too, have been enforced “in the past half century,” in which there have been 134 reported cases involving prosecutions for consensual, adult, homosexual sodomy..... In relying, for evidence of an “emerging recognition,” upon the American Law Institute’s 1955 recommendation not to criminalize “‘consensual sexual relations conducted in private,’ ” the Court ignores the fact that this recommendation was “a point of resistance in most of the states that considered adopting the Model Penal Code.”....
The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable”... the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual” ... The Court embraces instead Justice Stevens’ declaration in his Bowers dissent, that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.
Of course, the Court did assert that in Lawrence, so according to Justice Scalia, under the existing precedent, consensual adult incest cannot survive rational-basis review.
Not so long ago, it was typical for justices to remain on the court until they died (the exit strategy of 49 of the 103 justices not currently serving) or became enfeebled by age (recall the explanation that Justice Thurgood Marshall gave when he retired in 1991 at the age of 83: “I’m old and falling apart.”) I can’t remember when the country was blessed by the presence of three retired justices who can get themselves from one place to another unaided.
This is a not-too-subtle hint to the older Justices to retire. Please vacate your seats and give some younger folks a shot. And give the young President an appointment. See? We will notice you as you go about giving innocuous speeches and publishes simple enough essays in the New York Review of Books — especially if you tell us you wish you voted differently on some case we journalists disapproved of or indicate you "her dismay at seeing some of her own work 'dismantled' by the current court." Come on out here where we can help you burnish your reputation.
UPDATE: I rewrote the headline, because it was so boring I was afraid no one would read through to the possibly amusing sarcasm.
To be reasonable, legislative imposition of death eligibility must be rooted in benefits for at least one of the five classes of persons affected by capital offenses.
First, of course, are victims. By definition murder victims are no longer alive and so have no continuing interest.
That's all he says about the victims! They're already dead. As if making murder a heavily punished crime doesn't prevent some people from becoming victims. Recent research undermines the convenient old assumption that the death penalty has no deterrent effect. Stevens says nothing about that because, I suspect, Garland doesn't.
The only Justice who has not issued a majority opinion from [the November] sitting is Justice Stevens, which makes him the very likely author. Justice Stevens tends to take a narrow view of patent rights...
I ultimately predict that the Bilski majority opinion will be authored by Justice Stevens and that the decision will be very significant in its narrowing of the scope of method patents.
2. Free Enterprise Fund v. Public Company Accounting Oversight Board:
[N]either the Chief Justice nor Justice Kennedy has authored an opinion from [the December] sitting... [but] Chief is ... unlikely to leave himself without an opinion in a sitting.
If I’m right, that means that the PCAOB’s structure is likely to be invalidated as unconstitutional. At oral argument the Chief Justice asked no questions of counsel to the plaintiffs and was hostile to the defense of the statute....
3. McDonald v. City of Chicago:
[T]he only Justice not to write from [the February] sitting is Justice Alito....
I predict that Justice Alito will write the Court’s opinion in McDonald recognizing that the Second Amendment is incorporated [in the 14th Amendment and thus applicable to state and local government]....
4. Christian Legal Society v. Martinez:
Neither Justice Stevens nor Justice Ginsburg authored an opinion from [the April] sitting....
Though it is very difficult to tell, I think that the most likely outcome in these circumstances is that Justice Ginsburg will issue a majority opinion in favor of Hastings Law School on the relatively narrow basis that the plaintiffs stipulated that the school had a neutral “all comers” policy that did not discriminate against this group but instead provided that all groups must accept all students
We shall see. It's a big Supreme Court day tomorrow. The Court's Term ends, with the retirement of Justice Stevens, and the hearings on the Kagan nomination begin.
Argues Cliff Sloan, a partner at Skadden, Arps, Slate, Meagher, & Flom and a former Stevens law clerk. A key move in this argument is excluding the Chief Justices on the theory that they have extra powers so it's not a proper comparison. Then Sloan has 4 reasons:
First, his record of protecting and maintaining the rule of law during the “war on terror” stands unique in Supreme Court annals....
Second, Justice Stevens has fundamentally changed – and strengthened – the Court’s jurisprudence regarding personal freedom.... [He] has successfully re-framed the Court’s conceptual framework for personal freedom from a general “privacy” right, which is not mentioned explicitly in the Constitution, to a “liberty” right, which is prominently and explicitly protected in the Constitution....
Third, Justice Stevens has steadfastly sought to enforce the rule of law even when the Presidency hangs in the balance....
Fourth, Justice Stevens has powerfully re-shaped the law in an astonishing range of areas....
Go to the link to see the cases Sloan discusses. I would note that in some of the cases, Stevens has had something akin to the superpower that Sloan used to exclude Chief Justices from the analysis. When the Chief Justice isn't in the majority, the most senior Justice in the majority decides who will write the opinion. As such, over the last 20 years, he's authored many of the important opinions where the liberal side of the Court had the majority. That he wrote the opinion on the side that Sloan prefers isn't the evidence of a personal stamp on the law that Sloan would have us think.
Once Sloan gets to identifying and excluding the the competition for greatest Justice, the argument falls badly apart. He has to really strain to minimize Brandeis, Holmes, Brennan, Story, and the first Justice Harlan. He lost me here, but you've got to give Sloan credit for writing what would be a strong entry in a competition requiring an essay titled "Justice John Paul Stevens is the greatest Justice in Supreme Court history."
After all, Stevens holds the seat that was previously occupied by William O. Douglas and Louis Brandeis, two of the leading anti-corporate crusaders of the twentieth century....
Anti-corporate crusaders? Sure, pick an anti-corporate crusader, Obama, and let's see how the back-and-forth in the Senate Judiciary Committee plays out. I mean, the nominee will still be confirmed, but in the rest of the political arena, leading up to the November elections? That would be brutal for the Democrats.
Yet none of the leading candidates for the Court appears to be an economic populist....
Why the absence of liberal economic populists from the shortlist?...
Since the 1960s, grassroots progressives have focused on non-economic issues: reproductive choice, for example, or civil liberties in an age of terrorism. That means that the current Supreme Court candidates had their legal sensibilities shaped in a political environment that was less preoccupied with questions of economic justice....
The Supreme Court itself stopped its own progressive forward glide when the opportunities for expanding constitutional rights arose in the context of redistribution of wealth (which is what Rosen and his ilk spin as "economic justice").
That’s a shame, because the most important issues the Roberts Court will confront over the next decade involve the constitutionality of environmental measures and economic regulations passed in the wake of the crash of 2008.... [I]t will not be enough for liberals simply to champion judicial deference for its own sake. The next justice will, like Brandeis and Douglas, need to make a substantive case for why these regulations are indispensable to protecting American democracy from the narrow interests of a corporate oligarchy....
If "environmental measures and economic regulations" are going to be passed, then why is anything more than deference to legislatures needed? Why should a Supreme Court Justice think he could bolster arguments for deference to democracy by expressing enthusiasm for the substance of the choices that legislatures have made?
The judicial role is strengthened by the appearance of neutrality and fidelity to law. Conversely, judges undercut their own power when they make it sound as though they are reaching their decisions because of their support for legislation that is challenged as a violation of constitutional rights. When arguments for constitutional rights fail, it should be (or at least appear to be) because the claimed rights don't exist, not because the rights claimants' interests are "narrow" and run counter to what the majority wants. Rights are supposed to work against the preference of the majority, so we should be wary of someone who says courts must "protect[] American democracy from... narrow interests." He is saying rights are not rights.
Although the next justice may not be an economic populist, the confirmation hearings ahead are an opportunity to cast the spotlight on the intersection between economic populism and the law. Leahy and other Senate Democrats should use the hearings to ask the nominee to discuss these questions in depth.
WE HAVE A WINNER: Irene says: "Which affiliation do most Americans agree would disqualify a person from nomination to the US Supreme Court?"
Yes, there is a new poll about replacing Justice Stevens, and in one part of it, Americans are asked if they would be "comfortable" with various sorts of nominees. Here's the PDF of the results. A socialist, an atheist, and a Muslim are the 3 types of nominees that a majority of Americans would not be "comfortable" with. 64% were uncomfortable with the socialist (though Democrats were split 47/47%). 58% were uncomfortable with an atheist, including a majority of both Democrats and Republicans. And 53% were uncomfortable with a Muslim (though only 45% of Democrats had a problem). Interestingly, in contrast to the socialist, libertarians did pretty well. 57% were comfortable, including 53% of Democrats. The poll also asked about Mormons and Christians who take the Bible literally. Both of those types did quite will, with 65% and 62%, respectively, feeling comfortable.
Bloggingheads, with Emily Bazelon, talking about a Supreme Court without a Protestant, why Obama should pick an out-and-proud liberal, the causal connection between bullies and suicide, and those terrible Tea Partiers.
Within this small pool of extremely well-qualified candidates, Obama should pick the person he thinks will do the best work for us on the Court. There will be a big fight no matter what, because there is too much to be gained from using the confirmation as a political battlefield. It's a shameful business to exclude candidates because they have had to decide abortion cases. We are impoverished if the more experienced jurists are passed over precisely because of their experience, because they have written opinions that we can read and argue about. Obama and the Democrats should have the nerve to defend the judicial decisions we call liberal.
"When President Ford was faced with a Supreme Court vacancy shortly after the nation was still recovering from the Watergate scandal, he wanted a nominee who was brilliant" and committed to the law, Obama said, hailing Stevens as a justice who "has stood as an impartial guardian of the law . . . with fidelity and restraint. . . . He will turn 90 this month, but he leaves this position at the top of his game."
On paper, it would seem that this would be Obama's last chance to appoint an assertively liberal choice to replace Stevens, who emerged as the loudest voice of the court's left wing. Democrats hold a large majority in the Senate. Next year, their grip on the chamber could be much more tenuous.
I find those 2 paragraphs, taken together, pretty amusing. Was Justice Stevens a brilliant, impartial, restrained, faithful guardian of the rule of law or the loudest voice of the left wing?
Judicial experience may not be the only intangible working against Kagan. Another may be that she’s Jewish. “Almost nobody has noticed that when Justice Stevens retires, it is entirely possible that there will be no Protestant justices on the court for the first time ever,” writes NPR’s Nina Totenberg. “Let’s face it: This is a radioactive subject. As Jeff Shesol, author of the critically acclaimed new book Supreme Power, puts it, ‘religion is the third rail of Supreme Court politics. It’s not something that’s talked about in polite company.’ And although Shesol notes that privately a lot of people remark about the surprising fact that there are so many Catholics on the Supreme Court, this is not a subject that people openly discuss. … Only seven Jews have ever served, and two of them are there now. Depending on the Stevens replacement, there may be no Protestants left on the court at all in a majority Protestant nation where, for decades and generations, all of the justices were Protestant.”
He was born in 1920, the youngest of four boys in a wealthy family. When he was 7, his father opened the 28-story Stevens Hotel on Michigan Avenue (now the Hilton Chicago), overlooking the lake.
It was said to be the largest hotel in the world, and the young boy met the traveling celebrities of the era, including aviators Charles Lindbergh, who gave young John a dove, and Amelia Earhart, who advised him he should be in bed because it was a school night. A fan of the hometown Cubs, he watched at Wrigley Field as Babe Ruth pointed his bat at the outfield bleachers and hit the next pitch there during the 1932 World Series.
But by then, his family's prospects had darkened with the Great Depression. The stock market had crashed two years after the Stevens Hotel had opened, and the ensuing business collapse emptied most of its rooms. After the hotel was driven into bankruptcy, Stevens' father, uncle and grandfather were accused of having embezzled more than $1 million from the family-run life insurance company to prop up the failing hotel.
His grandfather suffered a stroke, and his uncle committed suicide. Left to stand trial alone, Stevens' father was convicted and faced a long prison term. A year later, however, the Illinois Supreme Court unanimously overturned the conviction and said that transferring money from one family business to another did not amount to embezzlement.
Justice Stevens has been a friend of church-state separation. His Establishment Clause jurisprudence has always been strong. He has uniformly stood against government-sponsored religious speech and endorsement of religion. He has been just as critical of attempts on the part of government to fund religious organizations and activities.
However, his willingness to require (or sometimes even to permit) the accommodation of religion under the First Amendment's Free Exercise Clause has been lacking. He joined the Court's conservatives in Employment Division v. Smith, the Native American peyote case, which gutted the Free Exercise Clause of its robust religious liberty protection for all Americans, not just Native Americans.
"However" is the wrong transition. "Accordingly" or "by the same token" would be appropriate. A strong position on the separation of church and state, at its most consistent, leads to the idea that neutral, generally applicable laws do not violate the the Free Exercise Clause. Smith validated uniform laws as they are applied to everyone, with no exceptions required.
Here's Justice Stevens, in a concurring opinion, in Boerne v. Flores, in a case in which a church in an historic district wanted to enlarge its building:
If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that [the Religious Freedom Restoration Act] gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment.
The Religious Freedom Restoration Act, Congress's response to Smith, was an attempt to create by statute what the Court had rejected as a constitutional requirement: exemptions from neutral, generally applicable laws that burden religion. Stevens, alone of all the Justices, thought that RFRA violated the Establishment Clause.
Do you think government should be able to give religious persons and groups "a legal weapon that no atheist or agnostic can obtain"? Do you think it's conservative or liberal to say no, as Justice Stevens did?
Walker dings Stevens for "join[ing] the Court's conservatives" in Smith, but Justice White was also on that side, and Justice O'Connor was on the other side. Walker seems to think that he's bolstering his position on the Free Exercise Clause by associating it with conservatives, and it probably is safe to assume most Washington Post readers think like that. But with the religion clauses, it's not so easy. If you're a liberal who cares deeply about the separation of church and state, why would you favor religion-based exceptions to laws that otherwise apply uniformly?
Let's face it: This is a radioactive subject. As Jeff Shesol, author of the critically acclaimed new book Supreme Power, puts it, "religion is the third rail of Supreme Court politics. It's not something that's talked about in polite company." And although Shesol notes that privately a lot of people remark about the surprising fact that there are so many Catholics on the Supreme Court, this is not a subject that people openly discuss.
Professor Mark Scarberry at Pepperdine law school, a self-described evangelical Protestant, says there should be no religious test for appointment.
"But I don't think that that means that a president shouldn't pay at least some attention to religious diversity on the court," he said. "It does seem to me that when you have such a large part of the country that has a particular sort of religious worldview, if there is no one on the court who is able to understand that worldview in a sympathetic way, then that creates difficulties."
I think that since we talk about the race/ethnicity and sex of the Supreme Court nominees, we should talk about religious affiliation. Religion is an even more important aspect of diversity, since it resides in the human mind, and it is the mind that will be making the decisions that bind us. (Is it Protestant of me to think that religion resides in the human mind?)
It's odd how the problem has gone without notice until we are at the point where the Supreme Court will be composed entirely of Catholic and Jewish Justices. It does seem quite wrong to look at the short list of potential nominees and disqualify the very impressive candidates who are not Protestant. That seems like outright discrimination. But why is giving preference to a Protestant any different from going after a female/Hispanic candidate, as President Obama did with the last appointment?
Thoughtful reasoning? What thoughtfully reasoned excerpts from the decision were quoted? And how thoughtfully reasoned do you suspect Steven's ruling was? The guy is ninety, you know and slurs his speech. Yet your conserva-times chose him to do the deed and I saw very little of what he had to say quoted here.
Wait a minute. You don't think...you think Stevens was part of the majority! BWaaaahaaa haaa! You haven't the slightest clue what you're talking about, you pompous windbag! Why don't you come back after at least reading the summary! I wonder if your opinion of Stevens will suddenly, conveniently completely reverse!
Ritmo's response? Something about only "skimming" the case and assuming the conservatives must have "co-opted" the "senile" liberal justice to get their majority. Suddenly, "the specifics of all this" aren't what really matter. You know: When the "specifics" don't feel like good slingable mud, you just don't care about using personal remarks against the justices as a way of saying you didn't like the outcome of a case.
I love the way the liberal's willingness to make a completely un-PC attack on a person, when that person is conservative, glares so painfully when it turns out that the target of the attack isn't actually conservative.
[I]t was striking to see him appear to stumble over words as he read it, to mispronounce words like “corruption” and “allegation,” to seem to lose his place in his summary, to often hit the microphone with his hand or his papers.
... [I]t was so different from the John Paul Stevens we’ve come to know.
It's sad when aging shows, just as it's inspiring when an older person is especially vigorous. But no one can go one forever.
I wonder what a Supreme Court confirmation will be like in the new political environment, with the elections approaching in the fall.
Here I am on a May, 4, 2009 Bloggingheads with Emily Bazelon, raising the question question of religious diveristy in the wake of the Souter retirement. (This recorded on May, 4, 2009 , before Obama had nominated Sotormayor.)
Now, Justice Stevens is the only Justice who was raised in the Protestant tradition. The other 2 Justices are Jewish. I anticipate that there will be little discussion of this, but I find it hard to believe that Obama will not see the lack of diversity as a problem and choose a Protestant.
