The Volokh Conspiracy

The S.F. Chronicle reports:

A Cal State East Bay math teacher and practicing Quaker who was fired for refusing to sign a state-required loyalty oath got her job back this week, with an apology from the university and a clarification that the oath does not require employees to take up arms in violation of their religious beliefs....

In a grievance hearing Thursday conducted in a telephone conference call, an attorney for the California State University chancellor's office presented Kearney-Brown with a statement saying in part, "Signing the oath does not carry with it any obligation or requirement that public employees bear arms or otherwise engage in violence."

With that statement stapled to the loyalty oath, and a promise by the university to present the clarifying language to other new employees, Kearney-Brown said Friday that she felt comfortable signing the form and returning to work.

For more on this story, see our earlier post.

Beth R. v. Donna M., 2008 WL 615031, No. 350284/07 (a trial court decision from New York County):

Absent overriding legislation, recognition of out-of-state marriages is governed by common law doctrines and comity. New York courts have long held that out-of-state marriages, if valid where entered will be respected in New York even if under New York law the marriage would be void. "(I)t is a general rule of law that a contract entered into in another State or country, if valid according to the law of that place, is valid everywhere.... (T)he rule recognizes as valid a marriage considered valid in the place where celebrated." There are only two exceptions to this rule. New York will not recognize either a marriage prohibited by positive law of this state or a marriage abhorrent to New York public policy. The abhorrence exception is so narrow that it has been applied only to marriages involving polygamy or incest....

Courts have recognized other out-of-state marriages that are repugnant under New York law. Historically, New York law prohibited a respondent who was divorced on the grounds of adultery from remarrying during the former spouse's life. Yet the respondent's remarriage in another state was recognized as valid in New York if the other state did not preclude the remarriage of an adulterer. A valid out-of-state marriage that was voidable under New York law because a spouse was underage was recognized as valid in New York. Common law marriages, although not recognized in New York, will be upheld if validly entered into under the laws of another state. New York recognizes as valid out-of-state marriages by proxy, although such marriages cannot be performed within New York....

Accordingly, defendant's motion to dismiss this divorce action on the grounds that the parties' Canadian marriage is void under New York law is denied.

UPDATE: Thanks to commenter Klerk for a pointer to the decision, and also for a pointer to a similar decision last month in Martinez v. County of Monroe -- an appellate decision in that case, not just a trial court decision, and one involving a right to spousal health care benefits based on a Canadian same-sex marriage.

Some reactions to my "a classical ethical bind for lawyers" post suggested that the ethical question was easy: The lawyers whose client had said he committed a murder should have revealed that information in order to free the person who was wrongly imprisoned for that murder, even assuming that would have meant disbarment or long-term suspension for violating lawyer-client confidentiality. If they didn't do this, they'd be acting unethically.

But even assuming that the underlying confidentiality rule is unsound, surely it's not so clear that people have an ethical duty to save another's life at such great expense. My guess is that if you spent $10,000, you could likely save the life of some sick child in Africa; if you spent $50,000, I imagine this would be even likelier (and perhaps the number is actually a lot less). If you donated a kidney — which will expose you to a roughly 0.03% risk of death, and a slightly larger but still very small risk of complications — you could dramatically reduce a roughly 20% or more risk of death for someone on the kidney waiting list (since that's how risky it is for him to be on long-term dialysis while he's waiting for a new kidney). If you find someone who's near the tail of the waiting list, you might reduce a still greater risk. Yet most of us wouldn't say, I think, that it's really your ethical obligation to run such a risk, or bear such a cost, to save a stranger's life.

Likewise, I don't think that it's really your ethical obligation to lose what is likely hundreds of thousands of dollars in future income, by giving up a profession that you spent over a hundred thousand dollars to train for. You might deserve credit for making such a choice (assuming we conclude that the ethical rule you're violating is indeed unsound). But that's different from saying that you have an ethical duty to make that choice.

Seen in our referrer log: http://www.google.com/search?q=women+sexually+touching+each+other&btnG=Search&hl=en

Boy, that visitor didn't get what he wanted.

CBS reports:

Alton Logan doesn't understand why two lawyers with proof he didn't commit murder were legally prevented from helping him. They had their reasons: To save Logan, they would have had to break the cardinal rule of attorney-client privilege to reveal their own client had committed the crime. But Logan had 26 years in prison to try to understand why he was convicted for a crime he didn't commit....

Lawyers Jamie Kunz and Dale Coventry were public defenders when their client, Andrew Wilson, admitted to them he had shot-gunned a security guard to death in a 1982 robbery. When a tip led to Logan's arrest and he went to trial for the crime, the two lawyers were in a bind. They wanted to help Logan but legally couldn't....

The lawyers did get permission from Wilson, to reveal upon his death his confession to the murder Logan was convicted for. Wilson died late last year and Coventry and Kunz came forward. Next Monday, a judge will hear evidence in a motion to grant Logan a new trial.

I'm not a legal ethics expert, but my understanding is that there is indeed no exception from attorney-client confidentiality in such cases. (If a client tells you that he intends to commit a crime in the future, you may be able to turn him in, but not when he admits that he has committed a crime in the past.) And I can certainly understand the reasons for such a confidentiality rules, whether for lawyers, priests, or psychotherapists. But, boy, they surely do yield a very troubling result in a case such as this one.

Thanks to Paul Milligan for the pointer.

I blogged yesterday about why I think women-only exercise hours at a Harvard pool don't violate Massachusetts law. I'm inclined to also think that they don't violate Title IX, because they don't deal with discrimination in educational activities. It's not clear whether an accompanying requirement that the attendants working at the pool during those hours be women would violate employment discrimination law; that turns on whether sex is a bona fide occupational qualification in that kind of situation, a matter that is not certain.

But I want to briefly touch on the broader policy questions: Should it be illegal for various organizations — whether health clubs generally or exercise facilities at universities — to provide single-sex exercise facilities? I'm inclined to say the answer is no.

1. To begin with, antidiscrimination law, especially as applied to nongovernmental entities, imposes substantial governmentally coerced burdens on liberty and choice, both of businesses (and similar nonbusiness entities) and of would-be patrons. In this kind of situation, the burden is chiefly on those people (men and women) who prefer single-sex exercise over mixed-sex exercise. That's a serious cost of any such law. This cost may be outweighed by various benefits, but we shouldn't forget the cost, nor just categorically assume that nondiscrimination based on various attributes must inherently be the rule everywhere.

2. In particular, I think the case for banning sex discrimination in places of public accommodation is fairly weak. Such discrimination rarely has major effects on people's lives, economic opportunities, educational options, and the like. Federal public accommodations law doesn't ban sex discrimination; state laws in Kentucky, South Carolina, and possibly Nevada (plus likely other places — I just took a quick look) don't, either. Whatever problems men or women may face in those states, I doubt that they stem from rampant discrimination in public accommodations based on sex.

In some situations, public accommodations discrimination based on sex may affect economic opportunities; this was a major argument for banning sex discrimination in clubs and social organizations that could be used for networking. I'm not sure that this is reason enough to ban such discrimination — people network over dinner with acquaintances, in church, and for that matter in bed, but that isn't reason enough to ban discrimination in socializing, religion, and sex. But even if one does think that some clubs should be required to open up to women as well as men, perhaps because government coercion in club socializing isn't as harmful to rights of association as government coercion in nonclub socializing (and because such coercion is needed to reduce economic barries to women), that should be the exception, not the rule.

Little harm is caused when, say, a hair stylist wants to serve only women (or only men), or a family lawyer wants to specialize in representing wives rather than husbands, or a bar offers a ladies' night discount to bring in more women (and thus indirectly help many of its male patrons). And a good deal of harm to individual choice is caused by banning such discrimination.

3. Yet even setting aside the general point in item 2, I think tolerating sex discrimination in health clubs and the like is especially appropriate. Exercise wear understandably tends to the relatively scanty or revealing (swimwear, for instance, can be revealing even when not scanty). It tends to show skin and figure, and it tends to show things that the wearer sees as flaws. Many women understandably don't like being viewed by male strangers is such situations, either because the women don't want to feel they are being lustfully ogled, or because they don't want to feel they are being harshly judged. The same may be true of some men who might prefer not to be viewed by female strangers (though I expect more on the "harshly judged" concern than the "lustfully ogled" one).

So I think there are eminently legitimate privacy-like concerns here — obviously not as strong as in the shower room or the locker room, but still pretty substantial. They may be especially felt by some Muslim women, but my guess is that many other women would have similar concerns, whether because of religion, nonreligious modesty concerns, vanity, or some mix.

Coercive governmental restrictions on single-sex exercise facilities are thus especially burdensome. And such restrictions strike me as providing especially low benefits. Even if women-only and men-only exercise facilities were allowed, I'm pretty sure that there'd still be plenty of places where women and men can exercise. (Even if the facts are otherwise, then at least some sorts of women-only and men-only times should be allowed.) Nor do I think that many women, for instance, would be professionally handicapped because they can't effectively network with men given that a few health clubs will become men-only (and I imagine they'd only be a few). It's thus quite right, I think, that some statutes (for instance, in Illinois, in some measure in Massachusetts, and I'd guess in many other states) and at least one court decision (in Pennsylvania) exempt health clubs from antidiscrimination law.

4. Finally, what about government funding? Should the law bar discrimination in places that are indirectly supported by government funds (as most universities are)? I don't think so: When the government consumes 25-30% of the GNP, and spends that money in a vast range of ways, I don't think a private institution's getting some government benefit — especially under an evenhanded program available to everyone — should generally affect the analysis.

All nonprofits, for instance, get a de facto subsidy through the tax deduction for charitable contributions. This means that religious institutions, including ones that provide benefits only for coreligionists, end up getting the economic equivalent of matching funds for the contributions they get. Should we be worried about that? I don't think so, especially when there's reason to think that the benefited programs in the aggregate serve a wide range of groups. Likewise, if some health clubs that get some indirect government benefits (e.g., because they are paid for by universities that get some government grant money) allow both sexes, some allow only men, some only women, and some women during certain hours and both sexes during other hours, that seems just fine to me.

5. So, the bottom line: Single-sex exercise should be tolerated, both by government, and (for some of the same reasons I mention above) by social norms. That's true whether people want it because they're Muslim, because they're from other religions that stress modesty, because they have nonreligious modesty concerns, or just because they think their bodies aren't yet good enough that they'd be comfortable having members of the opposite sex stare at them. The law shouldn't coercively interfere with people's ability to choose single-sex exercise programs, and with businesses' or organizations' ability to offer such choices.

A bunch of people have written in about In re Rachel L., a California Court of Appeal decision holding that there's no constitutional right to home-school your children. I read the case a couple of days ago, and checked out other caselaw on the subject. Here's what I've found:

1. It's pretty well-settled that the parental rights cases -- such as Pierce v. Society of Sisters (1925) -- don't secure a right to home-school. This is partly because Pierce seemed to expressly decline to raise such a right, saying, "No question is raised concerning the power of the state reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare."

Now perhaps this should just be taken literally to mean that the Court wasn't deciding this question. Or perhaps "require[ments] that all children of proper age attend some school" should -- as a constitutional matter -- be satisfied by a showing that the child is "attend[ing]" a home school that is allowing the child to perform at or beyond grade level. Or perhaps the means for regulating home schooling (such as tests that show a student's progress) are much more advanced now than they were then, and that regulated home schooling is a "less restrictive alternative" that would still accomplish the government interest in making sure children are adequately educated. But as best I can tell, all the appellate courts dealing with the subject have taken the view that bans on home schooling (or requirements that only people with suitable teaching credentials may home-school) are constitutional under Pierce. This has certainly been the constitutional rule recognized by California courts for 50 years; In re Rachel L. relies on a California appellate precedent from 1953.

2. Religious homeschooling is a different matter. Wisconsin v. Yoder held that the Amish could pull children out of school at age 14, and then vocationally train the children at home, notwithstanding a compulsory education law that generally required school attendance until 16. And Yoder survives the Court's decision in Employment Division v. Smith (which mostly holds that the Free Exercise Clause doesn't require religious exemptions from generally applicable laws, but which expressly preserves such claims in parental rights cases like Yoder). And in People v. DeJonge, 501 N.W.2d 127 (Mich. 1993), the Michigan Supreme Court generally held that there is a constitutional right to home-school, though with some regulations (not including a requirement that one parent be a certified teacher, which is the very requirement that the Michigan Supreme Court struck down).

The California Court of Appeal case concluded that the parents didn't introduce enough evidence that their motivation for home-schooling was religious, and it seemed more broadly hostile to this theory. Still, I think it would be possible for home-schooling parents in California who are home-schooling out of felt religious compulsion (or perhaps even felt religious motivation) to raise a Yoder claim, and perhaps to prevail on it.

3. I haven't done a precise head-count, but my sense is that home-schooling is legal in nearly all states -- but as a result of legislation, not constitutional litigation. It's quite possible that this case will trigger pro-home-schooling legislation in California.

4. As a policy matter, I think home-schooling -- with some regulation, for instance with mandatory testing of children to make sure they are learning well enough -- should indeed be legal.

5. As a constitutional matter, I'm not at all sure what the rule ought to be. On the one hand, I sympathize with parental rights claims, especially given the dangers of giving the government broad power to control children's upbringing, and given the American tradition of recognizing parental rights (though a tradition that has not been uniformly friendly to home-schooling).

But on the other hand, I think that whatever one thinks of the general unenumerated constitutional rights debates, a claimed right to control a third party -- however much the claimed rightsholder might generally love the third party, and however much that third party might need some control from someone -- strikes me as among the weakest sorts of claims for unenumerated rights. So I'm not confident about the right answer here; my post is primarily aimed at reporting on the controversy.

The Indiana University-Purdue University Indianapolis letter David mentioned can't, I think, be captured well in a paraphrase. Here's the full text, sent to Keith Sampson (a janitor):

The Affirmative Action Office has completed its investigation of Ms. Nakea Vincent's allegation that you racially harassed her by repeatedly reading the book, Notre Dame vs. the Klan: How the Fighting Irish Defeated the Ku Klux Klan by Todd Tucker in the presence of Black employees. In conducting this investigation, we interviewed you, Nakea Vincent, and other employees with information relevant to the mailer.

Upon review of this matter, we conclude that your conduct constitutes racial harassment in that you demonstrated disdain and insensitivity to your co-workers who repeatedly requested that you refrain from reading the book which has such an inflammatory and offensive topic in their presence. You contend that you weren't aware of the offensive nature of the topic and were reading the book about the KKK to better understand discrimination. However you used extremely poor judgment by insisting on openly reading the book related to a historically and racially abhorrent subject in the presence of your Black co-workers. Furthermore, employing the legal "reasonable person standard," a majority of adults are aware of and understand how repugnant the KKK is to African Americans, their reactions to the Klan, and the reasonableness of the request that you not read the book in their presence.

During your meeting with Marguerite Watkins, Assistant Affirmative Action Officer you were instructed to stop reading the book in the immediate presence of your coworkers and when reading the book to sit apart from the immediate proximity of these co-workers. Please be advised, any future substantiated conduct of a similar nature could result in serious disciplinary action.

Racial harassment is very serious and can result in serious consequences for all involved. Please be advised that racial harassment and retaliation against any individual for having participated in the investigation of a complaint of this nature is a violation of University policy and will not be tolerated.

This concludes this matter with the Affirmative Action Office. If you have any questions, please feel free to contact us.

If this were a parody, people would have faulted it for being so excessive as to be unbelievable — but it appears to be quite real.

Fortunately, the University seems to have changed its tune in a later letter:

This letter will replace my prior letter to you dated November 25, 2007.

I wish to clarify that my prior letter was not meant to imply that it is impermissible for you or to limit your ability to read scholarly books or other such literature during break limes. There is no University policy that prohibits reading such materials on break time. As was previously stated, you are permitted to read such materials during appropriate times.

I also wish to clarify that my prior letter to you was meant only to address conduct on your part that raised concern on the part of your co-workers. It was the perception of your co-workers that you were engaging in conduct for the purpose of creating a hostile atmosphere of antagonism. Your perception was that you were reading a scholarly work during break time, and should be permitted to do so whether or not the subject matter is of concern to your coworkers.

I am unable to draw any final conclusion concerning what was intended by the conduct. Of course, if the conduct was intended to cause disruption to the work environment, such behavior would be subject to action by the University. However, because I cannot draw any final conclusion in this instance, no such adverse disciplinary action has been or will be taken in connection with the circumstances at hand.

Hard for me to see this as a "clarification"; it's a retreat, and an eminently justifiable one (though I wish it were even more complete and clear). In any case, though, the University deserves to be strongly faulted for its original position.

[Reposted to fix comments, which weren't working originally.] Prof. Glenn Reynolds (InstaPundit) asked whether this would violate Massachusetts antidiscrimination law:

Harvard University has moved to make Muslim women more comfortable in the gym by instituting women-only access times six hours a week to accommodate religious customs that make it difficult for some students to work out in the presence of men.

Men have not been allowed to enter the Quadrangle Recreational Athletic Center during certain times since Jan. 28, after members of the Harvard Islamic Society and the Harvard Women's Center petitioned the university for a more comfortable environment for women....

Prof. John Banzhaf has put out a press release saying that it probably does:

... In 1998 a female weight lifter in Boston was awarded $5000 when she was denied admission to a male-only section of a gym which had a separate gym area for women. The Massachusetts Commission Against Discrimination made the ruling despite arguments that separate weight-lifting areas were necessary to prevent "sexual harassment," and a finding that it did in fact tend to reduce sexual harassment. [Hassan and DiCenso v. City of Boston, et al., 20 MDLR 83]

Just a year earlier Superior Court Judge Burnes ruled that a "women only" health club violates Massachusetts' public accommodation statute by refusing to admit men, and could not justify its policy on privacy grounds. [Foster v. Back Bay Spas, d/b/a/ Healthworks Fitness Center, Suffolk Superior Court No. 96-7060 (1997).]

Although the legislature responded by exempting some health clubs which are established solely for use by one gender, that exemption does not appear to apply here because the gym is used by both genders together during most times of the day, and because Harvard receives public funds. In the statutory words:

"however, that with regard to the prohibition on sex discrimination, this section shall not apply to a place of exercise for the exclusive use of persons of the same sex which is a bona fide fitness facility established for the sole purpose of promoting and maintaining physical and mental health through physical exercise and instruction, if such facility does not receive funds from a government source." [ALM GL ch. 272, § 92A] ...

A couple of quick thoughts:

I may be mistaken, but my sense is that the relevant statute wouldn't apply to Harvard if the exercise facilities are inded open only to Harvard students, faculty, staff, alumni, and some family members. The statute states that, "A place of public accommodation, resort or amusement within the meaning hereof shall be defined as and shall be deemed to include any place, whether licensed or unlicensed, which is open to and accepts or solicits the patronage of the general public" (emphasis added), and Harvard-only facilities aren't aimed at "the general public." Cf. Haskins v. President and Fellows of Harvard College, 13 Mass.L.Rptr. 691, 2001 WL 1470314 (Mass. Super. 2001) ("Although Harvard accepts applications for admittance from the general public, it admits only a small fraction of applicants. The unsuccessful majority (like the rest of the public) is then excluded. Thus Harvard is not a place of public accommodation within the meaning of the statute.").

If there's some statutory text or caselaw I may have missed on this, please let me know.

UPDATE: Thanks to Wallace Forman for the pointer to what seem to be the eligibility criteria for Harvard recreational facilities; the original version was more tentative on the criteria, and also omitted the possibility that family members might qualify (a possibility that does not affect the analysis, I think).

So says MilitaryLoveLinks.com. Of course, my first thought: I'll bet people can search by service; can't very well bring an Army boy home to meet the Marine dad. In any case, I can't say I've spent any serious time investigating this, but it sounds like a cool idea. I particularly like the Step 1 / 2 / 3 photos. (Seriously, they seem cute, as these things go.)

By the way, I spotted the site because of an ad on a blog (though I'm not sure which one).

Seen in an author's note: "I would like to thank Professor Orin Kerr of the George Washington University Law School for his posting on The Volokh Conspiracy that was the inspiration for this Note topic." Rasha Alzahabi, Should You Leave Your Laptop at Home When Traveling Abroad?: The Fourth Amendment and Border Searches of Laptop Computers, 41 Ind. L. Rev. 161 (2008).

Some commenters accuse my "Fake Memoirs" post of being "irresponsible" and "dangerous." Doesn't that make you want to check it out? Express your opinion in the comments; you can guess my view of the subject.

Stephen Henderson of the Free Press responds to my criticism of his column about the Supreme Court:

Obviously, Eugene and I’d disagree about the court and its make-up. I’m fine with that. Eugene’s an expert on the court, and I have complete respect for the way he sees things.

That said, I saw the key passage of my column as this one:

“It's about the assumptions that are now indelibly woven into the court's thinking, the whole approach the justices -- liberal or conservative -- seem to take to resolving cases. The more conservative court orthodoxies, with their emphasis on cabined textual interpretation, restriction of individual liberties to those enumerated in the Constitution, and skepticism of government interference in economic issues, is just about the only school of thought that matters at the high court anymore.

It shouldn't matter whether you agree with those tenets or not; the truth is that they shouldn't be the only assumptions with importance.”

So what I’m lamenting, I guess, is less about the justices in particular, and more an expression of my utter jealousy at the extent to which conservatives have woven their constitutional approach into the very fabric of the court. That is, of course, a result of Republican electoral dominance; that’s just the way that goes. But yes, I do think the court is worse off for the fact that many liberal schools of thought about the court and the Constitution are utterly locked out of the affairs on First Street. There is a whole generation of progressive, liberal thought about those issues that has just not been reflect on the high court. (think of Akhil Reed Amar’s wonderful take in his book about how the Bill of Rights was changed by the Civil War amendments, as just an example.)

The approaches of justices like Scalia, Thomas (yes, I know the difference between the two), Roberts and Alito is not matched on the opposite side. (Maybe you’d also argue that’s because there IS no match, anywhere, to the conservative approaches, but that’s another discussion.)

It was in that context that I wrote: “With more Democratic-appointed justices, I think we'd see more pushback against the conservative dominance. I think we'd see a whole category of more liberal legal thought get a stronger airing where it counts most.” I’m hoping to see some of the more disciplined liberal approaches join the discussion at the court.

Seriously, I wasn’t JUST talking about results.

I much appreciate Mr. Henderson's taking the time to respond, but I guess I'm still unpersuaded. It sounds like Mr. Henderson is criticizing the liberals and moderate liberals on the Court for not being eloquent, thoughtful, or liberal enough -- but if one looks at the concrete examples given in his column, it's hard to see the support for his case. Let me take them in order:

1. "Cabined textual interpretation" -- I'm pretty sure that the liberal and moderate liberal Justices on the Court are far from wedded to "conservative court orthodoxies" on the subject. (Perhaps even some of the conservative and moderate conservative Justices aren't always as into cabined textual interpretation as they should be.) Like all Justices, the liberals sometimes focus on the text and sometimes go quite far beyond it. It's hard to see, for instance, the liberals' view on abortion rights as a matter of "[c]abined textual interpretation." (Even if one thinks the Ninth Amendment or some other constitutional provision provides a textual hook for such enumerated rights, surely it takes more than "[c]abined textual interpretation" to get from the text to this particular right.)

2. "Restriction of individual liberties to those enumerated in the Constitution" -- the liberal and moderate liberal Justices form the majority of the support for Lawrence v. Texas and for continued protection for abortion rights, who expressed support for continuing unenumerated rights jurisprudence in Glucksberg. Many of them also support parental rights and substantive due process rights to limits on punitive damages (limits that, even if implicit in the Due Process Clause, are surely not expressly enumerated in the Constitution).

3. "Skepticism of government interference in economic issues" -- the liberal and moderate liberal Justices' votes in constitutional economic rights rights, like Kelo v. City of New London, don't exactly show skepticism of government interference. Likewise, while I haven't followed closely all the liberal and moderate liberal Justices' statutory decisions, I'm pretty sure that they don't stick with any "conservative court orthodox[y]" on the subject.

4. "[T]he scope of individual rights in the Constitution" -- surely here too the liberal and moderate liberal Justices' aren't sticking with conservative orthodoxies (though indeed in some situations all the Justices agree, or some conservative Justices join the liberal Justices, or some of the liberal Justices join the conservative).

5. "Race-consciousness of any sort -- even when designed to ameliorate past racial injustice -- is now routinely equated with racial discrimination" -- here, the liberal and moderate liberal Justices have been squarely opposed to the conservative position (though one of them, Justice Stevens, had joined the conservatives in the 1980s on some such decisions). Their views seem to well reflect the mainstream of "progressive, liberal thought" on the subject.

Now of course one could always find some scholarly views -- whether liberal, conservative, libertarian, or otherwise -- that are not being expressed by any Justice. Sometimes that's good and sometimes that's not. But as best I can tell, on every specific substantive issue that Mr. Henderson had raised, the liberals and moderate liberals on the Court have indeed often taken liberal positions, and articulated them well. Maybe there is "a whole generation of progressive, liberal thought about those issues that has just not been reflect on the high court," but nothing in the original column evidences that. There's plenty of liberal and conservative constitutional thought on the Court. The conservative dominance, such as it is, is precisely in the results (some of the time), not in the conservatives' supposedly having taken over the ideological debate, or having "woven their constitutional approach into the very fabric of the court" (at least to the exclusion of liberal constitutional approaches that are also woven into the same fabric).

As to the suggestion that the Bill of Rights has been changed by the Fourteenth Amendment, at least in its incorporation to the states, that's hard to evaluate as a global matter, and without reference to specific cases that might lead the Justices to consider adopting such a substantial departure from precedent. (The precedent as to most, though not all, Bill of Rights clauses is that they are incorporated against the states, and apply the same way to state law and federal law.) But I can say that, as to one provision of the Bill of Rights, one Justice has indeed argued that the Fourteenth Amendment shouldn't just apply the Bill of Rights to the states, and has even cited Akhil Amar on this score. That is, of course, Justice Thomas, writing about the Establishment Clause.

There are more than I'd thought, reports Slate. I'd read about the fake Holocaust memoir and the fake white-girl-in-South-Central-L.A. memoir, but Obama? Jenna Jameson? Persepolis? Shocking.