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Lithwick on What's Wrong With the Roberts Court:
Over at Slate, Dahlia Lithwick is trying to figure out why she has such strong objections to the Roberts Court. Lithwick notes that among liberal commentators, it is widely believed that the problem with conservative Justices is that they are "just plain mean." Lithwick suggests the problem may be elsewhere; perhaps the conservatives are not so much personally mean as lacking in some other quality. But she can't quite figure out what that quality is. She writes:
  Now maybe the Roberts Five [Roberts, Scalia, Kennedy, Thomas, & Alito] really are bilious and rageful. In which case I guess we should call them that. But I didn't think calling conservatives "mean" was a smart tactic during those confirmation hearings, and I don't think it's smart now. Still, I am struggling now as I was back then to define what judicial quality Roberts and Alito seemed to lack.
  . . . So is that what the court needs today? More pragmatists? Some of the Fray posters have suggested it simply needs fewer lawyers. Or perhaps it just needs fewer lawyers who came up (forgive me) through the executive branch? I have come to believe that it definitely needs more women and people of highly divergent life and career experiences—and no, Harvard vs. Yale law schools is not "highly divergent." But is there a name for this thing we liberals want to see more of on the court? Something that isn't merely the opposite of "mean"?
  My view is that focusing on a judge's personal "niceness" or "compassion" or affection for "the little guy" is a mistake. That's not a legal theory so much as what I look for in a babysitter. I think that the meanness we're seeing, to the extent you can call it that, has to do with the Roberts Court's very cramped and unforgiving view of the role of courts. I once wrote that Roberts seems to believe that there was "no problem too big for the courts to ignore." I wonder if that is part of the sea change we are witnessing.
  Perhaps VC readers can help Lithwick identify the elusive quality she is trying to articulate?

  UPDATE: Reader suggestions probably should be phrased to allow the narrative to flip 180 degrees tomorrow when the school cases are handed down.
Thief (mail) (www):
I don't know what the name of the feeling is, but I'm pretty sure that it can be cured by a large dose of the advice a very wise college professor gave me: "What is right is not always law, and what is law is not always right."
6.27.2007 7:35pm
MacGuffin:
Perhaps VC readers can help Lithwick identify the elusive quality she is trying to articulate?

Are you suggesting that the blind can lead the blind?
6.27.2007 7:37pm
thegreatsatan (mail) (www):
I'd say the first flaw in her thinking would be that its based on emotion and not logic. I'm sure she'd call me mean for saying so too.
6.27.2007 7:40pm
MikeC&F (mail):
I thought it was pretty mean that the liberals, in Gonzales v. Raich, voted to kill an innocent cancer patient. Because of the liberals' ruling, Raich must decide whether to break the law and risk going to prison (where she would surely die); or to take life-saving medication.

Does it get much crueler than that? If so, I'd love to see some citations?
6.27.2007 7:41pm
AF:
Justice.
6.27.2007 7:42pm
Jesse Wendel:
Empathy
6.27.2007 7:45pm
LXJenkins:
MikeC&F - I think you misunderstand Lithwick's premise. It seems to me that Lithwick isn't concerned with holdings being "mean" but, rather, the tone of the opinions being mean.
6.27.2007 7:49pm
glangston (mail):
They lack the "legislative" gene?
6.27.2007 7:49pm
Cato:
It is quite simple. The Roberts five will write a decision which follows the law but which may not comport with what they think is the correct outcome. The other four will misread the law to comport with their conscience. Liberals believe the five should do likewise, because a judge's"soul" must always be on display.

Lincoln once said that the best way to overturn a bad law is to enforce it strictly. Liberals would overrule laws by having judges do it.
6.27.2007 7:50pm
Guest44:
She's brilliant when she's not emotionally involved in her subject. But when she writes about things she cares about, she's terrible.
6.27.2007 7:51pm
Virginia:
Willingness to placate groups that make up key Democratic voting blocs?
6.27.2007 7:51pm
jt007:
Lithwick has a problem with the "Roberts Court's very cramped and unforgiving view of the role of courts. I once wrote that Roberts seems to believe that there was 'no problem too big for the courts to ignore.'" If she thinks that there are important problems being ignored by the Supreme Court, why doesn't she lobby the Democrats in Congress. After all, they run the place now and they have power (not to mention Constitutional authority) to create the public policy that she feels would address these unaddressed problems.
6.27.2007 7:52pm
Rich B. (mail):
Here it is: The Court is masking substantive changes to the law by calling them procedural limitations. The "meanness" and lack of "pragmatism" comes in failure to acknowledge what it is doing -- focusing only on the narrow rule at issue, without admitting that what they are doing is more than just tweaking a procedure at the margins.

Take last month's Ledbetter v. Goodyear. Ledbetter claimed that she was paid less because she was a woman, and the jury agreed. The appeal stated that she couldn't sue for any damages that occurred more than 180 days ago. Ledbetter said that the damages were small in any given period, but accumulated over time, as she was given a smaller percentage raise each year.

By a 5-4 vote ruled that she could only sue for wage loss over the past 180 days. The Liberals dissented, and said that you often don't know how much other employees are making, and no one is going to sue every 180 days that the man got a 3% raise, and she got a 2% raise, and therefore I'm owed $50.

In practice, this destroys "incremental discrimination" type claims, and permits only "sudden" incidents. Now, maybe you agree with this, or maybe not. Maybe you think it is what the law intended, and maybe not. What is annoying to Liberals is that the Conservatives failed to ACKNOWLEDGE that their "procedural" decision to limit damages to those that occurred during the last 180 days practically eliminates a whole category of discrimination claims.

What is missing is maybe a single sentence. Something like: "We recognize that this decision will drastically limit the ability of plaintiffs to recover in incremental discrimination cases, but we are bound by precedent and the plain language of the statute." By leaving that sentence out, and trying to pretend that a ruling on Statute of Limitations has no effect on the actual cases that can and will be brought, the Conservatives are infuriating the Liberals.
6.27.2007 7:58pm
Cornellian (mail):
There is no such thing as the "Roberts Five." Roberts, Alito, Scalia, Thomas and Kennedy are all miles apart from each other in terms of philosophy and judicial temperament.
6.27.2007 8:00pm
Waldo (mail):
Actually, just a different legal system. What Ms Lithwick wants is not a system that judges whether an act violates a published law, but a system that judges whether an act is "just," or socially acceptable. This is the same philosophy as traditional Chinese juriprudence. From (apologies), Wikipedia:


The Confucian Code of Rites (Liji), not law, is expected to be the controlling document on civilised behaviour. In the Confucian world view, rule of law is applied only to those who have fallen beyond the bounds of civilised behaviour. Civilised people are expected to observe proper rites. Only social outcasts are expected to have their actions controlled by law. Thus the rule of law is considered a state of barbaric primitiveness, prior to achieving the civilised state of voluntary observation of proper rites. What is legal is not necessarily moral or just.


Unlike Chinese tradition, we're all controlled by law, and should be able to know the law beforehand. If the law doesn't produce the right results, it should be changed, by the legislature.
6.27.2007 8:06pm
PersonFromPorlock:
Perhaps 'mean' not in the sense of 'cruel' but in the sense of 'frugal'. Making decisions on the basis of fine points rather than grand ones.
6.27.2007 8:09pm
JPS3L:
"Justice" is just about right, though not the way I think AF means it. The Roberts conservatives recognize that their job is to apply the law to a given set of facts rather than do justice according to their own set of moral guideposts. Put another way, the Roberts Court lacks the arrogance the substitute its judgment for that of our elected representatives (unless, of course, those representatives show obvious disdain for the Constitution and exceed their authority to legislate). My own sense is that conservatives see adjudication ideally as a formulaic or algorithmic process that divorces the judge from influencing the outcome of a case according to his/her moral views. Liberals, by contrast, think that the whole point of a judge is to act like a philosopher king and make the important decisions that can't be trusted to the democratic process. I gave up a long time ago trying to understand how a liberal thinks, but perhaps Ms. Lithwick is trying to suggest that the Chief is not Dworkian enough.
6.27.2007 8:10pm
John (mail):
They lack the wisdom, when confronted with a statute that deals with X, to rule on how X should be dealt with in an ideal, liberal world. Instead, they cruelly deal with X as the statute says, even if that is not how X would be dealt with in an ideal, liberal world.
6.27.2007 8:10pm
wm13:
Rich B, by the same logic, shouldn't the Kelo majority have said something like: "We recognize that our ruling allows wealthy real estate developers and the politicians they have funded to take away people's houses, but our political system contemplates that the wealthy are able to exploit sovereign power for their own purposes, so there is nothing we can do." Or should the Doe or Casey opinions have said: "We recognize that we are depriving large numbers of citizens of the ability to have democratic input on a subject which they think is of high moral importance, but that is how our system operates."
6.27.2007 8:10pm
Ugh (mail):

Perhaps VC readers can help Lithwick identify the elusive quality she is trying to articulate?


Protestantism?
6.27.2007 8:10pm
Laura S. (www):
I pose this question: are the only opinions to which she objects split 5-4 with the five being her "Robert's 5". I certainly don't see five judges with unitary style. Even when they vote together, they do so for different reasons. This strikes me as problematic for asking "What's wrong with these five".

I think her question (and its answer) are nothing more than framing for a false narrative of the court. One that depicts everything in terms of monolithic left and right.

Although the four dissenters do follow one clear principle in common: they are often coldly calculating about any decision which would undermine the core leftist/progressive project. This is concealed only by the paucity of cases for which it becomes the dominating factor. The Robert's Five seem to lack that same unitary organizing principle.
6.27.2007 8:11pm
PersonFromPorlock:
Perhaps Lithwick wants to say the Court is 'mean' not in the sense of 'cruel' but in the sense of 'frugal'. Making decisions on the basis of fine points rather than grand ones.

Sorry, premature post.
6.27.2007 8:15pm
Jim C. (mail):
Perhaps VC readers can help Lithwick identify the elusive quality she is trying to articulate?

Liberalism.
6.27.2007 8:15pm
Rip Van Winkel:
How could anyone read Lithwick's line

it's never been clearer in my own lifetime that who sits on the court matters more than what "the law" says.
and take anything she says remotely seriously.
She is either totally disingenuous or was totally blinded by partisanship while her side consistently overturned precedent to constitutionalize the opinions of "enlightened" judges. For gosh sakes, she was a law clerk for the Ninth Circuit, and if she didn't realize that it made a hell of difference to the outcome of a case that Reinhardt was on a panel versus a more conservative judge, she really is blindingly naive.

Liberal commentators characterize conservative justices as "mean" so they don't have to seriously engage in analysis. Just like liberals characterize conservative arguments "divisive" and "angry" while their own strongly held opinions are merely "passionate" and "heart felt."
6.27.2007 8:17pm
Daniel San:
Her problem is that the words she seeks, once useful terms, have been banned from the lexicon. "Activists." Advocates of a "Living Constitution."

Maybe she could settle for "flexible," meaning they are not bound to the sterile black letters set in place mostly by dead white men.
6.27.2007 8:18pm
Anonymous432653476:
I think it's that they don't seem skeptical enough of the government. There will always be government pressure against citizens' rights, because in a basic way, citizens' rights define the outer bounds of government power. If the court system does not push back against the government, those rights will gradually erode. That is what we are seeing now: their gracious deference to the government on disputes over habeas corpus, the first amendment, and the fourth amendment is eroding these rights.

Their methods as well as their outcomes are erosionary. Previous courts seemed very willing to step back from the incrementalism of the caselaw and draw a line -- as the water heated one degree at a time, they were willing to shout, "okay, as of right now the water is too hot!" The current Court is more like a frog that will slowly cook to death on the assumption that if X degrees is not hot, X+1 degrees cannot be hot either.

The reason it is so difficult to call them out on it is that nearly every issue they see is a close call, legally. If X degrees is not too hot, odds are that a case can be made why X+1 degrees is not hot either, and in practice the Roberts Court makes it. In any individual case there's nothing wrong with that decision; they're close cases, and both sides are justifiable. But eventually the frog cooks.

The apologist's response is typically "tough luck; they're ruling by law, not by emotion." In some sense this is reductively true: whatever they say, it is by definition the law. But in the sense intended, this justification makes an unwarranted assumption: that in every case, there is one irreproachable correct result and one irreproachably incorrect result. Therefore, if the result the Court reaches in the individual case is legally justified, then the other result -- for which the liberals pushed unsuccessfully -- must have been wrong. But it's completely plausible that BOTH sides have compelling legal cases to make for them, and while the Court cannot be faulted for choosing one or the other in the individual case, it can be faulted for choosing the pro-government side in the run of cases. That's what it's doing, that's why it feels like essential liberties are eroding, and that's why it's so unsettling to watch -- each individual degree cannot be credibly faulted by itself, but gradually the temperature rises.
6.27.2007 8:18pm
The General:
Dahlia (like all liberals) is advocating that compassion for women/minorities /unions/greens/reds/criminals/gays/homeless/terrorists trump objective reasonsing when that is inconvient. Hell, she might as well come out and say that the court should toss away the cases and the statutes and simply decide the outcome of each case based on their own "feelings" of who should win, i.e., the liberal Democrat side. Bottom line: Roberts and Alito don't think they make up the law as they go along and that poses a problem for liberals who can only enact their radical agenda by getting courts to pass it for them because a majority of Americans don't want what they're selling. What a bunch of bullshit. I can't believe this passes for intelligent journalism.
6.27.2007 8:22pm
theobromophile (www):

Perhaps VC readers can help Lithwick identify the elusive quality she is trying to articulate?


Well, she picks on the Catholics. She picks on the strict constructionalists and the non-judicial activists (the judicially tempered?). Pick one, any one.


Now maybe the Roberts Five [Roberts, Scalia, Kennedy, Thomas, &Alito] really are bilious and rageful. In which case I guess we should call them that. But I didn't think calling conservatives "mean" was a smart tactic during those confirmation hearings, and I don't think it's smart now.


Perhaps Ms.Lithwick ought to read Dagny Taggart's speech to her sister-in-law, in which she proudly states that she is cruel lacking in compassion, as her detractors state; for those who throw those accusations against her really mean that she is not irrational.
6.27.2007 8:25pm
DCP:
I think the elusive term you are looking for is "like-mindedness" as in someone who would decide cases exactly the way I would personally decide them.

That's an antonym for "mean" in Lithwick's mind, right?
6.27.2007 8:25pm
AF:
My earlier comment ("justice") is unhelpful. Better is "equity." The Roberts Court has a tendency to read statutes and precedents narrowly when a broader available reading would lead to a fairer outcome. E.g., Ledbetter; Bowles v. Russell.

Having speculated what I think Lithwick is looking for, I don't think it's very accurate. The Roberts Court is fully capable of adopting aggressive legal positions to grant relief to litigants when doing so is in accord with its view of what is right. E.g. WTRL; tomorrow's schools cases.

Ultimately the best liberal objections to the Roberts Court are based on substance, not attitude or methodology.
6.27.2007 8:25pm
Ramza:
I believe RichB hit the issue on the head

Here it is: The Court is masking substantive changes to the law by calling them procedural limitations. The "meanness" and lack of "pragmatism" comes in failure to acknowledge what it is doing -- focusing only on the narrow rule at issue, without admitting that what they are doing is more than just tweaking a procedure at the margins.


Roberts minimalism seems to embrace these "sidestepping" of the issue. Finding a court case on a narrow ground, tweaking at the margins, etc. By doing so you create incremental changes, but very substantive ones. It can be very infuritating when such tactics cause a case to be decided in a way you disagree with, or it doesn't address an issue at all saying you don't have standing to even bring up the case in the first place.

It is more infuritating than just losing your case, for it doesn't seem you got your trial in the first place. You don't get the satisfaction and finality of "losing" instead you just feel "cheated."

(No I ain't addressing whether minimialism or certain court cases were wise decisions or the correct legal decision, I am just explaining the viceral emotional reaction that losers and sometimes winners often feel in response to Roberts Minimalism.)

Then again Justice is supposed to be blind.
6.27.2007 8:31pm
Dave N (mail):
I agree with those posters who have said that the problem is that Lithwick apparently believes that the law should be bent for a "just" result.

Yesterday's post on Judge Cassell['s testimony comes to mind. He agonized over giving a 55 yer sentence he thought was unjust but that the law required--and try as he might, he could find no LEGALLY defensible reason to base his ruling on his heart and not his head.
6.27.2007 8:31pm
Anonymous432653476:
Rich B., I very much agree with you. Great post.
6.27.2007 8:34pm
Roger Sweeny (mail):
Rich B,

Your comment made me think of Jonathan Adler's criticism of Wilkie in several of the posts below:

Barring Bivens Actions for Property Owners

Property Rights' Unlikely Champion in Wilkie v. Robbins

Wilkie and the "War on the West"

Of course, the fact that Souter wrote the opinion and Kennedy joined indicates that "willful naivete" is not limited to "the Roberts Five."
6.27.2007 8:37pm
Anonymous432653476:
One further note: the Roberts Minimalism only seems to cut in the government's favor. Frequently you'll see an opinion that says "as compelling as the plaintiff's case is, Statute X binds our hands; therefore, we need not delve into the substantive merits of the plaintiff's case." Never ever will you see an opinion that says "as compelling as the government's assertions of executive privilege are, Statute X prevents us from considering that argument."
6.27.2007 8:38pm
Rip Van Winkel:
How exactly did the campaign reform act decision cut in the government's favor?
6.27.2007 8:42pm
Roger Sweeny (mail):
Oops, that should have been Stevens, not Kennedy in my last paragraph.

Anonymous432653476, interesting thoughts.
6.27.2007 8:42pm
msmith (mail):
..I think her question (and its answer) are nothing more than framing for a false narrative of the court. One that depicts everything in terms of monolithic left and right....

Great answer. A silly premise, really.

But if had to pick something maybe the idea of "equity". Always think of Lord Denning, some acknowledgement that the law didn't drive you inevitably to that decision. You chose to go there, so no need to keep up the charade except maybe amongst other lawyers, to maintain a certain self-respect.

Miller v. Jackson (1977) Q.B. 966, 976, or as it is far better known, The Cricket Case:

.....In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last 70 years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short . . . [y]et now after these 70 years a judge of the High Court has ordered that they must not play there any more . . . [h]e has done it at the instance of a newcomer who is no lover of cricket.
6.27.2007 8:44pm
abw (www):
6.27.2007 8:52pm
whackjobbbb:

But I didn't think calling conservatives "mean" was a smart tactic during those confirmation hearings, and I don't think it's smart now.


No need to struggle identifying this "elusive quality", as Ms. Litchwick's remarks clearly identify it. Those bad old judges are just plain mean, and she's just looking for "smarter tactics" to expose that.

Perhaps words like these are tactically smarter for your purpose, Ms. Lithwick?


beggarly, close, greedy, mercenary, miserly, niggard, niggardly*, parsimonious, penny-pinching*, penurious, rapacious, scrimpy, selfish, stingy, tight, tight-fisted

bad-tempered, bitchy, callous, cantankerous, churlish, contemptible, dangerous, despicable, difficult, dirty*, disagreeable, dishonorable, down*, evil, formidable, hard, hard-nosed*, ignoble, ill-tempered, infamous, knavish, liverish, lousy*, malicious, malign, nasty, perfidious, pesky, rotten, rough, rude, rugged, scurrilous, shameless, sinking, snide, sour, the lowest*, touch, treacherous, troublesome, ugly, unfriendly, unpleasant, unscrupulous, vexatious, vicious
6.27.2007 9:01pm
whackjobbbb:
..."the lowest"... that's my favorite!
6.27.2007 9:02pm
sdf:
I too agree with Rich B. Many commenters on the VC want "the law" to be treated as some monolithic, untouchable entity that is somehow the embodiment of abstract rational thought and enlightened behavior. In fact, the law is for the most part simply an expression of those who hold power in our society, and this reality is not always masked in any very subtle way, no matter how recondite may be the language of the opinions.

So sometimes it's nice to see, in an opinion or two, a little hint that the court understands that there is more going on than parsing the syntax of statutes. When they're crushing the little people, all those "women/minorities /unions/greens/reds/criminals/gays/homeless/terrorists" whom the poster "The General" presumably despises, it can be comforting if the justices at least give us some sense of how such outcomes fit into a vision of a society that is just, fair and reasonable.
6.27.2007 9:09pm
OrinKerr:
Sdf,

I'm curious: Do you think courts should have the power of judicial review? If so, why? If law is just the policy preferences of the powerful, why give so much power to such a small group of people?
6.27.2007 9:11pm
Robin Roberts (mail) (www):
I find the need to recast an ideological disagreement into aspects of character rather contemptible.
6.27.2007 9:17pm
Judicial Activism (mail):
What's my name?
6.27.2007 9:18pm
Smokey:

What is annoying to Liberals is that the Conservatives failed to ACKNOWLEDGE that their "procedural" decision to limit damages to those that occurred during the last 180 days practically eliminates a whole category of discrimination claims.

That's a good thing!

Americans by and large are fed up with the special interests that have cried 'discrimination' at everything and everyone.

The original reason for anti-discrimination legislation was to provide affirmative action for blacks. But the flies always flock to the butter churn, and it didn't take long for Spanish speakers to invent their own race.

Now, 'discrimination' has taken on a life of its own. No legislator can withstand a charge of racism, no matter how untrue. And as we can clearly see in the immigration debate, the will of the American people is completely ignored by Congress. So that leaves the judiciary to dismantle the special interest monster that unconstitutionally gives one race -- or even one recently invented Latin American 'race,' advantages over others.

I applaud every action the Court takes to kill the evil racism/discrimination special interest groups.
6.27.2007 9:30pm
Ak:
Lithwick has really turned into a partisan hack over the past few years. I remember when her columns were fun and entertaining. Now it's like an Eleanor Clift article, a long, poorly argued whiny screed about the evils of the Roberts court.
6.27.2007 9:39pm
Roger Sweeny (mail):
Aargh! It's not Kennedy or Stevens; it's Breyer. Ginsburg dissented, joined by Stevens.
6.27.2007 9:41pm
Rhymes With Right (mail) (www):
She says she wants the same thing from justices she wants from a babysitter -- but then goes on to describe someone who is pleasant and will simply make up the rules as he/she goes along.

I'd argue that is prima facie evidence that she is unfit to be a parent -- and quite likely to come home and find her home reduced to a mass of kindling because the babysitter let the kids run wild, enforced no rules, and lacked the will to impose any sort of discipline consistent with parental instructions/rules.
6.27.2007 9:43pm
John A. Fleming (mail):
It's not yet clear to me if the Roberts Court approach will be acceptable. Where We the People have said, "we grant the government certain powers in order to secure a specific right for us all", the Court has to be the guardian that the right is not eroded by follow-on government actions (leg, exec, judic).

For instance, the government takings clause was clear to secure our property rights. Then the Court in the 1950's said "except when blight occurs", and the death by a thousand cuts began, then Kelo, and now State and local governments take property pretty much anytime they get a good deal from developers.

As several commenters have pointed out above, the first X, then X+1 approach can lead to hollowed-out rights, rights no longer secure.

Recent Court history is not good for the individual. The Court allowed private property rights to degrade with Kelo, and this term with Wilkie vs. Robbins. They sided with the Government against the individual on the medical marijuana case. Where will the Roberts Court fall in balancing individual rights against public actions? If the Court just puts its blinders on and narrowly focuses on the statutory language, the "public good" will always trump "individual rights".

In general, I don't like Courts creating new secured rights by the X to X+1 approach either (e.g same-sex marriage). There are a million unsecured rights, and We the People decide through our Legislatures which ones we're going to spend our treasure on to secure for us all. But once we've decided, we expect the Courts to help keep them secure, not hollow them out.
6.27.2007 9:53pm
Bpbatista (mail):
Two words: Liberal Activism. If Scalia, Alito, Thomas and Roberts were Liberal Activists, Lithwick and her ilk would not care a whit if they ate puppies and pushed old ladies down stairs.
6.27.2007 9:56pm
Justin (mail):
wm13, something like this?

<b>In affirming the City's authority to take petitioners' properties, we do not minimize the hardship that condemnations may entail, notwithstanding the payment of just compensation.</b>21 We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose "public use" requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law,22 while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised.23 As the submissions of the parties and their amici make clear, the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate.24<b> This Court's authority, however, extends only to determining whether the City's proposed condemnations are for a "public use" within the meaning of the Fifth Amendment to the Federal Constitution. Because over a century of our case law interpreting that provision dictates an affirmative answer to that question, we may not grant petitioners the relief that they seek.</b>

Oh wait, that was in the opinion. Did you even read the opinion?
6.27.2007 9:57pm
abw (www):
I think "penurious" would be a fine word to bring back into the common lexicon.

Example: Why is this penurious Court basing decisions on what the laws say instead of giving us what we want?
6.27.2007 10:01pm
Hattio (mail):
Ah,
I usually try to pick discrete areas of difference with particular posters, but frankly the venom for all things liberal being spewed in these comments, as well as the complete lack of understanding of any of Dahlia Lithwick's points cries out for the shotgun approach here.
First off, to those who didn't bother to follow the link and read Dahlia Lithwick's post, she does not call them mean. As a matter of fact, to begin her discussion of other bloggers calling them mean, she states;

There is a strain running through the liberal commentary about the Roberts Court that is troubling to me, and I wanted to hear your thoughts on it.

She goes on to say that

I think you and I agree that name-calling and hyperbole are not the best way for us to talk about law and policy. (Although hats off to Elizabeth Edwards for being willing to take on such garbage on the merits.)

So she called it garbage, and you figure that means she must agree with it? You guys are being morons...and don't blame it on Professor Kerr. He clearly states that she is noting that other liberal commentaters are calling them mean.

As to the substance, quite a few of her posts (the "mean" comments are contained in a yearly feature of back and forth "conversation" with a law professor) are about the way that the Roberts five are not following the law; specifically that they are refusing to over-rule prior cases, and instead making meaningless distinctions without explaining why those distinctions are important. She does this quoting not Ginsberg or Breyer, but Scalia in the taxpayer standing case.
But, no, keep believing she is a knee jerk liberal without capacity for thought and you are all neutrally analyzing not only the cases, but her commentary on them.

PS, I know this rant doesn't apply to all commentaters, or even all who have criticized Lithwick...but geez people, at least try to use your brains.
6.27.2007 10:03pm
Steve:
It's amazing to me how many commenters reside in a cartoon world where conservative judges simply enforce the law as it is written, and liberal judges are left to sputter, "B-b-but my heart tells me to rule differently!"

Does Title VII say that only an actual pay-setting decision, and not the act of issuing unequal paychecks to similarly-situated employees, qualifies as a discriminatory act that triggers the 180-day limitations period? Of course it doesn't. You can argue that it should be read that way; my common sense says that many people have no way of knowing what their colleagues make, but your common sense may tell you that a 180-day rule is perfectly sensible. I think both sides had a reasonable legal argument, but it's silly to claim that the conservatives were simply applying the law as it's written, as though no other interpretation were possible.

To hear some commentors talk, every opinion from the liberal justices is equivalent to a Blackmun-style ramble through the tulips, with the actual text of the law nowhere to be found. It just ain't so.
6.27.2007 10:04pm
Justin (mail):
The simplistic propoganda of a "correct" form of interpretation that renders all other forms "incorrect," so that one side is faithfully interpreting the law even when that means letting Gore win or allowing pro-drug speech, and one side just rules its preferences, is a boring retort. Lithwick is trying to get at something, and while you may disagree with it, this snide line of argument (while unfortunately expected) is not productive to the discussion - nor is it convincing anybody at the margins.
6.27.2007 10:05pm
Steve:
For instance, the government takings clause was clear to secure our property rights. Then the Court in the 1950's said "except when blight occurs", and the death by a thousand cuts began...

In fact, as Professor Merrill has pointed out, the numerous cases authorizing takings for agricultural and mining uses - i.e., theoretically for the general economic welfare of the region, but in practical terms for the benefit of a private corporation - go back much, much further than the blight cases you reference. You don't have to like Kelo, but you should read Merrill's testimony.
6.27.2007 10:09pm
Roger:
Smokey, I think you miss the point. The poster you quoted wasn't arguing about whether or not those discrimination claims should be available (at least not explicitly, in the portion you quote), but that these "action[s] the Court takes to kill the evil racism/discrimination special interest groups" aren't actions, but byproducts--really important, not-focused-on byproducts.

Does anyone really believe the law is so simple, that text is always so plain? There's a nobility to the approach, and I don't want to sound like I'm for the definition of "is," but there's a reason these cases are reaching SCOTUS: brilliant minds are disagreeing about what the law obviously is. What we call "judicial restraint" isn't limited to judges we call "conservative," but disputes will still arise.

I think there's something to the idea that the Court lacks some of the grandness. I think deference to the legislative branch is a good idea, but not to the extent that it turns the judiciary into the ugly stepsister. The Constitution didn't establish "the legislative and executive branch, plus that other one."
6.27.2007 10:10pm
Hattio (mail):
Rhymes with Right
How can you conclude that she looks for the same thing in justices that she looks for in baby-sitters?

What Lithwick said is;

My view is that focusing on a judge's personal "niceness" or "compassion" or affection for "the little guy" is a mistake. That's not a legal theory so much as what I look for in a babysitter.

That pretty clearly says Don't look for the same thing in justices as you do in baby-sitters. Would responding to what she actually said have required you to think?
6.27.2007 10:12pm
PDXLawyer (mail):
Maybe Lithwick did us a favor by unintentionally providing a definition for "judicial activism." Her problem with Roberts is that he believes there is "no problem too big for the courts to ignore." I propose the following definition of "judicial activism":

Action outside the proper role of the judiciary taken to fix an actual or perceived problem which the Congress has not adequately addressed.
6.27.2007 10:15pm
Keyes:
I'm no historian.

But I'd be curious to read Orin's view on the greatest Supreme Court . . . CJ Marshall's court? The Reconstruction Court? The Lochner-era? The 4-Horseman period? The Warren Court? This group?

Until recently, maybe starting with Ford, few appointments to SCOTUS have been lawyers of broad, varied professional experience.

O'Connor is one. Ginsburg another. I put Thomas in that group as well.

But O'Connor was the last legislator (I think). Ginsburg the last trial lawyer.

Compare this group to the nominees in the '40s, '50s, and '60s. Wide ranging experience. John Marshall Harlan (II) was a lawyer's lawyer . . . and it showed in his craftsmanship. Same as Lewis Powell.

Anyway, I'd like to hear Orin's thoughts on this (rambling) point.
6.27.2007 10:21pm
whackjobbbb:

The Constitution didn't establish "the legislative and executive branch, plus that other one."


You know, it did though, and in just that order. And like everything in the Constitution, that order is significant, however symbolic we mistakenly view it today. The legislature is first, and it wasn't intended that judges would place themselves in front of them, as they've done. They were to act with restraint... and yes, to ignore rather than assert.
6.27.2007 10:26pm
Steve:
The legislature is first, and it wasn't intended that judges would place themselves in front of them, as they've done.

Are you saying the Founders didn't intend for judicial review? Or are you simply arguing for restraint, as in, "restrain yourself from doing things I don't like"?
6.27.2007 10:33pm
curious:
Ginsburg the last trial lawyer.

Alito was an AUSA (for a year longer than RBG was an ACLU litigator) and a USA for that matter. I think at least the former counts as being a trial lawyer.
6.27.2007 10:33pm
Guest44:
Fed 51: it's a good thing that the various branches of government vying against each other for power.
6.27.2007 10:47pm
anonVCfan:
"Perhaps VC readers can help Lithwick identify the elusive quality she is trying to articulate?"

* activism?

* unprincipled predilection for liberal results?

I think Lithwick's impressions are in line with those of much of the educated public. The educated public isn't interested in the rule of law. What they want is a court that will intervene to correct the situations that strike the educated public as unjust, and in so doing, will make up some legal principle to explain itself.

In other words, get the results, law be damned.

The average NYT reader isn't interested in voting for politicians or contacting the people who draft the tax code, but that person hates to see the religious right get government funding, and doesn't care what the court might have to do to explain a decision to take it away from them.

Justice Alito's statement in Hein that standing doctrine keeps the federal courts functioning as courts of law rather than "general complaint bureaus" probably falls on deaf ears with this crowd.
6.27.2007 10:58pm
Anon. Lib.:
I think its worth focusing on Alito and Roberts as opposed to a "Roberts 5." Liberals certainly disagree with Scalia, Thomas and Kennedy but its a different beast. I think the problem with Alito and Roberts is pretty simple: when faced with close questions of law, Roberts and Alito invariably choose the interpretation that favors the powerful over the week --- sometimes dramatically so. And it just cannot be the case that the best interpretation of ambiguous statutes or doctrines always favors business or the government. Someone who thinks so suffers both from a bias in favor of power, which is rather repugnant bias to suffer from, and blindness or dishonesty sufficient to ignore that bias. This is especially maddening because all of the atmospherics surrounding Alito and Roberts seem to indicate they are very smart, sensitive men. And yet they always tip the scales in favor of the strong.
6.27.2007 11:03pm
Rip Van Winkel:
The one word that comes to mind for Lithwick's concerns is: impartial.
6.27.2007 11:09pm
OrinKerr:
Keyes,

I have no idea how to even approach the question of "the greatest court." I do think this Court has the highest level of ability in terms of craft, in part because these days federal appellate experience is almost a prerequisite to appointment.
6.27.2007 11:10pm
K:
Lithwick is just giving us an example of insinuation.

i.e. there is something 'wrong' - an inborn deficiency, a lack of intelligence, an evil, meanness - in those who don't accept your views.

As Robin Roberts said above: "I find the need to recast an ideological disagreement into aspects of character rather contemptible."
6.27.2007 11:12pm
Monstertron (mail):
Gigantic face size. Seriously, it's a coalition of shovel-faced jurists against the microbrowed.

Orin, I don't want to speak for sbf, but judicial review can be seen as simply an effort by one group of institutionally-sanctioned policymakers to use the constitution as a device to overrule outmoded policies through individual disputes. You seem to treat this sort of review as something that cannot be execised by another branch. But, if we take this constitutional policymaking as what it is, I don't see why we can't. If so, then the sacred role of judicial review is little more than tolerance by other brances of court policymaking re: the constitution. In this vein, the real question for the realists is: Why do the other branches give court pronouncements on the constitution controlling authority?
6.27.2007 11:17pm
whackjobbbb:
Steve, I'm gonna let the lawyers argue over the concept of judicial review. They'll do a far better job than I ever could.

But "restraint" is a tone, a sense of self control... and its antonym is indulgence. We've seen indulgence from the courts... particularly the SC... and I think it's ugly. If people are gettin' screwed because of some 180-day rule... then let's fix it... the right way... and that way ain't through a court's indulgence.
6.27.2007 11:23pm
whackjobbbb:
Why do the other branches give court pronouncements on the constitution controlling authority?

Boy is this ever a good question.

One answer is that they don't want to open a separation of powers argument... "the big one". There were a few anxious moments when the court started nosing into the Guantanamo/tribunal situation, because some thought the "big one" was upon us. Notice that Bush sped to a microphone, to announce that he'd be complying with that order, and submitting the necessary legislation to Congress. What if he hadn't?
6.27.2007 11:30pm
Jake (Guest):
I think the problem with Alito and Roberts is pretty simple: when faced with close questions of law, Roberts and Alito invariably choose the interpretation that favors the powerful over the week --- sometimes dramatically so.

Anybody want to address how the McCain-Feingold ruling is an example of siding with the powerful over the weak? Or is this another one of those "Thomas is a lockstep follower of Scalia"-type memes that doesn't need supporting?
6.27.2007 11:34pm
TyWebb:
Lithwick (and many of the VC commenters) might find that the late Professor Cover described the Roberts Court (and the feeling Ms. Lithwick gets when she sees the work of that Court) decades before they came to be.

If the judge does not call the King to account—if the King is not judged—then the judge will not stand there, as Nathan, as Simeon, as Edward Coke, stripped of institutional protection against the power that ordinarily stands behind the Court...Prudential deference, thus, is the great temptation, and the final sin of judging.

Robert Cover, The Folktales of Justice, Reprinted In Narrative, Violence and the Law: The Essays of Robert Cover 186 (Martha Minow, et al., ed. 1995).

What many here describe (in glowing terms) as a defiant yet ethically grounded stand against judicial activism is, according to Cover, a lack of commitment to true human principle. He argued that hiding behind text and formalism with no regard to the narratives that imbue our law with meaning was simply an apologia for the excesses of the state and those that supported it. In so doing, according to Cover, a prudential ruling gives no guidance to the parties that brought a dispute to the courts for a resolution. In the end, according to Cover, Roberts' philosophy of deciding the case on as small a ground as possible is simply the expression that, if he or the rest of the Court steps out on a limb, they won't have the support of the state.

I'm not saying I fully agree. Let's just not assume that things are so easily described as "Liberals are the only activists. Activism is a completely discredited jurisprudential philosophy. Positivism leads us to the right solution." All judicial methodologies are human and therefore flawed. This includes restraint. The argument that it exposes us to the least amount of humanity and therefore the least amount of flaw is a good one. Nevertheless, perhaps the lack of humanity, at times, has its drawbacks as well.
6.27.2007 11:56pm
OrinKerr:
TyWebb,

Don't worry -- everyone will precisely reverse all of their critiques tomorrow morning when the school/race cases are handed down.
6.28.2007 12:06am
nickjuneau24 (mail):
In law school, I was sometimes frustrated when I would attempt to make a point, and somebody would attack it by focusing only on the minor details.

It seems like the "Roberts 5" (if there is such a thing), tend to do this. Rather than keeping in mind the big picture (ie, that we have anti-discrimination laws to prevent discrimination), the focus is on the minor details (a strict line for when a person can make a claim).

It's hard to argue with this, b/c the people making the minor detail point will often be correct in their argument on the minor detail. But, in being correct on the minor detail, they loose the forest for the trees.

Finally, being part-liberal myself, I think a lot of liberals are big-picture people. When a liberal sees a big picture goal being picked at on the small details, it is frustrating. It feels like the goal is being nickel and dimed apart.

I doubt this covers everything that Lithwick had in mind, but maybe it is a small portion.
6.28.2007 12:10am
Judicial Restraint (mail):
What's my 180-degree about-face name?
6.28.2007 12:25am
Montie (mail):

Rather than keeping in mind the big picture (ie, that we have anti-discrimination laws to prevent discrimination), the focus is on the minor details (a strict line for when a person can make a claim).


But those "minor details" are often what were needed to secure passage of the original legislation. The legislative process is built around compromise. It is more than a little troubling when Courts gloss over compromises as "minor details."
6.28.2007 12:27am
jimbino (mail):
What the SCOTUS needs is a single scientist, engineer or mathematician and far fewer wimpy English, history, economics, philosophy and government majors:

Roberts: History
Roberts graduated first in his high school class of 1973 from La Lumiere School, a Catholic boarding school in LaPorte, Indiana. He received a bachelor's degree summa cum laude [in History?] from Harvard College in 1976 and a J.D. magna cum laude from Harvard Law School in 1979.

Stevens: English Literature
Elementary and preparatory schools: University of Chicago Laboratory School. Following his graduation from High School, he continued his studies at the University of Chicago, earning an A.B. in English Literature 1941, joining the Psi Upsilon fraternity and graduating Phi Beta Kappa. For law school, Stevens attended Northwestern University, graduating, magna cum laude, the first in class in 1947. He received the highest grades in the law school's history and distinguished himself by becoming editor in chief of the Illinois Law Review, a member of the Order of the Coif and a member of Phi Delta Phi.

O'Connor: Economics
Sandra attended the Radford School, from kindergarten until 12th grade in El Paso; she graduated with good marks. Following graduation from the private academy in Texas, she continued her studies at Stanford University, where she earned a B.A. in Economics in 1950, graduating magna cum laude. Subsequently, she attended Stanford Law School earning her LL.B. 1952, graduating third in her class in only two years (as opposed to the customary three years most require). Along the way, she served on Board of Editors for the Stanford Law Review and was a member of the prestigious Order of the Coif Legal society.

Scalia: History
Scalia attended St. Francis Xavier, a military prep school in Manhattan, where he graduated first in his class. He then continued his studies at Georgetown University, studying abroad at the University of Fribourg (Switzerland); he graduated with an A.B. summa cum laude in history. He was also the Valedictorian in 1957. Scalia continued on to Harvard Law school graduating magna cum laude in 1960; he distinguished himself further as note editor for the Harvard Law Review. After graduation, he traveled to Europe for a year as a Sheldon fellow from Harvard University.

Kennedy: Economics
Kennedy attended local public institutions and upon graduation from high school, attended Stanford University from 1954-57. For one year, he studied abroad at the London School of Economics from 1957-58 and graduated from Stanford U. with a A.B., earning a Phi Beta Kappa key in 1958. After Stanford, Kennedy continued his studies at Harvard Law School, graduating cum laude with his LL.B. in 1961.

Souter: Philosophy
Souter attended a local public school where he excelled and later attended Concord High School, where his classmates voted him, upon graduation, the "most sophisticated" and "most likely to succeed." He continued his studies at Harvard University, graduating magna cum laude with an A.B [in Philosophy?]. 1961 and was elected to Phi Beta Kappa. He was selected as a Rhodes Scholar and spent the next two years to earn another bachelors and masters degree at Magdalen College, Oxford, 1963, receiving an A.B. and Masters in Jurisprudence in 1989. At Harvard Law School, he received his LL.B. in 1966.

Thomas: English
St. John Vianney Minor Conception Seminary, 1967-1968: At Holy Cross College, he graduated ninth in his class with an A.B. in English, cum laude in 1971. He was a member of Alpha Sigma Nu and the Purple Key Society. At Yale Law School, he received his J.D. in 1974.

Ginsburg: Government
Ginsburg received a B.A. with high honors in Government, distinction in all subjects, from Cornell University, where she was also the College of Arts and Sciences Class Marshall and a member of Phi Beta Kappa and Phi Kappa Phi. She attended Harvard Law School (1956-58) as one of only nine women in her class and earned a position with the Harvard Law Review, but later transferred to Columbia Law School where she received her LL.B. (J.D.), was a member of the Columbia Law Review, and was a Kent Scholar. She graduated at the top of her class.

Breyer: Economics
Breyer attended public elementary and high school (Lowell High School) in San Francisco. When he was in high school, he accumulated several math, science and debate awards and was not surprisingly voted "most likely to succeed" by his classmates. After high school, Breyer continued on to Stanford University to earn an A.B. in 1959, graduating with honors. He then attended Oxford University, and studied economics at Magdalen College as a Marshall Scholar, where he earned a B.A. and graduated First Class Honors in 1961. Later, Breyer studied law at Harvard Law School and received a L.L.B., magna cum laude in 1964. He distinguished himself as the articles editor of the Harvard Law Review.

Alito: Public and International Affairs
Alito attended Steinert High School in Hamilton Township, New Jersey and subsequently graduated from Princeton University's Woodrow Wilson School of Public and International Affairs with a Bachelor of Arts in 1972. He earned a J.D. from Yale Law School in 1975 where he served as editor on the Yale Law Journal.
6.28.2007 12:45am
whackjobbbb:
There you go again jimbino. You pocket protector geeks are always sticking your nose where it don't belong. The courts are for good little liberal arts and social science types... you should know that by now.

Now get back to your coding where you belong.
6.28.2007 12:54am
sdf (mail):
Prof. Kerr:

Yeah absolutely I'm a fan of judicial review and I do realize that the law in our society is actually the result of a confluence of a lot of factors, power being only one but probably the most important one. My feeling, though, is that conservative justices (and their fans among the commenters) tend to adopt the mantle of enforcing "what the law really requires" rather often even when a number of different outcomes could have potentially been acceptable and when the outcome that was actually enacted is just as policy driven as a more "progressive" alternative. To see Scalia vote with the majority in Gonzales v. Raich after all his posturing, for example, was really eye-opening, and the elaborate rationalizations that he produced in support of that position struck me as ridiculous. Thomas, at least, had the honesty to stick with his insanely narrow view of things come hell or high water. In an opinion like Raich, I would have rather seen some honest discussion of the realities of what was going on and not so much splitting of jurisprudential hairs that really didn't dictate anything at all.

Clearly left-leaning justices have also created a whole petting zoo of rights that are supposedly constitutionally required yet absent from the constitution. I guess I find such decisions less objectionable because they don't tend to be couched so much in this disingenuous language of what "must" happen. It is, after all, a constitution we are interpreting, as a smart guy once said.
6.28.2007 1:08am
Bruno (mail):
My guess is that the quality is simply their more rule-based philosophy. Lithwick would hold to a more results-based philosophy. Moreover, she seems to associate her philosophy with being a nice person. This is typical of leftists.
6.28.2007 2:20am
DRJ (mail):
I'm a conservative who believes most liberals and conservatives bring good intentions to this debate and my comment is offered in that spirit.

I think liberals are more likely than conservatives to embrace the concept that the "end justify the means." NickJuneau24's comment is instructive. Nick describes himself as part-liberal and despairs the Roberts' Court's unwillingness to see "the big picture." Like AF who commented earlier in this thread (that the Roberts' 5 lack "justice" or "equity"), the essence of their comments is that the Roberts' Court fails to reach a just result.

I agree that the goal of the American legal system is justice but, paradoxically, I don't think our system guarantees justice. Our legal system focuses on due process and related concepts that make it more likely justice will result. In a system that "only" promises justice, due process and related concepts are unnecessary as long as the result is just. Thus, justice would not require a trial if the prosecution's evidence of a defendant's guilt is overwhelming. Not surprisingly, most liberals would object to a system like this and thus they fluctuate between process and a just result (and more often, both), but that's self-defeating. Process that can be ignored or set aside when the result is unsatisfactory is whim, not process.

When conservatives focus on process as the best method to reach a just result, the result sometimes seems, feels or is unjust. Liberals view this as heartless and mean. Similarly, when liberals focus on a just result, conservatives view this as arbitrary and emotional. It's a debate that can never end.
6.28.2007 2:47am
Scientists, Mathematicians, Engineers (mail):
Thing is, plenty of mathematicians, scientists, and engineers attend law school. The SCOTUS bench is rife with top-acheivers at law school: people who intellectually stomped all over lawyer-scientist-engineer-mathemeticians to get to the top. Not to mention the most wishy-washy or likely to swing members of the court had the "hardest" majors in terms of analytical rigor and closeness to math: philosophy (Souter) and economics (Kennedy and O'Connor). Furthermore, Blackmun, who was a doctor, produced one of the most incoherent opinions ever: Roe. The problem with mathematicians and engineers and scientists is they are likely to be bad at politics and SCOTUS nominees are political. They are also likely to be hyperanalytical in an abstract way, which leads to silly and disastrous opinions. Such people, if lawyers, are likely to be in the academy. Sometimes such people become judges.
6.28.2007 3:03am
Pendulum (mail):
When the legislature and executive have spent 200+ years passing massive quantities of (textually) unconstitutional laws, and past Supreme Courts have systematically upheld them, you're kind of in a bind. Constitutionalism is dead no matter what you do.

You can either go around overturning precedent willy-nilly, or you can pay lip service to constitutionalism while maintaining a consistent, though unconstitutional, body of law. Alternately, you can attempt to minimize harms by adopting aspects of both approaches, picking and choosing to attempt to create the most just policy.

To argue that the best solution is to embed oneself in technicalities, a la 'judicial minimalism' is the worst approach of all, because you neither solve the underlying problem of unconstitutional law, nor do you use manage to create better results within a broken system.
6.28.2007 3:45am
DRJ (mail):
Blackmun wasn't an MD but he did represent the Mayo Clinic.
6.28.2007 3:49am
DRJ (mail):
I believe Blackmun's degree was in mathematics so that still supports your point.
6.28.2007 3:51am
dearieme:
I suspect that her complaint is that they are judicious.
6.28.2007 6:11am
ATRGeek:
I'd propose this:

The problem is that they view their judicial power under Article III Section 1 of the Constitution as something they have the permission to use when they see fit, but also the permission to refuse to use when they would just as soon rather not. In other words, they see Article III as vesting them with the right to use the judicial power of the United States without any corresponding responsibility to use the judicial power of the United States.

To be fair, this is not exactly a new idea. But they have taken it to relative extremes, at least for now (things might change a bit if there is a change in who controls the government).
6.28.2007 9:36am
Xanthippas (mail) (www):
I suspect that her complaint is that they are judicious.

1. using or showing judgment as to action or practical expediency; discreet, prudent, or politic: judicious use of one's money.
2. having, exercising, or characterized by good or discriminating judgment; wise, sensible, or well-advised: a judicious selection of documents.


Being doctrinal is not being judicious. Having a particular judicial philosophy is not being judicious. The problem with the court is that they appear to be in awe of their own legal philosophies, when it suits them. But legal philosophies provide for imperfect justice. What the court needs is more pragmatism; who was wronged, what do they deserve for being wronged, what does the law say about this, and what would the impact of our decision be? To ask these questions, and fashion a remedy with them in mind, is all too often derided as "judicial activism" by liberals and conservatives alike. But a judges first concern should be justice, and the service of a particular legal philosophy only to the extent that it provides for such justice. Granted this is a squishy way of doing things, but we do pay these people pretty well and they are supposed to be the best lawyers among us, after all.
6.28.2007 10:51am
nickjuneau24 (mail):
Montie; Point well taken. I suppose details put the limits and the exceptions on the big picture goal -- and probably correctly so. But, for a liberal who doesn't want there to be so many limits and exceptions on the big picture goal, it is frustrating (and maybe even mean?).

(I'm not saying that I am that type of liberal … I'm just saying that being part-liberal, I think I am familiar w/ how a liberal thinks about this.)

Regarding the argument that "justice" is what the "Roberts 5" are lacking. I heard a quote by a judge (I don't remember who), that said "we are a court of law, not a court of justice."

I think DRJ put it another way by saying:


When conservatives focus on process as the best method to reach a just result, the result sometimes seems, feels or is unjust. Liberals view this as heartless and mean. Similarly, when liberals focus on a just result, conservatives view this as arbitrary and emotional. It's a debate that can never end.


DRJ's comments show (a) that liberals are not acting in bad faith by thinking that by focusing on process it misses justice, and (b) conservatives are not acting in bad faith by focusing on process -- and believing that it will lead to justice. A court that tilted too far in either direction would probably look like a farce to the people -- so maybe balance is the best.

If only the world were black and white, and we could definitively say that one approach was good, and the other evil. While I'm at it, I wish I had a pony.
6.28.2007 10:58am
Opus:
Mumpsimus?
6.28.2007 11:31am
ATRGeek:
As usual, I think the terms "liberal" and "conservative" are doing more to confuse and obscure issues than illuminate them. Consider a judge who starts with "conservative" policy goals, then decides what the outcome in the case before him should be, and only then decides how the law should be applied to the case. Is such a judge a "conservative" judge?

By the way, maybe it would be a good idea for judges to be more or less completely subservient to Congress, as they would be in a civil law system where Congress was responsible for creating the Civil Code. But if we want that kind of legal system, we are going to need to amend our Constitution.
6.28.2007 11:37am
Miako (mail):
>But the flies always flock to the butter churn, and it didn't >take long for Spanish speakers to invent their own race.

Said poster conveniently ignores the statistical information that "multi-racial" people come predominantly from Mexico (I believe it is more a difference of definition).

I, as a liberal (just like adam smith, natch), think that Kennedy and Thomas come across as sane, interested justices.

And Scalia comes across as just plain mad (perhaps not ill...). But then again, I like Miranda.
6.28.2007 11:44am
Matt Barr (mail) (www):
I'm a great fan of Lithwick's, both when she writes well (which is almost always) and when she writes well but says silly things. In all seriousness, I believe she found the presence of O'Connor and the Court she shaped with her "pragmatism" comforting. The Court seemed to her a safety valve: Those mean conservatives could punch through their mean laws and the mean President could sign them, or the square states could pass backwards laws and the women they inevitably targeted could get thrown in jail, but all was not lost! There was a better than tiny chance the O'Connor Court would put a stop to it all. She doesn't have that pleasant sensation of security anymore; the Roberts Court seems another mean crucible for the oppressed to weather rather than their last, desperate resort for justice. O'Connor may have sometimes been wrong -- she had to sacrifice some oppressed persons in order to coalesce her power as majority maker, you see -- but at least she was there.
6.28.2007 12:07pm
Steve:
If people are gettin' screwed because of some 180-day rule... then let's fix it... the right way... and that way ain't through a court's indulgence.

And similarly, if employers feel they're getting screwed by the 180-day rule, they can also seek a fix "the right way." You've bought into the mythology that conservatives do nothing more than enforce the law as written; in this case, both sides were offering nothing more than an interpretation of a law that can be read either way.
6.28.2007 1:16pm
Thorley Winston (mail) (www):
Two words: Liberal Activism. If Scalia, Alito, Thomas and Roberts were Liberal Activists, Lithwick and her ilk would not care a whit if they ate puppies and pushed old ladies down stairs.

She might care if she was the old lady.
6.28.2007 1:46pm
whackjobbbb:

Thing is, plenty of mathematicians, scientists, and engineers attend law school.


I don't think so, or at least that's the conclusion arrived at in another discussion here, where somebody presented some numbers. And the academic background of the SC sure confirms that, however anecdotal that is. NOBODY on the SC has the hard background jimbino referenced, and no, philosophy and economics do not involve "analytical rigor and closeness to math". The former is pure blowoff... the latter is social science... faux science in other words, particularly as practiced contemporarily.

I see this void often enough, when dealing with the lawyer types. As a whole, they do not have a base understanding of matters technical, and often lack the discipline required to pursue STEM academics (and I see that lack of discipline, in their process, in their decisions, including today's. Breyer's floating like a leaf on the rapids... totally disconnected from any coherent process.).

jimbino's point stands, and the only question is, is this outcome because of the technical folk, or is it because of the lawyers?
6.28.2007 2:32pm
eddie (mail):
Humility.
Honesty.
No preconceived agenda.

And perhaps, respect. (See, e.g., most of any Scalia's dissents and concurrences.)

But I suppose there is only "one true" way to interpret the Constitution. And of course, the rich history of "unconstitutional decisions" (isn't that an oxymoron) and "liberal" activism from should simply be ignored and tossed out with the trash.

Let's get back to those wonder 18th century values, when humans could be bought and sold and property rights were the most important aspect of governmental powers.

Liberal "idealism" is for weak fools and only a strong conservative "might makes right idealism" (i.e., the stronger are morally better precisely because they are stronger) should guide us (since that must have been what was driving the Founders).

I will agree that Lithwick is walking down a dead end alley to find something "missing" (as if it were a moral lack). There are plenty of bad decisions on both sides of the ideological divide. But for this venue to deny that there is a wholesale bloodbath of decisions coming down the road (I guess denial is too strong a word, perhaps the word wildly cheer on) and that the results of that massacre will make us "more" Constitutional is a bit much to take. The real point is that all judges are human and that "judging" is a quintessentially human activity. Sometimes I get a feeling from conservative "true believers" that law is actually something that computers could do. Simply input the facts and the law and there is only one mathematically (logically?) possible result.

And who am I to accuse the current court of applying "results" oriented decisions.

By the way, someone in this thread accuses "liberals" in general of ascribing to an "Ends justifies the means" morality. When applied in the judicial setting this is a somewhat interesting concept and would like anyone who truly believes that "liberal" philosophy would sanction any means to get to an end more than "conservative" philosophy.
6.28.2007 3:23pm
abw (www):

I think the problem with Alito and Roberts is pretty simple: when faced with close questions of law, Roberts and Alito invariably choose the interpretation that favors the powerful over the week --- sometimes dramatically so.


One only has to look at Kelso to see how much better Stevens, Kennedy, Souter, Ginsburg and Breyer are for the little guy

-- oh wait.
6.28.2007 3:46pm
Gideon Kanner (mail):
Lithwick has a point but it isn't quite what she says it is. The problem is two-fold. First, As Stewart Taylor put it, the court's problem is not so much ideology as it is a lack of understanding of how the real world actually works (and how the court's legal pronouncements impact on it). Some of that has to do with the fact that the clerks exercise a disproportionate influence on case selection, but, smart as they are, they lack sophisticated understanding of what is most important in business and governance. So as Kenneth Starr noted some time ago, they tend to select issues that seem "sexy" to them, or that they happen to have studied in depth in law school. Other important issues are thereby neglected.

To that I would add that the other problem is the court's composition. Only three Justices (Roberts, Kennedy and Stevens) have had significant private practice experience, and in Stevens' case that experience is so stale as to be insignificant. The rest are law professors and former government functionaries -- hardly a congress of decision makers with a keen insight ito the workings of the real world. Indeed, in his last State of the Judiciary statement, Roberts lamented the fact that only 40% of new federal judges are coming from private practice. Res ipsa loquitur.
6.28.2007 3:49pm
Hoosier:
I "truly" think that "liberals" would tend to take a more more end-oriented approach than "conservatives." But one has to place Scalia in the "liberal" camp for this to hold true. He often comes at decisions with a preconceived idea of what policy ought to be. I can't be certain yet about Roberts. But what Roberts had to say about his /philosophy/ during his hearing was quite conservative, in the sense of "epistemologically skeptical" and "working within an established framework" of constitutional interpretation.

The second Harlan comes to mind. See, e.g., his dissent in Griswold v. Conn.
6.28.2007 3:53pm
droopy:
Scalia and Thomas seem mostly intellectually honest, though plenty of people have posted on how Scalia may sometimes be result-driven.

Alito and Roberts' problem might be this: at least the appearance of hypocrisy. At least to readers here, these Justices wear the mantle of impartial jurists discovering the inherently correct reading of the law built into the universe, while selectively ignoring the practical impact of their decisions while reaching the same result as Scalia and Thomas.

I think Scalia/Thomas, probably moreso Thomas like in Bong Hits 4 Jesus, are making their decisions look more like smoke and mirrors than honest jurisprudence.

My inclination is that Lithwick has no problem just calling Scalia out on his philosophy, but is confounded by the seemingly sterile approach taken by Roberts/Alito that, because of the presence of Thomas and Scalia, seethes with political motivation. She would have a lot less lingering discomfort (though perhaps a lot more apoplexy) if there were just five Thomases on the court.

Upon further reflection people are intrinsically skeptical when the court says "Oh, I really don't enjoy finding that the law matches my ideological preferences, but it really really says that, sorry, tough luck!" even if they actually mean it. I doubt the majority in Kelo or in Ledbetter were being disingenuous when they issued their opinions. It's possible that the Kelo majority really hates the very notion of limiting government power over property or that the Ledbetter majority hates victims of discrimination, but its unlikely.

Making that same argument about Carhart may be more difficult.
6.28.2007 5:59pm
Greg D (mail):
eddie, you're so cute. It just makes me want to squeze your cheeks.

All of the Bill of Rights came from those "18th Century owners of other people." If you're going to reject the parts you don't like merely on the grounds that "they people who imposed it were bad", you don't get to stop with just the parts you don't like. You have to reject all of what they did. At least, you do if you're attempting to be honest, or even remotely consistent.

For that matter, the Supreme Court that you want to run roughshod over the people of America came from those 18th Century bigots, too. So if we're going to reject what they gave us, reason says we should start with that most anti-democratic of organizations, the Supreme Court.

Eddie, why is it you "liberals" have such difficulty with basic logic? Does living in a left-wing cocoon so enfeeble your minds that you can't even begin to follow the consequences of what you say?

The Constitution does not say what Dahlia and her dishonest cohorts want it to say (for that matter, it doesn't say everything that I wish it said). What makes them dishonest, and scum, is that they (and you, eddie) are not willing to abide by that. They are not willing to join the political process, make their case, rejoice in their victories, and learn from their defeats. Instead, they call for the Supreme Court to be an aligarchy that forces their personal desires on the rest of us, regardless of what we think, and regardless of what the law says.

What bothers Dahlia about the conservatives is that she is a worthless human being, and they are not. Their exsistence shames her.
6.28.2007 7:24pm
ATRGeek:
Hoosier,

Unfortunately, what people say in confirmation hearings and what they actually do are not necessarily the same thing.
6.28.2007 8:04pm
A law unto himself:
Are you saying the Founders didn't intend for judicial review? Or are you simply arguing for restraint, as in, "restrain yourself from doing things I don't like"?
I believe that Marbury vs. Madison was the hinge point of judicial review. The founders did NOT detail this point. Try to find judicial review in the Federalist Papers, for instance.
7.2.2007 12:36pm