Can the true judicial activist please stand up?

May I have your attention please?
May I have your attention please?
Will the real Slim Shady please stand up?
I repeat, will the real Slim Shady please stand up?
We're gonna have a problem here.

-- Eminem

Justice Kennedy recently gave a speech, accessible at C-SPAN's website, where he said that "judicial activism" is basically a matter of not liking the results. The term can have a meaning; it just is not used consistently. Let's look at some rulings from the past week or so. Can the true judicial activist please stand up?

RENT-A-CENTER, WEST, INC. v. JACKSON is but an example of the "Citizen's United" technique of reaching out to do controersial things, pretty "activist" even if you support the ultimate reasoning:

In Rent-a-Center, in a sharply divided 5-4 ruling, the conservative majority of the Supreme Court reached out to create a new rule of pleading that makes it difficult for hard-working Americans to seek justice in the federal courts to enforce their federal rights, including the right to be free of racial discrimination in employment.

And, then there is STOP THE BEACH RENOURISHMENT, INC. v . FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION where all justices taking part held there was no taking, but four justices reached out to raise the possibility of a novel "judicial taking" which would get the federal courts involved with complicated common law state property disputes. Justice Kennedy would use the Due Process Clause to address any problems, but along with Breyer, conservatively didn't want to address the issue.

Four justices (one not taking part) warned about that and noted that the question simply didn't have to be examined at all. Justice Scalia (who, by himself, was annoyed when the Supreme Court referenced privacy concerns not immediately at stake in a text messaging case) railed against them, including accusing Kennedy of being "Orwellian." For fun, he also took a swipe at substantive due process, even though incorporation of the taking clause to the states (the very thing judicial takings in this context would involve) is itself just that!

NEW PROCESS STEEL, L. P. v . NATIONAL LABOR RELATIONS BOARD held "the Board was unauthorized to resolve the more than 500 cases" it decided, resting its ruling on a questionable reading of the text, perhaps based on dealing with practices "not ideal." A rather activist result, perhaps, one written by Stevens joined with the four more conservative members of the Court. Is it a fair reading of the statute? Such is the claim of many things called "activist" by conservatives.

Meanwhile, HOLDER, ATTORNEY GENERAL, et al. v . HUMANITARIAN LAW PROJECT isn't activist, by some definitions, since it respected congressional/executive policy. OTOH, if the dissent is correct, which it very well might be, it disrespects First Amendment freedoms. IOW, it is not "activist" enough, unless that term only means, again, "a decision you like." Or, maybe, "the right one," though that makes "activist" a pretty meaningless term, a confusing one that isn't used when the courts are acting in a pretty activist sort of way.

We're gonna have a problem here, I think.

Nikki Haley

Per a C-SPAN aired debate: Don't worry! Her parents might be Sikh, but she found Christ, so she's safe in that regard! Julia Sweeney's Letting Go Of God is on cable these days. Looks like she has had a revelation of sorts -- the value of privacy. To our detriment, I bet.

Supreme Court Watch

The most significant ruling handed down by the US Supreme Court today is mixed at best:

For the first time in nearly nine years of what the government has called a “war on terrorism,” the Supreme Court on Monday ruled decisively in the government’s favor — but still stopped short of providing an unqualified victory. The Court ruled, by a 6-3 vote, that it does not violate the Constitution for the government to block speech and other forms of advocacy supporting a foreign organization that has been officially labeled as terrorist, even if the aim is to support such a group’s peaceful or humanitarian actions. But the Court added a significant qualifier: such activity may be banned only if it is coordinated with or controlled by the overseas terrorist group. That limitation, however, may be fairly difficult for lower courts to apply case by case; the Court provided little specific guidance.

What is involved here? The dissent (Breyer, Ginsburg, Sotomayor) noted:

The plaintiffs, all United States citizens or associations, now seek an injunction and declaration providing that, without violating the statute, they can (1) ‘train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes'; (2) ‘engage in political advocacy on behalf of Kurds who live in Turkey'; (3) ‘teach PKK members how to petition various representative bodies such as the United Nations for relief'; and (4) ‘engage in political advocacy on behalf of Tamils who live in Sri Lanka.'

Scary stuff, huh? Breyer, who read his dissent from the bench underlining how important he found the matter, continued:

In my view, the Government has not made the strong showing necessary to justify under the First Amendment the criminal prosecution of those who engage in these activities. All the activities involve the communication and advocacy of political ideas and lawful means of achieving political ends. Even the subjects the plaintiffs wish to teach - using international law to resolve disputes peacefully or petitioning the United Nations, for instance - concern political speech.

More here. Meanwhile, Justice Stevens alone dissenting (Breyer not involved, his brother the district judge, whose ruling was overruled), a win for bioengineered food producers which will matter more for future regulatory action. Workers also didn't come off that well today in this 5-4 arbitration case. Finally, the American Constitution Society had some good speakers, including Al Franken and Dawn Johnsen. See here.

[More: A positive environmental spin on the GMO decision here; various perspectives on the arbitration ruling here. The former case yet again shows that the breadth of a ruling is very important.

Sometimes, it is a matter of getting what you can, and avoiding big losses. A Kagan vote, as well as a potential removal of a Stevens to provide a counterpoint that can move majority opinions even when he doesn't join them, therefore has to be judged beyond a simple matter of 5/4 majorities.]

Summer

New season starts in the morning though the weather has led the way for a few weeks at least now. Army Wives (pretty low key) was decent, Drop Dead Diva good (character and legal stuff) tonight. Another split Subway Series though the Mets aces didn't do that well this time around. Made for tedious games.

Companion to Democracy in America?

Marie, or Slavery in the United States is a melodramatic work of fiction combined with social commentary written by Tocqueville's traveling companion. The author notes he speaks in generalizations, but even in that respect he lays it on rather thick. Still, interesting.

The Vice

Taking on another show with Caroline Catz of Doc Martin, The Vice -- about a vice squad -- is good so far. I saw two two part episodes and (aside from the more freedom respecting boobage in the UK) the plots are interesting while the characters and settings gritty and something to sink your teeth into. And, Catz again is good.

It is Done

And Also: Linda Greenhouse has an interesting blog on DeShaney and Kagan's minor role in it while clerking. It's one of Kagan's "defensive" memos but reflects a liberal sentiment, though she has ran away from that in this context before.

The attorney general tweeting his acceptance, the execution of Ronnie Lee Gardner (he had the three name thing down) commenced. He earlier talked with a bishop of the Church of Latter Day Saints, suggesting perhaps his desire for a firing squad reflecting "blood atonement" beliefs shared by some members of that faith. It is a major reason why states like Utah and Idaho (until recently) retained that method of execution.

Family of the victim had earlier joined an attempt to obtain a reprieve, suggesting the victim opposed the death penalty, and would not want his death answered with an execution. A person shot in the escape attempt that led to the murder did not share similar feelings; Gardner was in court at the time on a charge of murder during a robbery.

A "troubled life marred by drugs, sexual abuse and indiscriminate violence" suggests that the deterrence effect of the execution is questionable, given such a life leads to reckless acts no matter what the possible consequences. Various potential problems with the case led it to linger for over twenty years, the apparent reason why Justices Stevens and Breyer supported (citing earlier quest to hear case where person lingered on death row for decades) taking his case down to the very end.

At this point, Gardner's death appears to amount mainly as retribution, defended by the Supreme Court a few decades this way:

The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they "deserve," then there are sown the seeds of anarchy -- of self-help, vigilante justice, and lynch law. ...

[T]he decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.

Justice Marshall disagreed, arguing that total destruction of the human person by the state robs diminishes the value that the Cruel and Unusual Punishment Clause protects while also constitutionally excessive since alternative punishments are available. In part:

Retribution surely underlies the imposition of some punishment on one who commits a criminal act. But the fact that some punishment may be imposed does not mean that any punishment is permissible.

We require someone to commit a wrong to punish (mere safety doesn't warrant prison; you need to commit a crime ... safety might warrant a mental institution) . In some way, this is more mere deterrence, a type of "retribution." See also, "punitive" damages that punish, not just compensate. But, even if we accept that, and look past the dangers of our imperfect system of justice [which I cannot -- life only taken by due process of law], taking a life is a step beyond. We don't rape rapists, maim those who maim, and we shouldn't kill those that kill.

To the degree vengeance or more carefully applied "retribution" requires it given the realities of society today, it is a force of power, not rightful law.*

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* Justice Chase, signer of the Declaration of Independence, put forth the basic principle over two hundred years ago, a few years before Marbury v. Madison expressed the principle of judicial review: "An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority."

As to the technique itself, in respect to pain and safety, it seems marginally different from lethal injection. That isn't the only way to judge modern standards of decency, however, and the spectacle of it all might be deemed barbaric as well. But, as suggested before, lethal injection isn't that grand in that department either. Still, arbitrary culturally accepted standards just might past muster, especially under Baze v. Rees ("dignity of procedure" is a legitimate purpose for perhaps risky paralyzing agent).

Ronnie Lee Gardner

Having three names and all, he is due to be executed in a few hours, after final appeals (including with support of family of the victim) failed. He killed trying to escape while at court for another murder. S/B would take his case since given the length of time on death row.

Supreme Court Watch

As noted, the end of the term cases are starting to be handed down. These continued some interesting match-ups including one where Stevens joined the conservatives to reject a two person quorum for NRLB hearings and discussion of "judicial takings" where one part of the decision was rejected by four justices (Stevens not taking part) including a Kennedy/Sotomayor concurrence. This desire of Scalia to cloud the waters (via a section only 1/2 the Court signed on to) makes his solo (not even Thomas joining) "typically exaggerating" concurrence in the text messaging case a tad bit hypocritical.

ONTARIO v. QUON dealt with a broad issue (workplace privacy and privacy over modern communication devices) by a narrow decision that managed to get eight votes with Scalia joining in some parts of it as well. This was done by not settling a major debate involving the proper test to apply for workplace privacy and assuming a reasonable expectation was there in this case, but the search was reasonable all the same. Scalia didn't like the asides that in effect seemed to him (reasonably) to hint what it did not actually hold.

Thus, a narrow case -- pagers given to governmental employees with messages examined to determine if the use was truly work related and done in a careful (even if a more privacy protecting way might have been possible) way -- provided hints:

Even if the Court were certain that the O’Connor plurality’s approach were the right one, the Court would have difficulty predicting how employees’ privacy expectations will be shaped by those changes or the degree to which society will be prepared to recognize those expectations as reasonable. See 480 U. S., at 715. Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.

The "self-expression, even self-identification" tidbit is common sense (ask any teenager) and the free expression friend Kennedy is an unsurprising person to toss that in there. The shall we say "passive aggressive" nature of narrow decisions with suggestive dicta is not that uncommon and provides a signal of sorts to lower courts to be careful when deciding questions. Shades of Souter's commencement address, the opinion also was careful in dealing with developing technology, a move Scalia didn't like, but is a sensible "we might see this differently with more experience" path:

Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.

Such prudence and balancing is known as "judging," and along with some interesting justice splits, it underlines simplistic analysis of the job at hand is foolhardy. Something comparable might be considered with the refusal to hear Arar's lawsuit, Sotomayor not participating because of her involvement below. This means even if Kennedy joined the "liberals," a 4-4 uphold would be quite possible, five justices at least giving some succor to the lower court travesty as well. Not taking the case on some level is horrible, but on another, is it not perhaps appreciated?

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* Wikipedia summarizes his case:

The suit charges that Arar's Fifth Amendment due process rights were violated when he was confined without access to an attorney or the court system, both domestically before being rendered, and while detained by the Syrian government, whose actions were complicit with the U.S. Additionally, the Attorney General and INS officials who carried out his deportation also likely violated his right to due process by recklessly subjecting him to torture at the hands of a foreign government that they had every reason to believe would carry out abusive interrogation.

Further, Arar filed a claim under the Torture Victims Protection Act, adopted by the U.S. Congress in 1992, which allows a victim of torture by an individual of a foreign government to bring suit against that actor in U.S. Court. Arar's claim under the Act against Ashcroft and the INS directors is based upon their complicity in bringing about the torture he suffered.

More with some of the usual avoidance of the humanity involved for typical avoidance techniques here.

Supreme Court Quickies

Justice Kennedy's speech accessible here provides a reason why we should be happy he, not Bork, became justice. It covers various subjects, including activism, empathy and political appointments. Meanwhile, more rulings today, more interesting splits.

Lethal Injection

It's easy to find psychologically stable, trained professionals with experience shooting to kill.

-- "Shoot Me Now: Are firing squads a better means of execution than lethal injection?"

Interesting. Who are these people? The people who would have such experience would have it in contexts not quite on the same level as shooting an unarmed person in this context unless we are importing executioners from other countries or something. The military (and firing squads would be a logical execution technique in that place, especially if the execution had to be done "in the field") would be a logical place, but soldiers do not have much experience, do they, killing someone quite in this context. "Shooting to kill" changes when you kill an unarmed American like this.

An early ruling on the 8A concerned execution by firing squad in Utah. The technique has special significance there because of the idea of "blood atonement" and perhaps partially as a desire not to mistreat the body. See this story. This is interesting symbolism that might very well reflect beliefs of many who support the death penalty in some fashion. The importance of a "clean kill" is also reflected in the slaughter requirements of certain religions, which this would be an analogue. Is allowing it as an option here of First Amendment significance?!

Firing squads might seem to some to be uncivilized and/or out of date. As an opponent of the death penalty, I do find the argument against them as a means somewhat weak. The humane kill lethal injection model -- shades of putting little kitty to sleep I assume -- is problematic. If firing squads are not more painful (and methods like electrocution and gas has problems in that area in particular; lethal injection is not free from problems either), the main benefit appears to be to make us feel better. This separation from the event [those shooters are ultimately our agents] is not totally ideal and use of a 'medical' technique when involvement of medical personnel is unethical is problematic as well.*

If we are uncomfortable with the firing squad, it is likely largely because we are uncomfortable with carrying out the death penalty itself. Lethal injection allows us to separate ourselves from the process. It might be (marginally?) better in some ways, but in others, not so much.

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* The article linked at top cites various cases where lethal injection was problematic in practice, but the benefits of the firing squad on a pure "less pain" basis is open to question. One study cited suggests lethal injection might be better. Justice Stevens cited another in that opinion regarding use of the gas chamber. But, the firing squad is so rarely used and the limited value on the pain front is clouded by the other factors discussed.

Context

The Deepwater Horizon disaster is as organic a product of human processes in the Gulf as Hurricane Katrina was a product of natural processes. Shipping, flood control, and natural resource extraction have taken a nearly century-long toll on the coast. The Gulf has been abused, exploited, fouled and taken for granted for so long and with such consistency that the shock and horror over this one incident becomes in its own way a salve for our consciences.

Hmm. How often has this long haul look provided?

America and the Pill: A History of Promise, Peril, and Liberation

This book by Elaine Tyler May is a nice summary of the development (less on the science) of the birth control pill and its effect on society. Diverse resources and avenues are analyzed and care shown to note it is not a wonder drug, but still a quite significant milestone.

TV Online

A miss did not hurt since I saw both Army Wives and Drop Dead Diva from last night online. AW jumped ahead six months and was a very good episode, good character interactions. Diva was pretty good; sad case that was a loss. Barely recognized Rickie Lake!

Sotomayor Suggests Complexity of Situation

Last June, at her own hearings, Sonia Sotomayor described her vision of a good judge as someone "who looks at the facts of each case, listens and understands the arguments of the parties, and applies the law to the facts at hand."

The complexity of this matter is suggested by Justice Sotomayor's concurrence to a unanimous opinion handed down today involving a federal statute in which she noted:

Subjecting EAJA fee awards to administrative offset for a litigant’s debts will unquestionably make it more difficult for persons of limited means to find attorneys to represent them.

The concurrence notes that the text and court precedents compelled the result all the same, but it is unclear that Congress actually thought about the problem when writing the law involved, in fact, the result goes "undermines the estimable aim" of the law in question. Sotomayor (joined with two others) wrote separately to flag the problem, since Congress "has just cause to clarify beyond debate." It was her first concurring opinion.

If the text and precedent wasn't so clear, would this result in the opinion possibly going the other way? Is the right to have an attorney to protect your rights and interests something that the courts in particular would worry more about in close cases? How much of this is merely "facts" of the case as compared to more of an at least somewhat subjective judgment call, in part based on your overall judicial philosophy (e.g., Scalia's focus on text alone is not a patently obvious path to take, as shown by his usual partners on the Court not always agreeing with him on the point*).

Or, is the bottom line that looking at the "facts" and "the law" a balancing of interests, a complex enterprise as discussed by Souter, one that applies whenever the Constitution is applied? So, even if we take her test as our guide, the actual application is not as simple as it sounds.

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* This suggests that lines sometimes are not so easily made, a truly strange bedfellows line-up.

Perils of Extreme Laws

Petitioner Jose Angel Carachuri-Rosendo, a lawful permanent resident who has lived in the United States since he was five years old, faced deportation under federal law after he committed two misdemeanor drug possession offenses in Texas. For the first, possession of less than two ounces of marijuana, he received 20 days in jail. For the second, possession without a prescription of one tablet of a common antianxiety medication, he received 10 days in jail. After this second offense, the Federal Government initiated removal proceedings against him. He conceded that he was removable, but claimed he was eligible for discretionary relief from removal under 8 U. S. C. §1229b(a).

Why did this case get so far in the first place?!

Believe in Me

A film based on this book (and a true story), an uplifting one about coaching a small girls basketball team in the 1960s.

Reading comments about it online, a few were concerned that they took liberties as to the style of basketball played and such. If you are going to have a film about a somewhat specialized sport (or even a run of the mill one like regular baseball), it is important to worry about such things. I'm curious actually since they actually had the coach this was based on as a consultant. This leads me to wonder if some of the changes (an old style might look wrong to today's viewers; trademark concerns about uniforms etc.) were done knowingly for a reason.

All the same, the specifics is not the important thing for me, admittedly someone who is not familiar enough about such things to care much. To me, the weakest part of the movie was the "underdogs win the regionals!" (shades of Glee?) type of thing, the 1960s conservative small town environs making it ever more Hoosiers without the desperation on the side of the coaches. That part of it was done professionally enough, rah rah spirit and all, but it was fairly predictable. Bruce Dern also played the heavy a bit too one note, especially how far he took it at the end which seemed over the top (something like might have happened, I guess, but it seems rather dubious).

The charm of the movie, best seen in earlier scenes, reflects the title -- "believe in me," which is not a religious thing in particular, but a matter of believing in the girl basketball players. This was before Title IX and the woman's movement did not quite reach rural Oklahoma or wherever either. This included a teen mother, who we are reminded was not alone when someone tells her one of the mom's of the students was a teen mom too, and she says (with some shade of sisterhood) "welcome to the club." Empowerment among other things is why sports is not just about playing with games.

The film is also about the young coach (hey, yeah, he's on Burn Notice) and his wife (Samantha Mathis, one of those actresses out there who you see and say, "hey, she's good"). He's just a regular boy, a vet, and wanting to be a head coach somewhere and taste the joy of victory (a few good moments where you can see him salivating over the possibility). He also is ashamed that he is infertile (I saw the last regular episode of the second season/series of Doc Martin, where that was part of the plot -- aww Mark), knowing how much his wife wants a baby. She, who played basketball in school herself, is a rock by his side.

The film is also about the town itself, starting off suffering a drought, just an ordinary town that can get around a local team. The film probably could have did a bit more to let us know these people, the few tastes (especially of a few of the players -- one moment they loved was when they had a meeting to plan a training regime ... just like the boys team!) were appreciated. You are glad that they have the pleasure of watching the girls team win it all, memories like that quite special. But, like the end of Whip It!, it is useful to remember what is really important about the film.

It's ultimately not winning the game; more like how to play it and who does the playing.

Why So Thinly Argued?

Though there were useful exceptions,* often in concurring and dissenting opinions, the Supreme Court often did not go into much detail when discussing why there is a constitutional right to privacy. This addendum will suggest a few reasons.

First, Griswold v. Connecticut reflected Douglas' standard policy of thinly argued opinions that were often conclusionary. This did not mean he couldn't spell things out. In fact, he repeatedly did, including on this very subject (if not as expansively as the now seminal dissent of Harlan) in his Poe v. Ullman dissent as well as in other writings. It is sometimes suggested Brennan encouraged him to take the approach in Griswold, but a lecture he gave a few years before had the basic idea, down to the use of "penumbra." A more careful thinker might have got more than personal value from opinions that toss in comments like (in a ruling shortly before Roe):

The difficulty is that these activities are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed, suffocating silence.

Second, Blackmun was just starting out when he wrote Roe v. Wade, and was not much of an opinion writer either. Accounts, such as The Brethren, suggests he insisted to work on the opinion mainly by himself, and the emphasis on history and medical matters reflected his comfort area as a lawyer for the Mayo Clinic. As noted, his excellent Bowers dissent that flesh out the right to privacy was greatly the work of Pamela Karlan. The material was there for a better opinion in Roe as well, even with amateurs leading the way (Sarah Weddington was in her 20s), especially given various briefs help out.

Third, there was a certain charm in thinly argued opinions that had some key broad phrases since fleshing things out might cause problems (as one lower court opinion noted, the basic idea of Griswold was agreed upon, even though the reasoning was split). Relatedly, the Supreme Court was pretty results orientated in the 1960s and early 1970s, so reasoning was not really its thing. Brennan, a leader at the time, did not really care about specific details. Douglas' more expansive concurrence in Doe v. Bolton had an outline that reflected a memorandum give to him by Brennan [see Liberty and Sexuality] but Brennan never wrote or joined an opinion that expansive in detail. This is unfortunate since one duty of the judge is to explain their reasoning, and if some of it is only implied, the value of opinion writing is reduced. This always occurs in some fashion, of course.

And, once the basics of a "right to privacy" was established, as it was in Griswold, further in depth discussion of its origins and specific constitutional backing was apparently not really deemed necessary. This is unfortunate, since it was a big step (if one that -- as I have repeatedly said here and elsewhere -- with firm grounding) to firmly announce such a right. It bore repeating how freedom of expression, conscience, association, privacy reflected in the Fourth Amendment, freedom from self-incrimination (in its broadest form), liberty related to basic freedom and freedom from slavery leads to the right to privacy. Equality is interconnected here as well, one essay in the book referenced last time underlining how freedom to make private family matters often is essential to black women in particular.

Griswold said as much in bare bones form, but since few seem to deign to read its reasoning (focused only on result -- leading Scott over at Lawyers, Drugs and Money to suggest few really care about judicial reasoning, a bit exaggerated, but true enough to help explain things), the point clearly warrants further emphasis. This is true also if one wants to focus on "liberty" over some "right to privacy" in particular, which is the preference of some and the emphasis of Justice Kennedy in particular. The tools are there as is the audience: many are quite open to the results, so providing some analysis would be welcome as well.

Again, I don't mean to exaggerate and say that the rights in question were not analyzed at all. But, people criticize the opinions with some reason, and it is useful to get the whole story out.

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[footnote added]

* In an otherwise minor case upholding a prescription drug database, Justice Stevens authored an opinion a few years after Roe joined by all justices that provided a useful summary of the "right to privacy," at one point quoting this analysis:

The concept of a constitutional right of privacy still remains largely undefined. There are at least three facets that have been partially revealed, but their form and shape remain to be fully ascertained. The first is the right of the individual to be free in his private affairs from governmental surveillance and intrusion. The second is the right of an individual not to have his private affairs made public by the government. The third is the right of an individual to be free in action, thought, experience, and belief from governmental compulsion.

"Private" doesn't simply mean anonymous; the public knows various things about what you do or who you invite to your home, which is "private" property. I stick to my feeling that the concept has merit, "liberty" too open ended, things like "autonomy" a bit too obscure. And, to the degree some need help to fully enjoy their rights (e.g., funding), that just means it is not a one note thing. Does needing help to enjoy a family mean decisions involving it are not basically private?

Justice Stevens expands on the concept [FN11], but "how he will live his own life" is his bottom line, which sounds like "privacy" to me. Sure, equal protection etc. factor in, but few rights stand alone. On the Fifth Amendment, see also here, FN12/13 and surrounding text, cited by Stewart in his Whalen concurrence.

Court Review of Abortion Pre-Roe

Abortion Wars: A Half Century of Struggle, 1950-2000, Rickie Solinger (Editor), has a good chapter on a pre-Roe lawsuit in Connecticut, Abele v. Markle. There are some other fairly interesting chapters though either by current personal tastes or actuality, they didn't interest me as much as this one. Given a debate I had on the Slate fray, the discussion of the moral component of the decision was interesting. The chapter by a disabled rights advocate reminded me too much of this sort of thing. Overall, skimmed it, found this chapter worth the "rental."

The ruling was in the minds of the justices when considering Roe and the overall story is quite informative. It began when a state feminist group was contacted by women trying to find out where to obtain abortions, illegal in the state [not surprising, given a few years before only Supreme Court action made use of contraceptives legal, Griswold v. Connecticut]. They started a lawsuit, with the help of the woman lawyer who did the Connecticut end of the Griswold legislation, setting it up as a wing of their broader feminist activism. They even made it basically an "all women" thing, from lawyers to clients (many lawsuits included male doctors). It was a refreshing reminder of just how the right to choose an abortion fit into a broader context.

The opinion itself also is worthwhile. Actually, rulings. The first time around, after one judge tried to hold up the works, ruled 2-1 against the law. One judge provided a strong opinion with feminist overtones (expansion of the rights of women led to more freedom of choice) while another noted the law focused on the health of the women. The legislature passed a new one that emphasized the life of the unborn was a core purpose. The court again overruled, noting the fundamental right of the women, one that could not be overturned based on an interest that is so disputed in our society.

A general sentiment is that Roe v. Wade was badly written, but those who say that with the sentiment that this means it was also wrongly decided go a step too far. Yes, there is criticism -- sometimes overblown -- but the general consensus (which means there is dissent) is that the underlining principle is right. It's how you get there or in particular how it did. A look at lower court abortion rulings underline this point. It is part of the simplistic coverage often found here that such rulings are rarely discussed. Roe rightly noted:

Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute, and is subject to some limitations; and that, at some point, the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach.

The ruling lists them -- around 20 -- and we see that the results were fairly evenly divided though the "anti" rulings tended to be in conservative areas. [One was a brief opinion that held up after Roe since it involved a non-physician; privacy rights not addressed originally.] But, those rulings that held abortion was not protected did not do so because saying there was a right to privacy* [to quote Roe, in areas involving "personal, marital, familial, and sexual privacy"] in this context was an unreasonable statement as a whole. No, they argued that there was a compelling state interest to protect the life of the embryo and fetus, or rather, held the state can so determine. Cf. the dissents here that found a new liberal abortion law in effect unconstitutional given the rights of the unborn.

Justice Clark's abortion article was often cited in these cases, generally in a pro-abortion rights sense. But, one ruling at least cited it to show that abortion legislation was changing, becoming more liberal, and to cite his statement that line drawing should be a legislative function. This is a questionable take since the article also argued that the right to choose an abortion is probably an aspect of the right to privacy. It was protected. The question then would be where to draw the line -- where between fertilization and birth. But, if the ban was complete, that would make the right a nullity.

One dissent to such a ruling noted that the Louisiana law in question clearly treats the unborn as a second class citizen and barely enforces the law, providing a situation where women are threatened for little value. When the opinions (including a few state rulings) address this interest, this is generally the tack taken -- as Stevens noted years later, history showed that this country did not provide a "right to life" to the unborn, allowing abortions in a myriad of cases. So, especially given the divided opinion, often based on religious/moral matters that the right to privacy says rests on the individual, why does things suddenly change the moment after fertilization? Stevens' also alluded to something at times addressed -- how "human being" is not the same as prenatal "human life."

A few of the anti-abortion choice rulings noted that there were alternatives; as the dissent in the NY case alleged:

In view of modern and reliable contraception devices, there is no reason for unwanted conceptions to take place that would cause an exceptional population growth. Secondly, the argument that these unborn children are unwanted is fallacious as there are many, many families presently interested in adoption, who would be more than happy to welcome such an infant into their home. Thirdly, as we reach zero population growth, there is no compelling State interest to support the abortion legislation.

Such fiction. A difficulty in Roe is that it only summarized the right to privacy, did not really do a good job expanding earlier cases into a somewhat new context. YWCA v. Kugler, for instance, perhaps provided the most expanded discussion of the various aspects of the right and how abortion choices fit in. This includes a cite to Terry v. Ohio and its cite of a 1891 ruling that noted: "No right is held more sacred, or is more carefully guarded, by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law."

Justice Douglas' concurrence did this in miniature as well. In fact, various opinions by that justice -- ironically Griswold was thinner in some ways than various dissents and concurrences on the matter -- provide useful analysis. See, e.g., the pre-Griswold concurrence to GIBSON V. FLORIDA LEGISLATIVE INVESTIGATION COMM., especially the discussion around FN7. There was not enough majority opinion discussion of the basis of the right to privacy, too many opinions in effect resting on precedent. For instance, in 1968 (before an important, if brief, privacy discussion in Stanley v. Georgia), the leading opinion in Powell v. Texas emphasized a public drunkenness law was not one that "attempted to regulate appellant's behavior in the privacy of his own home." This implies a privacy interest, but it is not expanded. Casey is valuable as a partial answer to this. Justice Blackmun's Bowers dissent (perhaps largely written by Pam Karlan) also does a pretty good job.

This underlines the value of examining lower court rulings in the Roe era, including if you are against abortion rights. The dissents in Roe were rather thin and putting aside some disgusted comments in partial birth abortion rulings, later opinions largely avoided addressing the rights of the embryo and fetus as well. Also, generally speaking, a full examination has to put the matter in a broader historical context. Perhaps, it is fitting to end with a quote from a dissent to an anti-abortion rights ruling (Cheaney v. State of Indiana), a dissent that did also speak of the importance of protecting all life*:

These cases serve to identify the nature and perimeters of the right here pleaded on behalf of pregnant women, which right it is contended is infringed by the statute prohibiting abortions. It is obvious to me that the right to privacy and basic liberty is that enormous reservoir of freedom in which each of us daily maneuvers and makes choices, relatively free from governmental intrusion. Much of this freedom we take for granted. We have little reason to contemplate the periphery of this freedom. We have no need to invoke the protection of the Constitution in order to freely make routine daily decisions relating to such matters as eating, sleeping, buying, selling, saving, spending, going, coming, talking, breathing, walking, riding, looking, wearing, cooking, reading, working, playing, bearing and begetting. Surely no one would disagree with the conclusion that the basic liberty of a pregnant woman, that is, the reservoir of freedom in which to make choices, is substantially reduced by her pregnancy. For the sake of brevity, I call upon the reader to fairly contemplate the impact upon a woman and the family interests she represents, of a pregnancy, delivery, and receipt of a physically and legally dependent child. Cases of extreme hardship involving real danger to the women's health, pregnancy by rape, and financial disaster, and many more come readily to mind. Suffice it to say that the stake of the pregnant woman in the abortion decision is great, as great as her life and health, and the health of her family.

A mixture of the right and the effects of not having it.

---
* Thus, the judge noted:

I accept the description of the interest of the State in protecting fetal life made by the majority. This interest is great. The stake of the State is the stake that all of us has in the maintenance of a society in which human life is considered the greatest value and in which no man can grow so sick, so useless, or so evil that his life can be extinguished against his will. The State clearly has a legitimate and even compelling interest in legislating in the abortion area, and governing the abortion decision. However, the identification of this State interest and its characterization as compelling cannot serve as a basis of decision here.

This very well might be said to be the current doctrine.

The complexity of appearance

[This is a comment on a Slate analysis found here; the title says lawsuits against look discrimination is a bad idea, but the article is a bit more open-ended.]

The NY Daily News is also drooling over Debrahlee Lorenzana, but things like her talking about her breast implants on television makes her an easy target for the tabloids. Anyways, what is she claiming? An important part is selective targeting -- she claims others at her job dressed similarly but she targeted unfairly. The Village Voice article also pointed to allegations of this nature:

Other problems also popped up. In order to provide services to a client, a banker needs to become certified to do things like open a checking account or take a loan application. Lorenzana says Fisher didn't send her to enough of the required training sessions, which meant she wasn't authorized to do something as simple as order a debit card for a client and was forced to rely on her colleagues for favors. "When I complained," Lorenzana says, "Craig would say, 'Just go ahead and bring in new business.' So I went out every day and looked for business." But then, she says, when clients would come into the branch asking for her—or would fax papers to the branch with her name on them—Fisher would give those hard-won accounts to male colleagues.

Appearance claims are not trivial since they have gender, religious and ethnic/racial overtones in many cases.* Lorenzana suggests aspects of her ethnicity (though unlike some Hispanic women, her "assets" were not shall we say totally God given) is used against her, her natural looks a target. It has been the case that certain ethnic looks have been selectively deemed unattractive or inappropriate based largely on prejudice. Other women (and men) have claimed companies deem not not feminine/masculine enough in their dress. Such clothing or hair has religious or ethnic/racial aspects. So forth.

Jespersen v. Harrah's Operating Co., is an interesting case. I see that resident libertarian bad boy Judge Kozinski supported the claim, signing on to the dissent by a liberal judge. He dissented separately in fact to expand upon it. He underlines this is simply not a matter of feeling makeup is 'degrading,' or even a matter of self-expression, but a selective burden on women:

Nor is there any rational doubt that application of makeup is an intricate and painstaking process that requires considerable time and care. Even those of us who don't wear makeup know how long it can take from the hundreds of hours we've spent over the years frantically tapping our toes and pointing to our wrists. It's hard to imagine that a woman could "put on her face," as they say, in the time it would take a man to shave—certainly not if she were to do the careful and thorough job Harrah's expects. Makeup, moreover, must be applied and removed every day; the policy burdens men with no such daily ritual. While a man could jog to the casino, slip into his uniform, and get right to work, a woman must travel to work so as to avoid smearing her makeup, or arrive early to put on her makeup there.

More here. As noted above, it seems a bit too facile to say dress and grooming "are just another job requirement," given the true scope of the matter. Is a ban on headscarves or yarmulkes just another job requirement? Does not federal discrimination law require certain accommodations that take into consideration such things? The article also suggests:

"A dress code or a boss who offers explicit wardrobe guidance can be an egalitarian counterweight to the subtle class biases that inappropriate clothing choices would otherwise trigger"

This might be true and the claim here is in part that dress codes were selectively enforced. But, the devil is in the details. Gail Collins (of the NYT) in a recent book told about a woman who got in trouble for not wearing a skirt to court in the 1960s. A skirt was an explicit wardrobe requirement too, but there was a problem there. We cannot micromanage here, but general policy and sometimes laws themselves should set some limits.

Anyways, the general sentiment seems to be that this woman is a bit of a bimbo and has a weak case -- article after article highlighting her looks does not help too much there. OTOH, maybe, that helps her case. But, it sounds like she is alleging more than "they fired me for being too beautiful," even if she loses in the end.

---

* There have been much litigation regarding appearance that rests in part on constitutional grounds of various types, including basic liberty:

When the State has an interest in regulating one's personal appearance, as it certainly does in this case, there must be a weighing of the degree of infringement of the individual's liberty interest against the need for the regulation.

Justice Powell, concurring opinion.

Legion

God is pissed at us again but Archangel Gabriel still has faith in humanity so comes to the rescue a possible savior at an out of the way diner (sounds familiar). Painless standard fare, a film good for late night viewing; some names help with decent performances.

Helen Thomas Again

Her remarks were offensive, but considering her journalistic moxie and courage over many decades -- in sharp contrast to the despicable deeds committed by so many littering the Washington political scene -- isn't there room for someone who made a mistake [cf. here], apologized for it and wants to continue speaking truth to power and asking tough questions?

-- Katrina vanden Heuvel

Baseball Quickies

The Cubs losing on a run & sacrifice / error (score from first) was as novel as a botched double rundown play that scored a run. Meanwhile, Santana is down to 4-3, the Mets deciding not to do much after scoring two early. Apparently, the team can screw him at home too.

K/R Quickies

Kudos to Keith Olbermann last night on a segment addressing the Obama Administration's potshots at unions after a close Arkansas primary went their establishment candidate's way. See also, Glenn Greenwald today. Rachel's account of this, however, was lame.

"David Souter Finally Tells Americans To Grow Up"

He wants Americans to consider—in advance of yet another tedious confirmation hearing—the possibility that judging is really, really hard and only special people should get to do it.

This is not false, though "special people" does not mean there is but some handful of "qualified" people out there, but it is not the core message I got from the speech, one I already opined about here. The basic message to me is that interpreting the Constitution is a complex enterprise. Judges aren't the only one who do that. Legislators, for instance, swear or affirm to uphold the Constitution (Art. VI) as do executive and military personnel.

The idea that judges are a special breed is a long held sentiment, explaining in part why they are part of a separate branch of government, and have life tenure in the federal system. Edward Coke, eventually Lord Chief Justice of England, in the 17th Century spoke about how judges are skilled in an "artificial reason" that provides them with special dispensation to interpret the law.

Coke was an important influence on our own system of government, including the idea that there is a higher law that even the legislature must follow, the courts having a special role in ensuring that. This is part of a "republican" form of government, secured by Art. IV of the Constitution and honored by school children each time they say the Pledge. In a republic, simple democracy doesn't rule. Certain institutions, including judicial review, are in place. Federalist No. 39 lists life tenure as a recognized aspect of republican government: "according to the most respectable and received opinions on the subject, the members of the judiciary department are to retain their offices by the firm tenure of good behavior."

The importance of the federal judiciary, including judicial review and life tenure, was cited by Alexander Hamilton in Federalist No. 78. Part of it was that judging is both hard and specialized:

There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.

Federalist No. 37 underlined that the meaning of the Constitution as a whole would only be understood, imperfectly, by experience:

All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas.

The flexibility of the instrument is part of its value. When new "particular discussions and adjudications" put a new light on the basic principles and terms, for instance, there is an ability to learn and advance. Madison eventually accepted popular approval of a national bank; Hamilton changed his mind on Senate approval of removal of federal officers. The imperfect instrument also can be interpreted in many different ways, even if one side or the other likes to toss out comments about how stupid the other side is.

But, no one promised us a rose garden. Life is a struggle ... self-government is no easier. Judging and governing is for adults. Too many children out there.

American Original

Joan Biskupic's bio of Scalia is a straightforward analysis that is a bit too vanilla at points and is a bit thin on his early years/motivators. No big surprises, but provides the basics. My library copy has a handwritten dedicated to Elizabeth M. Clifton. Whoever she is.

Helen Thomas

She said something really stupid, though partially open to confusion, and she should have been given a chance to clarify. But, the double standard alone underlines the "obvious" idea she had to go based on it is bogus. Does one horrible call mean the umpire is retiring?

How Not To Argue A Point: Part 100

Example: overturning a final out perfect game call will lead to slippery slopes where some fifth inning call at second will be next. Anyways, if a home run in a 10-0 game can be reviewed, why not this? Perhaps, a booth umpire or umpire agreement would be necessary.

Martha Nussbaum

She was the subject of the "in depth" segment on Book TV over the weekend -- smart lady with nice legs. I read two of her books -- Liberty of Conscience and Hiding from Humanity: Disgust, Shame and the Law. Also, wrote on animal rights among other stuff.

More on The Painted Veil

And Also: Army Wives was a bit depressing, but a pretty strong episode all total. Good Luck Charlie was cute, not limited to the mom. Drop Dead Diva is back. Nice opening number. As usual, the character stuff better than the law part. The former the reason to watch.

A bit more can be said about The Painted Veil as well. The author, a bisexual with some experience in various matters addressed in the book, provides what might be deemed a sort of woman self-actualization account. A shallow woman, who knows she is shallow, eventually is disgusted with herself. Kitty, who fell into an affair with a successful man who is shallow and accepting of it (it is noted such will help him get ahead in the world, not to make waves), in the end wants to be her own person, and raise her child to be one as well. A little speech she gives to her father at the end underlines the point.

The Wikipedia account notes that a libel suit actually led "Hong Kong" at one point (not in my version) to be replaced by a fictional colony. The implication that cad of an assistant secretary was somehow based on actual English officials underlines a subtext in the novel. The character is on the outside alluring, having a sheen of respectability, but deep down is selfish and shallow. The custom official that befriends Kitty is positive character because he is properly cynical about things. The book also suggests the shallowness of the pursuit of better social position and how men submit to what is expected of them in that respect.

The nuns are seen as a positive influence but it is notable that (along with the wife of the assistant secretary), they are in some fashion tricked into thinking she is but a loving wife, who traveled to a cholera invested area out of the goodness of her heart. There is some sense that the Mother Superior can see through Kitty somewhat, but it is never made apparent (as compared to Waddington, the custom officials) she knows the loving couple image is a sham. On the other hand, perhaps she knows a bit about Kitty's true self, her potential to be a better person.

In the movie version, her husband has a bigger part, helped by the fact that the actor who plays him had a significant role in bringing the film to screen. The actor has noted that he thought the book bleak and the film changed some things. The couple in the film patched things up more, including having sex, so things weren't so bleak when he died as in the novel. In the novel, Kitty wants him to forgive her because of her growing respect for him -- he loved her deeply once, she never did (perhaps in the end), so her betrayal made him hate himself. An allusion right before he died to the last line of this poem was a telling point.

But, I think the book did have a hopeful quality. This was that Kitty truly believed in herself. Horrible things happened, but she no longer was that shallow girl, but someone who could hope the next generation will be different. She is therefore a good symbol of sorts for his age -- the book written in the 1920s. The film also has a coda where Kitty with her son Walter (in the book, she hopes for a girl, so she can raise her not to be as she was raised) meets Charles Townsend. She tells her young son that he is no one of importance.

The book is more biting. She last meets him while pregnant, denying it is his child. He says he isn't so sure, Kitty thinking that he wants control of her forever. Not having seen much of the movie, I don't know if it also has her stop by Hong Kong on the way home (perhaps not, since it doesn't sound like she went to Bermuda with her father as in the novel) to stay for a time with the Townsends, invited by the wife. At one point distraught and in tears, Townsend seduces her one last time. After, he is pleased with himself. She is horrified, feeling like a slut. We understand why she fell for him, more than her herself probably, and feel (well, I did upon reflection) Townsend in effect raped her, given she was in no emotional state to truly control her actions.

Powerful stuff. We see things through Kitty's eyes, including how she feels other people view her. I'm not sure if she was ever wrong, but it is useful to remember that she can very well be an imperfect judge. This is shown by her realization of how subjective her view of CT is. Sometimes, he seems like a perfect specimen, others a rather unpleasant sort, an aging cad. It rests in large part on how she is feeling for him, how she sees him on the inside. The views of others of her very well can be seen through a similar lens.

I would end by noting that the book is very readable. Some classics (if this be one) are fairly hard going in that respect. A tedious affair. This one was easy reading, not simple or anything, but quite appropriate for mainstream high school reading. It also was not too long. I'm glad to find some classic works worthwhile reading, not just something one reads for school or as some mental enrichment enterprise.

Selective Reporting

NY Mets continue to shine at home. Enjoy them when you can. Keith and Rachel covered the oil spill A LOT, Rachel actually going down to the Gulf for live reports, Keith changing the 'end' of war sign-off to reflect it. Wonder why they don't really cover this.

More on Agora

This movie clearly has some dramatic license, the question being how much. As to the destruction of the library at Alexandria. The immediate question would be if some pagan library or center of learning -- not necessarily the original one -- was around to be destroyed. One modern account:

Alexandria underwent a slow decline beginning in 48 B.C., when Julius Caesar conquered the city for Rome and accidentally burned down the library. (It was then rebuilt.) By 364, when the Roman Empire split and Alexandria became part of the eastern half, the city was beset by fighting among Christians, Jews and pagans. Further civil wars destroyed much of the library’s contents. The last remnants likely disappeared, along with the museum, in 391, when the archbishop Theophilus acted on orders from the Roman emperor to destroy all pagan temples. Theophilus tore down the temple of Serapis, which may have housed the last scrolls, and built a church on the site.

The last known member of the museum was the mathematician and astronomer Theon—Hypatia’s father.

More research would have to be supplied for me to learn if such "pagan temples" were also centers of learning, though I would not be surprised if they were. Looking at the entry for Hypatia at Wikipedia, there is an extended discussion, well documented, about her life.

So far, I have not found much on the destruction of the library, but more on her death. This includes more than one account where it is cleared she was murdered (one Church historian used that very word) by some sort of Christian mob, directly or indirectly a result of a power struggle between a local church official and secular authority.

As noted by the article [I reference the review over at Slate], the movie is somewhat suspect on dramatic storytelling, and we do not get much of a sense of Hypathia's full career and teachings. For instance, she is a follower of Neoplatonic philosophy, which influenced some Church thinkers -- including one portrayed in the film. After the destruction of the library/temple, it is not quite clear how H. spends her time. Looking over some historical accounts, it seems she did continue teaching and/or her studies, though the movie is pretty vague on the point.

Also, more probably could have been shown to explain why Christianity was winning out over the pagan elites. One scene showed the feeding of the poor, but that is not really enough. Was Hypathia in a type of "ivory tower," her philosophy of doubt over certainty not a good fit for the troubled times? This would be an interesting conflict to examine.

The movie is worth watching. It is about something, more than one thing actually, and the lead performance is quite good, though it could have be written a bit better. The supporting roles are somewhat of a mixed bag, at times overly simplistic. We get a sense, imperfect or not, of a different place and time, and overall benefit from the overall experience.

Dumbing It Down

[More: Linda Greenhouse has a rather different take here.]

I admit to having enough trouble keeping up with the reading I have now without feeling overwhelmed at times (I think life might have been easier when my experience with the Internet was only a matter of reading a few bulletin boards, providing more energy to regularly read a few general issue periodicals) that reading stuff like National Review is not on my schedule. That sort of thing is achieved by some stuff at Volokh Conspiracy and such. I guess it is a matter of reading more on certain subjects; the net result is probably okay.

But, I did read "David Souter Dumbs It Down," a criticism of Souter's commencement speech discussed here and elsewhere. [Nice use of the botched call to show the subjective nature of umpire judgments vs. Roberts' metaphor.] Let me say upfront that the address was by nature a brief affair and not an in depth discussion of Souter's views. Thus, without more, it might be said to be a bit shallow. A bit ungenerous, but okay. It also need not be seen as some masterpiece, but it is imho an impressive basic criticism of simple minded originalism and cries of "judicial activism" in part because judging is a subjective enterprise. But, NR goes further.

First, it's nice the guy actually read it, unlike Mr. Whelan, since it is something that can be perused pretty quickly. But, ah, the simplistic strawmen, tellingly in a piece that suggests Souter tosses them out as well. Early on, we are told this can't be an attack on "originalism" because Souter himself repeatedly used the values of the Framers to argue his point. But, that is not the point. The Souters of the world don't think -- especially in reply to self-professed originalists -- that such a thing is useless. No, it is of limited value. Who is dumbing down here?

The article also suggests Souter's core nemesis is a path of interpretation that no one actually thinks is true. I will quote the excerpt the criticism cites:

The charges of lawmaking and constitutional novelty seem to be based on an impression of the Constitution, and on a template for deciding constitutional claims, that go together something like this. A claim is made in court that the government is entitled to exercise a power, or an individual is entitled to claim the benefit of a right, that is set out in the terms of some particular provision of the Constitution. The claimant quotes the provision and provides evidence of facts that are said to prove the entitlement that is claimed. Once they have been determined, the facts on their face either do or do not support the claim. If they do, the court gives judgment for the claimant; if they don’t, judgment goes to the party contesting the claim. On this view, deciding constitutional cases should be a straightforward exercise of reading fairly and viewing facts objectively.

Souter argues that it is a tricky business (and often not a matter of just "the" provision, either) to do this. The NYT op-ed provides this as a core message:

Justices have to understand the “meaning” of the facts presented to them, he said, going far beyond the objective sense on the printed page. And there is only one way to fully understand that meaning:

“The meaning of facts arises elsewhere,” he said, “and its judicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own.”

But, according to the critic here, Souter is putting up a strawman. Having read some cries of activism and the argument that it is oh so easy to show that the judges aren't applying the text (it's just so black and white!), I am not so sure. Next, we are told:

And what of the counter-arguments employed by Souter to knock down this straw man? Well, it is often said as an excuse for judicial activism that the Constitution contains “deliberately open-ended” provisions. But the repeated assertion does not make it so. Take the due process clause, one of Souter’s examples. It has been melted down so many times in the judicial crucible, poured into so many new molds, and hammered and polished into so many new shapes, that it’s easily forgotten that it originally had nothing to do with courts of law striking down such substantive policy choices as prohibiting slavery, regulating working hours, restricting abortion, or banning sodomy. And why, when a seemingly “open-ended” provision is encountered, does it always seem to follow that the judges' view of its meaning must prevail over the views of others?

Put aside the substantive policy issue -- and given the anti-slavery view that the clause DID bar slavery the criticism if anything makes Souter's point in a fashion -- the procedural aspects are not open-ended either? Oh? Evidence please. What "narrow" meaning is found in "due process of law," I wonder. As to the last point, is this a criticism of judicial review? If not, if it suggests that the judges' specific view always "prevail," it is patently false. Does the author realize that Justice Stevens thinks the death penalty is unconstitutionally applied, but concurred because of the state of the law as a matter of precedent? A restraint found in a myriad of cases. Such pablum.

The criticism then attacks Souter's competing values discussion with more pablum:

But the Constitution is itself the effort to harmonize those things, and the work of judging, in cases that encounter the tension between them, is to figure out what the Constitution is itself saying to us about their relation to each other. Only the originalist is interested in doing this work. Is David Souter interested?

More making his point for him. Apparently, originalists are special, while the others are just self-righteous sorts that don't look at the Constitution, but make things up as they go along or something. Souter's point is that the Constitution itself is written in open-ended and often competing language, so looking at the Constitution does not bring easy answers. That is what he did too. He just realized things were not so easy when the judges try to figure out how to decide a particular case. The fact that -- as Madison and Hamilton realized in the Federalist Papers as did others -- that the meaning will come with the application over time is turned into this:

His judges are politicians–just more detached ones, answerable to no one but themselves, and wiser even than the Constitution they pretend to interpret.

Who is Scalia answerable to when he things "equal protection" doesn't really apply to homosexuals? Souter's use of Plessy and Brown to show how the meaning of that term changes over time also was met with sarcasm:

Except that in the Plessy case, there is this inconvenient fact of Justice John Marshall Harlan’s famous dissent–which Souter never mentions. He was, evidently, more enlightened than his colleagues. But was he right? Oh now, Justice Souter might say, don’t go bringing up that foolish “fair reading of the Constitution” stuff. Haven’t I just been telling you that things are more complicated than this? Okay, we won’t go there. Was Harlan just sadly ahead of his time, going where the rest of the country wasn’t ready to go yet? Yeah, that may be it. But judges must decide cases in the here and now, and–sorry to be so slow about this, folks–they must get them right to the best of their ability. How does Souter’s argument about judges making a moral judgment, fit for their own age, of the meaning of the facts in a case, help a judge to decide this case, here in front of him, today? What is the moral judgment about a set of facts’ “meaning” that would be appropriate for, say, June 2010? Well, who the dickens can say? This is just about the least useful set of reflections on the art of judging that anyone with judicial experience has ever set down on paper.

Justice Harlan did not oppose segregation in public schools. He specifically said as much even when he dissented in regards to segregating private adult colleges. His Plessy dissent also spoke about how the white race would always be superior socially to the black race, but argued that should not matter in respect to civil rights. So, he wasn't quite ahead of his time on the immediate issue. But, anyways, we do have to hope judges get things right by the best of their abilities. There are always people ahead of their time ... well, up to a point, usually. Souter is honestly showing how judging will be done, using current understandings, flawed as they may be.

Such honesty is deemed worthless. Tellingly, the criticism ends by saying Souter is the one "projecting" by use of "astounding condescension" to say that those who he is criticizing here are the ones who want to believe in simplicity that simply doesn't exist. More talk of "philosopher-judges" (oh so tiresome) who cannot well you know provide a fair reading of just what the Constitution says. Can't we all be like Justice Harlan and uphold public school segregation and strike down various modern economic legislation long deemed acceptable? Oh wait. He accepted a substantive view of due process of law, at least as an alternative means of upholding privileges and immunities of citizens.

One last point. The criticism wonders if Souter means to say that Plessy and Brown both was rightly decided, each in their own era. That is an intriguing point, actually, and one not totally as stupid as the author seems to suggest. A conservative publication should be supportive of such a careful approach to overturning major social legislation, plus an "originalist" view very well might have allowed segregated public accommodations. The Boston schools precedent was telling. I don't think Souter is requiring us to make a judgment though, only showing accurately how judges decide cases in the real world, not the simple fantasy world of some.

For not dumbing it down, I am grateful to him. Hopefully, some senator will find it possible to use his words to ask Kagan about her own views. The "fair reading" model, which sounds a bit too much like Sotomayor's claimed policy of following the law, won't quite do it.

The Painted Veil

I was watching part of the film with one of my favorite actresses, Naomi Watts, so sought out the novel. I liked it. It provided a sympathetic and honest account of flawed characters and the ending provided a bit of hopeful self-awareness. Not sure the film had to change it, though modern audiences probably like the new ending.

Love Fest

A big love fest over the umpire, who admitted he was so very wrong, and is so very sorry. The pitcher understood / brought out the line-up card the next day. Everyone are being such good sports! That's what matters in the end, right? Let' look forward, not backward!

A bit more

Agora is a film, so does have dramatic license and some simplification, including not really covering her Neoplatonist views, which might have inspired her Christian students as well. Also, a bit more why the old elites failed might have been helpful.

Agora

Agora concerns Hypatia (a chance for Rachel Weisz to shine), a turn of fifth century philosopher caught in some religious turmoil in Alexandria. The wonders of science and the dangers of religious fanaticism along with her own power are covered. Worthwhile.

Quickies

Here's a good article on the use of legislative history and how anything can be used selectively. Sorry Scalia. As to the 'perfect' game pitcher's grace, some of us can relate: sometimes, life screws us, and you just have to laugh at how it thinks we are but jokes.

So Predictable

Second gutsy outing by Santana for naught. Another formerly reliable pitcher showing signs of losing it. Retrieve (out at third on a failed sacrifice) to no avail. Closer pitches just good enough to blow it (2.1 innings, not doing it when it counts). Another road series lost. Yawn.

If he missed the call ...

it's not like it was important or anything. Anyways, three perfect games so close together, they start to seem routine. Seriously, f-ing unbelievable. You can't f-up like that, you get paid, you don't f-up at such moments. An ESPN analyst actually felt sorry for the guy!

International Law and Israeli Blockade Running

Temple Grandin: Here's an interview. Her argument that animals are not things, adding that a lesser interest to protect value also exists overall, can be found here along with other writings. We sometimes speak and think on different wavelengths; she confirms that.

An educated analysis of the Israeli raid on blockade runners requires a good amount of context and discussion that is not always provided by news sources. It is unfortunate that Rachel Maddow, e.g., only had a rather trivial summary of the events last night. One issue that confuses, for instance, is the legitimacy in "international waters" in particular. I use quotes since the Kaplan article, for instance, noted:

The Israelis, in short, had plenty of time to issue warnings, explain to the public (including to the Turkish government) what steps might ensue if the activists carried out their plans—and, more important, to plan what the Israeli navy should do if the boats broke through the 28-kilometer "exclusion zone" (which apparently they didn't quite cross before the landing took place in any case).

Is that some sort of buffer zone that isn't totally international or something? The Washington Post (see also, discussions here) probably had the best tack:

International law experts differ over the legality of the Israel action, with some asserting that the raid constituted a clear cut violation of the Law of the Sea, while others maintain that Israel can board foreign vessels in international waters as part of a naval blockade in a time of armed conflict. But scholars on both sides of the debate agree that Israel is required by law to respond with the proportional use of force in the face of violent resistance.

This is more convincing than biased observers like this, a woeful choice to provide an analysis that people perhaps wary of the Israeli side (or of his strident advocacy in the past) might find particularly helpful, if not totally convincing. I say this evenhandedly: Democracy Now! has had useful coverage that provides a perspective often underutilized by MSM, but also should be taken with a grain of salt at times (an Israeli representative was interviewed, which is appreciated, since the show often doesn't provide both sides, even imperfectly).

As the Kaplan article suggests, there is a lot of stuff here, the overall justice of the Gaza situation likely to come up. But, this blockade issue, including the means used to enforce it, is an important specific matter that can and should be used to help understand just what is going on here.

Quick Thoughts

Glenn Greenwald has the righteous indignation down, but Kaplan probably has the best slam on the Israeli f-up. Perhaps, Sotomayor's first major criminal law dissent has some nice signs of realism, following in Souter's footsteps. Multiple needless short concurrences today. Temple Grandin was pretty good, great lead.

And, the Braves Go Last to First Too! Charming!

So Kagan is a Mets fan? Is that some working class cred thing? More of the same: losing at San Diego is traditional, but the added charm this time is a ridiculous 18-6 score, more so given this season they are usually horrible in that department. In mop-up: Perez!