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.