Recently in Law Category

The Ninth Circuit has overturned Proposition 8 in California, which reinstated a ban on same-sex marriage as part of the California Constitution when the California Supreme Court had interpreted the California Constitution as requiring the state to issue marriage licenses to same-sex couples seeking them. Eugene Volokh has one of the better explanations of the reasoning that I've yet seen (but I haven't looked around too much yet). I have two immediate thoughts:

1. It seems clear that the Ninth Circuit is using a rational basis test, which is the strongest test the Supreme Court has been willing to give for sexual-orientation discrimination. As I've argued before, I think this is a mistake on the part of the opponents of Proposition 8. If they want the analogy with Loving v. Virginia and the overturning of bans on interracial marriage, they ought to be presenting this as a case of sex discrimination, not sexual-orientation discrimination. A black person under Virginia's law could marry a black person but not a white person. A white person could marry a white person but not a black person. So the marriage rights of a black person differed from the marriage rights of a white person in terms of who they could marry. That's race discrimination, which faces a strict scrutiny test, the strongest test the Supreme Court recognizes for discrimination cases.

Similarly, a restriction on marriage to opposite-sex couples does treat one group differently from another group. But those groups are not gays and straights. A straight man can marry the same people as a gay man. The discrimination is along sex lines. A man can't marry the same people as a woman. That's sex discrimination, by the same sort of reasoning that you find in Loving v. Virginia. It's not sexual-orientation discrimination. Sex discrimination faces intermediate scrutiny, the middle-level test of the three the Supreme Court recognizes for discrimination cases. Sexual-orientation faces only rational basis scrutiny, which is the weakest of the tests. So by Supreme Court precedent, the opponents of Proposition 8 would be better suited to pursue their arguments in terms of sex discrimination, which would be both more analogous to Loving v. Virginia and more difficult to get a law past it because of the higher scrutiny. But they continue to push it as a sexual-orientation discrimination claim, which I think helps their purposes much less.

2. The basic claim of the opinion is that there is no rational basis for a law like this, a claim that I think is obviously false. To pass rational basis scrutiny, all there needs to be is some sort of reason-based argument for the law or provision in question, not one that the Court even needs to think is a very good argument, just one that a rational person could support with some reasoning. It has to be a pretty grossly-awful argument to fail rational basis review. The Supreme Court has consistently upheld that stupid laws can pass rational basis review. The Ninth Circuit's opinion in this case says exactly that. Proposition 8 fails rational basis review because it doesn't even have a stupid but somewhat rational connection between the law and some hypothetical government interest. And the key point they were addressing was not same-sex marriage bans in general but just ones in states where there are already civil unions. The decision is silent on whether there's a rational basis for same-sex marriage bans themselves. Their argument is that there's nothing to a same-sex marriage ban when all the rights of marriage are already present. It's a symbolic law, and there's no rational basis for symbolic laws.

Basically what they're saying is that there's no even minimally-rational basis for reserving the word 'marriage' for opposite-sex couples while observing civil unions for the issues of rights. But I can think of several, and even if they're not very good arguments they might pass the rational-basis test as long as they're not such awful arguments that the reasoning is utterly unconnected with the law itself. Here are a few. Some people want to keep government out of marriage. Passing civil-union laws is fine, according to this view, but having the government recognize more marriages rather than fewer marriages is the wrong direction. I have a lot of sympathy for this view, and the reasoning strikes me as certainly passing rational-basis review.

Another basis is preferring an honorific title for traditional marriage because of its historic role and greater natural connection with childrearing. This is not a non-sequitur, since there is a greater connection between traditional marriage and childrearing than there is with same-sex marriage, and it doesn't have to pass the test of rigorous and careful argumentation to be a rational basis. The mere historical connection makes it not completely arbitrary, and that's enough to pass rational-basis review. So one could favor civil unions for actual rights while wanting to reserve the word 'marriage' for something that recognizes the traditional institution for its contribution to childrearing that the new-fangled same-sex marriage concept is not able to convey, and this is so even if it's not a very good ethical argument to reserve that word for traditional marriage. All that there needs to be is some non-arbitrary connection, and there's at least that.

A third argument I've heard sometimes is that same-sex marriage encourages legitimizing sexual relationships that are much more prone to divorce or breakup than opposite-sex marriages, and that result would undermine marriage as an institution. Again, this doesn't have to be a very good argument. It might well be a terrible argument. It might be that affirming same-sex relationships as marriages would actually have the opposite effect. But all that matters for rational-basis review is that a legitimate argument can be put forward that isn't completely unrelated to the state interest in question, and that condition seems to be met. You'd need to do some empirical study to show whether this is a good argument, but on the face of it it's not so stupid that it's irrelevant to the issue at stake. Some reasoning is put forward, and it's reasoning that has to be evaluated, reasoning that's not so obviously bad that you can dismiss it out of hand, and that's the test that the Ninth Circuit claims to be using.

As I've said, I don't think it's in the best interest of opponents of Proposition 8 to use rational-basis review when they can use intermediate scrutiny for sex-discrimination. Intermediate scrutiny requires that the basis being presented is substantially related to the legitimate government purpose, and I'm not sure all the above arguments would pass that. The third almost certainly wouldn't, in my view. I think the second might, and I'm not sure you can get out of the first one even with strict scrutiny. But my point is that they'd have an easier time of it if they didn't insist on treating this as sexual-orientation discrimination, which isn't the most accurate way to go anyway if they want to propose a parallel with Loving v. Virginia. I suspect it will all come down to Justice Anthony Kennedy anyway, though, and he's already on record saying that he thinks same-sex marriage is not required by previous Supreme Court decisions, so he'd have to think there's some new argument here that changes everything he's already written.

Here are some things Herman Cain has said about abortion:

1. He's opposed to abortion in all circumstances, but it's not the government's role to make that decision.
2. The president has no authority to order people not to seek an abortion.
3. He would appoint judges who know the Constitution contains no right to abortion.
4. He would veto legislation funding Planned Parenthood.
5. In the case of rape, it comes down to a family & doctor choice. He's opposed to it morally but shouldn't tell the nation what to think, because the government shouldn't be making our decisions on social issues.
6. The government shouldn't make decisions on whether abortion should be legal.
7. People shouldn't be free to seek abortions. Abortion should not be legal. (This was said immediately after 6.)
8. He opposes abortion with exceptions.
9. He opposes abortion except when the mother's life is threatened.

Sources: Huffington Post, CNN, Wikipedia

When it comes to Herman Cain's view on abortion, we seem to have a choice among (a) the uncharitable dishonest-about-his-views interpretion, i.e. he's not consistently being honest about what he thinks (b) the uncharitable intelligence interpretation, i.e. he's holding a flatly inconsistent set of beliefs in a pretty explicit way, (c) the uncharitable dishonest flip-flopper interpretation, i.e. he's not being honest about some change of views (and one such change has to be within minutes, (d) the uncharitable misuse-of-language interpretation, i.e. he's perhaps saying someone, perhaps only some of the time, that everyone misunderstands because of a highly idiosyncratic use of terms, or (e) he's got such a nuanced set of views that I can't even figure out how to put it together, with all my training in doing so.

(e) is the most charitable, but I'm extremely skeptical that he's so finely-tuned in his language without one of the others being true. I tend to think (d) is the least uncharitable of the others. Perhaps he means "it's not the role of government" and "it's the person's choice" in odd ways. You can, after all, say the second while thinking certain options should be illegal. You just wouldn't say so in an abortion discussion without being radically misunderstood. You could, also, say the first while thinking it's the role of a legislature but not the role of the executive or legislature to countermand the wrongful decision of the courts, but again you'd be radically misunderstood. That's about as good as I can do to put this together, and if it takes something like that, I think he's politically finished. There's no way the general public is going to be willing to be that charitable. But that may well be what's going on.

So here's my proposal. I'm going to take Herman Cain to hold to the following positions, all of them compatible with all of the above statements if they might have pragmatically-odd by semantically-possible meanings, and I'm going to see if I (or a commenter) might find a statement by him that does not fit with this view. So here's the approach I have in mind:

So (1) means abortion is morally wrong in all cases, but it's not the federal legislative and executive's right to do anything on that issue anymore, given the Supreme Court's wrongful intervention on the issue. (2) means the president can't tell people what to think and has been removed from being able to have any direct influence on abortion law at least at the very general level of deciding when it is legal to have an abortion in cases when the Supreme Court takes it to be a fundamental right. (3) clearly states that the Supreme Court wrongly decided Roe v. Wade, despite several claims that he hasn't made such a statement from social conservatives, and his preference for judges who would seek to do what they could to reverse or roll back that decision. (4) signals his opposition to federal funding for abortion or for abortion providers, something a president can have some say in. (5) signals his moral opposition to abortion in rape cases but his willingness to think that (i) that's a case when the law should be less clear than he thinks morality is, (ii) he as president shouldn't dictate what Americans' views on such matters ought to be, even if he has a clear policy preference, or (iii) given the Supreme Court's dictates, it's no longer the president's position but is given to a woman and a doctor to decide, even if he would prefer that the Supreme Court hadn't done that and would undo that dictate. (6) If he means the legislative and executive branch of the federal government here, and he isn't giving his ideal preference but his understanding of the limited role the Supreme Court has given him as president, then it's consistent with his view in his immediate next statement. (7) Ideally abortion should be outlawed, even if it's not possible to do so right now on the level of the legislature and executive. (8) Abortion is almost always wrong. There are exceptions, and he's aware of at least one. (9) One of those exceptions is when the mother's life is threatened, and there may or may not be others (and from above rape is not one of them).

This does strike me as a consistent position, and it does mean taking some of his statements in odd ways, but that's clearly more charitable than taking him to be lying about what his views are, lying about some change in his views, or so confused on the issue that he can't put together meaningful back-to-back statements explaining coherent positions. He does have an Obama-like history of overstating things and having to take them back, but his clarifications don't usually have the character of stating a view he holds and then backing off to a view he doesn't hold, and they also don't usually have the character of being corrected but embarassed to admit it. They usually have the character of not realizing how he might be misinterpreted and then being more careful the second time. It's just that this would be a case where his attempts to be more careful are only partially successful.

So that's my proposal of what I think he most likely is thinking. I admit that there are a couple points where it's a little bit of a stretch, but I don't think the evidence justified being less charitable at this point, and I'm not going to support misrepresentation  even by accident, which is I think what's going on if people are legitimately convinced he's pro-choice if he really isn't. He's certainly got a problem stating his views, but I'm not sure the general-election opponent is any better at expressing his views.

I can't see why pro-life voters would want this man representing them on this issue, but a vote for a president isn't necessarily a vote for the ideal person to represent your cause. It's a vote for the candidate that you think is better than the others. In a primary, that means the person who can best balance (a) the ability to beat the other candidate and (b) the ability to be a decent enough president to be preferable to the other party's candidate. In a general election, it's almost always a choice between two candidates as to which one will be better than the other on the issues you think are most important. It may turn out that someone who isn't the best person to represent your views on an issue does satisfy these criteria. Whether that person for pro-life Republicans is Herman Cain is, at least, not yet settled by this issue, in my view (although there are other issues that might serve as possible obstacles, and I could see this issue turning into one, depending on further statements that I haven't seen or he hasn't yet made). It partly depends on other people, too, but I have a better sense of what they think, at least the ones with much chance of winning.

At least twice in the last few weeks I've come across someone claiming that the U.S. Supreme Court affirmed the one-drop rule in 1986. I was surprised, because shortly before the first time I saw this claim I'd come across someone else saying that the 1967 case Loving v. Virginia, which is best known for overturning Virginia's ban on interracial marriage, also declared the one-drop rule unconstitutional. So I eventually started looking into both claims. It turns out that the first is false, and the second is true. That is, the Supreme Court did overturn one-drop-rule style racial classification laws in 1967, and they did not affirm a one-drop-rule law in 1986.

What Chief Justice Earl Warren's opinion in Loving actually says in the main text is that racial classifications need to be subjected to the most rigid scrutiny, especially if they form the basis of some impact in a criminal proceeding. But this isn't a new judgment. It's a quotation of a previous decision. And it's not clear what the most rigid scruntiny is supposed to be or how it would apply to one-drop rule laws, and he never applies it to such laws. But he points out that the basis of the racial classifications used in the Virginia law were instituted specifically to preserve the conception of white purity advocated by the invidious discrimination of 1924 Virginia that was of a piece with the kind of segregation at odds with the Equal Protection clause of the 14th Amendment, and that can't stand up to the most rigid scrutiny.

It's not quite clear, however, until you get to footnote 11, which says that the racial-classification system of Virgina is "repugnant to the Fourteenth Amendment" (and therefore presumably unconstitutional, although he never explicitly says they're overturning that law too). Since this is the reasoning for the overturning of the interracial-marriage ban, and not some aside on a topic not necessary for guiding the current case, I think it does count as overturning one-drop rule laws, at least any justified on the basis of white supremacy or purity (as I'm sure all actual one-drop rule laws were). But I now understand how it can do that in a way that I didn't really notice before. The real work is done in a footnote.

But the first claim is simply false. What happened in 1985 was a case involving a Louisiana woman who had thought of herself as white all her life who then discovered that her birth certificate listed her parents as colored. Louisiana law, until 1983, had a 1/32 one-drop rule, which counted someone as colored for having one black ancestor out of 32 great-great-great grandparents. Her parents were classified as colored by that law. She herself actually didn't count as black by that law, since it was her great-great-great-great grandmother who was black. But her birth certificate listed her as colored because her parents were listed as colored on theirs. So it wasn't the one-drop rule law that led her to be classified as black on her birth certificate. It was the cultural practice among doctors and midwives of transferring the racial-classification of the parents to the child when both parents had the same classification. Her parents had never objected to their classifications, and corrections to birth certificates apparently had to come from the person whose birth certificate it is issuing a complaint and request for correction.

So the state court concluded that there was no legal justification for forcing the birth certificate office to issue corrected birth certificates. They then said that the repealed 1/32 one-drop rule law was not relevant, because midwives and doctors aren't subject to the prohibition on government employees' violation of the 14th Amendment, since they're not government employees. Finally, they said the one-drop rule laws involved with this did, by their judgment, violate the Constitution, but they were bound by Louisiana Supreme Court precedent on that question. None of their analysis depended on any stance on the one-drop rule law, which was no longer on the books at this time anyway and thus could not be overturned by a court in any direct way. The case apparently got appealed to the Supreme Court in 1986, and they opted not to hear it, but it seems crazy to me to take that as a sign that they would affirm a one-drop-rule law.

In the oral arugments for Barenblatt v. United States (1958), a case about the investigations conducted by the House Un-American Activities Committee, Justice Potter Stewart objected to a particular line of reasoning by saying, "It would certainly be false, an oversimplification, to say that the right of privacy is a constitutional right." At the time, no one seemed to object, but then most of the justices weren't as vigorous in oral arguments as most of them are now. It struck me as a pretty bold statement of a view that probably seemed somewhat uncontroversial at the time but now sounds so jarring because of how the Supreme Court has talked about rights to privacy for decades.

That it could be said with no controversy in 1958 perhaps says something about the method of judicial interpretation of those who suddenly found it to be so clearly present in the Constitution a mere seven years later. Justice Stewart was one of the dissenters to Griswold v. Connecticut in 1965, which first declared there to be exactly such a right, but he lost that argument. By the Roe v. Wade decision in 1972, he had apparently given up entirely, since he voted with the majority in that case. I suspect the reason is that he was always more concerned about going along with precedent than the rightness of a decision on the merits, just as his compatriot Justice John Marshall Harlan II was.

Both Justices Harlan and Stewart were seen as conservatives in those days (although Stewart later came to be seen as a moderate once there were enough Republicans' appointees on the Court again that the 50% of the Republicans' nominees who were actually conservative were able to bring conservative jurisprudence back into the mainstream after decades of the influence of FDR appointees.) Justice Stevens and Justice Breyer have been the strongest defenders of precedents they don't agree with in more recent years, so this tendency to favor precedent runs across traditional liberal-conservative lines. But Justice Stevens, to this day, insists that he is a judicial conservative, specifically on the ground that he respects precedent above other considerations, because that's what he sees being a judicial conservative amounts to, ignoring other ways of being judicially conservative (e.g. sticking closer to the constitutional or statutory text rather than policy arguments, ruling narrowly according to the smallest issue that would decide the case in question rather than making wide-ranging proclamations against laws not at issue in the immediate case, favoring states' rights over federal power, ruling in a way that politically conservative views would favor, and so on).

I don't really have an argument to make here. I just thought it was interesting to hear a comment like that in a pretty different context during a time when such a comment was less politically-loaded and could go relatively unquestioned by the other justices once it was put forward by the junior-most justice of the time.

The U.S. Supreme Court heard Griswold v. Connecticut in 1965, probably one of the most important cases leading up to Roe v. Wade. The law at stake was a Connecticut ban of the sale of contraceptives.

The state's arguments for the contraceptive ban are interesting. There are two justifications. One is a consequentialist argument based on the assumption that it's bad for there to be population decline, which required looking at the 1960 census and seeing the population diminish from 1950 to 1960. (The population loss actually tells you nothing if you can't show that the population loss is based on birth and death rates, because it ignores the possibility that people moving from one state to another cause the biggest portion of the change, as the opposing lawyer pointed out.) In any case, the idea is that population decline is a bad thing, and it's therefore a good thing to pass laws preventing people from contributing to that by choosing to have sex without having children.

The second argument given by Connecticut is aimed at preventing immorality, but the immorality in question is not the immorality of contraception (which would have been more controversial) but the immorality of adultery. How does banning contraception diminish the likelihood of adultery? People are less likely to have adulterous relations if they think it might give rise to children.

The second argument is pretty poor. The first might have some basis if the population decline is so much as to be truly harmful to some important good, but that surely was not the case with Connecticut in the early 1960s.

So I don't think there are very good reasons for the law. But I was completely unconvinced of any constitutional argument against the law. Interestingly, the lawyer opposing the law was adamant that he didn't think taking his side would mean prohibiting abortion bans, which the Supreme Court went on to do within a decade, using this case to justify the right to privacy that they found in the Constitution in this case (a basis Ruth Bader Ginsburg repudiated in her Supreme Court nomination hearings almost thirty years later, despite her support for abortion rights).

I wonder if we'll see the same exact phenomenon with Lawrence v. Texas and same-sex marriage. Lawrence declared bans on same-sex sexual acts to be unconstitutional by a 6-3 vote. In the opinion, Justice Kennedy took great care to insist that their decision did not require a constitutional right to same-sex marriage. If the Supreme Court does declare bans on same-sex marriage to be unconstitutional, will they cite Lawrence v. Texas as precedent for the principles they use? There's certainly precedent for using cases that say they don't imply something to argue that they do imply it.

I recently listened to the Supreme Court oral arguments in Loving v Virginia, the 1967 case that overturned anti-miscegenation laws. I took a lot of notes and wrote up my thoughts afterward, and here are some of the observations and reflections that resulted.

1. The Lovings' lawyer began by presenting the law they wanted declared unconstitutional, the reason the law was passed, and a little bit about its precursor laws, feeling no need at that point to present any criticism of any it, It was simply clear from his tone that he thought the reasons behind the law were thoroughly immoral. No justice questioned him on this, and it sure seemed to me that they tacitly agreed. I wasn't around at the time, but this seemed to me to be a good sign that by 1967 we'd moved far enough along already that everyone on the Supreme Court saw this law as despicable, morally speaking (which in itself doesn't settle the legal question, and thus they let the oral argument continue past this point).

2. When the Virginia attorney general got his turn, it didn't take long for him to refer to the Lovings' union as a marital relation. He never disputed that it was a marriage, just whether Virginia had authority to declare their marriage illegal. That's one clear difference between Loving v. Virginia and the same-sex marriage cases in the courts right now that we don't often see people drawing attention to. Those who favor laws banning interracial marriage were happy to use the word 'marriage' for those relations. They didn't think such a union wasn't a genuine marriage. They just thought such marriages should or at least could be banned without it violating anyone's constitutional rights. The issue of whether it would be a marriage simply didn't occur to them. It obviously was. On the other hand, that's precisely one of the key issues for same-sex unions. Whether they should count as marriages to begin with has been a crucial issue of controversy, and whether these laws therefore revise a longstanding definition of marriage, and whether a state can resist that, is therefore not an issue that came up under Loving v. Virginia. Those who say that Loving v. Virginia automatically settles such questions by the same reasoning have not recognized this. There are several ways that the arguments aren't parallel in every respect, and that's a noteworthy difference. If the arguments based on the parallel are going to prevail, then this difference ought to be shown to be legally unimportant.

3. Three lawyers argued on the Lovings' behalf. The third, William Marutani, on behalf of the Japanese American Citizens League, made an interesting vagueness point. He was arguing that it's impossible to determine whether someone is white by definition of Virginia law, according to which someone has to be purely white in having no non-white ancestors. The people we call white are of such mixed ethnic background in the melting pot of the United States (and in the European history among prior ancestors) that it's impossible to be sure with most people (at least the ones without good genealogical records) whether they are white according to the Virginia law. It's a good practical reason not to have such laws, even apart from the moral question. The opposing lawyer rightly pointed out that the Virginia statutes about those matters weren't being challenged, so by the rules of our legal system it's not really legally relevant unless someone challenged those statutes in the lower courts first. But I thought it was nice to see someone making that point as early as 1967. It's worth pointing out that he didn't make any mention of the even-more-mixed status of blacks, even at the time (but it's much stronger now, I'd wager), but that wouldn't have helped him except to challenge the definitions of terms used in the law according to how they're used in science or something like that, which is irrelevant to the law's constitutionality, since the law itself didn't make any difference for blacks according to how much black ancestry they had. All it took was a smidgeon.

4. The precise equal protection point is worth reflecting on. There was also a due process argument, but I don't pretend to understand how due process is supposed to work. I've never heard a due process argument that I've understood, for whatever reason. It's not that I understand what's being argued and disagree. I simply have no clue what's being argued with due process claims, and I've never gotten any clarity on that despite hearing lots of oral arguments, reading lots of opinions, and trying to wade through discussions in popular-level presentations. Due process rights, according to some (e.g. Justices Scalia and Thomas), is merely ensuring that the laws are followed and that no improper procedures are followed. I once agreed with this, but that makes it a vacuous claim to say that you can't pass laws that deprive someone of rights without due process of the law. You can't pass laws without ensuring that the law is really passed? Then I discovered that at the time the 14th Amendment was passed, there was much discussion of what's called substantive due process, which reads more into due process than the vacuous sort of view I've lost interest in defending. So when that part of the Constitution was framed, it may well have involved this notion of due process. Nonetheless, I can't make heads or tails of what due process is supposed to be on the substantive due process view or how one would argue that due process rights include some claimed right, other than reading one's own policy preferences into the notion, which I don't consider legitimate judicial practice.

But the equal protection claim is one I fully understand. Every person within a state's jurisdiction is guaranteed equal protection of its laws. If a law treats one person differently from another without a strong enough justification for doing so, then equal protection is violated. The Virginia attorney general conceded that there is no justification for his state's anti-miscegenation laws if all you had to go on were genetic and scientific issues. The only moral justification his state could have to pass such a law, in his view, is the harmful effects of interracial marriages on the children of such marriages and on the participants, and he concedes that these effects are because of the attitudes of the people of Virginia toward such unions and toward children of such unions. So it's a highly contingent claim, one that presumably (as far as he's argued) would not be present in a state without such attitudes.

That's another difference from the arguments of those who oppose same-sex marriage. Their arguments are not based on contingent factors about people's attitudes toward same-sex unions and people's attitudes toward children raised by those in same-sex unions (who are not possibly the product of those unions, to begin with, at least in the biological sense, although some might not exist but for those unions). Some of the arguments of those who oppose same-sex unions are based on statistical claims about marriage as traditionally conceived compared with same-sex unions when called marriages, and some of those (for all we know) might be contingent matters due to social circumstances. If no one opposed same-sex relations, these things might be different.

But not all the arguments are like that. Some have to do with the sociological conclusions of numerous studies showing that not only are two parents more valuable for the sake of the child than one but that having parents of both sexes tends to be better (other things being equal) for the children and having the child with biological parents (other things being equal) tends to be better for the child. So marriages as traditionally conceived will, apart from contingent matters like social attitudes, be better for the children, and thus there's a reason to encourage such unions by calling them marriages and not unions that don't have those features. Whatever the merits or demerits of such an argument are, it's a difference in the justifications used for preventing same-sex unions being called marriage and the justifications used for preventing marriages between those of different races, and that's rarely acknowledged in the arugments of those who think Loving v. Virginia's arguments apply exactly to the same-sex marriage cases. Those differences need to be dealt with for such arguments to go through.

5. I've long thought that the equal protection point itself isn't parallel, for reasons I explained here and here. I don't think I've changed my mind on that question since writing those posts, although I've realized that I need to look into some Supreme Court rulings in the 70s on equal protection and women to see if the sex-discrimination argument should work with the federal Constitution given current Supreme Court precedent. But I'm not going to get into the details of any of that here. This post is long enough already that I don't need to rehash what prior posts already covered or to predict what I might come to after listening to the arguments in those 1970s cases.

I've been posting thoughts I had while listening to the oral arguments for several Supreme Court cases from the early 1960s. See my earlier posts Supreme Court Religion Cases and Substantive Side-Issues with the School Bible-Reading Cases.

I'd like to turn now to the central issues in these cases. The main issue was whether it's constitutionally allowed for a government school system to have prayer or public Bible reading for students in school. In one case there was a prayer written to be non-sectarian (it was claimed), said by the students. Another had The Lord's Prayer, simply read by one person. One case had a Bible reading chosen by a teacher, without comment. Another had students choose a passage and read it with a short reflection of their own.

Justice Potter Stewart, who has gone down in history as a moderate swing justice, was the only justice to take the position that is usually seen as the traditional, conservative view (the view that would have won in the Supreme Court a generation earlier and probably would win now if there weren't all this precedent against it). That's how liberal the Supreme Court was during the Warren Court. A moderate was seen as the long conservative holdout. On this issue even Justice John Marshall Harlan II (who sometimes voted against liberal rulings by the Warren Court), Justice Hugo Black (who often used the kinds of textualist arguments Justice Scalia uses; Black opposed finding the constitutional right to privacy that was later used to justify Roe v. Wade), and Justice Byron White (one of only two justices to dissent to Roe v. Wade) sounded right in line with Chief Justice Earl Warren, Justice William Orville Douglas, Justice William Brennan, and all the others. Stewart was the only justice who recognized that the establishment clause was set up to avoid a state church like British Anglicanism (or at least the only one who thought its purpose mattered in interpreting it). The others all thought it also included government endorsement of religious content.

One of the arguments discussed in the case was that these policies didn't just violate the Establishment Clause by setting up a state religion. They even violate the free exercise clause by compelling religion, even though the policies all had opt-out clauses. Any parent who wanted a child not to participate could have their child opt out. The opposition resisted seeing this as a genuine option and called it coercion anyway, because some kids made fun of those who opted out. So it's state coercion to participate in religion, because some kids happened to make fun of someone not participating. I didn't know that students in public schools count as agents of the state.

One argument in favor of the Bible-reading policies and the saying of the Lord's prayer was that the opposition was a recognition of atheism as opposed to theism, and that itself constitutes an establishment of religion (given that atheism had at that point come to be recognized as a religion legally). The consistent response was to point out the diversity of possible motivations for opposing such a policy. It's fairly common to point out that Jews don't recognize the Lord's prayer (although someone pointed out a very similar prayer in the Kaddish) or that there are religions that don't recognize the Bible at all. The more interesting response was that some people might have so much reverence for the Bible that they don't want it tarnished by being read in such a setting (a stupid claim for a Christian to make, but apparently some have done so) or that they don't trust teachers as representatives of a secular state to teach the Bible or select passages for reading, given that which choices are made for reading might itself constitute an element of teaching the Bible (a much more reasonable motivation for not wanting this done, albeit a policy argument more than a constitutional one in my view). At one point, Justice Black (I believe) even pointed out that the Lord's prayer is in the same chapter where Jesus tells people not to pray in public (although that's not quite what Jesus said).

There's an interesting debate among the lawyers over whether the Bible can be used simply for moral teaching in isolation from whatever would make it count as religious teaching. One lawyer made the (obvious, in my view) claim that you can't separate the moral teaching of the Bible from the religious elements. The lawyer on the other side who resisted this made the (also obvious, in my view) claim that there are moral propositions contained in the Bible that are often held from a completely different religious framework (including atheism). I think they were talking past each other at many points. There certainly are moral teachings in the Bible that can be separated from their context, but the context is plainly religious, and the context was being read. It's hard to take the Sermon on the Mount as a merely moral tract while ignoring the tremendous emphasis Jesus places on the moral obligation to follow him, which certainly is a sectarian claim in the sense that matters on the view that the Constitution doesn't allow any expression of religion by state actors.

There's a tremendous tension in the Supreme Court's eventual position, one that several lawyers predicted would occur if they decided this case in the way that they did. They wanted to uphold state actors engaging in civic religion in several places, e.g. "In God We Trust" on coints, prayer in the Congress and Supreme Court, "under God" in the pledge of allegiance. They also wanted to claim that it's an unconstitutional establishment of religion for the Bible to be read in schools without comment (not requiring the presence of students who could opt out), for a traditional prayer like The Lord's Prayer to be read out in schools (not expecting any student to say them or even be present), or for a state to craft its own prayer with the goal of avoiding sectarian elements that Jews or Unitarians might object to. The Supreme Court had to continue to draw fine lines, often ones without much moral significance, to justify their unusual combination of positions, but they had a hard time resisting continued erosion of public expressions of religion by state actors, as several lawyers in these cases in the 1960s had pointed out would be the consequence of these cases. It strikes me as the better variety of slippery-slope argument. [The bad kind: doing X will lead to doing Y because weak-willed people will be hard to turn things back once it goes a certain distance, even though X is morally justified and Y isn't. The good kind: if you do X, which seems fine to you, then the same principles require doing Y, which you object to. When the claim that the same principles apply is correct, this is an excellent argument, despite getting made fun of constantly in public debates, e.g. when Rick Santorum pointed out that the Supreme Court's 2003 decision against laws prohibiting same-sex sodomy would require removing laws against incest, which libertarians have now been arguing on exactly those grounds based precisely on that case.]

One argument from the Unitarians' lawyer was rejected by the Supreme Court, quite explicitly. He was claiming that it doesn't matter if there's a secular purpose to an activity, because every establishment of religion has a secular purpose. People don't engage in civic religion unless they think there's a purpose for teaching morality. He's right, of course, about people's motivations. But does that mean the state is endorsing a religion just because it uses something from a religion for moral reasons or to affirm the tradition as contributing good things? The Supreme Court has rejected this, saying that there needs to be a secular purpose (along with a few other conditions), but some expressions of religion are all right given such a purpose (and given that the other conditions are met).

The same lawyer also would have allowed something the Supreme Court later rejected. He said it would be fine for the school to invite students to come read the Bible or pray at recess. It wouldn't be fine for a school to do it and then let people opt out. The Supreme Court has disallowed both. Private individuals who are not state actors can invite students to do this on school grounds, but the Supreme Court won't let a private actor who is also a state actor do this, because students can't distinguish those roles in the same person.

Here's an argument I find wholly unconvincing that might have gone into my previous post if I'd chosen. One lawyer argued that children are not known for the capacity to dissent, and I think the implied conclusion is that we should be more careful with them when it comes to opt-out clauses. But that misses a key legal principle in our system. It's not children who do the opting out when it comes to what they're exposed to in schools. It's their parents. This law allowed parents to opt their children out. He cites Justice Frankfurter as giving this argument as a precedent, but one of the justices (perhaps Powell ) rightly objects that that wasn't a controlling opinion of the Supreme Court. It was a concurring opinion where Justice Frankfurter had agreed with the Court's conclusions but written his own reasons up as well to indicate some other thoughts he had. So it's not a precedent. But it's an unconvincing argument anyway, given how our legal system works. Maybe there are better arguments in the area of this, but I don't think this has much weight at all.

I wrote a little a couple weeks ago about the early 1960s Supreme Court cases Abington School District v. Schempp and Murray v. Curlett (and perhaps to a lesser degree Engel v. Vitale). I said at the time that I have two further posts planned, one on substantive issues that weren't central to the cases and another on the central questions the Court dealt with. This post is the first of those two. Here are four relatively independent observations from the oral arguments I listened to that affect the main argument to some degree but aren't very closely about the central issue. I have some more thoughts on the fundamental issue to come at some point.

More or Less Sectarian to Comment?

There's an interesting argument among the various lawyers and justices during the oral arguments for these cases, about whether it's more sectarian or less sectarian to read from the Bible without comment or with comment. One argument is that reading without comment is more like studying the Bible as literature, since it doesn't involve endorsement or criticism, whereas commenting on it expresses a viewpoint. On the other hand, some argued that simply reading it seems more like endorsement, since there's no room for critiquing anything in the text or showing room for interpreting in different ways, whereas commenting on it allows for critical discussion or demonstration of different interpretations. I suspect the two views have something different in mind for what the commenting would be like, but I thought it was an interesting debate. The two lawyers defending two different Bible-reading laws were making these opposite claims. One law explicitly disallowed comment, and the other allowed for it. But the justices seemed to disagree among themselves about which claim was more correct.

Absolute or Potentially-Conflicting Rights?

I've discovered that oyez.org has Supreme Court audio going back to the 1960s. I've been listening to some religion cases from the early 1960s, and I've noticed some very interesting things. I listened to three different cases (two decided together), and I wrote up a bunch of thoughts along the way. I wanted to post some on the substantive issues of the cases, but for this post I'm restricting myself to some interesting observations on side issues that came up along the way. The cases involved have to do with prayer and Bible reading in public schools.

It's fascinating listening to these oral arguments a half-century later. It's like listening to radio broadcasts from the period, which our local NPR station plays sometimes in the evenings, except these are all names I've read about and who have authored opinions that have shaped the application of constitutional rights that we all just assume now. It's hard for me to imagine its being a live issue legally whether you can author a prayer for students to say every morning in school or whether you can have students reading passages from the Bible every single day over a loudspeaker to a whole school.

One of the issues that kept coming up when the Supreme Court took public Bible reading in schools to be sectarian was which Bible translation was being used. It seems that the King James Version was seen as particularly sectarian, and the only other Bible versions they even mentioned were the Douay-Reims translation of the Latin Vulgate (which apparently at the time was the standard English version among Catholics) and some Jewish translation of the Hebrew scriptures that I'd never heard of before this (the Jewish Publication Society version wasn't until I was in college).

Apparently there were riots at some point in the past over which Bible version was read when Catholics tried to get the Douay-Rheims translation included along with the KJV in school readings, and there was a public book-burning of the RSV as late as the early 1950s. At least the criticism of the TNIV hasn't usually gotten to those kinds of extremes.

One lawyer opposing Bible-reading represented Unitarians, whose claim was that reading the KJV opposed their beliefs by favoring the Trinity (e.g. for capitalizing "Spirit" in Genesis 1, which of course wouldn't be heard in a public reading, but he probably didn't know enough to point out the Trinitarian additions in the KJV in I John, which would have been a much stronger argument).

In a completely unrelated issue, I noticed at least three different people (among the various lawyers and justices) using the word 'infants' to refer to fifteen-year-olds without anyone thinking anything funny was going on with such a use. What's up with that? If Baptists had realized that that word could refer to a teenager, they would have been perfectly fine with Presbyterian views of baptism all these years.

One participant argued that the use of the name "Holy Bible" showed sectarianism. The response was that this is not a description but a name. It's probably less so now, but I think that was certainly right. In the 1960s, you probably couldn't buy a Bible without that title, and I suspect many people who didn't see the Bible as authoritative for life called it that without considering its meaning as a description, just as many Jews use 'Jesus Christ' without intending any Messianic overtones.

I intend to post some thoughts on more substantive issues in separate posts. Some of them are not quite central to the case but involve detailed issues and deserve their own posts. It would have been a huge post to include all that plus the main issues plus these side points all in one post, so I'm sort of working my way toward the central questions of the case.

from Wikipedia on Attorney general, commenting on one of my pet peeves:

Some people think the word "general" used in that way entitles the official to the honorific "general", but this is strictly only appropriate for military generals. The word "general" in "attorney general" is an adjective modifying "attorney". However, in the Supreme Court of the United States, the Attorney General of the United States and Solicitor General of the United States (for which office the same rule applies) are addressed as "General" by the Chief Justice. The plural of "attorney general" is "attorneys general." The history of the term dates back to Norman England when many of the French legal terms were imported into English common law. In French, the adjective often comes after the noun and so Attorney General meant General Attorney.

It's maddening that so many people insist on treating this as a rank like in the military, just because the word adjective "general is used". It makes no sense to address the U.S. Attorney General as General Holder, for example, given that he isn't being said to be a general of the U.S. attorneys but rather simply to be the U.S. attorney responsible for the government in general. You'd think the plural form "attorneys general" would signal to people that the word "general" is an adjective here.

But I think this is one of many cases where people are trying so hard to do something they see as correct but largely unrecognized that they end up being incorrect. (Another example would be those who use expressions like "Phil and I" as the object of a sentence after being told that you don't say "me and Phil", not realizing that it's only in a subject that you don't say "me and Phil" and that it's actually correct to say "me and Phil" in standard English.)

Justice Elena Kagan is now the junior-most justice of the U.S. Supreme Court. Justice Sotomayor no longer has to get the coffee and answer the door when the justices are in conference. It occurs to me that an interesting dynamic will now be taking place on the Supreme Court. With Justice Stevens' retirement, Justice Scalia is now the senior-most associate justice. This means, for the first time since 1969, the Chief Justice and the senior-most associate justice tend to vote together more often than not. Indeed, the next in line is Justice Kennedy, usually seen as a swing vote on the current Court, and then Justice Thomas, who also often votes with Chief Justice Roberts and Justice Scalia. It isn't until Justice Ginsburg, who comes next, that you get someone who typically votes on the other end from the Chief Justice.

Does this dynamic have any ultimate significance? Not immediately, since each vote counts just once. But the senior-most justice in the majority determines who writes the majority opinion. Usually that will be the Chief Justice in cases divided along ideological lines when Justice Kennedy sides with the conservatives. It's usually been Justice Stevens in cases when Kennedy sides with the liberals. So who will do so now? Not Justice Ginsburg. She's the senior-most among the four clear liberals. But four votes does not make a majority. She'd need a fifth vote to get a majority in cases involving all the justices, which would be most of them. That fifth vote will either be Justice Alito, who comes after her, or someone ahead of her in seniority, most often probably Justice Kennedy. In the 5-4 cases where Kennedy sides with the liberals, it will be Kennedy himself who determines who gets to write the majority opinion.

Before Justice Stevens' retirement, Justice Kennedy had a lot of power in ideologically-divided cases along the more typical lines. There are plenty of cases that don't go along such lines, but a good deal of the hot-button issues people who aren't serious court-watchers pay attention to involve 5-4 splits with Kennedy joining either the liberals or the conservatives. His power has come in being able to determine which side in such cases will win, sometimes using it to side partly with either side. But now he'll even get to decide who writes the opinion, and that gives him further power. Sometimes who writes the opinion affects quite a lot. It might affect which justices sign on to how much of the opinion, which doesn't usually affect the result but does often affect how much of the opinion becomes precedent for further cases and how broad a scope the opinion will be to affect other cases.

Sometimes it's in the best interests of ideological achievement of a majority to have the most moderate member of the coalition write the opinion. When Justice Breyer or Justice Ginsburg joins the conservatives, Chief Justice Roberts often will assign them the opinion, and he did the same with Justices Souter and Stevens. Justice Scalia has written several opinions when he's joined the liberals, and that would have been Justice Stevens' decision. But Justice Kennedy loves to write the hot-button opinions himself, so maybe he won't use this ability as fully as he could. Nonetheless, the justice who I happen to think is the most judicially-activist has been the most powerful member of the Supreme Court since Justice O'Connor retired, and now he's gained an ability that increases that power.

There's long been a narrative among haters of Justice Clarence Thomas that he's not very intelligent and just goes along with whatever Justice Antonin Scalia does. The reverse is actually closer to the truth (but not all that close). It was Thomas' outside-the-box thinking that got Scalia to rethink a lot of the assumptions in his legal philosophy, and he was far more willing to take less moderate positions because of Thomas than he had been before Thomas was on the Court.

I've sometimes wondered if it's some kind of residual racism that's driving this narrative, with the stereotype of lower intelligence driving people to assume that Thomas is likely the less intelligent of the two, and since they so often vote together....

But no one ever suspected such a thing of Justice Thurgood Marshall, even though he so often voted with Justice William Brennan, the leader of the liberal wing of the Court for decades. So it's not just plain assumptions about black Supreme Court justices not being able to be as smart as white ones. More likely it's an assumption that no black justice who thought carefully and honestly would come up with the positions Thomas holds. Since I know people who explicitly hold such a view (when the reality is that no careful, intellectually honest, and fully-informed person could hold that view), this is highly plausible to me.

What's ironic, besides the fact that Thomas influenced Scalia more than the other way around and that Thomas is widely-viewed by Court-watchers across the political spectrum as one of the most original thinkers on the Supreme Court in decades, is that it turns out Marshall and Brennan may have in fact had the relationship that so many have accused Thomas and Scalia of having. According to a new biography of Justice Brennan by authors generally favorable to him, Brennan didn't think all that highly of Marshall as a justice. It's not that he was unimpressed at his intelligence. Anything but. He was so thoroughly impressed at his work as the chief counsel of the NAACP that he had high expectations of Marshall as a justice, and he simply failed to live up to them, except on a few issues, largely because (on Brennan's account) Marshall just didn't maintain the interest in the issues to think independently and carefully about them, pretty much just going along with whatever Brennan said in the way that many have claimed Thomas does with Scalia.

It was a complete surprise to me to read about this, because Marshall has long been heralded as a champion for liberal causes on the Supreme Court in ways that none have gone since he and Brennan left the Court. Most of the liberals on the current Supreme Court are noticeably closer to the mainstream on several issues, including capital punishment, affirmative action, and the intersection of first-amendment religion and speech rights. The idea that he chose not to think on his own and just went along with Brennan most of the time doesn't fit with the usual narrative.

In a 5-4 decision written by Justice Ruth Bader Ginsburg, the Supreme Court has refused constitutional protection for 1st Amendment freedom of religion rights for a religious group on a campus at a state college or university to restrict its membership or leadership to those who hold to a statement of faith. Eugene Volokh defends the decision, but I think it's so wrong I don't know where to begin, but at least it's not as bad as it could have been, since (so far, anyway) the decision only covers a minority of cases. It only applies in cases where an institution bans all groups, religious or not, from requiring particular beliefs for membership or leadership. They took no stance on when there's a particular ban on religious groups, but I got the impression that at least Justice Kennedy would have switched to the other side in such cases.

In effect, the Supreme Court has given blanket allowance to a public institution to ban religious groups on campus. Sure, there might be religious groups who have no statement of faith whatsoever, but I know of none. Even Unitarian Universalists have one item in their statement of faith. You must not be an exclusivist or particularist. Someone who holds that Jesus is the only way to salvation could not subscribe to their statement of faith (although an atheist could). Yet if they were to have a requirement for leaders in their group to subscribe to such a statement, the Supreme Court has declared that a university or college could ban them from campus for it.

To be clear, there is a way to have the pretense of being a religious group under such a policy. You could have a statement of faith that you don't follow. What you couldn't do is require your actual members or even your leaders to hold to your statement of faith, not without being forced off-campus. Most student groups I know of do require members and leaders to accept their statement of faith, but they almost always allow participation from anyone, and the statement of faith is never front and center for actual participation in the group. Membership is usually a behind-the-scenes sort of thing, and the leadership selection process is often handled at special leaders' meetings or meetings that don't involve everyone who attends public meetings. So it's not as if these groups require you to hold to a statement of faith to show up at their public meetings and participate. They just require it of voting members and of those who lead the group, e.g. Bible study leaders, the emcee of a public meeting, or the group's president.

It's hard for me to imagine a religious group having any consistent religious identity without requiring at least its leaders to subscribe to a statement of faith. I could imagine a local chapter of Campus Crusade for Christ being infiltrated by a coalition of Muslims, atheists, and other non-Christian people in an effort to undermine the Christian identity of the group. If they wanted the use of campus rooms so that they could actually be, you know, a campus student group, then this policy would require them to allow this. If the influx of non-Christian members became strong enough, what would prevent them from becoming the group and making Campus Crusade for Christ into a group opposed to Christ? It's crazy to think that there isn't at least an as-applied challenge to this policy as unconstitutional in its requirement for viewpoint-neutral membership and leadership of groups who have viewpoint-specific purposes. I would say the same for political groups, either party-affiliated ones like the College Democrats or issue-specific ones like a gay-rights group or a pro-choice group. Imagine if the local chapter of the Sierra Club became overrun by anti-regulation libertarians or advocates of maximal pollution for the sake of short-term human pleasure.

Only in the case of religious groups does this amount to an unconstitutional burden, but as a policy matter it's grossly immoral. It's not the Supreme Court's job to care about that, but it is their job to recognize that this is an infringement of student groups' rights to have a religious identity while being treated like non-viewpoint-specific groups. This decision effectively tolerates suppression of religion on campus when it occurs in an organized group that implements measures to maintain its religious identity by means of a statement of faith. It's no excuse to say that this applies to non-religious viewpoint-specific groups, because it doesn't apply in any meaningful way to non-viewpoint-specific groups. Groups like fraternities will be able to meet on campus. That means there is an as-applied distinction between how religious groups are treated (and it's something necessitated by their religious identity) and how some non-religious groups are treated. I think that's a significant limitation on religious liberty on campus, and thus I'd have to agree with the minority on this one.

The Christian Legal Society still can argue in the Ninth Circuit that policy hasn't been fairly applied to groups but that they've been targeted while other viewpoint-specific groups have not. I have a hard time thinking the Ninth Circuit will support them, but that means it might return to the Supreme Court on that separate issue, and Justice Kennedy would almost certainly be at least open-minded on that claim (and I think Justice Breyer also would, which might make a 6-3 decision). Kennedy has sided with religious groups on similar issues in the past. He just couldn't bring himself to see a viewpoint-neutral requirement as a burden on religion, even though its effect is to ban all religions with any content. Judging by the questions at the oral argument, I could see Christian Legal Society winning the appeal of the further claim they're making that the Supreme Court refused to hear this time around due to its not being raised properly given that it wasn't an issue in the lower courts.

I finished up my classes today by looking at Thomas Aquinas on natural law, and it occurred to me that a famous proponent of natural law today served as a good example to illustrate one of Aquinas' points. Aquinas doesn't think every moral conclusion that we can derive from natural law should be enforced by human law. He says the moral principles most worth enforcing are those that involve serious, especially potentially-widespread, harm. Almost any natural law theorist is going to see harm to yourself as immoral, but Aquinas wouldn't see that as a good reason to prohibit it by human law. He also says it's not genuinely a law without promulgation, which includes enforcement to motivate compliance.

As I was talking about this in class, I remembered Clarence Thomas' hilarious dissenting opinion in Lawrence v. Texas from 2003 and mentioned it as an example. Texas had laws against same-sex sodomy that no one ever enforced. Cops investigating a serious crime followed a lead and legally invaded a home that they suspected their target was living in. They were wrong. He'd moved, and a gay couple now lived in that home. The police stumbled in on the two men in the process of an illegal sex act. They promptly arrested them, and the two men sued in a case that got to the Supreme Court. Did this law violate these men's constitutional rights by this law?

Thomas' opinion is priceless, and my summary of it got some audible laughs from students who don't normally show much interest in any class content. He says it's not unconstitutional for the reasons given in Justice Scalia's dissenting opinion. The reason he wrote separately was not to change anything from what Scalia had said. He wrote a separate dissent to make it clear that he thought the Texas law was stupid, and that's exactly the word he used. He wanted it on record that he wasn't voting to uphold the constitutionality of the law because he thought the law was a good law. He didn't. He just didn't think it was the place of the U.S. Supreme Court to tell state legislators what to do on such matters. The law itself, however, was a stupid law. It's largely unenforceable, and any enforcement will be so sporadic that it will have hardly any deterrent value anyway. This is exactly what you'd expect of a natural law theorist in the tradition of Thomas Aquinas. Aquinas insists that there shouldn't be human laws of this sort.

I decided to take a look at the Wikipedia entry for Justice Thomas to see what it might say about natural law, and it says the following:

Whereas Thomas' earlier writings had frequently referenced the legal theory of natural law, Thomas distanced himself from that controversial stance during his confirmation hearings, giving the impression that he had no views. Thomas himself later asserted in his autobiography that in the course of his professional career, he had not developed a judicial philosophy.

What he actually did at his hearings (and yes, I just reviewed the transcripts to be sure I was getting it right) was to point out the difference between (a) thinking natural law is the basis of why it's good policy to have certain constitutional rights and (b) thinking we should look to natural law rather than to the Constitution's positive rights when deciding matters of constitutional law. Thomas had long endorsed (a) and never endorsed (b), and what the entry describes as his distancing himself from his previous natural laws views was really his denial of (b), something natural law theory doesn't imply anyway. When he says he had no judicial philosophy in his book, that doesn't mean he hadn't ever developed a view on the foundations of ethics, which is what natural law theories are. Not having a comprehensive judicial philosophy does not mean having no meta-ethical views.

Of course, if I changed the entry and gave as an explanation the fact that this is what natural law theory states, especially if I indicated my credentials as a philosopher, it would be rejected as original research. Wikipedia is the only place in the world where actual expertise on an issue counts against you in terms of recognition as the sort of person who can say something authoritative. It only would allow this if I had written it in a book or something and if someone who had no expertise on the issue had read it in that book and cited it. The best I could do is mention it in the discussion page for the article and hope someone who isn't a philosopher might be convinced and thus change it.

Oklahoma has rendered doctors immune to lawsuits if they lie to parents about the test result of a prenatal tests for disabilities, provided that their reasons for doing so are to prevent an abortion. I want to leave aside the question of birth defects in general and just focus on the Down Syndrome case. The law seems to cover cases when a parent might be preventing very serious pain in a case where the quality of life is very low, and I'm not going to tackle those issues right now. So what I have to say here doesn't cover everything this law does, and even if everything I say here is right it's compatible with that to say that the law still is bad for covering cases that don't have the features that this post focuses on. What I have to say here doesn't get into those cases at all, so don't take me to be commenting on them or the law in general. That would take a lot more work and premises that are more controversial, I think.

So restrict the law, for the sake of this post, to cover just Down Syndrome cases. 90% of children at the fetal stage who are predicted to have Down Syndrome by prenatal tests are aborted. These tests have 5% false positives, so 5% of those cases are probably not genuinely Down Syndrome to begin with. Even if I didn't think abortion was generally a bad thing, I would be opposed to such a practice. I know people who have told me they would have made such a decision with their own child, and I just can't imagine being the sort of person who could think that, never mind do it.

Nevertheless, my initial inclination was to think this is entirely the wrong way to go about trying to do something to resist the deaths of almost all children with Down Syndrome before they ever even get to experience the world. This seemed like a bad law. But on reflection, it occurs to me that it's very difficult to explain why this law (and remember I'm restricting myself just to the Down Syndrome cases here) is all that bad, at least given four premises that I think are widely-enough held (or would be if people had all the facts, anyway).

1. Abortion is generally bad and worth preventing, even if at some cost and even if there are cases when abortion is permissible.
2. It's morally permissible to lie to someone who is going to do great harm, as long as you don't cause more harm in the process.
3. Killing a fetus who tested positive for Down Syndrome is participation in the genocide of those with disabilities.
4. The harm done by lying to a parent who wants to abort a fetus who tested positive for Down Syndrome is not greater than the harm caused by that parent's participation in the genocide of those with disabilities.

Many pro-choice people would agree with 1 but would still want abortion to be generally available (that's what makes them pro-choice rather than pro-abortion), and all pro-life people would agree with it. So I think a majority would support that.

Hardly anyone accepts 2 except a few absolutists, e.g. those who think any biblical commands that apply today and who wrongly think the Bible commands never to lie or, I suppose, contemporary Kantians who accept Kant's absolutism about lying. I know some people who hold such views, but I don't think they're in the majority. Most pro-life and pro-choice people alike think it would be permissible or even a moral obligation to lie to a Nazi hunting down Jews, for example.

I would argue that 3 is a perfectly accurate description for such an act, given that more than 90% of positive test results end in abortion. As a society, we're killing off those with Down Syndrome in huge numbers, and I would guess that many people who might be inclined to think aborting someone after such a test is all right end up being horrified when they discover that statistic. This requires no commitment to any pro-life position, just a recognition that it's a very bad thing to wipe out people just because they have a disability and that people with this particular disability generally have very happy lives and can contribute quite a lot to the world.

So the only way to resist this argument that I think would appeal to a great many people would be to argue that lying in this very particular circumstance causes more harm than the participation in the genocide of those with disabilities. But I don't think that will be as easy an argument as it might at first sound. There is the value of being able to trust a physician, and this does undermine that, but it's a law that only has one allowance for why that can happen, so it doesn't undermine confidence in physicians in general, just in physicians when it comes to this test. Is that such a bad result, given how bad the consequence is of parents being able to get this information? In fact, you might think the doctor's responsibility to the fetus requires not providing information to parents who the doctor knows would then kill the fetus, so the argument that this violates a doctor's professional responsibilities seems counted by the argument that giving the information also does.

I'm having a hard time, then, explaining why I have such resistance to this method of preventing abortions that result from the desire not to have a child with a disability. There seem to be cases where there's a strong argument in favor of withholding that information.

As you might be able tell from my sidebar, I've been watching a lot of Law & Order lately (all three series that play regularly), and one thing that I've found myself thinking in a number of episodes is that statute of limitations laws often serve injustice more than justice. A serial rapist will go free if they discover who he is one day beyond the five-year statue of limitations. Some crimes don't have a statute of limitations, but a five-year statute of limitations for rape sounds pretty unjust to me given how serious a crime rape is.

I had similar thoughts when we heard about the string of Obama appointees earlier this year who had committed federal crimes by lying on tax forms, sometimes for serious amounts of money, but it was long enough ago that there were absolutely no legal consequences or even requirements to pay up. It just strikes me as unjust. They're criminals, but it's illegal to prosecute them. They ought to be held accountable. So the law seems unjust.

Without doing any research on the history of statutes of limitations, I'd been having that thought. I never got around to exploring the justifications for such laws, though, but I finally did get an explanation on a Special Victims Unit episode (season 1 episode "Limitations") of why there are statutes of limitations. I'd seen this episode years ago, but I guess I hadn't been paying attention well or maybe wasn't raising the question, because a judge explains the original reasoning for such laws in an explanation for how he decides an issue:

The statute of limitations has a long history in common law. It exists to ensure that the defendant receives a fair trial, to make sure that the recollections of witnesses, if any, are fresh, to pressure the government to file charges in a timely manner, and so that, rightly or wrongly, accused citizens need not live their life in fear of the government pursuing them after a long delay.

The District of Columbia was ticketing people for parking in their own driveways, and apparently this was actually legal (at least there was a law that provided for this; I'm not sure whether the courts would find it constitutional). I don't know if this is still going on, but it sounded like a hoax when I first heard of it.

David Boies, Al Gore's lawyer in Bush v. Gore, and Ted Olsen, George Bush's lawyer from the same case (who was also Bush's first Solicitor General) are working together to try to get judicial declaration of same-sex marriage at the federal level. Olson, to be fair, is not advocating the kind of policy-preference right that more liberal lawyers and judges often see in the Constitution and that he has consistently argued against his entire career. His argument doesn't even assume that there is a right to marry. It just relies on the fact that our court system recognizes a right to marry and concludes that it ought to be applied to gay couples as well as straight couples if we're going to be in the business of applying such rights. (However, their argument does seem to assume that couples as couples and not just individuals have rights, or else it assumes what an Equal Rights Amendment would have provided but didn't when it never passed.)

Rep. Charles Rangel (D-NY) introduced a bill in the U.S. House of Representatives to reinstate the draft during the Bush Administration and then voted against the bill (almost no one actually voted for it, which was what he had expected). I thought it was strange when Republicans kept pushing a marriage amendment that they knew they didn't have enough votes to pass, but it's well beyond that to waste government time and money by pushing something you don't even want passing to begin with.

Jeff Bridges and Beau Bridges are brothers, and Lloyd Bridges was their father. Beau I can understand. But Jeff? I wouldn't have expected it.

All the miscreants who linked the phrase "miserable failure" to President Bush's biography had succeeded in making it the top website in Google for that expression. I was sure this was a joke when I first heard about it. It was pretty quick to verify, though. It had less skepticism when I heard that miscreants on the right had done the same with getting John Kerry's senate bio at the top of searches for "waffles".

Jeremiah Wright, whose heterodox, anti-white language makes him sound as if he doesn't think white people can be genuine Christians, actually has white members actively ministering in his congregation, sometimes even occupying leadership roles. (I don't think that excuses his rhetoric, which I think still counts as heterodox divisiveness, but he seems not to mean what he says.)

Philip Pullman wrote an entire scifi/fantasy series (His Dark Materials, whose first novel is The Golden Compass) out of an anti-religion and particularly anti-Christian agenda. When I first heard this, I thought it must be an exaggeration and that it probably just had some anti-religious elements throughout, but it turns out as the series develops that the agenda is far more central to the books than at first it appears. Pullman has even portrayed it as his remedy to the Narnia Chronicles, which he thinks call good evil and evil good. (I happen to think he failed in some crucial ways at what he was seeking to accomplish, but I wanted to post on that at some point separately, and I just haven't gotten around to it. Finishing up this post, which I started weeks ago but didn't have enough items to finish, has reminded me that I had wanted to do this, so maybe I'll get to it soon.)

Two days after his big announcement revoking President Bush's stem-cell policy, President Obama signed into law the big budget bill for the year, including a provision that prevented any funding from being used for embryonic stem cell research. I was especially skeptical about this, and it took me a long time and some hard Googling to find enough information to confirm it, but it does seem to have happened.

The Obama Administration's original discussion suggestions for his speech to school kids on September 8, 2009 really did ask kids to write about how they could help Obama, but they later changed it to ask about how they could be responsible. This was especially surprising given the actual content of the speech, which was mostly politically neutral. Why would they then ask how kids could help Obama when the thrust of the speech was just calling them to work harder in school and to be responsible? The original question therefore puzzles me a little unless he changed the speech too, which we have no evidence of (and the official explanation that the revision was what they had meant all along is completely implausible).

You can't help out your neighbor in Michigan by putting their kids on the bus for them every morning without a license to operate a daycare business.

I've been minimizing the discussion of race in my most recent posts about Judge Sotomayor's cases and statements about race, because I wanted to treat those issues together in one place, and it does involve both her speeches and her decisions, which would have required splitting up the discussion if I included it in those posts. So here are some thoughts on her speeches, judicial decisions, and recent statements about race and related issues.

As I've said before, I don't think there's any problem with thinking different people bring different things to interpretation of the law, and I don't think ethnic and racial differences are exempt from this. Someone who has been followed around in the store because of race understands discrimination and racism in different ways from how I do, since that hasn't happened to me that I'm aware of (and it hasn't happened to Sam when I've been around). But to assume that such a person will be a better judge goes too far, and that's exactly what the Sotomayor of the speeches claimed, even if she distanced herself from this in her testimony. What's odd about that is that she seems obviously right about some of the things she distanced herself from and yet wasn't willing to defend herself despite several senators attempting to do so.

There are ways she understands race and racism better than I do, because she's experienced it more from the perspective of someone being discriminated against or who has been followed around in a store. That might impact judging, because it allows someone to have a better understanding than someone who hasn't experienced such things. But what isn't often acknowledged by those making this point is that there are ways I understand racism and discrimination that someone who has more often been discriminated against might not understand. (I've made this kind of point before in a different context here.) For one thing, I've been around white people sometimes when no black people are around, and I know what white people talk about when only white people are around (it usually has nothing to do with race, but occasionally I have heard white people tell racist jokes and such things that they wouldn't say if they thought a black person might overhear). That's part of my experience, and it affects how I see racism and discrimination. Someone who is not white doesn't have that experience and has no first-hand knowledge of such facts.

I also have a third kind of experience from being in a mixed-race family, which includes experiences that most people of only one race don't have. For example, most same-race couples aren't going to have grocery store clerks assume they're not with each other. Most white people don't have family who aren't white, and thus they lack experiences of non-whites that I might have some understanding of. They don't have much experience attending black churches as family of one of the pastors, for instance. There are certain racial experiences that some white people can have that most white people don't have. That makes it hard to assume certain experiences just because of someone's race, which her statement does.

Which set of facts makes someone a better judge? The answer is neither. Both sets of facts could inform judges more about what our society is like, and a good, well-informed judge would welcome both sets of data. So I don't find her claim problematic when she says that a Latina judge's experience would provide experience relevant to judging and thus improve her judging in some ways from what it might otherwise be. I would also go as far as saying that, when a certain qualified judge comes from an underrepresented background, that background is likely to increase the quality of judging by adding the experiences of that underrepresented group to the data set the judges will consider. So having more Latina judges will make the judiciary better in one respect as compared with having one more white man on the judiciary, whose experiences may not (at least insofar as the person is a white man) add any further diversity to the pool of relevant experiences to inform interpretation of the facts that judges will hear.

But I don't think it follows that a Latina judge will be a better judge as an individual than a white man, merely because she is Latina, even holding all other things constant. That's what Sotomayor's statement actually says. I do find that inference troubling.

Since the Senate is going to be voting on Judge Sonia Sotomayor's nomination to the Supreme Court, I thought I might as well post my remaining thoughts on her. As I see it, there are three issues for senators to be considering in deciding how to vote in whether confirm her nomination. The first issue is to what extent they should consider ideology and to what extent they should defer to the president's choice. The second is the disconnect between some things she's said in the past and some things she's saying now and how we should think that will affect her decisions once she's on the Supreme Court. The one remaining kind of issue is simply what kinds of decisions she's made as a judge. [I should say that I left the race issue out of the last post, and I'm also not going to say much about it in this one, because I'm working on a separate post on that issue, covering both the speeches and decisions.]

One thing to keep in mind is what President Obama has repeatedly said in his discussions of judicial nominations. He estimates the percentage of cases where judges just apply the law to be 95% and then speaks of the other 5% as the ones to pay attention to. I think he's got his numbers way off about which cases are easy and would be unanimous, but he's right that it's the most difficult cases, particularly those involving constitutional issues, where we'll get a better idea of what's distinctive about a judge, and we need to look at those cases to get a good sense of how a judge will be on issues of tremendous importance. A lot of people have emphasized that the bulk of Judge Sotomayor's decisions are pretty moderate, but they don't acknowledge that the same was true of Chief Justice Roberts and Justice Alito when they were appellate judges, and senators in the Democratic Party didn't let that stop them from pointing to the few decisions they could find that they considered problematic. It's those controversial decisions that give some sense of how a judge might decide the controversial Supreme Court decisions that most people are most likely to care about.

I think her record does include some bothersome decisions about constitutional rights. For example, there's a worrisome opinion about free speech (see also the 1st update here). She ruled that a public school can punish a student for a blog post written off school grounds and not during school hours.

Her record also includes a number of cases where she has refused to consider constitutional objections against a law or government practice when a large number of people in looking at it have thought such an argument is at least worth discussing and many would argue is decisive. These involve (at least) the Second, Fifth, and Fourteenth Amendments with regard to gun rights (discussed below), property rights (i.e. search and seizure, also discussed below), and equal protection (which I'll discuss in more detail in a subsequent post). It's a serious worry that she thinks these issues are not worth an argument, as if there's no real issue to discuss, when a large majority of her critics, including several people on the Supreme Court in each case, would think there is indeed an issue. Her dissent in the voting rights case about felons (see below) is similarly brief and dismissive, but that's not a constitutional issue. I've heard people say that she's especially thorough in most of her opinions, so this does tell you something about her view on these issues. She doesn't think there's much room for debate on such straightforward issues that lots of people don't think are so straightforward or think are straightforward in the other direction.

The Senate Judiciary Committee voted almost along party lines yesterday to send Judge Sonia Sotomayor's nomination to the full Senate for a confirmation vote. Senator Lindsey Graham (R-SC) was the only Republican to vote in favor of her nomination. Two other senators, Senator Orrin Hatch (R-UT) and Senator Charles Grassley (R-IA), voted for the very first time in fairly lengthy Senate careers against a Supreme Court nominee. What's interesting about this is that this nominee's actual judicial record is probably more moderate than anyone else on President Obama's shortlist, and her decisions have been more moderate than several nominees Senators Hatch and Grassley have confirmed. So what's going on here?

I think there are two explanations. One has to do with our location in the history of the judicial confirmation process. The other has to do with the Two Sotomayors narrative that the Republican senators have been crafting. I've talked about the judicial confirmation process before (most recently here). I do think Republicans are getting frustrated that they've been letting Democratic judicial nominees sail through because of their commitment to give presidents deference, while Democrats have been blocking, filibustering, and voting against nominees who are as qualified and as ideologically-mainstream as the nominees Republicans have not opposed. Even some who are committed to showing presidents deference are going to moderate that commitment in such a setting if they think the judiciary is at stake because of the practical consequences of the two parties having different approaches to the amount of deference senators should give the president. This probably gives the second issue more weight than it might otherwise have, but I think it's at least a significant driving force in Republican resistance to Judge Sotomayor's nomination, even if they're not saying this in their explanations for their votes.

The explicit reason most of the Republican senators are giving depends on a running narrative from the Republican senators on the judiciary committee about the Sonia Sotomayor of her speeches and the Sonia Sotomayor of her decisions, and they want to know which one will appear on the Supreme Court if she's confirmed. Some of these differences are overstated, but some issues do raise a concern for many people. We might assume that a judge who has consistently ruled in an unbiased way in the majority of cases (which all sides agree is true of her) will continue to do so on the Supreme Court, even if she has expressed views in speeches that might seem at odds with that. It's been interesting to see some of the Democratic senators defending the speeches outright, while others have insisted on standing by her judicial record as a way of creating distance between her judicial decisions and her public statements.

Sotomayor herself has notably taken the second approach and backtracked from a number of things that she seems to have clearly endorsed in those speeches, emphasizing that her decisions have consistently applied the law and not interpreted it in light of the things the speeches seem to involve. She has articulated a view in her hearings on the relevance of foreign law to judging that sounds more like Chief Justice Roberts and Justices Scalia, Thomas, and Alito in their resistance to use of foreign law for interpreting U.S. law and the U.S. Constitution. Consider her written response to Senator Sessions' questions:

In my view, American courts should not rely on decisions of foreign courts as binding or controlling precedent, except when American law requires a court to do so. In some limited circumstances, decisions of foreign courts can be a source of ideas, just as law review articles or treatises can be sources of ideas. The Supreme Court's Eighth Amendment cases establish how the Court considers constitutional challenges to the death penalty, and I accept those decisions.

On the other hand, her speeches on the subject sounded more like Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer, who have on several occasions used foreign law as a reason to consider evolving standards of decency or a new national consensus of policy preferences as reasons to take the U.S. Constitution and U.S. laws to mean something very different from what they originally meant and have meant for the entire history of interpretation (e.g. on what constitutes cruel and unusual punishment or how to interpret due process in the 14th Amendment).

In these cases she's right to say that there were other issues, so the appeal to foreign law doesn't determine the outcome by itself, but a lot of readers have come away from the opinions with the impression that foreign law was driving it to begin with, and the justices had to find some way to justify their policy preference rather than simply deciding things according to precedent or what the text of the Constitution requires. So what she says here seems to me to be at odds with what it seems to me that these decisions she cites favorably actually do. Also, her speech on this question expressed concerns about how the United States would be viewed if we were significantly at odds with international law on important issues. A judge could be concerned about how our laws are viewed as a step toward arguing for changes in the laws via legislative process, but this statement wasn't in a speech advocating that. It was in a speech advocating the use of foreign law to get ideas for what judges in the U.S. can do.

Given a difference between her opinions as a judge and her speeches as a private citizen, the distinction between appellate judges and Supreme Court justices might make all the difference in which one of those would appear on the Supreme Court. If her views from her speeches really are worrisome, and the only thing keeping her from enacting them is that she's bound by Supreme Court precedent and Second Circuit precedent in her current role, with a Supreme Court review always possible for any decision she renders, then she will be freed from those constraints on the Supreme Court. That's why the narrative of the Two Sotomayors is still compelling for many people as an argument against her nomination. It's no defense, if this is right, to point out that most of her decisions have been in terms of legal rather than policy arguments or to point out that she hasn't based her decisions on empathy but on the law.

I totally missed this. According to Dale Carpenter, the Obama Administration has endorsed all the conservative arguments against same-sex marriage. I wonder if that's a bit of an exaggeration, but it does seem as if one important argument that's roundly derided by most of my philosopher friends is present in the DOJ brief, and it's an argument that I think is exactly right (even if very unpopular among those who favor same-sex marriage).

The DOJ argues that it doesn't violate equal protection on sexual orientation grounds to fail to recognize same-sex marriage, because gay and straight people aren't getting different marriage rights as each other. Gay men are free to marry anyone of the same group that straight men are free to marry -- women. It's true that gay men can't marry other gay men, but neither can straight men. So any discrimination that's taking place isn't according to sexual orientation. Men of both orientations (gay and straight) are being treated equally. You might argue that it's unfair because one is able to marry according to their preference and the other isn't, but they are strictly speaking given the same marriage rights, and it isn't discrimination along sexual-orientation lines. There's a much better explanation of what's going on, which I'll get to in a moment. But I wanted to say that I'm glad someone left-of-center is acknowledging this, because it seems obviously true to me and seems completely the wrong way to argue that this is discrimination. (The DOJ apparently doesn't intend to argue that right now about marriage, though. The Obama position is pretty clear that there shouldn't be a federal-level recognition of same-sex marriage but that there should be a federal-level recognition of civil unions with all the civil rights that marriage would convey.)

I've seen all manner of twists of logic to try to resist this conclusion, but I don't know how you could get around it. It's not sexual-orientation discrimination to treat all gay men and straight men equally any more than Prohibition was discrimination against drinkers of alcohol. It simply wasn't. Everyone was prohibited from alcohol, not just drinkers. It certainly affects those who drink in a way that it doesn't affect those who don't, but that doesn't mean that drinkers were being discriminated against, since that would involve being singled out with a law that doesn't apply to others. Being singled out with a law that others don't care about isn't the same thing as being singled out with a law that only would apply to some people. Requiring people to wear motorcycle helmets doesn't affect me because I don't ride a motorcycle, but I'd have to wear a helmet if I were to ride one, so it's not discrimination against motorcycle riders.

Nevertheless, there's a discrimination argument that the DOJ brief doesn't acknowledge. In fact, there are two. I think these arguments are both also very obvious once you consider them, so it surprises me that they don't deal with them at all. Most people on the right on this issue don't accept these arguments, and I think there are things they can say in order to justify such resistance, but the claim in both cases does seem at least initially plausible to me.

One kind of discrimination involved with not allowing same-sex marriage is discrimination against couples on the basis of their being same-sex. The above argument is only about individuals. I don't think this would be discrimination against a gay individual, but you could much more easily argue that a couple who is same-sex is being discriminated against on the basis of their sexual orientation. Technically speaking, that's not right either. Two straight men could, in principle, decide to go against their sexual orientation and seek civil marriage. The discrimination here isn't really according to sexual orientation, then, but according to same-sex pairings vs. opposite-sex pairings. Treating a same-sex couple and an opposite-sex couple differently is discriminating against the couple who is being denied a privilege or right that the other couple is given.

(This gets immensely complicated in terms of the logic of it once you accept intersexual, transgender, or transsexual members of pairings, so I'm ignoring that for the sake of this argument. I don't think it affects what I'm trying to argue in any significant way, so I think for simplicity's sake it's not problematic to do so.)

The other argument is still about individuals but is not about sexual orientation at all. Denying a man the right to marry another man is discrimination if women are allowed that right. The same is true of denying a woman the right to marry another woman when a man can do so. But this isn't sexual-orientation discrimination. It's sex-discrimination. Men are given certain rights or privileges not given to women, and women have rights or privileges men don't have. This argument seems to me that it should be utterly obvious once it's made clear.

There's an ongoing debate about exactly what role senators should have in the process of confirming judicial nominees. The Constitution gives the President the role of appointing people to certain positions, including "Judges of the Supreme Court", but this role is qualified. It is to be done "by and with the Advice and Consent of the Senate".

At this point there are two main views about what that advice and consent is supposed to be. Some senators have consistently maintained that ideology can play a role. If a senator disapproves of the ideology or perceived ideology of the nominee, it's perfectly fine to vote against the person's confirmation. Other senators have consistently maintained the view that senators should give significant deference to the president, voting to confirm any mainstream nominee who is qualified enough, even if the person tends significantly to the other side of the political spectrum or to a contrary judicial philosophy.

There are reasons for each view. Deference to the president makes some sense. When we vote for president, we do so while knowing what sort of judges the candidate is likely to appoint. Anyone who voted for Barack Obama while thinking he would appoint judicial conservatives to the bench is an idiot. Anyone who voted for George W. Bush while expecting him to appoint liberal justices to the Supreme Court wasn't paying attention to the kinds of justices he said he admired and would appoint. Mistakes can happen (as with Justice Souter with Bush's father), but you shouldn't expect your preferences to be fulfilled with judicial appointments if you vote for someone for president who has opposite preferences. Senators on the other side might say that elections have consequences and that presidents are owed some deference due to the political process. On the other hand, elections have consequences. Senators are elected. They represent the preferences of their constituents, and isn't the function of senators in judicial appointments part of what you should consider when you vote for someone for that office? So even on the democratic process argument, you might think it cuts both ways.

But other considerations have been offered against giving presidents a lot of deference on judicial nominations. One problem is that you still need to decide when to defer and when not to defer. How far outside the mainstream counts as sufficiently outside? Chief Justice Roberts and Justice Alito were both presented by Democratic senators as being outside the mainstream of conservative thought on evidence that's actually pretty similar to the evidence being used to argue that Judge Sotomayor is not outside the mainstream of judicial thought. It turns out, then, that this view isn't really a coherent, unified position. It's not about whether to give the president deference but about how much deference to give the president.

No one wants the Senate to rubber-stamp whoever the nominee is no matter what, so qualifications must matter, but it's not clear the ideological considerations are really separate from qualifications. Some would argue that an ideology that's very extreme actually disqualifies someone from being a good judge, because a good judge would interpret the law accurately and fairly, and extremist judges of certain sorts do not. But according to a judicial conservative, liberal jurisprudence then counts as a lack of qualifications. Any nominee who is ideologically liberal in terms of judicial philosophy is not a qualified nominee, and senators can vote against them on that basis and call it a matter of the nominee not being qualified.

So I'm no longer sure that the distinction between qualifications and ideology really explains much in terms of what senators should pay attention to, at least not in any way that will be agreed upon by a significant number of senators. Several other considerations also might favor looking to ideology. Some have argued that too much deference to the president leads to extremist judges on both sides, since presidents will get away with as much as they can if the Senate just defers.

We start off with Senator Jon Kyl (R-AZ) today. The senators are going through their second round, limited to 20 minutes each instead of 30 (and most aren't using the full time either).

I'm only going to comment if anything new occurs. A lot of these second-round questions are simply rehashing what they've talked about before.

Kyl challenges her on Ricci. She says she decided the case based on Second Circuit precedent. That applies in the original hearing of the case. She voted on the case the same way in the en banc review, when the whole Second Circuit heard it. He wants to know why she voted not to hear it en banc, given that precedent wouldn't bind her at that point. The district court decision doesn't bind her, and the Second Circuit precedent doesn't apply. So he wants to know what bound her to decide the same way then.

She says the three-judge panel opinion she issued was now precedent, making the district court opinion precedent. He says the Supreme Court said there was no precedent. She says that was on whether the circuit court decision used the right standard. Two provisions of Title VII need to be assured to be consistent with each other. That issue was raised with them but not with her panel. The outcome she came to wasn't based on that. He's trying to get her to admit that she wasn't bound by precedent when it came to voting to hear the Ricci case en banc but did so vote, and he wants her to explain why in terms other than precedent, because precedent doesn't bind her at that point. She won't admit that, but as far as I can tell it's true.

He reads from Judge Cabranes saying that cases are not typically dismissed with summary judgments when they are of this import. She doesn't seem to have anything to say about that either. He says the nine Supreme Court justices all said it shouldn't have been a summary judgment. He says there were three tests: the one the appellate court used, the one the Supreme Court went with, and the one the dissent went with. But all nine of them said it shouldn't have been a summary judgment. She says she doesn't read the opinion that way.

Kyl turns to a speech discussed by Senator Hatch yesterday about justice for an individual in a district court and justice for society in an appeals court. But in the appeals court, it's still supposed to be about justice for the individual. It might have the effect of building reliance on rule of law and creating precedent, but the decision is supposed to evaluate based on the law on this case. She agrees. The legislature's contribution to policy is making law. When judges follow the rule of law, they create precedent that then have a policy impact, but it's not in the sense of making law the way Congress does.

Senator John Cornyn (R-TX) starts things off today. He's rehearsing the same worry about the different picture painted by her decisions as a judge and her public speeches, where the worry is that being less constrained on the Supreme Court would move her away from judging the way she has done on the Second Circuit and more like the picture she's presented in her speeches.

She says she stands by her words as she intended them but understands how people have taken them in a different way.

Cornyn moves on to the issue of the law being in flux. Why is the law indefinite? She says it's a matter of which legal cases apply. People bring cases because they believe precedents don't clearly answer the question at hand. They present facts that they say entitle them to relief under the law. Indefiniteness isn't about what the law is but how it's applied, and it leads people to believe it's unpredictable. Judges don't make law the way Congress does, but they apply law in new ways, as initiated by arguments of lawyers and not by judges themselves. Judges ensure the law applies to the facts, interpreted according to Congress's intent, being informed by precedents as applied to new facts.

A life experience as a prosecutor may help her understand things in a criminal case but not much in an anti-trust suit. Judges from a variety of backgrounds should increase public confidence because more issues will be addressed. It's not better addressed but it helps public confidence that all issues will be considered properly. She says in the particular paragraph she said we should ask the question as a possibility to think about. She wasn't answering it. She wasn't suggesting a difference in outcome, just a difference in process.

He keeps focusing on how physiological differences could do this. He's missing the point. She wasn't talking about physiological differences but different experiences. If he thinks men and women or whites and blacks have the same experiences, there's not much hope for her to convince him of this.

He asks if anyone asked her about views on abortion, and she says no one asked her anything about any specific issue. He asks why the White House would then assure abortion rights groups not to worry, and she says she knows no reason. She follows the law on all issues she addresses, and her record shows it.

He asks about the head partner of her firm saying she'd be clearly on the pro-choice side, and she says she never talked to him about that issue or any other social issue. She's upheld the law as it stands in every case she looked at. She upheld the Mexico City policy that prohibited federal funds for foreign abortions. She doesn't think he's read her 17-year judicial history, because he's a corporate litigator, and corporate litigators only read cases relevant to their current cases. He said she had liberal instincts, and she thinks he must be thinking equal opportunity is a liberal view, and she had pursued that as a board member of the Puerto Rican Legal Defense Fund.

He wants to know why the court's opinion in Ricci was unpublished, denying the firefighters' claims without discussing them. She says the briefs were available to the other judges when they considered whether to review it en banc, so Judge Cabranes had access to that. She can't speak for his reasons why he chose to reconsider the case. The issues of the case weren't hidden from the other judges, though. 75% of circuit court judgments are by summary order. (Right, but this is a much more major question than most.) She cites the district court's long opinion as a need not to repeat all that.

So I guess I'll liveblog at least part of this today.

Senator Patrick Leahy (D-VT): Most of this seems to be about the best characteristics of judges and the role of the judge.

Sotomayor: As a judge, her role isn't to make law. Her role is to decide whether the law, as it exists, has principles that apply to new situations. That sounds pretty good to me, although people who say that might have a wide variety of how they carry it out, and some might see others as not doing that at all.

Leahy asks her about the Ricci case (the Connecticut firefighters who weren't promoted because not enough minorities did well enough on the test for promotion). He says it's "damned if you do, damned if you don't" case, but I didn't get the set of alternatives he presented. I suspect it's a false dilemma, but I need to look more closely at what he said to be sure.

She frames the issue as about the city certifying the test vs. finding a test that would measure effectiveness without the disparate impact. Was the decision of the city based on race or based on what its view of the law required it to do? Her panel concluded it was a lawful decision under established law and 2nd Circuit precedent. The Supreme Court applied a new standard and announced it as a new standard from a different law.

Now he asks about the "wise Latina" comment. She says she gave variants of the speech to several groups of young Latina lawyers to inspire them to believe their lives and experiences will enrich the legal system, because different backgrounds do. She wanted to inspire them to become anything they wanted, as she did. She thinks the words created a misunderstanding. She doesn't believe any ethnic, racial, or gender group has an advantage in sound judging. Every person has an equal opportunity to be a good and wise judge regardless of their background and life experiences. She says her words agree with the sentiment Justice O'Connor was trying to convey. Men and women are equally capable of being wise and fair judges. Judges disagree about legal outcomes in close cases. It can't be that one of them is unwise, despite the fact that some people think that. (Legal realism coming in?) She says her record shows that she first looks to what the law requires.

Leahy moves on to guns, making it clear that she recognizes the Supreme Court's Heller case establishing an individual right to bear arms when it comes to federal laws but not establishing anything about whether states can restrict gun ownership. (That is indeed what Justice Scalia's opinion says, and the circuit courts have split on that very issue, so it will face the Supreme Court soon enough.)

She says she has friends who hunt, and one godchild of hers is an NRA member. She recognizes the individual right under the 2nd Amendment as limiting the federal government rights to restrict firearm ownership. She does well explaining incorporation. The right doesn't apply to the states. Scalia didn't actually said that. He just said he's not commenting on that issue. She says she has an open mind on that issue. She'd follow Supreme Court precedent when it speaks directly on an issue, and she did in her Maloney decision where she took the view that [Second Circuit] precedent doesn't incorporate that right, but she'd hear the arguments open-mindedly if it came up on the Supreme Court [which doesn't have any precedent on the issue, but she didn't make that completely clear].

I've been listening to some of the senators' speeches at the confirmation hearings for Judge Sotomayor's nomination to the Supreme Court. I'm not going to live-blog these hearings, at least if that means updating every time I have anything to say, but I do want to record some thoughts on the senators' opening statements today, and I may comment on the questioning that begins tomorrow. I'm linking to senators' statements if they are online. Not all of them are (at least yet).

Senator Patrick Leahy (D-VT) spends a good deal of time explaining the racist questions at Justice Thurgood Marshall's hearing, the anti-semitic questions at Justice Louis Brandeis' hearing, and the anti-Catholic assumptions of the unnamed first Catholic nominee (who I believe was Justice William Brennan). He then explains that we're in a different era, and we're beyond that now. Why then does he encourage the Republican senators not to cave to the pressure of special interest groups who are caricaturing Judge Sotomayor unless he thinks the conservative opposition to her is racially-based, and we're really not in a different era? I'm not sure which groups he means, but I haven't seen any of that from mainstream opponents of Sotomayor. There are those who have called her a racist, but it's not racist to call someone a racist if you think the view they hold is racist.

Senator Jeff Sessions (R-AL) seems to be setting the tone of possible criticisms well without being defaming. He's raising worries about things she's said and opinions she's joined or written. It's nice having a real judicial conservative running the Republican side of the committee again. He's a bit worried about certain decisions and statements from her, but he's not being strident or unfair about it at this point. He's doing a better job than most politicians do at setting forth a conservative judicial philosophy. It's good that he's the ranking member, thanks to Specter's defection (which he's now paying the price for, since he's the lowest-ranked member of this committee besides Senator Franken, who has only been a senator for about a week). I do think he's going too far, though, with some of her statements.

Senator Sessions thinks her record is clear that she defends the view that it's ok for judges to be biased, and I don't think her statements really amount to that, particularly with her view that experiences can and should inform how judges interpret the world and apply the law. How I see the meaning of the law is surely affected by my experiences in life, and there might well be ways that someone with experiences being discriminated against according to ethnicity will have a different view from me about what counts as wrongful discrimination. What's wrong with Sotomayor's view is that she assumes the person who has been discriminated against more often is going to have the right view, because she says a Latina judge will be a better judge than a white man. That's not necessarily true, but it's not the same thing as saying that a Latina judge should favor Latina people in particular cases. She's biased about what sort of people she expects to be better judges, but that's not a bias in how she will view people coming before her court, and Sessions is being a bit unfair in treating the two as the same thing.

Senator Herb Kohl (D-WI) makes the case for considering her whole record and not just going by her decisions. He's making a lot of room for the Republicans to find places to criticize, but I think he's also trying to frame some ways she'll be able to respond to those criticisms. He and his fellow Wisconsinite Senator Feingold have always struck me as less partisan than the rest of the Democrats on this committee. That's true even though Senator Feingold is probably the most liberal member of the committee in his policy views (athough maybe that's changed with some new members).

Senator Orrin Hatch (R-UT) reads off a number of then-Senator Obama's criteria when he filibustered the nomination of Judge Janice Roberts Brown to the D.C. Circuit. He arguesconvincingly that those criteria should have led to approval votes for Roberts and Alito. One signal that he's considering voting against Judge Sotomayor's confirmation, when he has never done so in the past, is that he seems to be getting fed up with the disjunct between what Democratic senators have said about Republican nominees and the official standards they present. Another sign is that he went out of his way to point out that judicial philosophy can be a qualification, and he said that presidents only get some deference for their qualified nominees. He's opening up the door for a "no" vote, and I get the sense that he's at least open to voting against her nomination, despite what many have assumed.

One common complain on the left about conservative political views is that conservatives favor legislating morality. One thing they mean by this is the conservatives favor certain kinds of laws about certain kinds of issues that rely on a moral conception that differs from liberal moral views. For example, conservatives tend to favor laws that restrict abortion. Those who find abortion morally unproblematic complain that legislating morality is a bad idea, because legislators shouldn't declare what people should do on such issues.

I've always hated the expression, for a number of reasons, but one is that most laws legislate morality. Laws against murder enforce a moral standard that it's generally wrong to kill people. Laws against larceny enforce the moral standard that it's generally wrong to steal from other people. Laws against homosexual sodomy may pick out acts that not as many people think are wrong, but it isn't any more or less a legislation of a moral view than the uncontroversial laws that legislate morality.

It's another matter to restrict laws to outlaw harmful activity or to require consent for certain behavior that affects others. Some people mean just that when they say they oppose legislating morality. In other words, they oppose legislation against activities merely because those activities are morally wrong, and they require a further explanation of why they should be illegal: violation of consent or causing of harm. But harm and consent are moral reasons for favoring laws against such things, so it's still legislating morality. It may be that only certain moral reasons are the sort to justify laws, while others are not, but it's not entirely helpful to make this point by saying you oppose legislating morality. It's a confused way of making the point, and clarity would be served by making clearer distinctions among different aspects of morality.

To be consistent, such a view requires major revisions to our laws. We'd have to remove motorcycle helmet laws, unless it could be argued that the only purpose of such laws is to protect anyone who crashes with a motorcycle from greater liability for the greater amount of damage caused by not wearing a helmet. But that can be more easily achieved by holding those without helmets more liable for damage to themselves rather than fining them for not wearing a helmet. Helmet laws are designed to protect people from themselves, not to protect them from harming others. Even if we expand the legitimate class of laws to include such paternalistic laws, we'd still have lots of laws that might be called moralistic beyond harm to others, harm to self, and consent.

For example, laws against cannot be fully justified by the harm they cause to potential offspring or the fact that minors can't legally or morally consent. A brother and sister who want to have sex with each other can sterilize themselves to remove the possibility of harm to offspring, and they can consent if they're old enough. Why should we have laws against such sexual acts if the only issues that should affect legislation are harm and consent? One might argue that there's psychological harm from incestuous sex, but we don't outlaw everything that might cause psychological harm, and I think the argument that it causes harm might depend on the prior moral view that it's wrong to engage in incestuous sex. After all, there's a parallel argument that gay sex or even heterosexual pre-marital sex causes psychological harm. These are just a few examples. Our legal system would need some serious revision if we want to apply this approach to moral justifications for laws in any consistent way.

It occurred to me, though, that there's another reason the political left should generally resist speaking in terms of legislating morality. The left tends to favor a view of the role of judges that conservatives often call "legislating from the bench". Once you look at what's going on, you might even be willing to call it "legislating morality from the bench". Rasmussen conducted a poll during the election last fall that correlates views on the role of judges with votes for Obama and McCain. The question read: "Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?" 82% of McCain voters and only 29% of Obama voters took the first option, while 29% of McCain voters and 49% of Obama voters took the second option. For the record, President Obama himself has said that in the cases where the justices disagree strongly it should be the second option (but he strangely thinks this is only 10% of the cases that they disagree strongly, when it's a lot more than that).

Insofar as a judge's role is to interpret the law, the judge should indicate what the law means and enforce it even if the judge disagrees with the law. Justice Thomas exhibited such a role in his dissent to Lawrence v. Texas, the Supreme Court decision that banned laws prohibiting homosexual sodomy. Justice Thomas thought such laws were stupid. He wrote a separate opinion from Justice Scalia's dissent just so he could say that. It was a short opinion. His opposition to the majority wasn't because he thought it was a good idea on policy grounds to have laws against homosexual sodomy. It was just that he didn't think the Constitution prohibited such laws.

Insofar as a judge's role is to administer justice, on the other hand, it seems that the judge's obligation is to administer morality and enforce it in the cases where the law is not clear or is indeterminate, and what that amounts to is basically legislating from the bench, in particular legislating morality from the bench. If the standard liberal complaint is correct that it's bad to legislate morality, it becomes extremely hard for me to see how a judge should do exactly that by determining the just outcome when the laws don't settle what should be done. Even though this isn't strictly speaking legislation, it's equivalent to legislating in its effect, which is why the term "legislating from the bench" has seemed so apt to so many. It certainly does seem equivalent to legislating morality as far as I can tell, and it's a highly-regarded role for judges among those on the leftward side of the political spectrum. It gives me even less reason to be patient with those who complain about legislating morality.

Perhaps future-Justice Sotomayor's judicial inclinations on abortion will be tested relatively soon once she assumes Justice Souter's now-vacated (as of today) seat on the Supreme Court (pending her all-but-assured confirmation by the heavily-Democratic Senate). The 4th Circuit decided a case last week that considers the constitutionality of a Virginia abortion ban that in almost every respect is just like the federal law that the Supreme Court narrowly upheld in an opinion written by abortion swing-voter Justice Anthony Kennedy.

The federal law and the Virginia law differ in one respect. The federal law bans deliberate partial-births (defined by delivery up to a certain biological point) in order to kill the fetus. That procedure is outlawed as a method of abortion. The Virgina law bans one further thing. If a doctor is carrying out an abortion by another method, and the fetus happens to get past that point of delivery defined by the law as a partial-birth, it is a crime to kill it via any method. In other words, once the fetus reaches the point defined by the federal law as a partial-birth (whereby it's a crime to deliver the fetus to that point in order to kill it), it counts in Virginia as a crime of a similar level if the doctor goes ahead and kills the fetus whether the intention was to abort it that way or another way earlier in the process.

In other words, the difference between these two laws is that one does not criminalize deliberate attempts to kill the fetus after it reaches the relevant partial-birth stage as long as the doctor had planned to kill the fetus earlier but failed to do so. The other does criminalize that. Which law is more consistent? Surely the Virgina one. It criminalizes any killing past that point, whether there was an intention of killing beforehand or not. Compare the laws against disposing of an infant born from a failed abortion. The U.S. Senate unanimously supported such a law. It doesn't matter if the doctor intended to abort the fetus. If it got to the point where it would normally be illegal to kill it, the fact that it was born as a result of a failed abortion doesn't make it legal to kill it. This just extends the same sort of reasoning to the partial-birth abortion ban the federal government passed that the Supreme Court has declared constitutional. So it seems as if it's actually the logical implication of the federal law, even if the federal law didn't go this far. It basically relies on the principle, found in Judith Jarvis Thomson's famous 1972 paper defending abortion, that a woman doesn't have a right to the death of the fetus just because she has a right to be rid of it from her body.

The 4th Circuit vote was narrowly-divided 6-5 along lines that happen to correspond with the party of the presidents who appointed them. Judges don't often follow a narrow ideology reflecting exactly that of the president who nominated them, but in this case it did work out that way. One judge was appointed by President Clinton as a recess appointment and renominated by President George W. Bush as a courtesy (as presidents do from time to time for previous presidents of another party), but he really counts as a Clinton appointment, since Clinton appointed him initially. Those appointed by Presidents Reagan, Bush, and Bush signed the opinion that upheld the law. Those appointed by President Clinton signed the dissent (none remain from Carter and Obama's one nominee to that court hasn't been confirmed yet).

In effect, the Democratic appointees on the 4th Circuit Court of Appeals have endorsed the view that a woman not only has a right to be rid of the fetus but also has a right to its death if being rid of it most of the way doesn't kill it. Otherwise they have nothing to complain about if they're really following Supreme Court precedent (which does bind them). The dissent here strikes me as a pretty obvious case of ideology trumping the law, even granting all Supreme Court precedent as the law. I really hope that if the Supreme Court hears this case it will affirm the 4th Circuit judgment by a 6-3 margin. It will likely not get more than that since three justices remain who will likely seek to continue their opposition to laws like this, but I suppose it's barely possible even if extremely unlikely that Justices Stevens or Breyer will defer to precedent they didn't original support. But no one has any clue about Judge Sotomayor's views on this sort of issue. She could be well to the left of anyone on the Supreme Court for all I know, but it's certainly possible that she's even to the right of Justice Kennedy for all that she's written about the issue (which is basically nothing besides issues relating to the free speech of abortion protesters).

One of the problems with Facebook's latest version is that it's no longer possible to import blog posts and keep them comment-free while directing comments to the actual blog. So I've got Facebook friends who comment in Facebook on my blog posts, and those comment threads never appear on my actual blog. One recent comment thread on the Facebook import of this post led to my observing something that hadn't occurred to me before about some of the strange new dynamics of developments in how affirmative action is practiced.

There's an interesting phenomenon now of colleges having higher standards for Asian applicants than they do for white applicants in order to keep the numbers closer to where they want them to be. The diversity argument for affirmative action is now being used to justify discrimination against Asians. Since the diversity argument is the only one the Supreme Court has been willing to recognize as constitutional, none of the other arguments for affirmative action can be used to make this unconstitutional (e.g. remedying past discrimination, counterbalancing current discrimination at other levels of society, reparations for past mistreatment). That makes this perfectly constitutional in its justification, as far as the Supreme Court is concerned.

But I'm wondering if it's against the spirit of the Supreme Court's official stance. The diversity justification is supposed to support the favoring of sufficient diversity in the academic environment, not to ensure exact representation of each group according to any prejudged percentages. Unless the number of Asian students at the higher levels of higher education is so high that it's hindering diversity, I suspect the architects of current case law (Justices O'Connor and Breyer) would frown on admitting Asians at lower rates. It might look a lot more like the quota system that the Supreme Court has declared unconstitutional rather than giving underrepresented groups a leg up to make sure they have a seat at the table. They're already doing that with non-Asian non-white groups, and it's not as if whites need a leg up to have a seat at the table.

I'm thinking the same thing is true about the schools that are lowering standards to admit more male students, given that women are becoming a noticeable majority in higher education. It's not as if men are in danger of losing a seat at the table or as if diversity is really threatened at this point by some lower numbers of men in higher education. This seems to be motivated by a desire to have the number of each sex be closer to their representation in society at large. Doesn't that seem to be the spirit of quotas that the Supreme Court has consistently affirmed as unconstitutional? I'm pretty sure at least six of the current members of the Supreme Court would take that view, given what I've seen from them on previous opinions. But I've never heard of anyone even suggesting that someone initiate a lawsuit to challenge these practices on these grounds.

I came across a pretty good discussion of several of the bad arguments for and against Judge Sotomayor's nomination by Jonathan Turley. I recommend the whole thing, but one statement by him got my attention.

He says something that led me to compare an interesting phenomenon that arises with both Justice Thomas and Judge Sotomayor involving race. There are those who are happy that Judge Sotomayor is a Latina and will support her nomination for that reason alone, ignoring anything else. Then there are those on the left like Turley who would have preferred someone with more intellectual heft. On the right, there are those like me who are happy enough that Obama has nominated someone who by most reports will do little to move the Court to the left from where it currently is (and on some issues may well move it somewhat to the right, although on some issues we don't have any clue, and she could be far left for all we know). Then there are those on the right who have also pointed out that she's gotten some negative reviews in terms of her intellect, claiming that she's an affirmative action pick who is being chosen not because she's qualified but because she's Latina, sometimes even with the suggestion that she's unqualified.

So on both sides of the political spectrum we get objections that she's not an intellectual heavyweight. Turley is right to point out that this is not the same as saying she's stupid, as some have claimed these critics to be saying. Maybe some of them are, but Turley thinks she's quite smart but just not an intellectual heavyweight whose depth of understanding of the law and the historical background of the legal questions would shift legal opinion in significant ways, e.g. as Justice Scalia has done on the right and as Justice Brennan did on the left in the latter half of the 20th century. Such a statement is consistent with recognizing her intelligence as pretty high.

Then there's a third category. There are those who claim the statements about her intelligence are due to racism. She's Latina, so they must be assuming she's dumb. You find this on the right too, particularly when people criticize Justice Thomas. Senator Harry Reid, for instance, despite admitting to never having read an opinion by Jusice Thomas, was happy to spout off the general wisdom of the left that his opinions aren't very well-written, and I regularly see and hear comments about how he's not all that smart and just looks to Justice Scalia for guidance about what to do. Anyone who has spent much time looking at his opinions and anyone who has heard him speak would never hesitate to consider him to be a pretty intelligent person.

So what about the racist charge? Is it racist to say that someone is dumb when the person happens to be non-white? Of course not. Your reasons for thinking someone is unintelligent may be despite great reluctance to say such a thing of a non-white person in the public eye. You might genuinely think the evidence supports it, or you may trust the opinion of someone else who reported to you that someone is unintelligent. I think it's pretty immoral to call someone a racist merely because they happen to think someone who is non-white isn't very bright. There are, after all, people who aren't white who aren't that bright. I've tutored for some of the athletic teams at my university. Some of the students on those teams are very good academically, and others should never have made it into college. Some of those who never should have been accepted happen not to be white. They struggle to understand pretty basic philosophical concepts that most freshmen pick up pretty readily. It's racist to assume someone is dumb just because the person is black or Hispanic, but it isn't racist to conclude that someone who happens to be black or Hispanic is of low intelligence after becoming aware of actual evidence that the person is of low intellifence.

Nevertheless, I think there's something that these critics have right. I think there's a very strong presumption in individual cases of not accusing someone of wrongdoing or evil motives when there isn't strong evidence that they are ill-intentioned or doing wrong. Therefore, I think it's wrong to throw around racism charges for everyone who, for all you know, might be operating based on racist assumptions. Racist assumptions would explain how someone might conclude that someone who managed to graduate top of her class at Princeton University might be stupid. Racist assumptions similarly would explain how someone might say the same about the justice who managed to convince Justice Scalia to become more judicially conservative than he already was because of some pretty innovative and out-of-favor reasons that it hadn't even occurred to Scalia to consider. But to assume that racism is at work in any particular case violates the principle of charity that we ought to take in cases where we don't really know if someone is being downright evil in the way we're inclined to accuse them of being.

Such a strong presumption is for individual cases when we're ignorant of the details, perhaps even relevant ones about a person's inner life. That's consistent with recognizing that a claim is too ludicrous to be perpetuated so easily and frequently by people who should know better when we rarely see such claims about men who are nominated or serving on the Supreme Court. That might lead us to wonder if there is some kind of racist stereotype being perpetuated. In this case, I don't think it would be that Judge Sotomayor is being assumed by anyone to be unintelligent because she's Latina, but I wonder if some people among those who say this are more likely to believe such a claim when made about a Latina than they would if it were made about a man, especially a white man.

Back during the nomination hearings for then-Judge Samuel Alito, Senator Barack Obama defended his vote to filibuster Alito, for reasons that included the following reasoning:

I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge's philosophy, ideology, and record. And when I examine the philosophy, ideology, and record of Samuel Alito, I'm deeply troubled.

I have no doubt that Judge Alito has the training and qualifications necessary to serve. He's an intelligent man and an accomplished jurist. And there's no indication he's not a man of great character.

But when you look at his record - when it comes to his understanding of the Constitution, I have found that in almost every case, he consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding American's individual rights.

If there is a case involving an employer and an employee and the Supreme Court has not given clear direction, he'll rule in favor of the employer. If there's a claim between prosecutors and defendants, if the Supreme Court has not provided a clear rule of decision, then he'll rule in favor of the state. He's rejected countless claims of employer discrimination, even refusing to give some plaintiffs a hearing for their case. He's refused to hold corporations accountable numerous times for dumping toxic chemicals into water supplies, even against the decisions of the EPA. He's overturned a jury verdict that found a company liable for being a monopoly when it had over 90% of the market share at the time.

It's not just his decisions in these individual cases that give me pause - it's that decisions like these are the rule for Samuel Alito, not the exception.

When it comes to how checks and balances in our system are supposed to operate - the balance of power between the Executive Branch, Congress, and the Judiciary, Judge Alito consistently sides with the notion that a President should not be constrained by either Congressional acts or the check of the Judiciary. He believes in the overarching power of the President to engage in whatever the President deems to be appropriate policy. As a consequence of this, I'm extraordinarily worried about how Judge Alito might approach issues like wiretapping, monitoring of emails, or other privacy concerns that we've seen surface over the last several months.

In sum, I've seen an extraordinarily consistent attitude on the part of Judge Alito that does not uphold the traditional role of the Supreme Court as a bastion of equality and justice for United States citizens.

By that standard, now-President Obama should find the current president's nominee disturbing for the same reasons he found the last Supreme Court nominee disturbing, at least if he's going to be consistent. In fact, he should promote a filibuster.

If you live in the District of Columbia, beware of parking your car in your own driveway. Unless your entire vehicle fits behind the front of your house (or technically the front of your front step), you'll be subject to a $20 ticket for parking in your own driveway. [Hat tip: Ilya Somin]

What are you supposed to do if your driveway doesn't go back far enough to fit your vehicles behind your front step? Maybe they don't make any driveways in D.C. that go back only as far as the front of the house, but I would highly doubt that. If this really is the law, they need to change it.

I have to agree with Ilya Solin about this. I've yet to put together my thoughts on the Sotomayor nomination fully, but this is an important point that I wanted to say something about separately. Regardless of your view of the correctness of Sotomayor's statement that a Latina just should be a better judge than a while male judge, such a view is not racism.

I tire of making this point on the left-leaning race blogs that I sometimes check in on. Racism, in its primary sense, is a negative attitude toward people of another race. Other things that might be called racist are so in a derivative way because those things are connected with racist attitudes. Thus certain acts are racist because they typically stem from such attitudes, and certain institutions are racist because they have a lot of such atittudes and acts woven into their very fabric. Jorge Garcia has an excellent philosophical defense of this approach in "The Heart of Racism".

When you call someone a racist, it doesn't mean they have innocent motives but participate in social practices that inadvertently cause racial harm. It doesn't mean they merely have false views about race or about races other than their own. It doesn't mean you can get away with ignoring race the many white people can much of the time. It doesn't mean you avoid some of the difficulties some others face because of race. The most immediatel thing converyed when someone is accused of being a racist is that the person has a deep-seated racial animosity or opposition to those of another race or that the person has views that those of another race are inferior, and these views have a negative emotional or attitudinal component. There are certainly things that can be called racism that don't fall into that category, but they're derivative of this fundamental meaning, and when you call someone a racist it sends entirely the wrong message if what you mean is something other than the primary meaning, because that's what people hear in such an accusation.

So it irks me when I hear conservatives making exactly the same blunder. It's not reverse racism to have the view that a Latina judge is likely to have experiences that influence her judging in positive ways, experiences that a white male judge wouldn't have. Calling someone a racist for thinking experiences common to the women of one ethnic group might make someone a better judge than people not in that category is as bad as calling someone a racist for opposing affirmative action or for claiming that the Democratic Senators at Clarence Thomas' nomination hearing were racists because they were willing to do anything, even smear his name with accusations that they had plenty of evidence against, if that's what it would take to prevent his confirmation. Rush Limbaugh and Newt Gingrich have violated their own principles on this one. Limbaugh is a regular complainer about how the left issues racism charges in cases when such charges are not warranted. Yet that's exactly what he's doing here. I'm pretty sure Gingich shares that view, and yet he's also apparently called her a racist. Regardless of whether her view is true (and I encourage you to look at Tom Goldstein's analysis of her discrimination rulings, a post I'll try to comment on in more detail as soon as I can, before you come to a final judgment on her ability to be fair on such matters), it's certainly ridiculous to say that she's a racist for holding it.

1. I've been extremely busy. I'm teaching two summer classes and barely keeping up with them. Plus the kids have been sick, meaning some have been home and in need of more attention than normal. So I haven't had time to do much blogging. But I've got a few things I've been thinking about that I did manage to put in Facebook updates, which I might as well put here in lieu of anything that will take more time than I have.

2. Remember when Rosie O'Donnell outrageously called it a separation of church and state for President Bush to take the religious identification on the Supreme Court from three to give Catholics, making Catholic justices the majority? I just thought it was worth noticing that President Obama has nominated another self-identified Roman Catholic to replace another Protestant, and I've yet to hear any similar claims from Rosie O'Donnell (although I did hear that Christopher Hitchens is being consistent on this by finding it grave and troubling).

3. I heard a strange NPR story on the dangers of fracking. It took a little listening to discover that they meant this. It was hard to listen with a straight face. I don't know how the reporter got through it.

4. The Supreme Court could rule as early as Monday on a case Judge Sotomayor was involved in that could lead to some real fodder for criticism in her hearing. SCOTUSBlog has an excellent presentation of the issue and how it might go.

5. Once I get a breather I intend to look closely at some of the Sotomayor stuff that SCOTUSBlog has been posting since before her nomination even occurred. I haven't had time to comment on her nomination, but I'm not sure I would even know what to say just yet. Her actual opinions are kind of important, and most criticism so far has not focused on them but on some political speeches and interviews she's given.

Not really, but that's what Mother Jones wants you to believe. With "Supreme Court Upholds Pension Gender Gap" as a headline, they want to send the signal that the Supreme Court has considered the existence of a gender gap in who receives how much of a pension and deemed it just fine. That suggests the view that what the Supreme Court is about is results. We should evaluate them according to whether they decided cases that give us the right results. Several justices on the Supreme Court might be happy about such a description, but I'm sure that at least four of the seven justices in the majority in this decision would not, and I'd guess that most or all of the other justices would not approve of such a description (even if I happen to think it's true of some of them).

If you read the article, it actually undoes a lot of the damage from the headline. Authors of op-eds don't usually choose their own headlines, and I'm guessing that's what happened here, so I'm not blaming the author, whose article is largely accurate and doesn't really spin the facts too significantly. The issue before the court involved a 1978 law that makes it illegal to discriminate against women who take maternity leave when counting pension benefits, because standard practice at the time was not to count maternity leaves as time served when calculating how many years someone worked for the company. That law counted such a practice as discrimination, and it made it illegal to ignore the time a woman was not working if the reason was maternity leave.

The issue before the court was whether a maternity leave that occurred before that law was passed was similarly affected. The majority ruled 7-2 that the law was not retroactive, and thus when it was passed it did not suddenly pass on the features of future maternity leaves to past ones. In other words, it is not illegal now not to count the maternity leaves before this practice counted as discriminatory, but it is illegal now not to count the maternity leaves after the laws was passed.

So the majority ruled in this case that the law that makes this kind of discrimination illegal wasn't a retroactive law, i.e. it didn't make what people had done before the law was passed suddenly criminal when it had been legal before that. It also treated the discrimination the law prevents as occurring when the maternity leave was taken, not when the pension benefits are calculated. I haven't had time to research the law itself or the claims of either side in how to interpret it. I'm certainly open to Justice Ginsburg's dissenting argument that the majority interpreted the law wrongly. In fact, I'd probably lean that way just from what I've read in several accounts. I'd be a little surprised if the law was narrowly about how a company counts maternity leaves at the time they occur rather than about how a company should count previous ones when it calculates benefits much later. So if I had to guess my view on the legal question, I'd predict that I'd have strong inclinations to hear out Justice Ginsburg's argument, since it seems more likely to be correct from what I've seen.

This isn't to say that I agree with that as a policy matter. There are two kinds of fairness at odds here, fairness of outcome and fairness of granting someone credit only for what they contribute to the company. If you begin with a socialist conception of justice, you would consider any inequality of outcome to be unfair and immoral. On the other hand, a libertarian conception of justice would consider such a view to amount to stealing from those who actually contributed to the company for all the hours being counted in their favor. It may be unfair on one level that women can't help having to take time off from work for maternity leave, but it's also unfair on a differently level to count that time as work time when someone else actually put in more time working for the company and didn't get to have time off count. One might see that as discriminating in favor of women who take maternity leave against those who don't (including women and men). If all you care about is the just result, your views on such matters will enter in to the calculation of whether this outcome is just. One can take either view on that matter and still decide this case either way. (And I want to say that those views aren't mutually exclusive. You might think both kinds of justice are morally important. I in fact do, and I'm not sure how I'd sort that out in this kind of case. I would be open to being convinced by policy arguments either way if I were in Congress debating such a law.)

If the justices were using such considerations, I think a stronger case could be made that they simply upheld the gender gap. But the reasoning they actually gave was about legal matters. As I said, I might actually lean in the opposite direction on those legal matters (even if as a policy matter I think a case can be made either way in terms of whether we should have such a law to begin with). Nevertheless, it strikes me as strongly misleading to say this decision upholds the pension gender gap, for several reasons.

A U.S. District Court in California has ruled that it's unconstitutional for a public school teacher to say that creationism is superstitious nonsense. According to Supreme Court precedent going back to 1984, the Establishment Clause of the U.S. Constitution doesn't mean merely what it says (which is just that the government can't set up a state religion) but extends even to government employees saying something that a reasonable person might take to count as endorsement of a particular perspective endorsing or disapproving religion. Add to that the conviction that creationism is religion, and you get this result. This does seem to me to be a direct application of current Supreme Court precedent and the standard view of creationism as religion (which the Supreme Court has endorsed, at least in one instance of the use of the term and a U.S. appeals court has declared to be applicable to intelligent design as well, although that judgment is only legally binding in one of the three federal court districts of Pennsylvania, just as this current decision is only legally binding on one of four federal court districts in California). [For the record, my detailed evaluation of the last case is here.]

Now I don't happen to think this is the right result, for several reasons. For one, the term 'creationism' can mean a lot of different things. It could mean the view that the the Earth is 6,000 years old, more precisely known as young-earth creationism. Some hold this view because they believe scripture teaches it, in which case it counts as a religious belief. Others claim to find it taught by science, in which case their support for it is of the kind that should count as science, even if it's bad science. The Supreme Court has declared that since it is taught in scripture, and science the scientific reasoning being presented is not good science, it can't be of the kind that should count as science. That claim has always seemed wrong to me, and I think this result is exactly what follows when you take such a view. If it's not of a scientific kind, then deriding it as bad science is also not of a scientific nature but of a religious nature (even if it's against a religious view).

But the term 'creationism' can also mean simply that there's a divine being who created. That's often a religious belief. It can also be a philosophical conclusion of arguments that have been present throughout the entire history of Western philosophy and have been held alongside religious beliefs by some but independently of religious beliefs by others. Thomas Aquinas, for example, presented arguments for God's existence that did not rely one bit on any religious beliefs. Lots of thinkers have believed in a creator without thinking they have any religious obligations to that creator. So even that kind of creationism isn't clearly religious, although it often is. Intelligent design arguments fall into this category if they conclude with the belief in a divine creator (rather than a more open conclusion, e.g. merely that there is some designer, which could be aliens if we're talking about biological ID arguments rather than cosmological fine-tuning ID arguments).

When a teacher says that creationism is superstitious nonsense, absent a context, it's not clear what that teacher means. It's certainly not obvious to me that it's a derision of particularly religious elements in any particular one of these things creationism can mean. But I do suspect that most people saying something like this aren't going to be sensitive to any of the distinctions I've just outlined, and they probably do intend to think of creationism as a religious teaching. Given some of the other statements this particular teacher made, I think this is especially likely in this case.

Check out how the justices voted in this Supreme Court decision that was handed down a couple weeks ago. Arizona v. Gant reflects a division on search and seizure rights that doesn't fall on normal lines. Here is oneway of conceiving of the ideological differences on the Supreme Court:

The More Extreme Conservatives: Justices Scalia and Thomas
The More Moderate Conservatives: Chief Justice Roberts and Justice Alito
The Moderate: Justice Kennedy
The More Moderate Liberal: Justice Breyer
The More Extreme Liberals: Justices Stevens, Souter, and Ginsburg

The lineup for this case:

Majority: Justices Stevens, Scalia, Souter, Thomas, and Ginsburg
Dissent: Chief Justice Roberts, Justices Kennedy, Breyer, Alito

That places the more extreme conservatives and more extreme liberals in the majority and those more moderate in the minority.

Note also that this is a 5-4 decision, so don't let it be said that all the 5-4 decisions are the four conservatives vs. the four liberals with Justice Kennedy as the deciding vote. This sort of division is much more common than you might have thought.