Law: June 2009 Archives

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.


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