Worlds Colliding All Over My Face

As Reader(s)™ may have noticed, Mr. Gillette and I disagree about many things. But one thing we have in common, apparently, is non-appreciation of Slate legal affairs reporter Dahlia Lithwick. Unfortunately for us, Ms. Lithwick has been given a prize by her peers for the quality of her Supreme Court reporting. Upon learning of this, I honestly thought for a moment that the prize was one of those anti-prizes (like a Golden Raspberry). No such luck.

My general beef with Ms. Lithwick is her cycnical, personality-focused coverage of the Supreme Court. The implicit premise of every dispatch she files is that the Supreme Court justices make their decisions based on ideology at best and temper tantrums at worst. It's rather unbearable.

So, for instance, you'll see her complaining that: 

Whether it’s through forced arbitration, limited class certification, shifting burdens of proof or other subtle tricks, the Court has gone beyond locking out litigants and well into the realm of aiding and abetting powerful corporate interests.

But I've noticed a conspicuous silence when "powerful corporate interests" somehow lose at the Supreme Court. For example, see my report on Pacific v. Valldolid (2012):

[T]he losing party in this case was Big Oil, which (along with all other big businesses) the Supreme Court supposedly kowtows to. [And] the majority opinion, written by Justice Thomas, uses textual analysis to reach a result that favors the little guy—in this case a manual laborer whose job was known in the trade as a "roustabout." 

Well, you may say, sometimes Justice Kennedy gets swung, but the Thomas-Scalia axis always be comin' down on my boys! Yet it was Justice Thomas who came to the defense of Mr Valladolid, the lowly roustabout. And then when no one's looking the Court goes 8-1 in favor of "big business" with, ahem, Justice Scalia in stirring dissent:

In Justice Kagen's first published opinion, the pro-business Roberts Court predictably sided with the creditor—a big, bad credit card company—by interpreting the Bankruptcy Code to more or less incorporate an IRS regulation that makes clear that taxpayers may not take a deduction for ownership costs unless they have car payments to make. 

Only one Justice had the courage to stand up and dissent on behalf of the poor debtor:  Justice Scalia.  He interpreted "applicable" so that simply owning a car would qualify the debtor to deduct the specified amount from his or her disposable income.  To the charge that his interpretation rendered the word "applicable" superfluous, Scalia responded, "The canon against superfluity is not a canon against verbosity."

These are just two cases I've happened to notice and blog about. I don't believe I've ever seen Ms. Lithwick so much as acknowledge any of these counter-narratives. Why not, I wonder? The answer is obvious: she's an ideologue, not a reporter.

But the plot thickens. Not only has Ms. Lithwick's ideological reporting become the subject of fawning praise and prizes, despite my our lonely efforts to undermine her, but the Roberts Court's supposed pro-business slant is back in the news because an article co-authored by Blog-favorite Richard Posner and published in none other than the Minnesota Law Review (my baby!) purports to prove it for all time. Adam Liptak has the story in the New York Times.

I remain unconvinced. Once again, the main cases trotted out to establish the Roberts Court's pro-business bona fides are cases involving class actions and arbitration. I've read many articles on this topic, but none (other than my own, of course) notes that pro-arbitration and anti-class-action policies are clear favorites of federal statutory law:

Mandatory arbitration, for example, is governed by a federal statute. Congress passed that statute, of course. Similarly, the main recent innovation in class action practice is another federal statute, the Class Action Fairness Act of 2005. Conservative judges surely take opportunities to interpret these federal statutes in conservative ways, just as liberal judges do the opposite. But in both these examples the real problem is that political conservatives have succeeded in passing laws that enshrine policies that conservatives favor. That's democracy, in all its gory, and it is certainly not the role of judges—who (as we can all agree, apparently) are not good at resolving policy issues—to undermine those policies.

So we have a pro-business Supreme Court, sure, but only to the extent that we have pro-business laws because we are a pro-business country full of pro-business people. I think I speak for the clear majority of Americans when I say to you anti-business people: Deal with it, commies.

"[J]udges are ill suited to resolve social problems."

Dahlia Lithwick has a column at The Nation entitled, "One Nation by and for the Corporations." The unsurprising thesis is that the courts, most notably the Supreme Court, are bought and paid for by business interests. According to Lithwick, this campaign is insidious and damaging:

There is ample language in the Court’s recent rulings to demonstrate that judges are ill suited to resolve social problems, that such efforts should be constrained and monitored and fundamentally mistrusted. But it’s one thing to trim the sails of the judicial branch; it’s quite another to transfer power that once rested with the judiciary directly back to groups that hold power already. Whether it’s through forced arbitration, limited class certification, shifting burdens of proof or other subtle tricks, the Court has gone beyond locking out litigants and well into the realm of aiding and abetting powerful corporate interests.

It is ironic to see that the liberal position has become that judges are ill-suited to solve social problems. But perhaps judges are ill-suited to resolve social problems only when their resolution is favored by conservatives. Or perhaps, as some say, liberals should not hate the players, but rather hate the game (even though they made up the rules).

Did Scalia regurgitate Tea Party talking points during oral arguments?

I've seen many pundits accuse Justice Scalia of spewing "well-trod Tea Party cleverisms" during oral arguments. For example, Harvard Professor Charles Fried (who was solicitor general under Ronald Reagan in the 80s, but publicly supported Barack Obama over John McCain in 2008) "was appalled to see [Scalia and Roberts, etc.] repeating the most tendentious of the Tea Party type arguments. I even heard about broccoli. The whole broccoli argument is beneath contempt. To hear it coming from the bench was depressing."

I take the charge to be that "Tea Party type arguments" are mere populist propaganda, devoid of intellectual content, spewed by the dirty Tea Party masses at their annoying marches and gatherings. Is the "broccoli argument" an example of this?

Not even close. As far as I know, the progenitor of the broccoli argument was a federal judge, the Honorable Roger Vinson, who first raised it at oral argument and then expounded on it in his written opinion striking down the act. 

Moreover, the broccoli argument was first raised at the Supreme Court in the merits briefs by the Solicitor General himself! (See page 6 of the government's reply brief.) Indeed, Chief Justice Roberts was actually quoting this passage when he asked Mr. Verrilli about the broccoli argument. So lets be very clear what Fried, Lithwick and others are doing when they criticize the broaching of the broccoli argument: they are criticizing the Justices for asking questions about arguments explicitly raised in the merits briefs.

So, my advice to Professor Fried is to take some Prozac, because your depression can't be blamed on Justice Scalia.

The New Yorker reviews Prof. Dale Carpenter's new book

In the current New Yorker, Dahlia Lithwick reviews "Flagrant Conduct: The Story of Lawrence v. Texas" by Dale Carpenter, a professor at the University of Minnesota. I am biased—Prof. Carpenter was my favorite professor in law school and I think he is unquestionably a genius—but the review is a rave and the book looks fascinating. I hope to read it next week. I may review it here. If you're lucky.

Is it a felony to videotape a police officer on the job in Illinois?

The short answer is yes.

Should it be?

Consider this, one of my favorite Supreme Court passages (from City of Houston v. Hill):

The Constitution does not allow such speech to be made a crime. The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.

That case struck down a law that made it a crime "for any person to assault, strike or in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty," which had been used to justify the arrest of a bystander for "verbal challenge [of a police officer] during an investigation."  The specific "verbal challenge" was: "Why don't you pick on somebody your own size?"

It seems to me that if there is a right to shout at the police—and there is—there should also be a right to document their official activities in public.

UPDATE:

See here for an update regarding judicial and legislative action on this law..

A Gillette-Torvik Conversation™: The Montana Corporate Speech Case — PART ONE

GILLETTE:  The Montana Supreme Court made the news recently for its decision in Western Tradition Partnership, Inc., v. Attorney General. The decision upholds Montana’s ban on corporate expenditures in favor of or against a political candidate. Eugune Volokh says that this result is directly contrary to Citizens United, the United States Supreme Court opinion that overturned a provision of the McCain-Feingold law that prevented corporations from spending money on independent electioneering within 60 days of a general election (or 30 days of a primary), and will be reversed by the United States Supreme Court. Indeed, the two dissenters in the Montana Supreme Court opinion dissent for that very reason. Dalia Lithwick at Slate also thinks the decision is a thumb in the eye to Citizens United, but in typical Slate faux-contrarian fashion she posits that the Montana Supreme Court ruled the way it did because the justices on the court are elected and they know that Citizens United is not popular with a lot of people.

This lack of popularity stems from the fact that the shorthand description of Citizens United is that corporations are people with the same First Amendment rights that, to borrow a phrase from Stephen Colbert, “people people” have.

What do you think Mr. Torvik?  Is Western Tradition Partnerhship doomed for reversal?  Or is the majority’s decision defensible?

TORVIK:  If Eugene Volokh and Dahlia Lithwick agree that Western Tradition is directly contrary to Citizens United, who am I to disagree?

I would love to defend the decision.  It's often true that seemingly irreconcilable decisions can be squared away by emphasizing minute but legally significant distinctions.  That's lawyering, after all.

But the Montana court doesn't do a very good job of pointing out any meaningful differences.  Frankly, some of its "analysis" is closer to schoolyard taunts.  For example, it notes that the statute was passed 99 years ago and frames the question to be decided as "when  in  the last  99  years  did Montana lose  the  power  or interest  sufficient  to  support  the  statute, if it ever did?"  Obviously, once you see this formulation of the question, you can guess what the answer is going to be. (Flashback to law school: "Was it 98 years ago? 97 years ago? 90 years ago? ...")  And in an analogy on its way to the preordained answer, the court says, "Does a state have to repeal or invalidate its murder prohibition if the homicide rate declines?  We think not."  Careful lawyers might be able to make some distinctions here, between the murder hypo and the campaign finance situation.

I'll give the court credit for one thing—it did resist the urge to make a Hitler analogy.

What do you think?  Did any of the Court's distinctions sing to you?

TO BE CONTINUED ...

You're telling me that's in the first amendment?

About a month ago, you posted on the question of whether legislators should consider whether the bills are constitutional before passing them. Your question was prompted by Dalia Lithwick's reflection that the constitutional views of Christine O'Donnel, the Republican candidate Delaware's open United States Senate seat, were fascinating.

Professor Lester Hunt posted on his blog about Ms. Lithwick's thoughts and suggested that "When . . .Ms. O'Donnell talk[s] about 'the Constitution,' they often don't mean the literal word of the law as contained in that piece of parchment."

Professor Hunt apparently hit the nail on the head. As CBS reports, this morning at a debate with Chris Coons, her Democratic opponent, Ms.O'Donnell today challenged him on his statement that the Constitution disallowed the integration of religion into the federal government, asking, "Where in the Constitution is the separation of church and state?"

Unfortunately for Ms. O'Donnell, the debate was held at the Widener School of Law, and her question reportedly "prompted laughs from the studio audience."

The exchange took place when Mr. Coons said he considered intelligent design a religious doctrine that should not be taught in public schools. Mr. Coons said that the First Amendment explicitly calls for the separation of church and state.

Ms. O'Donnell's response to this statement with incredulity. She said "Let me just clarify: You're telling me that the separation of church and state is found in the first amendment?"

Mr. Coons responded by saying "Government shall make no establishment of religion." A slight mangling of the amendment as it says "Congress shall make no law respecting an establishment of religion. " However, I think he got the gist of it correct.

"That's in the First Amendment...?" O'Donnell responded.

The worst part of it is that earlier in the debate, Ms. O'Donnell accused Mr. Coons of constitutional ignorance by telling him "perhaps they didn't teach you Constitutional law at Yale Divinity School."

A rant

On Slate, Dahlia Lithwick reviews Justice Breyer's new book, Active Liberty Making Our Democracy Work.  I found it to be a frustrating review, mainly because Lithwick advances a thesis--that Breyer and Scalia are more similar than you might imagine--that she actively contradicts.  There is also some sloppy, hard-to-understand writing.  The version of the article I read contained two glaring typos (since fixed), making me wonder if I was reading a blog post rather than a published article.  (Fyi, typos are perfectly acceptable in blog posts.)  The article also contains this indecipherable paragraph:

Is it proper for a legislator to consider the constitutionality of a bill when voting on it?

Dahlia Lithwick thinks not, apparently:

I have been fascinated by Christine O'Donnell's constitutional worldview since her debate with her opponent Chris Coons last week. O'Donnell explained that "when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional." How weird is that, I thought. Isn't it a court's job to determine whether or not something is, in fact, constitutional? And isn't that sort of provided for in, well, the Constitution?

More here.