The faux originalism of Justice Clarence Thomas

Slate Magazine: By Doug Kendall and Jim Ryan

It may be too much to expect any individual justice to be perfectly consistent from year to year and across a diverse array of cases. But here we have two public-school cases, both involving the rights of students, and both decided within days of each other, with Justice Thomas writing concurring opinions in each case, concurrences that no other justices joined. Don't you think that someone, somewhere, might have asked Thomas: 'Um, so you ask what the Framers would have thought about speech in school but not what they would have thought about voluntary integration. Why not?'...

Justice Thomas is not sticking with his professed commitment to originalism, and is certainly not living up to his newfound reputation as the high priest of principled originalism.

His recent opinions instead suggest that Thomas will use originalism where it provides support for a politically conservative result, even if that support is weak, as it is in the student-speech case. But where history provides no support, he's likely to ignore it altogether. If his cheerleaders believe otherwise, they should try to reconcile his opinions in the two school cases on originalist grounds. ...

For someone lauded as the originalist's originalist, this is a pretty weak showing. For someone looking to advance a conservative political agenda, however, these three cases constitute a sort of trifecta: Curtail voluntary integration and student rights while boosting the rights of corporations. Not a bad couple of weeks.

There is a lesson here for liberals. In two of the three most important cases of the past term, Thomas was forced to abandon originalism—his version of it, anyway—in order to reach a politically conservative result. In the other, his originalist reasoning was weak at best. What this suggests is that, contrary to conventional wisdom, originalism may not be co-extensive with the Republican Party platform after all. It also suggests, as we've written elsewhere, that liberals ought to begin to take a closer look at text and history themselves.

Specter to probe Supreme Court decisions

Politico.com: By: Carrie Budoff

Sen. Arlen Specter (R-Pa.) plans to review the Senate testimony of U.S. Supreme Court Chief Justice John Roberts and Justice Samuel A. Alito to determine if their reversal of several long-standing opinions conflicts with promises they made to senators to win confirmation.

Specter, who championed their confirmation, said Tuesday he will personally re-examine the testimony to see if their actions in court match what they told the Senate.

'There are things he has said, and I want to see how well he has complied with it,' Specter said, singling out Roberts. ...

Specter, the ranking Republican on the Judiciary Committee, who served as chairman during the hearings, said he wants to examine whether Roberts and Alito have "lived up" to their assurances that they would respect legal precedents.

Judicial independence is "so important," Specter said, but an examination could help with future nominations. "I have done a lot of analyzing and have come to the conclusion that these nominees answer just as many questions as they have to."

Senate Majority Whip Richard J. Durbin (D-Ill.), a Judiciary Committee member who voted against both nominees, said a review "could lead us to have a different approach." He said senators need to be "more probing" with their questioning of nominees.

"Certainly Justice Roberts left a distinct impression of his service as chief justice. And his performance on the court since, I think, has been in conflict with many of the statements he has made privately, as well as to the committee," said Durbin, who was unaware of Specter's idea.

"They are off to a very disturbing start, these two new justices. I am afraid before long they will call into question some of the most established laws and precedents in our nation."

The idea for a review came to Specter when he said he ran into Justice Stephen G. Breyer at the Aspen Ideas Festival in Colorado. ..."I only noticed it in a couple of cases," Specter said of the court overturning or undermining precedents. But Breyer, in their Aspen conversation, said "there were eight."...

"The reality is, although John Roberts and Samuel Alito promised to follow precedent, they either explicitly or implicitly overruled precedent," said Erwin Chemerinsky, a Duke University law professor.

"It is important to point out how the confirmation hearings were a sham. There is nothing you can do about it now; they are there for life. But it is important as we look to future hearings."

Duh.

How liberals can take back the Court.

TNR Online :
by Douglas T. Kendall & James E. Ryan

...[P]rogressives would do well to follow Scalia's lead. In public debates over constitutional interpretation, Scalia keeps it simple. Sure, he says, sometimes I have to follow precedent. Sure, he admits, sometimes text and history aren't so clear. But those are details. Don't let them distract you: I like a rock-hard Constitution, plain and simple, and that Constitution binds me as a judge.

That's the way Clinton, Obama, and other Democratic candidates ought to talk about their own constitutional vision. They can eschew terms like originalism, if they don't like its baggage. But they should say something similarly evocative: 'I want judges who are accountable to the Constitution, not the Democratic or Republican platform.' They should be prepared to explain what they mean by constitutional accountability, and they should provide examples of where conservative judges have violated this mandate. They should talk about the Constitution and its history, but resist the impulse to discuss the hardest cases first and avoid getting bogged down in the details of philosophy. They must recognize that there is a big difference between defending a constitutional vision and deciding a case. The progressive failure to grasp that difference is precisely why they've been losing these battles.

Kendall and Ryan are big fans of Yale's Akhil Amar and his "progressive originalism":

Indeed, there's a nascent movement among progressives to embrace the Constitution rather than run from it. The central theorist of this school--what you might call progressive originalism--is Yale law professor Akhil Reed Amar. Amar is one of his generation's most influential constitutional historians. His works on the Constitution have won acclaim from across the political spectrum, with one prominent conservative law professor calling Amar's recent opus, America's Constitution: A Biography, the best book written about the Constitution since The Federalist Papers. This conservative acclaim is somewhat surprising, because Amar reveals the Constitution to be a deeply progressive document.

Over the years, conservatives have convinced many liberals--not to mention the public--that the Constitution is a document largely geared towards protecting private property and wealth. Amar demolishes this notion. He explains that our Constitution started out both democratic and inclusive for its time and has remained viable because of constitutional amendments that improved the document.

Amar's most powerful argument is that the post-Civil War amendments fundamentally altered our founding document in ways that have yet to be recognized by the Supreme Court. What may have begun as a document focused on protecting liberty was transformed into a document just as concerned with equality. A federal government that began with powers that were "few and defined" was awarded vast new powers to protect due process and equal protection. Conservatives may not like this, of course, but they should not be able to wish away these changes.

How the legal left can rein in the Roberts Court

Slate Magazine: By Emily Bazelon

Let's say, though, that next term, Roberts is even more successful in wooing Kennedy than he was this term, which seems entirely plausible. What kind of 'unity' would that get us? The answer is in Sunstein's new essay (here's an early version). He argues that 1) today's court has no William Brennan or Thurgood Marshall (Ruth Bader Ginsburg is not that liberal), whereas the 1980 court had no Antonin Scalia or Clarence Thomas; 2) three of the court's supposed 'liberals'—Breyer, David Souter, and John Paul Stevens—are really moderates, akin to the old Stevens-Lewis Powell-Byron White trio; and 3) the trade-off in the center of Harry Blackmun for Anthony Kennedy is a loser for the left, too. Sunstein still believes in restraint (he calls his version of it 'minimalism'). But while he doesn't think the likes of Brennan and Marshall should run the show, he also now says that 'something has gone badly wrong if the Court has a strong right-wing without any real left.' And it's even worse that the court's moderates are being cast as left-wingers, thus belying the court's overall conservative creep.

Justice Scalia sets his sights on Times v. Sullivan

Slate Magazine:By Dahlia Lithwick

...Norman Pearlstine's new book about anonymous sources, Off the Record... lays out the long American tradition of the free press and then—smack in the middle of discussing the landmark libel ruling of New York Times Co. v. Sullivan—he tosses in quite a parenthetical. He notes that '(In an interview, Justice Antonin Scalia told me that given the chance, he would probably vote to reverse New York Times Co. v. Sullivan.)' That's it. Next graf. ...

This case represented a turning point in our speech law. While still hotly debated on the merits in law schools, it is 40-plus-year-old settled law. And while Scalia's certainly criticized the decision publicly before, it's quite something to see him allegedly going on the record to offer that he'd probably vote to overrule it, "given the chance." ...

I, too, have some problems with freewheeling discussions about reversing specific cases in advance. But in light of the court's recent term, I can't help but find Scalia's candor vastly preferable to the loaded silence of his colleagues.

Scalia has long been the exception to the silence rule. In 1996, with two euthanasia cases pending before the high court, he gave a speech claiming there was "no constitutional right to die." In 2003, he recused himself from hearing a landmark Pledge of Allegiance appeal (Newdow's case), probably because of a speech he'd given arguing that it had been wrongly decided by the court of appeals. Scalia knows a badly decided case when he sees one, and he just can't understand why he shouldn't get to say so. ...

This isn't to say that there aren't worrisome aspects to Scalia's candor. When justices announce in advance and in the abstract which cases they'd like to overturn, the idea that they decide matters on a case-by-case basis is shattered. Abstract discussions with reporters about which cases might be fun to overrule in the future not only undermine the principles of judicial humility and minimalism, they also suggest that the all-important requirements of standing—the need for an actual "case or controversy" is convenient legal formalism. It signals that the justices are operating according to some broad ideological agenda, rather than confining themselves to deciding cases.

But maybe some of the justices really are operating according to some broad ideological agenda. Maybe the new Roberts Court is in fact committed to overruling decades' worth of "bad cases." If Scalia is willing to confess to that kind of project, I'd rather hear the battle plans than not. It's precisely the sort of candor that has been most lacking at judicial confirmation hearings, where each nominee instead takes the fashionable line that precedent is all but sacred. ...

I've not always been totally kind to Justice Scalia, but more and more, I do enjoy his defiant public honesty. If the Roberts Court is poised for a protracted seek-and destroy mission, better to operate in Scalia's sunshine than in the dark.

It's been a very long time--more or less since 1938--since political liberals/progressives have had this much reason to fear activist courts, and the Supreme Court in particular, or to rethink their commitment to venerating the special legitimacy of judicial action (or the moral leadership provided by the Court). For me, the critical moment was 2000's Bush v. Gore decision; for many others, perhaps even more reluctant than I to face the turn of an era, the term just past did the trick.

There can be little doubt that the formalisms of the Court's conservative majority are empty of principle; they mostly provide cover for what is, indeed, a broad ideological agenda to remake our law (or, if you prefer, to return to the pre-New Deal dispensation, or that of a century ago). Despite the rhetoric of minimalism favored by Justices Roberts and Alito (eviscerating precedents without explicitly overruling them), there is no "judicial modesty" in this gang of four (mostly now five); they are out to wipe away the legacy of evolutionary progressive change that has characterized the past three generations of American life, since the Great Depression.

Much academic commentary is cloaked in elaborate institutional deference to the Court. I believe that deference is unwarranted, and increasingly counterproductive. When the Court acts in ways that are nakedly political, the legal professoriate should not pretend the imperial judiciary is attired in splendid finery. We should call it as we see it, in all its naked ugliness, and without the pretense that "law", as currently practiced by the majority of this Court, is beyond politics. There may be some room to debate the past (although persuaded by the realist critique, I was not a member of CLS, and was long reluctant to give up on law as a potential force for good, rather than primarily an instrument of oppression). But the present is blindingly clear to those who can read. It is past time to let the public in on the secret; this Court has hijacked the law as we have known it, and it is our obligation to say so.

School Diversity Based on Income Segregates Some

New York Times:

San Francisco began considering factors like family income, instead of race, in school assignments when it modified a court-ordered desegregation plan in response to a lawsuit. But school officials have found that the 55,000-student city school district, with Chinese the dominant ethnic group followed by Hispanics, blacks and whites, is resegregrating.

The number of schools where students of a single racial or ethnic group make up 60 percent or more of the population in at least one grade is increasing sharply. In 2005-06, about 50 schools were segregated using that standard as measured by a court-appointed monitor. That was up from 30 schools in the 2001-02 school year, the year before the change, according to court filings.

The San Francisco experience is telling because after the recent United States Supreme Court decision restricting the use of race-based school assignment plans, many districts are expected to switch to economic integration plans like San Francisco’s as a legal way to seek diversity. As many as 40 districts around the country are already experimenting with such plans, according to an analysis by Richard D. Kahlenberg of the Century Foundation, a nonpartisan public policy research group.

Many of these experiments are modest, involve small districts or have been in place only a few years. But the experiences of these districts show how difficult it can be to balance socioeconomic diversity, racial integration and academic success.

Only a few plans appear to have achieved all three goals. ...

The purpose of such programs is twofold. Since income levels often correlate with race they can be an alternate and legal way to produce racial integration. They also promote achievement gains by putting poorer students in schools that are more likely to have experienced teachers and students with high aspirations, as well as a parent body that can afford to be more involved.

“There is a large body of evidence going back several years,” Mr. Kahlenberg said, “that probably the most important thing you can do to raise the achievement of low-income students is to provide them with middle-class schools.” ...

... [T]he [San Francisco] district switched in 2002-03 to a plan that sought socioeconomic diversity.

Students apply to the schools they want to attend, and the district uses a “diversity index” for assignments when a school is oversubscribed. The index considers the language spoken at home, whether a child qualifies for free lunch or is in public housing, a child’s academic performance and the quality of a child’s prior schools. But it has not resulted in racial integration.

“We were hopeful that the diversity index would work,” said Stuart Biegel, a law professor at the University of California, Los Angeles, who was the district’s court-appointed monitor. “No one was rooting against it. But it didn’t work.” ...

David Campos, the general counsel to the [San Francisco] school district, said the resegregation was so disappointing that the school board might try to test whether Justice Anthony M. Kennedy’s opinion in the recent Supreme Court case left open the possibility of using race if other methods of integration fail.

“We stopped using race at some point,” Mr. Campos said. “And then for a number of years we have tried to use a number of race-neutral factors to achieve racial diversity, which methods haven’t worked. Should the board decide to use race, and they may or may not, we are a very good test case.”

Supreme Court Dreams

The Opinionator New York Times Blog:

[A]nd in any case, liberals can do all the plotting they want, but it doesn’t look like Messrs. Roberts, Alito, Scalia and Thomas are going away any time soon.

Responding to Rosen

TAPPED Archive | The American Prospect:Scott Lemieux, responding to Rosen:

...the Alito/Roberts method is, if anything, even worse for liberals than the Scalia/Thomas one: it achieves the same results while attracting less public scrutiny. And if you have any doubts about the phoniness of the Potemkin modesty of Roberts joining de farco overrulings, it's worth noting that Alito and Roberts did not join the one 'narrowing' opinion of any substantive significance: Kennedy's refusal to go along with the 'color-blind' majority in the school desegregation cases.

While Rosen now concedes that the Court has significantly shifted to the right, he still holds out hope for future consensus on the Court. But this continues to strike me as implausible. ...as far as I can tell there's no reason to believe that the Court will achieve significantly more consensus in future terms, and there never was any reason to believe that the Roberts Court would herald some new era of "judicial restraint."

Will John Roberts ever get better?

The New Republic Online:By Jeffrey Rosen

In several of the term's important cases, Roberts and Justice Samuel Alito declined to join Justices Antonin Scalia and Clarence Thomas in calling for the open overruling of previous precedents. Scalia even accused Roberts of 'judicial obfuscation' and 'faux judicial restraint' for his refusal to overturn the entire structure of campaign finance law rather than dismantling it incrementally. But Breyer, too, seemed unimpressed by conservative incrementalism: He suggested that it was better to overturn precedents cleanly than to pretend to preserve them while distorting them beyond recognition. 'There were ten cases listed as important cases in thenewspapers. I was in the majority twice--that was better than nothing,' he said. 'In three of the other cases, the majority of the Court said it was overruling prior precedents, and, in four other cases, the minority of the Court said you are overruling prior precedents. I thought there was quite a lot of precedent overruled, but the people on the other side, who are very good judges, thought they weren't overruling. I do think it's better to be open.'...

It's too soon, as Breyer suggests, to tell whether Roberts will ultimately be more successful in achieving consensus. But, since he has embraced this as the standard by which his tenure should be judged, Roberts presumably understands that he can't preside over a decade of five-four decisions. Far from going down in history as a unifier in the tradition of John Marshall, he would be perceived as the leader of a partisan conservative Court, one that may be increasingly at odds with a more liberal president and Congress. ...

In our conversation, Breyer self-consciously embraced the mantle of restraint. "To a very large measure, judges have to be careful about intruding in the legislative process," he said. "[R]uth and I have been among the ones less likely to strike down laws passed by the legislature, and, by that measure, we're not very activist." Far from being a cautious or defensive posture, bipartisan restraint has always been rooted in liberal self-confidence--confidence that, given a fair opportunity, liberals can fight and win in the political arena. The fact that conservatives now rely on the Court to win their battles for them--striking down democratically adopted campaign finance laws and integration programs--is a sign of their weakness.

Now there's a plan

New York Times: By Linda Greenhouse

[Law Prof. Cass Sunstein] said he was worried about the imbalance between the defensiveness and caution on the court’s liberal side and the “bold, clear strokes” issuing from Justices Antonin Scalia and Clarence Thomas. “There’s not a voice on the court for significant social reform that the others have to respond to,” he said. “It skews the court’s internal processes and public discussion of the court.”

ONE such voice belonged to the justice Cass Sunstein clerked for: Thurgood Marshall. It was 40 years ago next month that President Lyndon B. Johnson named the famous civil rights lawyer to the court. There have been only two Democratic appointees from then until now, a fact of history so stark as to sound implausible.

With a tide so long in the running, it is no wonder that some leading liberal scholars are looking to the far horizon. “The idea that one can regroup and come back at the court is not realistic for the foreseeable future,” Prof. Laurence H. Tribe of Harvard Law School said the other day.

Two years ago, Professor Tribe suspended work on the third edition of his monumental treatise on constitutional law, declaring that the moment had passed for propounding a “Grand Unified Theory.” His current ambition, he says now, is to “teach to the future,” in ways that will challenge the current climate and “make a difference 20, 30 or 40 years from now.”

Now there’s a plan.

More on the O'Connor "legacy"

Slate -> The Fray -> Jurisprudence: By "Arkady"

Personally, I take a little bit of sadistic glee in what's happening, even if I think the Roberts court's cases are a change for the worse. My glee comes from the fact that O'Connor is still alive, and is being forced to watch her life's work being reduced to an obscure footnote in history, right before her eyes. This strikes me as completely appropriate, since her own absurdly indefensible position in the Bush v. Gore case is what doomed her legacy to an early death. If she'd simply reasoned her way to a sensible outcome in that case, Gore likely would have been president, and the court wouldn't have been polluted by Alito and Roberts. O'Connor has to watch her legacy destroyed precisely because of one of her patented pieces of legal idiocy -- what could be more fitting?

I find this harsh, and wouldn't say it myself (although I guess I am prepared to post it). I do so in part because it follows from an analysis closely parallel to my own (see prior post):

There's no great mystery about the fact that O'Connor wasn't a rigorous thinker.... That's part of why her legacy is falling apart almost instantly: she influenced the court solely by the power of her vote, rather than by the quality of her reasoning. Smarter judges leave behind arguments that are so convincing that future justices are compelled to come to grips with their ideas. O'Connor's influence evaporated the moment she retired and lost her vote.

It's not just that other swing voters happened to be followed by people predisposed to take up their baton, as Ms. Lithwick suggests. The reason successors take up the baton of a piece of legal reasoning is that it has enough intellectual merit to be an attractive way of thinking about a problem. When Sandra Day O'Connor dropped her baton at the end of her leg of the relay, it was simply too embarrassing a prop for anyone to bother taking it up.

How Sandra Day O'Connor became the least powerful jurist in America

Slate Magazine:By Dahlia Lithwick

During the final weeks of the Supreme Court term, it was hard not to be struck by one recurring theme: Former Justice Sandra Day O'Connor—a few short years ago the "most powerful woman in America," a "majority of one," the "most powerful person on the court," and the most "powerful Supreme Court Justice in recent history"—had somehow become the most disregarded. With the court's newly dominant conservative wing focused pretty much on whether to ignore or overrule her outright, it's clear that one real casualty of the new Roberts Court is O'Connor's lifetime of work on an extraordinary range of constitutional issues. ...

As one begins to consider whether O'Connor might be left with no similarly enduring achievements, it's worth pointing out that some part of this may well be of her own doing: Even at the height of her influence at the high court, O'Connor's critics tended to deride her constitutional stylings as closer to Muzak than Mozart. Justice Antonin Scalia once famously wrote that her argument in an abortion case 'cannot be taken seriously.' And her many critics often pointed to the lack of real rigor in her 'undue burden' test for abortion restrictions; her 'reasonable observer' test for whether the government has 'endorsed' religion; or her 'someday my prince will come' test for when affirmative action programs might become unnecessary in the future.

I was never a particular enthusiast for O'Connor's jurisprudence, as distinct, perhaps, from her practical judgment (on some occasions). I do believe the Court, and the society, benefits importantly from female perspectives and life experiences on the Court, which to some degree she provided.

In my humble opinion, the media fascination with O'Connor overwhelmingly reflected her possession of the often decisive "swing" vote up for grabs between factions of the Court, a position she apparently relished and capitalized on--far more than any special insight or wisdom that she possessed or demonstrated in her opinions (with occasional exceptions). Many of her "standards" were, deliberately or not, highly elastic (read, "meaningless") placeholders, providing the opportunity for her to remain in control of future decisions through her idiosyncratic personal reactions to cases, without providing much in the way of meaningful guidance to others who had to apply, somehow, her often vacuous utterings. (This all too often amounted to predicting the state of her gut, as the legal realists used to advise). Thus, with her passing from the scene, there is deservedly little left (used advisedly) of her jurisprudential imprint.

Great justices, left or right, have provided intellectual structures that engage thought and sustain the legal and jurisprudential conversations over time. These are not necessarily ideological in character, although the media rarely see beyond those labels. Great "common law" judges (a label mistakenly applied to O'Connor in my view) did not arbitrarily tip from case to case; rather, they found imaginative ways to reconcile or adjust competing tendencies in the law, utilizing the distinctive facts of particular cases to highlight thematic concerns and advance the cause of justice through careful, seemingly incremental processes--at their best, allowing us to see patterns in new and revealing ways. (Realistically, often "creating" these patterns in ways more imaginative and willful than narrowly truthful...)

I think Justice Powell approximated this ideal more strongly than O'Connor did, or Kennedy is likely to.

Were there a true left on this Court (as in the post-1938 FDR court and the Warren Court), we might perceive more of this among the so-called "liberals" of the present Court. It is largely washed out by their current need to band together in opposition to the destruction of the highly eroded monuments still (barely) standing from a prior, and better, time. In retrospect, we see the remarkable qualities of that Court ever more clearly.

Fishing Around: No More Bong Hits 4 Stanley*

New York Times Blog:By Stanley Fish

...Although [Justice] Thomas does not make this point explicitly, it seems clear that his approval of an older notion of the norms that govern student behavior stems from a conviction about how education should and should not proceed. When he tells us that it was traditionally understood that “teachers taught and students listened, teachers commanded and students obeyed,” he comes across as someone who shares that understanding.

As do I. If I had a criticism of Thomas, it would be that he does not go far enough. Not only do students not have first amendment rights, they do not have any rights: they don’t have the right to express themselves, or have their opinions considered, or have a voice in the evaluation of their teachers, or have their views of what should happen in the classroom taken into account. (And I intend this as a statement about college students as well as high-school students.)

One reason that students (and many others) have come to believe that they have these rights is a confusion between education and democracy....Educational institutions, however, are not democratic contexts (even when the principles of democracy are being taught in them). They are pedagogical contexts and the imperatives that rule them are the imperatives of pedagogy – the mastery of materials and the acquiring of analytical skills. Those imperatives do not recognize the right of free expression or any other right, except the right to competent instruction, that is, the right to be instructed by well-trained, responsible teachers who know their subjects and stick to them and don’t believe that it is their right to pronounce on anything and everything.

What this means is that teachers don’t have First Amendment rights either, at least while they are performing as teachers. Away from school, they have the same rights as anyone else. In school, they are just like their students, bound to the protocols of the enterprise they have joined. ...

Is there a single sentence in Professor Fish's latest diatribe that I agree with? Maybe a couple of the descriptive ones, but nothing normative.

Anyone who read Clarence Thomas' opinion in the Bong Hits 4 Jesus case (see my earlier post with excerpts) and thinks "he does not go far enough" occupies a different universe of discourse entirely.

Fish has written extensively on his idiosyncratic view of the role of teachers, particularly in the university setting. My guess is that he is working backwards from that to the views expressed in this piece.

What is at stake here? Is there, can there be, any question that schools are (and must be, in one sense or another) central institutions in the socialization of the young, and in their training as future citizens of a democratic polity? Is there room for doubt, on any plausible account of learning theory, that learners learn from what their teachers/role models do, as much or more than from what they say (or formally "profess"?)

What, then, are the implications for our democracy of viewing schools as totalitarian enclaves, as Thomas and, apparently Fish, would have us do?

I cannot approach the eloquence of Justice Fortas in his majority opinion for the Court in the Tinker case. Go and learn.

*There are some lively comments on the NYT Blog responding to Fish's essay, including one from which I borrowed this (revised) heading. Take a look if you have Times Select.

Don't go there--do you read the papers?

Salon.com |: By MATTHEW DALY (AP)

WASHINGTON -- Rep. Jim McDermott said Friday he will ask the Supreme Court to decide whether he had a right to disclose contents of an illegally taped telephone call involving House Republican leaders a decade ago.

A federal appeals court ruled in May that the Washington state Democrat should not have given reporters access to the tape-recorded telephone call of Republican leaders discussing the House ethics case against former House Speaker Newt Gingrich, R-Ga.

McDermott's offense was especially egregious since he was a senior member of the House ethics committee, the U.S. Circuit Court of Appeals for the District of Columbia said in a 5-4 ruling.

Justice, Justice thou shalt pursue

Today's Cartoon

Free speech for the rich and powerful-I

Salon.com: By Garrett Epps

'Where the First Amendment is implicated,' Chief Justice John Roberts wrote this week in an important free-speech opinion, 'the tie goes to the speaker, not the censor.'

It's a comforting thought, and a nice example of the kind of judicial rhetoric Americans are used to. ...

Unfortunately, the implication that this court defends First Amendment rights is pretty much hogwash. If one carefully reads all three of these First Amendment cases, the court is really saying that the tie goes to speakers who have money and power. That is, if the speaker is rich and influential, then free speech wins. If not, free speech loses. Taken together, the cases give a picture of a new court majority that takes a very narrow view of free speech and a deferential approach to bureaucrats who seek to shape American culture from the top down. ...

Free speech for the rich and powerful-II

Salon.com: By Garrett Epps

...An Alaska high school sent its students out to the street to watch the Olympic torch pass by; as it did so, a group of students, clearly hoping to get themselves on television, unfurled a large banner with the enigmatic memo, 'Bong Hits 4 Jesus.' Acting on the repressive instinct of every high school principal everywhere, the Alaska high school's Deborah Morse demanded it be taken down at once. When one irrepressible scamp, Joseph Frederick, refused, the principal confiscated the banner and suspended him.

The principal argued that the banner needed to come down right away because it encouraged drug use. Frederick said 'the words were just nonsense meant to attract television cameras.'...

To put it another way, as Roberts sees it, schools have the power to make sure that students not only listen but that they don't laugh at the message. In Roberts' view of students' view of free speech rights, laughter is not protected. Humorlessness: The anti-drug.

Anyone who remembers high school should have understood that the message was not one to be decoded by Roberts' pedantic brackets and ellipses; it was the same message sent by students everywhere every day in every free society -- "This whole thing is a farce" ...

The idea that that in a free society debate should be, as a former Supreme Court said in New York Times v. Sullivan in 1964, "uninhibited, robust, and wide-open" does not apply to the young. Solemn acquiescence is the major skill of citizenship to be taught in the schools of our democracy, and those who will not learn the lesson can be punished.

Asking the liberals who supported Roberts' nomination if they're sorry now

Slate Magazine: By Emily Bazelon

...All of which is to say that John Roberts is proving to be an extremely conservative chief justice. Which is what President Bush promised his supporters and what Roberts' lower-court record signaled—see in particular the Guantanamo case Hamdan v. Rumsfeld. Roberts may not go in for rhetorical swashbuckling, but he gets the job for the right done. As Adam Cohen put it in the Times last year, Roberts' votes are the product of his 'predictable arch-conservatism.'

And yet some liberal and moderate lawyers and academics didn't predict this at all. These members of the legal literati urged Roberts' nomination, promising that he would be a model of restraint and principle and modesty. Why did they think that then? And how do their arguments on his behalf look now?...

George Washington law professor Jeffrey Rosen knew Roberts too, from an interview he'd conducted in 2002. Before the confirmation hearings, he called "the claim that Roberts would move the Court to the right as chief justice … transparently unconvincing." Rosen even ventured that because Roberts "may turn out to be more concerned about judicial stability and humility" than Rehnquist or then-Justice Sandra Day O'Connor, "he might even move the Court to the left." ...

[Y]ou can see another reason for Roberts' appeal with moderate academics: Supporting him was a way to signal that you thought the debate about who should be on the court ought to be about judicial temperament rather than ideology and vote counting. Roberts wouldn't twist precedent, professors like Cass Sunstein of the University of Chicago wagered. He'd carry the torch of judicial modesty: Judges shouldn't reach beyond the facts of a case to settle big questions, they should hesitate to strike down laws passed by Congress, they should know their place as the least-dangerous branch. Praising Roberts for his lack of "bravado and ambition," Sunstein wrote in the Wall Street Journal pre-confirmation, "Opposition to the apparently cautious Judge Roberts seems especially odd at this stage."...

In the end, Roberts' approach isn't leading him to vote differently than Thomas and Scalia, the justices with the "ideologically driven" reputations. Yes, he disagrees with them about whether to heave over precedent rather than dance around it—and he has felt the Wrath of Scalia as a result. But ... there's nothing principled or restrained about overruling cases "while pretending you are not." The reassurances to the left about Roberts' virtues look pretty empty this week.

So, a question I continue to ponder: should Louis Brandeis's nomination have been defeated (as it almost was) because of open opposition to his political views, and, let's say, a minority filibuster? Is that a necessary cost of Bazelon's implicit position here?

One can plausibly argue that Bill Clinton simply gave up on potential Court nominees who would excite partisan opposition. It's all too easy to forget today, given the current composition of the Court, that Breyer and Ginsburg were (rightly) perceived as exceedingly moderate candidates from a Democratic/progressive standpoint (as were a high proportion of intermediate appellate court nominees under Clinton, although they advanced gender and racial diversity on the federal courts). Stevens and Souter (or whom I am exceedingly grateful) were Republican appointments. There are no members of today's Court comparable to the FDR/JFK/LBJ liberal picks (not all were, of course--e.g.,FF, Bryan White), or even those of Eisenhower. Today's "liberals" are centrist moderates, today's centrists are strong ideological conservatives, and Scalia and Thomas would have embarrassed James McReynolds. (That may be slightly strong--I don't think McReynolds would have drunk from the same water cooler as Thomas--or Breyer or Ginsburg, for that matter.)

Walter Dellinger: After (trying to) sleep on it

Slate Magazine: By Walter Dellinger

...What some parents will sometimes have to say to their children under these plans is something like this: 'You will be going to PS 111 instead of PS 109 this year, and here's why: Our community is trying to make sure that we get over the racial separation that has been such a troubled part of our history. So we want to make sure we have a pretty good number of white and black children in all of our schools. It's important, even though it sometimes means you don't get your first choice of a school assignment this year.' As I read the record, that is unlikely ever to happen more than once to any child white or black. What is the big deal? ...

The court's decision is everything conservatives should abhor. It is a form of social engineering dictated from Washington. It ignores the principle of local control of schools. It sets aside the judgment of elected officials, even though nothing in the text of the Constitution requires that result, and the original understanding at the time of drafting of the 14th Amendment is solidly against it. It equates the well-intentioned and inclusive programs supported by both white and black people in Louisville and Seattle with the whole grotesquerie of racially oppressive practices which came down, as Charles Black once said, in apostolic succession from slavery and the Black Codes.

If there is a just G!d, G!d save us from our trespasses.

Dahlia Lithwick is not a happy camper

Slate Magazine: By Dahlia Lithwick

I'm not surprised the dissenters are pissed. What Roberts holds out as a dispassionate, mechanistic, and apolitical legal project is in fact an ideological and immoderate attack on a principle they believed to be inviolate. And I imagine it's insulting after a while for the dissenting justices to be cast in the role of irrational hysterics. Someone pointed me today to the most amazing portion of Breyer's dissent, in which he says the problem with the plurality's logic 'lies in its overly theoretical approach to case law, an approach that emphasizes rigid distinctions between holdings and dicta in a way that serves to mask the radical nature of today's decision. Law is not an exercise in mathematical logic.'

There is only one way in which the chief justice's famous comparison of justices to umpires still holds after today's plurality opinion: It turns out justices and umpires both wear masks.