Centerfield

Sorry, "witnessing" has no more place at school than it has in the work place. It should be restricted, and continued violations should be punished. Period, full stop.

OTH, I suspect the policy at issue was too broad and was rightly struck down. School districts tend to react that way as a species.

Posted by: Rex Deaver at October 31, 2005 01:55 PM

Rex, can we outlaw speech that I don't like in schools, too?

I'm all for keeping kids in line during school, but too often these days, the restrictions only work one way. If a child "harasses" another child in modern, politically correct ways, it's ok, but if the child expresses the "incorrect" opinions in his/her harassment, it's wrong. Schools should be a place where children are taught how to behave in society and how to accept and tolerate even views that they find offensive. And as long as you're willing to apply it fairly all the way around, rather than picking and choosing which views we'll have tolerance for and which are so old fashioned that we can't tolerate, then fine.

Posted by: PatHMV at October 31, 2005 02:28 PM

I have no problem with schools restricting student behavior which is demonstrably disruptive to the learning experience, as long as such policies are applied in an even-handed way.

But I'm not ok with free speech restrictions which are applied on the basis of political content whther it be judged too liberal, too conservative, too dirty, too religious, too divisive, too upsetting, etc. So the appeal that i see in Alito's opinion is that he may well be disinclined to give constituional protection to speech laws which protect the imaginary rights of people not to be exposed to speech that they find unpleasant, upsetting, or divisive in public places. I grant that the exact nature in which the rules for "public places" apply to schools is open to discussion. Seems to me that some 1st-amendment exercises which should be fine on a random street corner might be precluded from public schools from k-12.

Posted by: bk at October 31, 2005 02:44 PM

Could we post citations to the actual case, rather than relying on abstracted tidbits?

The case in question is Saxe v. State College Area School District, 240 F.3d 200 (CA3, 2001).

I suggest we read the case before commenting further.

Posted by: Simon at October 31, 2005 02:44 PM

PatHMV,

"Rex, can we outlaw speech that I don't like in schools, too?"

It has nothing to do with speech you or I don't like. School is not the public square. It doesn't matter if you are "witnessing" for Christian Reconstruction, White Supremacy, Black Power, or fill-in-the-blank, none of it has any place except in very limited circumstances.

In the context of a legitimate, and respectful, classroom discussion, air your views...as long as you are as willing to have them denounced as you are to state them. If invited to do so at the lunch table, same rules apply, feel free to spout whatever idiocy you hold dear.

Other than that, keep your uninvited opinion behind your teeth, and keep your mind on what you are supposed to be doing. You have no right to preach at me and to do so uninvited is assault, not free speech.

Posted by: Rex Deaver at October 31, 2005 03:10 PM

Just from that tidbit, it seems like a reasonable opinion. Schools tend to make these ridiculously overbroad policies because they are easier to enforce. But it seems to me that schools face an issue that other public forums don't, ie, it's much harder to just walk away from speech that offends you. I think the question of witnessing is a difficult issue in this respect. If you run into someone on the street trying to proselytize, you can just walk the other way. That's much more difficult in a school, especially for kids that may be faced with ostracism. I don't know where you draw the line and it clearly seems to me that you can't simply prohibit people from making ANY comment that someone would find offensive. On the other hand, I don't think it's unreasonable to restrict speech to a degree more than you would in the street. It seems to me that you could outlaw "witnessing" as a general principle because it intrudes on the rights of others in a restricted setting even if it does, to some extent, restrict the witnesser's ability to exercise his or her religion.

Posted by: Marc at October 31, 2005 03:12 PM

Marc, I generally agree, except that I think that any provision precluding students from such behavior would be on much firmer ground if it were not based on content, but instead were based on the nature of what school is in the business of trying to do. Presumedly, the school has a solid interest in focusing upon education, so students shouldn't be allowed to interrupt a lecture with their testimony, nor should they be allowed to dominate a discussion with thier particular view. But on the playground and in the cafeteria, wouldn't we be better off letting students do this if they really wanted to, and expecting the students to learn about occasionally tolerating things they don't like and maybe teaching the testifier a few things about this.

Most importantly, if we are open-minded about occasionally allowing some things that might cause a bit of conflict, maybe we'd get kids _AND_ adults to appreciate that in open society, there is a difference between what you have a right to do, and what it is right to do. I'd love kids to have more chances to think about ideas like manners and propriety without dictating exactly what they might be. Theoretically at least, there's more of an opportunity for teaching and learning if we don't dictate the policies too narrowly.

That said, let me be a clear that on the bottom line I agree with the notion that in places like school where students have incomplete freedom to say, go elsewhere, it makes sense that a different standard should apply.

Posted by: bk at October 31, 2005 03:28 PM

I agree Brian. It would be just as inappropriate for someone to, say, be trying to proselytize for Amway. (When I was a TA in grad school, a student of mine got involved in that and actually spent several hours trying to convince me.) I agree that students should learn to tolerate and deal with divisive issues. The only problem in a school is that certain students are always going to be on the bottom of the ladder. For example, as much progress as we have made, it's obvious that gay kids often have problems in school. I don't think it's inappropriate for a school to be concerned with certain students being singled out for ridicule or abuse. But I also don't think you can require kids to have "politically correct" opinions or to have to watch everything they say. To me, it depends on context and I don't know how you legislate context.

It is interesting to me,however, that the whole issue of free speech in schools originated with liberals attempts to permit students to express anti-war opinions, etc. Now they want to restrict speech that they don't like. The difference, of course, is that, while anti-war or anti-military opinions might offend some people, they aren't likely to lead to physical or emotional harm, whereas speech directed at gays, for example, might. Still, both might be equally as disruptive in terms of education.

Posted by: Marc at October 31, 2005 04:11 PM

But Simon, that would take all the fun out of it!

I mean that almost literally, as that opinion is exceedingly dry... As with his dissent in Casey, Judge Alito merely embarks upon a long and thorough discourse on applicable Supreme Court precedent and how it applies to the facts in the case at hand. A highly satisfactory way for a judge to handle business, but not the most entertaining of reads.

Now, slipping away from the legal aspect to the policy aspect of the school issue, I think schools need to move away from the formalized disciplinary approaches to conduct which they've adopted over the past 30 years or so to avoid discrimination law suits and back to a more educational and counseling based approach. When little Johnny tells Jack that Jack is going to hell because he's a "queer", don't punish Johnny. Pull him aside and ask him how he feels when people call him names. Ask Johnny how he would feel if Achmed told him every day that he was an infidel who would be denied paradise. Assign the class a research project on the arguments Christians have made over the centuries in favor of freedom of speech and religion because persecution of thoughts is bad.

If Johnny starts following Jack around and screaming at him every day, then he's violating plain old ordinary rules about disruptive behavior and he can be punished without regard to the content of his speech.

Posted by: PatHMV at October 31, 2005 04:54 PM

But Simon, that would take all the fun out of it! . . . I mean that almost literally, as that opinion is exceedingly dry... As with his dissent in Casey, Judge Alito merely embarks upon a long and thorough discourse on applicable Supreme Court precedent and how it applies to the facts in the case at hand. A highly satisfactory way for a judge to handle business, but not the most entertaining of reads.

Yes, he isn't the most exciting writer in Supreme Court history, is he? ;)

It seems to me that the Scalito nickname is wholly inapposite - a far more appropriate analog would be Justice Thomas, to whose opinions and temperament Alito seems much closer. Also, I think Alito is far more of an apt replacement than O'Connor than the left will yield - like O'Connor, he approaches each case as each case, albeit in a far more textualist manner than O'Connor. Scalia is far more wont to fit cases into an overarching philosophy, and is far sharper and more caustic; I think there's room (and demand) for both on the court (who says I don't support diversity on the Supreme Court? Scalia, Thomas and Alito ARE diverse!); I like Scalia's take-no-bullshit attitude, but just as you need someone who can dynamite the front doors occaisionally, it also becomes necessary to have someone who can talk Breyer and Kennedy along.

Sadly, I think we will never see a Justice of Scalia's calibre again when he leaves the court.

Posted by: Simon at October 31, 2005 06:51 PM

You think Scalia is a devotee of the text? Can you explain to me how either Bush v Gore or banning intrastate medical marijuana sales are any closer to the text than Roe v.Wade?

Looks to me like he's only a devotee of the text when lefty causes come before him.

Posted by: Jon Kay at November 1, 2005 08:57 AM

I think the issue of what constitutes interstate commerce is highly debatable and poorly addressed in the original text. It's very arguable that any commerce in interstate because markets do not acknowledge arbitrary boundaries (especially black markets).

FWIW, here's my view of the lesson of the Bush v. Gore opinion: there really was no one law or viewpoint that seemed especially on point to each of the justices, and it's in such cases that each justice's biases are most free to reign. My feeling is that a majority of the justices felt more strongly than anything else that continuing the battle would be very bad for the country, and so they needed to find a way to end it quickly. And they found a way. But can that decision be summed up quickly in a clear principle that demonstrably should always take precedence in future similar circumstances? Answers vary widely, which IMO menas the answer is "no."

But I do agree with John. Scalia has usually tended to give me the feeling that he's more of a conservative activist than a constitutional purist. He'seems to me to be at his most outspoken, energized, and vociferous when supporting something that's especially dear to conservatives, and I can't credit the usual timing of such zeal to coincidence. Before Simon or anyone else challeneges me to cit chapter and verse, I'll admit I can't. It's a subjective feeling gleaned over the years, in which on more than one occasion the things Scalia has said have made me notice him standing out as bellicose, confrontational, and skilled at finding ways to see the constitution as very clear and precise whenever that's needed to support social conservatism.

Posted by: bk at November 1, 2005 09:16 AM

Jon-
In Raich, Scalia declined to join the majority opinion, writing a concurrence ("I write separately because my understanding of the doctrinal foundation on which that holding rests is, if not inconsistent with that of the Court, at least more nuanced") that rested the result on the necessary & proper clause, and I found that argument a hell of a lot more pursuasive than the majority opinion. Not pursuasive enough, incidentally - I would have joined Justice Thomas' dissent (the liberal talking point of Thomas as just a second vote for Scalia, while never really accurate, is falling apart by the term, it seems to me). Scalia's argument was that Congress certainly had the authority to proscribe interstate commerce, and so the issue was whether Congress could reasonably say that general proscription of a given commodity was neccessary and proper to maintaining the integrity of the valid exercise of commerce clause power.

Scalia noted:

The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power.

This is a decent argument; the calls for Scalia's defricking and excommunication, I think, were exaggerated and profoundly silly. The opinion is reasonable, it is just not, in my view, right.

I have to admit, that if I am forced to wonder whether Scalia would have ruled the same way had the commodity in question been, say, milk, I cannot honestly say that he would not have taken a different view. I feel sure that Kennedy would have. But that is necessarily speculative.

Which leaves Bush v. Gore. The majority opinion, written by Justice Kennedy and seemingly premised on his desire for a sexy result rather than a coherent result, is bullshit. Despite the painfully obvious bias, the recent Vanity Fair article "The Path to Florida" is an interesting account. Scalia is quoted (he denies it) as saying of the majority opinion, "[l]ike we used to say in Brooklyn...it's a piece of shit;" if he didn't say so, he should have. Scalia has never, to my knowledge, defended Bush on the merits (and signally failed to do so again only a month ago). I do have to wonder, though, if Scalia really did join the per curiam; he certainly joined Rehnquist's concurrence (which, incidentally, offers a far less sexy, but far more pursuasive, rationale for the decision), and that concurrence stated that "we join the per curiam," but it seems out of character for Scalia or Thomas to join an opinion arguing that the equal protection clause speaks to voting rights.

Posted by: Simon at November 1, 2005 10:17 AM

The whole argument here just illustrates how pedantic (and, yes, lawyerly) debates over constitutional interpretation can be. But it's also irrelevent in my opinion. I have no doubt that one can make a strong argument in favor or against any particular opinion or any particular doctrine. None of the justices are fools and none of this is written in stone. If this were just a matter of scholarly interest, it might be worthwhile to argue.

But it's not. The fact is this is a political fight and it's largely a fight over abortion. Whether one defends Alito's interpretation in Casey, for example, largely depends on one's position in the first place. I have no doubt he's a lot smarter than me so I don't question whether his opinions are defensible. But the fact is, Supreme Court opinions affect all of our lives. They are much too important to reduce to a scholastic argument over legal doctrine. Like it or not, the Supreme Court is a policy-making body, either directly or indirectly.

Bush is obviously looking for conservatives to put on the court in order to further a particular agenda; I suspect many, if not most, social conservatives care a lot less about whether a justice believes in judicial restraint than about whether he or she is for or against abortion. Why shouldn't the Democrats strive for some kind of intellectual balance? Why shoudn't the Court reflect the political divisions in society rather than just the party than has won the most recent election.

I admit right up front that I am concerned about having the Court move to the right. I don't have concerns about whether Alito is qualified--he obviously is. But, frankly, I don't care how well he crafts his opinions. It's naive to think that having Alito won't affect the politics of the Court.

So what I am saying is what's wrong with Democrats trying to defeat him for being too conservative? What's wrong with making the hearings a referendum on conservative ideology? The Supreme Court is too important to reduce to a scholastic argument over judicial style.

Having said that, I recognize that the Court will eventually follow the election returns. Ultimately, unless the Democrats start winning elections, they are going to lose the Supreme Court.

Posted by: Marc at November 1, 2005 10:50 AM

The fact is this is a political fight and it's largely a fight over abortion.

I grant the first, but not the 2nd.

So what I am saying is what's wrong with Democrats trying to defeat him for being too conservative? What's wrong with making the hearings a referendum on conservative ideology?

I don't have a problem with this, and actually, in the polls I've seen, most Americans basically agree. I think we can have a fight over conservative ideology in some form during the hearings, but we're not really going to get any sort of conclusive fight over abortion, because nominees have made it a precedent that they can get away with demurring when asked specific pointed questions about how they'd rule on a given hypothetical. I've yet to see anyone provide even semi-conclusive evidence that Alito is inclined to overturn Roe, and my bet is that he's not not going to speak to it. We'll see. IMO, that means he's going to get confirmed unless either a smoking gun or malfeasance shows up. Now I happen to think it's entirely reasonable for any given senator to withold his or her consent should they feel a nominee is being invasive on an issue the senator feels is cruically relevant to the granting of consent. However, I don't think this viewpoint is going to carry the day unless 6 GOP senators want guarantee of Roe being upheld. And it seems to me that unless there's a stealth moderate out there, then the democrats are already 1 short, because I've read that 2 of the 7 GOP members of the gang of 14 have already said Alito doesn't fit the terms of the no nuke compromise.

My best guess on how Alito rules is that he's not going to overturn Roe, but he may well allow additonal restrictions on abortion, probably the sorts that a majority of people think are fair and reasonable if the polls are any judge.

I think democrats can wage a war on public opinion and make the GOP cost for Alito as high as possible. BUT, I don't think they can stop Alito without a smoking gun, and I think the are overestimating how much this will cost the GOP. The people who are apoplectic over Alito would never vote GOP in a million years, and the people open to persuasion on the actual merits of a candiate as displayed are bound to think Alito conservative but qualified and therefore acceptable based on the recent past.

The only thing I've heard so far that Alito may have a hard time explaining away is his supposed view that the feds do not have the power to make machine guns illegal. I have not looked into the details, but that could be a problem.

Posted by: bk at November 1, 2005 11:29 AM

The fact is this is a political fight and it's largely a fight over abortion...[T]he fact is, Supreme Court opinions affect all of our lives. They are much too important to reduce to a scholastic argument over legal doctrine. Like it or not, the Supreme Court is a policy-making body, either directly or indirectly.

With all due respect, I think that the statements quoted above are exemplary of everything that is wrong with constitutional discourse.

The debate over Roe has become so corrupted that it's hard to keep in mind that it was actually a legal decision rather than a totemistic statement of a political position on abortion. As I have previously explained:

We must begin by correcting this misapprehension, as - whether it be deliberate or unintentional - it considerably subverts the debate. Roe did not make abortion legal, it merely struck down laws that impeded the excercise of that "right." The obvious consequence of this fact is that, if it were overturned, such an action would not make abortion illegal, but rather, the new legal regime would permit the criminalization by state legislatures. It will place the question back into the political arena, which is, by definition, a majoritarian enterprise.

Surely, then, the main failsafe against the criminalization of abortion is not illegitimate judicial fiat, but democratic participation (n2); not an archaic and dubious court case, but the actions of the supposedly overwhelming majority of Americans who are pro-choice. Opposition to abortion is such a minority position in modern America that less than four in ten Americans describe themselves as pro-life; as Ignatius contends in the same article, abortion commands broad and sustained majority support in this country...Surely, if this broad, sustained majority for choice is so solid, reliable and non-evanescent, it would swiftly dispose of those who passed laws interfering with that right?

Furthermore, as I noted here, even when Alito has been confirmed to the Supreme Court, and even assuming that Chief Justice Roberts is a vote against Roe and Casey, 505 U.S. 833 - a proposition that I think his confirmation hearings gave us no strong reason to presuppose, and several reasons to suppose not - neither Roe nor Casey are in the balance:

You need five Justices to win a case, so it becomes a game of counting to five. Scalia and Thomas - would vote to overturn (that's two); Stevens, Souter, Ginsburg and Breyer would not (that's four). The pro-life faction needs three more votes, the pro-choice faction needs only one more vote...[L]et's be optimistic and say that Roberts votes with Scalia, Thomas and Alito. That's four, maybe.

So it all comes down to Kennedy. Kennedy will no way in hell vote to overturn Roe, period. Kennedy voted with the majority in Casey, but what is of interest to me is his subsequent horrorified dissents in Hill v. Colorado and Stenberg v. Carhart...[Will] Kennedy stand by his mistake in Casey, or learn from the consequences of that mistake in Hill and Stenberg? . . . [T]he pressure on him to defect will be intense, and I think he will likely succumb . . . All of which means that liberals have counted to five, and the conservatives have not. Roe is safe, Casey is probably safe; Stenberg, though, as it seems to me, is very deservedly doomed

Roe should be overruled because it was wrongly-decided, and were that not enough, it still bitterly divides the country. If those who support a woman's freedom to choose abortion genuinely believe that there is a sustained majority in favor of those freedoms, why on Earth would they cling to Roe for dear life?

The reality is that the Constitution neither protects abortion rights, nor grants to the Federal government any say in the matter; "[t]he permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting." (Casey, supra; Scalia, J., dissenting).

You seem content to simply acknowledge the Court's undue influence; I prefer to leave to the democratic process those issues on which the Constitution is not prescriptive - including, incidentally, the rules by which the Senate gives advice and consent (see comments here and below).

Posted by: Simon at November 1, 2005 11:43 AM

Incidentally, Brian mentioned the numbers for the confirmation being upended. Note that during the last nuclear confrontation, the most controversial of all the Judges in question was Bill Pryor. Senators Snowe, Chafee and Collins all voted against Pryor - but they also all voted for cloture on his nomination. In other words, even a Judge who was on record as opposing Roe, and whom they deemed sufficiently extraordinary to merit a no vote, was not extraordinary enough to merit supporting a filibuster. Granted, the Supreme Court is different, but this makes it seem very likely, to my mind, that they will countenance voting no on Alito, but they will not vote to uphold a filibuster.

Posted by: Simon at November 1, 2005 11:53 AM

It will place the question back into the political arena, which is, by definition, a majoritarian enterprise.

Possibly, but only if the outcome of what's currently on center stage of the political arena has a particular type of outcome. In other words, Marc is right, we're already in the political arena.

Surely, then, the main failsafe against the criminalization of abortion is not illegitimate judicial fiat, but democratic participation (n2); not an archaic and dubious court case, but the actions of the supposedly overwhelming majority of Americans who are pro-choice.

What you mean to say is that you think that the main protection against criminalization morally should be legislative. The main failsafe currently IS Roe, and even if the people didn't vote on it, a substantial majority supports keeping it as law. So currently, the actual existing failsafe currently DOES represent the views of the majority. You are complaining that the means are illegitimate and repeatedly ask us to view it as purely incidental that disagree with the ends.

And that may be true. But what you continually dismiss is the notion that te majority of the people limit themselves to concerns about the ends, and leave quibbling about the means to intellectuals. The everyday people are pragmatic. They don't want a re-opening of the divisive political fight on the particular political stage you want, with Roe overturned and each state making its own laws, and the battle fought in each state legislature and court.

just for a second, entertain the notion that Roe might have been the same sort of necessary bullshit decision as Bush vs. Gore.

Posted by: bk at November 1, 2005 12:21 PM

Brian, the justices who decided Plessy v. Ferguson thought the same thing... they were doing what the majority of the people wanted, and shutting down a bunch of unpleasant political fighting.

A whole lot of people DO want the political debate to change the law of Roe v. Wade. 5 judges decided to deny it to them.

And how do you know how a majority of Americans feel about it? Opinion polls? That's far different from actual, concrete results from a ballot box. Ask President Dewey. And regardless of what a majority of Americans want, what do a majority of each state want? I can tell you how the people down here in Louisiana feel, and it's a lot different from what California and Massachusetts feel about it.

Posted by: PatHMV at November 1, 2005 12:39 PM

Those are all good points.

How long did it take Plessy vs. Ferguson to get overturned and corrected?

I agree that a whole lot of people DO want this fight, just not a majority. And I agree that polls are different from votes, yet I still think the polls are pretty accurate in suggesting that the majority of people want legal abortion with more restrictions than we currently have.

You are of course correct that states would have substantial variance in their abortion policies if the court had left it to the states. I have yet to see a compelling argument or evidence suggesting that this path would have been LESS divisive.

Like I've said before, I'm a pragmatist, and I believe in personal liberty. So I really enjoy having the right to privacy, and am very happy that SCOTUS saw fit to see that the constitution implied its existence. In rare historical instances, I expect SCOTUS to do this, instead of waiting for the people to get around to it. If they get it wrong, the people will fix it, like they did in the plessy case. I don't buy the notion (which Simon and others often traffic in) that this means that SCOTUS is therefore free to rule as it pleases...

People who disagree with either the ends or the means on Roe are now fighting to change it, and I hope they lose. Maybe we need the fight and are ready for it, but I am not as troubled as others are by way the process has unfolded so far.

Interestingly enough, I recently read an account over at Volokh about how the history of law is such that in many instances the court gets first crack and the legislature later corrects. This suggests that, even if the process whereby Roe unfolded is constitutionally suspect, it's reasonable.

What's more, this sort of system in which courts make the first decision about certain moral and pragmatic questions, but the legislature can step in and make a contrary decision, is very close to the courts' traditional common-law-making role. Most tort, contract, property, evidence, and even criminal law was originally made by courts, often courts applying their own moral and pragmatic judgments. The legislatures then generally codified much (though not all) of this law, and sometimes changed in the process. But it is the joint creation of courts' and legislatures' judgments.

And even after legislatures codify certain bodies of law, they sometimes return certain questions (especially defenses) to courts' judgment -- again, later correctable by the legislature if the legislature disagrees with the courts. Thus, when Congress codified the Federal Rules of Evidence, it expressly left it to courts to craft evidentiary privileges (which is a sort of defense against a duty to testify). When Congress enacted the Copyright Act of 1976, it left it to courts to further develop fair use doctrine (again, a defense against a copyright claim). Courts have interpreted the Sherman Act, the foundation of our antitrust law, as leaving it to courts to decide which restraints of trade are barred and which are permitted, so that much modern antitrust law is in practice made by courts but subject to legislative override.

Posted by: bk at November 1, 2005 01:04 PM

"The main failsafe currently IS Roe, and even if the people didn't vote on it, a substantial majority supports keeping it as law."

According to whom? The polls? Then I guess we shouldn't have had a Presidential election in 2004, we should have just proclaimed John Kerry the winner because the polls indicated that he was prefered. The bottom line is that there is no substitute for putting such questions to an actual democratic test...with the full force of the law behind insuring the objectivity, fairness and accuracy of conducting such test.... something which polls do not have.

"And that may be true. But what you continually dismiss is the notion that te majority of the people limit themselves to concerns about the ends, and leave quibbling about the means to intellectuals. "

I think you sell the majority of people short by a good deal. People may indeed be pragmatic....and that is a good thing.... but that is not the equivalent of accepting that any means is justifiable if it achieves a good end. In fact, I would hazzard the opposite opinion, that put to the question, far more people would declare thier support for the opposite axoim - "The ends do NOT justify the means." then vice versa. Surely I do not need to enumerate to you the vast litany of vile offenses against human dignity which have been commited throughout history... and all justified by thier defenders as a "neccesary" or expediant means for some purported noble ends. Which illustrates another truism... that every "means" to some purported end IS an end in it's own right... and often not an inconsiderable one.

I would hazzard that the debasement of our judicial system.... and the Constitution and our very system of goverment which rely upon it's legitmate operation is not an inconsiderable ends in itself. In fact to many, myself included, it is a far more basic and important consideration then whether abortion is legal or not.

I'll conclude with a little personnal secret. I'm not pro-life. In fact, if anything, I lean toward the pro-choice position. I'm also firmly committed to see that Roe vs Wade gets overturned. Because it was the wrong decision, based upon no foundation that exists in the Constitution.....and because the ends DON'T justify the means..... and I consider THAT to be an entirely pragmatic position. For any society that it is not completely homogenous in it's outlook, the only assurance for the rights of ANY individual within that society is strict adherence to the mutualy agreed upon process that governs that society.....even when it's ardeous in it's workings. That's why we just don't throw criminals in jail regardless of our ability to establish thier guilt.

Posted by: cengel at November 1, 2005 01:46 PM

Um, Brian, neither Simon nor I traffic in the idea that the Supreme Court is "free to do as it pleases." That's your notion. Simon and I believe that the Supreme Court is strictly limited in what it can do by the language used in the Constitution itself.

Also, "the people" did not fix Plessy. The Court itself corrected its own mistake 57 years later in Brown v. Board of Education. Plessy was in 1896, Brown in 1954. Plessy formed the legal underpinnings for tolerating every Jim Crow law ever enacted in the post-Civil War South (and the North, for that matter).

Another obscene and tragic decision of the Court was Dred Scott v. Sandford in 1857. The activist Court decided that it knew better the mood of the country than Congress and, for only the second time in its young history, struck down an Act of Congress as violating the Constitution. Chief Justice Taney apparently thought that he was "settling" the question of slavery once and for all, removing from a heated political debate a controversial question. Instead, of course, the decision helped to precipitate the Civil War.

As for your excerpted lessons on how the common law is formed, that's absolutely correct. The reason it does not apply to Constitutional interpretation is that a common law rule established by the courts can be changed by a simple majority of the relevant legislature. When the Court intervenes on constitutional grounds, it gives a STRONG political boost to the side it comes down on, by forcing those who disagree with the decision to jump incredibily difficult hurdles to impose the popular will.

Posted by: PatHMV at November 1, 2005 01:59 PM

Cengel,

Extremely well said.

Posted by: PatHMV at November 1, 2005 02:01 PM

Um, Brian, neither Simon nor I traffic in the idea that the Supreme Court is "free to do as it pleases." That's your notion. Simon and I believe that the Supreme Court is strictly limited in what it can do by the language used in the Constitution itself.

No I don't. I traffic in the notion that the supreme court has some interpretive leeway on constitutional matters, and you guys traffic in the notion that this means the same thing as the ability to rule exactly and entirely as it pleases. LOL.

Was Brown v. board of education the one where the court ruled that separate was inherently unequal? Let's all take the very tiny amount of time necessary to notice that this is neither strictly and completely true nor explained in the constitution. Even though it was a great ruling at the time. ROTFL.

BTW, FWIW, I freely grant the point that "when the Court intervenes on constitutional grounds, it gives a STRONG political boost to the side it comes down on" by raising the mechanistic bar for remedy, if such remedy should be require, which IMO is not the given that you go on to state it to be. I just don't agree that the occasional use of interpretative power means the court is unconstrained either by the constitution or by the people. A state of less than 100% restraint is not necessarily equal to zero restraint, even though it may be in some cases.

Posted by: bk at November 1, 2005 02:21 PM

Brian,
The reality is that arguably every Presidential election, and inarguably every Supreme Court nomination, since Roe has been corrupted by that decision, because they are ALWAYS turned into a fight about Roe as a proxy for abortion.

The point I was making -- it may not have come out in the section I quoted, because I was quoting in part a post that was itself reproduced in part from a letter to a WashPost columnist -- is that, if one genuinely believes that pro-choice people are in the majority, there is no need for Roe. If those of us who are pro-life are really such a benighted minority, surely the triumphant majority will simply demand that their state legislatures keep abortion legal; surely the triumphant majority will simply turf out any state legislator who votes to infringe their abortion rights? Indeed, if there is a genuine majority for choice, why not simply amend the Constitution, and put an end to the matter once and for all?

All of this, of course, is fascetious, because - as I titled the post that I was quoting - pro-choice folks are trying to have it both ways on abortion. They claim majority status, yet rely on an explicitly countermajoritarian mechanism for keep abortion legal. Do you disagree with my underlying premise, that one can only seriously believe that Roe is the failsafe that keeps abortion legal if one believes that without Roe, abortion would be criminalized? And if so, does it not follow from that proposition that the only way abortion would be crminalized (and stay criminalized) if there is no real majority for choice?

To be candid, I think that there is a majority for choice in this country. But the goal of NARAL, NOW and their ilk is not merely abortion, but abortion on-demand, any time, anywhere, to anyone, of any age, no questions asked, without consent or notification, period, and evenhaving allowed that there is a majority for choice, what there is not is a majority (or even a substantial minority) for the sort of abortion-on-demand that these folks demand. The problem is that, under Roe and Casey, there cannot be any serious discussion or remedy at the state level; there is no facility, as Justice Brandeis put it, in New State Ice Co. v. Liebman:

To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious, or unreasonable. We have power to do this, because the due process clause has been held by the Court applicable to matters of substantive law as well as to matters of procedure. But, in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles.

(285 U.S. 262, 311). The result is, as Judge Jones wrote, concurring in McCorvey v. Hill, 385 F.3d 846 (CA5, 2004):

[U]nless it creates another exception to the mootness doctrine, the Court will never be able to examine its factual assumptions on a record made in court. Legislatures will not pass laws that challenge the trimester ruling adopted in Roe (and retooled as the 'undue burden' test in Planned Parenthood v. Casey. No 'live' controversy will arise concerning this framework. Consequently, I cannot conceive of any judicial forum in which McCorvey’s evidence could be aired...[B]ecause the Court’s rulings have rendered basic abortion policy beyond the power of our legislative bodies, the arms of representative government may not meaningfully debate McCorvey’s evidence. . . . The perverse result of the Court’s having determined through constitutional adjudication this fundamental social policy, which affects over a million women and unbornbabies each year, is that the facts no longer matter...That the Court’s constitutional decisionmaking leaves our nation in a position of willful blindness to evolving knowledge should trouble any dispassionate observer not only about the abortion decisions, but about a number of other areas in which the Court unhesitatingly steps into the realm of social policy under the guise of constitutional adjudication.

When one considers the ghastly, distorting effect that Roe has had on politics, I don't find it a very pursuasive argument to avoid overturning it for fear of the political consequences.

Posted by: Simon at November 1, 2005 02:41 PM

Just too add to Cengel's post above, some concurring words from Our Hero:

Of al the criticisms leveled against textualism, the most mindless is tht it is formalist. The answer to that is, of course it's formalistic! The rule of law is about form...A murderer has been caught with blood on his hands, bending over the body of his victim; a neighbour with a video camera has filmed the crime and the murderer has confessed in writing and on videotape. We nonetheless insist that before the state can punish this miscreant, it must conduct a full-dress criminal trial that results in a verdict of guilty. Is that not formalism? Long live formalism! It is what makes us a government of laws and not of men.

(Scalia, A Matter of Interpretation, Amy Guttman Ed. 1997, at p.25)

Posted by: Simon at November 1, 2005 03:12 PM

"I just don't agree that the occasional use of interpretative power means the court is unconstrained either by the constitution or by the people. A state of less than 100% restraint is not necessarily equal to zero restraint, even though it may be in some cases."

BK, I don't think that we neccesarly disagree in that regard. However, lets for a moment, consider what forms the people might use to excercize such constraint and what measures it might employ to correct the course wrought by a Judiciary which had overstepped the bounds which the people were comfortable in allowing it. Might not one of those forms be in the selection of the individuals who are to fill vacancies in the Courts body? Might not such constraint take the form of the electorate specificaly agitating for the appointment of individuals who, themselves, subscribed to a judicial philosophy that was far more limiting, and self-circumscribed then those of the previous bench, and who displayed a willingness to undue or at least severely limit the scope of the work of said previous bench?
Might not the electorate excericize such constraint by electing to office candidates and parties who specificaly made it part of thier platform to appoint just such Justices to the bench? Let me ask you, who is it that the electorate just gave control of the Whitehouse and both chambers of Congress.... and what is that parties platform in regards the Judiciary?

BK, I'd hazzard that in fact what you are seeing right now.... in terms of the types of judicial candidates being agitated for by the Right... is an expression of just the sort of constraint over the Judiciary that your arguements presume exist.

I think that you are far more comfortable with the lattitude exercized by the current bench then is the electorate as a whole. Which I think is reflected in the nature of the more recent judicial appointments (not just on the Scotus level) being themselves individuals who subscribe to a philosophy far more circumscribed then you would believe is strictly neccessary. Furthermore, although Roe vs Wide does seem to be the lightning rod issue among the pol's and the press.... I think the general public (at least those who vote on a regular basis) recognizes that concerns about the Judiciary shouldn't be slave to immediate concerns over this one single issue.

Then again I could be completely and utterly off-target on this all. I'm just presenting my own feelings on the matter.

Posted by: cengel at November 1, 2005 03:15 PM

Simon, since I'm awful busy today, let me say, that for the most part I agree, or at least that I see your point, and I agree that there is a majority for choice, but not a gigantic one, and not for the kind which you ascribe as the motive of NARAL.

The point about experimentation is also a reasonable one, and a good one in general. The value of the freedom to innovate in response to problems as they arise should be acknowledged as meritorious. Of course, let's not assume that SCOTUS was unaware of the grave and ghastly consequences of the sort of experimentation that wnet on prior to Roe, when many people think that Roe was an attempt to curtail those.

When one considers the ghastly, distorting effect that Roe has had on politics, I don't find it a very pursuasive argument to avoid overturning it for fear of the political consequences.

Right, but whether the "distortion" has been more negative or positive is demonstrably in the eyes of the beholder, right, even though you use distortion to imply that it has necessarily been negative. (for example, my eyglasses distort my natural vision, but since I am blind as a bat, the distortion is an improvement for me.) I understand that you must view it as a negative, because you owe faith and allegiance to the notion of the constitution as sacrosanct.

If Roe gets overturned, I hope you are right that it means that a negative distortion has been removed. But I fear that giving each state the opportunity for moral divergence will increase the divisiveness, as Massachusetts residents and those of Lousiana hear the loud invitation to view their counterparts as backwards. Like I said, maybe we weren't ready then and now this is a necessary step.

My intuition tells me that re-opening this can of worms to this extent (over-turning Roe, letting each state have its own policy and its own contentious debate) is bad for the strength of our union, at least over the short term. If Roe is over-turned, I hope I'm wrong.

Posted by: bk at November 1, 2005 03:20 PM

Might not the electorate exercise such constraint by electing to office candidates and parties who specifically made it part of their platform to appoint just such Justices to the bench?

Absolutely! I'm disappointed in myself that apparently I've been so unclear that you'd wonder...

I think that you are far more comfortable with the lattitude exercized by the current bench then is the electorate as a whole.
Well, I've repeatedly panned Kelo, but in general, I think the scotus itself does a pretty good job balancing all of its demands. If I constrain myself to only scotus decisions, and I think over all that I recall, there arevery few that I think they got wrong, or that weren't arguable either way.

In fact, I've asked others here what other SCOTUS decisions besides Kelo and Roe seem demonstrably wrong and unforgiveably activist, among the dozens or hundreds rendered over the past term or several decades. I'm still waiting for that, as many of the decriers of activism are prone at this point to speak of rulings by courts other than the scotus, courts whose decisions are ALL subject to review for constitutionality by SCOTUS, even if they have yet to receive that scrutiny.

Am I afraid of hearing the people's will? No. Do I think they'll get it right (in terms of matching our founders' constitutional ideals) more often than the scotus? I think they'll get it right just about as often as scotus, both being agents of the people, both being composed of fallible Americans.

Posted by: bk at November 1, 2005 04:08 PM

"But I fear that giving each state the opportunity for moral divergence will increase the divisiveness, as Massachusetts residents and those of Lousiana hear the loud invitation to view their counterparts as backwards."

Why, if you live in Louisana you get to vote on Louisana's laws... if you live in Massachusetts you get to vote on their laws... why would people that live in Mass. care about what Louisana residents decided is best in their state?

Posted by: deb at November 1, 2005 04:19 PM

Brian, what scares me about your argument is how paternalistic it is. Protecting people from disagreements, even serious ones, in the end does not prevent but rather causes further disruption. That's one of the central lessons of Dred Scott.

It also lessens the respect for the legislative branch of government and the democratic process. If they aren't allowed to handle the really important and really tough decisions, then why should we pay that much attention to them? Why should we bother to go out and vote? The political focus on the Supreme Court makes people figure that they can't change much with their legislators, so why bother? The Court's going to decide it anyway, right?

Posted by: PatHMV at November 1, 2005 04:28 PM

"Protecting people from disagreements, even serious ones, in the end does not prevent but rather causes further disruption."

Exactly, the only way to persuade others to your point of view is to debate the topic. If it is put to a vote and the majority decides that abortion should be legal, then people may debate the merits to try and persuade others to their point of view but they couldn't argue that it wasn't a democratic decision imposed on us.

Posted by: deb at November 1, 2005 04:41 PM

In fact, I've asked others here what other SCOTUS decisions besides Kelo and Roe seem demonstrably wrong and unforgiveably activist.

I would say Bush v. Gore, Brian, for reasons that have already been gone into ad nauseum and ad infintum. ;-)

Posted by: Blue Jean at November 1, 2005 06:04 PM

let's not assume that SCOTUS was unaware of the grave and ghastly consequences of the sort of experimentation that wnet on prior to Roe, when many people think that Roe was an attempt to curtail those.

While I disagree with your characterzation of pre-Roe abortion laws, I would point out that Bob Woodward notes that at least two members of the Roe majority had little else on their mind besides their own paternalistic views on abortion:

"[Like Blackmun,] Powell also made abortion his summer research project. As a young lawyer in Richmond in the 1930s, Powell had heard tales of girls who would “go away” to Switzerland and New York, where safe abortions were available. If someone were willing to pay for it, it was possible to have an abortion. Powell came quickly to the conclusion that the Constitution did not provide meaningful guidance. The right to privacy was tenuous; at best it was implied. If there was no way to find an answer in the Constitution, Powell felt he would just have to vote his “gut.” He had been critical of Justices for doing exactly that; but in abortion, there seemed no choice. When he returned to Washington, he took one of his law clerks to lunch at the Monocle Restaurant on Capitol Hill. The abortion laws, Powell confided, were “atrocious.” His would be a strong and unshakable vote to strike them. He needed only a rationale for his vote."

(Woodward, The Bretheren, pp.272-3.

As Stewart saw it...[t]he public was ready for abortion reform...But the state legislatures were always so far behind. Few seemed likely to amend their abortion laws. Much as Stewart disliked the Court’s being involved in this kind of controversy, this was perhaps an instance where it had to be involved.

(Id. at p.196). Posted by: Simon at November 1, 2005 07:12 PM

Simon, too bad no one thought it was OK to ask nominees to the court about their ideology on issues they were likely to rule on, huh? :-)

But I thought you said it took 5, not 2? :-)

Posted by: bk at November 2, 2005 12:12 PM

Simon, too bad no one thought it was OK to ask nominees to the court about their ideology on issues they were likely to rule on, huh? :-)

Keep in mind, I opposed Roberts because of ideology, and while I think it's inaccurate to charactterize this as ideology, what I would say is that I have consistently maintained that it is someone's judicial philosophy that counts. Experience as a judge is nice, stellar credentials are nice, but what's really important is, what does this person think about the Constitution? What is the Constitution to them? What does a Judge do? What rights does the Constitution protect? And so on. These are the important questions, and you don't have to say how you'd rule on a certain case to answer them. Posted by: Simon at November 2, 2005 03:17 PM

So given hindsight, what questions would you have asked the enemy judge who made Roe possible at his scotus cofirmation hearing?

If you had asked questions about the constitution and judicial philosphy, and he'd answered them with clever, vague, evasive platitudes about restraint and the merits of staying within one's proscribed role, wouldn't you have confirmed him?

Isn't it much easier to be evasive when asked a question about philosophy and much harder when asked a pointed question?

For example, you might ask something like "is it ever Ok for a scotus justice to find extensions to the written constitution only because he feels that society is calling out for this extension."

A justice might answer no, and believe it, and then later talk himself into believeing that what he was doing was not an extension, but always there to be found in spirit.

But if I had asked "do you think the constitution guarantees a woman the right to be the sole decision-maker when considering to have an abortion," that'd be much harder to evade in any way other than to weasel out with demurrals about how it would be inappropriate to answer.

See the difference?

Posted by: bk at November 3, 2005 09:40 AM