April 14, 2010

"Rulings by conservative justices in the past decade make it perfectly clear that they do not 'apply the law' in a neutral and detached manner."

Writes lawprof Geoffrey R, Stone (in a NYT op-ed):
Consider, for example, their decisions holding that corporations have the same right of free speech as individuals, that commercial advertising receives robust protection under the First Amendment, that the Second Amendment prohibits the regulation of guns, that affirmative action is unconstitutional, that the equal protection clause mandated the election of George W. Bush and that the Boy Scouts have a First Amendment right to exclude gay scoutmasters.
"[T]he equal protection clause mandated the election of George W. Bush"? Stone's argument would be better if he didn't overstate what happened in these cases. Red meat for NYT readers — it makes me suspicious.
Whatever one thinks of these decisions, it should be apparent that conservative judges do not disinterestedly call balls and strikes. Rather, fueled by their own political and ideological convictions, they make value judgments, often in an often aggressively activist manner that goes well beyond anything the framers themselves envisioned. There is nothing simple, neutral, objective or restrained about such decisions. For too long, conservatives have set the terms of the debate about judges, and they have done so in a highly misleading way. Americans should see conservative constitutional jurisprudence for what it really is. And liberals must stand up for their vision of the judiciary.
Ah, yes. The usual red meat. What I thought he was going to say — what I've been saying — is that liberal jurists and constitutional scholars have a theory of interpretation that should be explained and defended — not portrayed as the same as what conservatives do.

You can still critique the conservatives. But I wouldn't say: "There is nothing simple, neutral, objective or restrained about such decisions." I object to the word "nothing." There is something simple, neutral, objective and restrained, but it is the nature of complex legal decisionmaking that background beliefs and understandings — Stone would say "political and ideological convictions" — affect the path of a judge's thoughts, no matter how faithfully objective he wants to be.

It isn't necessary — or believable — to assert that the judges are politicos deceitfully wielding illegitimate power. It is only necessary to say what should easily be accepted as true — that constitutional decisionmaking has more human dimension to it than the balls-and-strikes characterization would have it.

52 comments:

t-man said...

Stone really isn't fit for the role of law professor. He is nothing more than a lawyer, making a weak argument in support of his own prejudices.

Fen said...

Shorter: Don't read Pravda and you wont waste your day fisking propaganda.

Ann, I still don't understand why you even associate with these people.

ricpic said...

Conservatives are hateful hateful creatures. There's no other explanation for their defense of freedom of speech...make that their defense of freedom, period.

Kirby Olson said...

2 wrongs don't make a right. Liberals are constantly asserting that power politics is all there is, there is no fairness, so let's be unfair, play power politics, and let's forget about anything like fairness.

It's evidence of secularism and the return of Protagorus' sophism, expressed in his phrase, "Man is the measure of all things."

Brian said...

It's lazy to refute someone simply by substituting your own words into their argument, but what the heck:

"It should be apparent that liberal judges do not disinterestedly call balls and strikes. Rather, fueled by their political and ideological convictions, they make value judgements, often in an often aggresively activist manner that goes well beyond anything the framers themselves had envisioned."

"Consider for example, their recent decisions that people acting through a corporation don't have the same protection of the First Amendment, that the 2nd amendment does NOT prohibit federal bans on guns, that affirmative action is constiutional, that the equal protection clause mandated the election of Al Gore, and that the Boy Scouts must have gay scoutmasters."

This is too easy.

garage mahal said...

Conservative justices are lovers of freedom who are bound by chains and shackles to originalist, textualist interpretations of the Constitution which they sleep with at night. And, as coincidence would have it, all just happen to be pro-life, and their rulings almost always come down on the side of big business.

SteveR said...

Articles written by Geoffrey R, Stone in the past decade make it perfectly clear that he does not judge how others 'apply the law' in a neutral and detached manner.

Lem said...

Now that cameras have an electronic strike zone, I would love to see what ratio of wrongly called balls and strikes favor the Yankees compared to all the other teams..

Oh wait.. this is not a baseball tread ;)

Sorry.

William T. Sherman said...

This guy's a law professor?

Sorry Ann, but forget about about killing the lawyers -- evidently the first thing we need to do is kill all their teachers.

Salamandyr said...

Professor's Stone's characterizations of the quoted decisions are so simplistic and biased that it rises to the level of lying.

Professor Stone is lying to his readers in an attempt to get them to agree with him. I think that's really all that needs to be said about that.

Chip Ahoy said...

You know what else you right-wing conservative bloggers do that just flat piss me off? You look at things with conservative eyes, process what you see conservatively using your conservative brains, think your conservative thinky-thoughts, then say what you think with your conservative mouths and type them with your conservative fingers. It's perfectly clear all this does not occur in a 'neutral manner' and suggesting otherwise is a big mistake.

roesch-voltaire said...

Ann I agree with you that there is a human dimension involved in the process, but human dimension includes an ideological perspective-- how else to explain the one of a kind Gore Vs Bush vote?

Brian said...

To be accurate, though, liberals don't necessarily claim that judges should be entirely impartial. Obama himself said one of Justice Sotomayor's qualifications was that she had compassion.

Of course you want the courts to protect the rights of the little guy against big monied interests. But who is the "little guy?" And besides that, the little guy isn't always right.

Jacq said...

Consider, he says, so I consider:
- free speech for corporations: corporations are people, organized. What, he's against group rights?
- commercial advertising: so I can speak freely, except about my product? Unfree speach, then.
- affirmative action: so the state and its organs can discriminate against individuals on race (to redress past wrongs), but the Boy Scouts can not discrimate based on sexual orientation (to prevent potential future wrongs)?

The idiot's thinking is as follow: Corporations are evil. Conservatives are evil. Therefore, if a conservative judge rules in favor of a corporation, he's not disinterested.

Rob said...

This surprises me not at all. From the first day of my civil procedure class with him, it was clear that Geoff Stone was more impressed with himself and how clever he is than he was concerned with honest intellectual analysis.

Brian said...

@garage:
Touche. Here's another spin:

Liberal justices are lovers of expansive government who view the constitution as a living document, and like weathervanes to the political winds, they can reinterpret the constitution whatever way they feel that particular day is fair. And as a coincidence would have it, all just happen to be pro-abortion, and their rulings almost always come down on the side of big government.

Am I wrong?

Lem said...

There was a very unusual discussion on this topic between Scalia and Breyer.

Original intent and a living constitution.

Roger J. said...

My admittedly cynical take is that an "activist judge" is one who rules against your position. (where is Ambrose Bierce when you need him).

I dont believe that any human being is capable of operating independent of his or her value system. This whole discussion seems more like a scholastic disputation. Judges are humann and subject to human foibles.

garage mahal said...

Am I wrong?

It's all about the money, and denying average people access to the courts. It's not even about left or right. The shiny key issues like abortion are just to keep the rubes like us fighting.

Chase said...

I dont believe that any human being is capable of operating independent of his or her value system.

Why should they? And who is asking them to?

To interpret the Constitution - not legislating new rights from penumbras that clearly were never intended - is an attitude and philosophy that derives from a value system. It springs from a value system far superior to the American liberal's daily pledge of allegiance to pre-determined outcomes and the principle of "the ends justify the means".

If Stone and the American liberal lemmings didn't believe that the majority of American's WANT judges who seek only to interpret what is written vs "feel for the little man vs the big _________ ", then he wouldn't waste his time trying to convince people that what they know is true - conservatives judge, liberal's legislate - is, uh . . . not really that way . . . uh, yeah that's it.

Reminds me of a story about a snake and a fruit tree in a beautiful garden. The serpent told the woman 95% truth. I think you know the rest of the story.

It's always that 5% fudging the truth that gets you in such trouble.

ET1492 said...

I don't take seriously any argument about specific constitutional issues that does not explicitly reference relevant sections of the Constitution. Most news articles and columns about Supreme Court cases are a waste of time. They ignore legal scholarship and concentrate on the politics.

Better to read the actual decisions.

Chase said...

Favorite New Yorker cartoon from the 60's says it best:

Perfect illustration of liberal Judging:

Two Judges walk down a court hall together, one turns to the other and says:
Somedays you're in a good mood and you let everybody off. The next day you're in bad mood and everybody hangs. It all evens out in the end.

ET1492 said...

To clarify my last comment, I like the way Stone (or someone else at NYT) links to case info in his op-ed. However, he links to decisions he likes and decisions he doesn't in the same fashion, without pointing out why he agrees or disagrees with those decisions for any reasons other than disliking the real-world outcomes.

Plus, those links won't appear in print.

damikesc said...

Really, garage? Because Kelo seemed awfully beneficial to businesses and conservative justices seemed to dislike it.

traditionalguy said...

So Stone uses the Alynski method here. Since conservatives are not 100% blind judges acting with neither fear nor favor, then liberal judges can make up anything they want to make up so all will be "More Fair". I like Fair.That highlights the need for only confirming educated and qualified Jurists rather than Community Organizers to the SCOTUS.

slarrow said...

A few points: first, Jonah Goldberg wrote on this issue of empathy/fairness today. Contra Stone's fetishization of the minority, Goldberg says, "Unless the plight of every gay, black, poor, old, or disabled American is the same, then coming into court favoring a specific category of human being is nothing more than state-sanctioned prejudice." Stone certainly seems gung-ho for that.

Second, Stone's listing of cases have nothing more in common than "outcomes I like" and "outcomes I don't like". Lazy, and again, basically a request for state-sanctioned prejudice.

Finally, in response to a discussion on a criticism of current conservatism, Goldberg published a letter from a reader who quoted C.S. Lewis. This sounds awfully familiar given Stone's piece: "'Assume your opponent is wrong, and then explain his error, and the world will be at your feet. Attempt to prove that he is wrong or (worse still) try to find out whether he is wrong or right, and the national dynamism of our age will thrust you to the wall.'"

Quayle said...
This comment has been removed by the author.
Quayle said...

The secular left has a huge intellectual problem fixing and explaining the root origin of human rights.

They've only been able to get around this intellectual hole by a near 100% use of ad hominem argument, enabled of course by their incessant labeling of their opponents as haters and bigots.

If rights come from the people, then the popular vote to restrict gay marriage in California (and every other state in which it was put to vote) should be respected by the left, but it isn't.

So they try to say that the framers envisioned such and such a right, but then they run into the laugh test when they claim that the framers would have restricted the boy scouts from acting on their moral conscience in excluding openly sexual gays.


They want to say rights are somehow grounded in science (when for example it comes to the issues of global warming and teaching science in the class) - the left wants to be strict Darwinist and scientists.

But then they all feign shock and moral outrage when they see a proverbial lion chew on their favorite protected zebra.

As I said, the secular left is in utter intellectual confusion, and Geoff Stone is right in there with them.

David said...

Shorter Stone: We good! You bad!

Paul said...

Stone might have helped his case by not misrepresenting the Court's holdings. For example, the Heller Court did not hold that the "Second Amendment prohibits the regulation of guns," as Stone claimed. Rather, the Court held that the District of Columbia's total ban on handgun possession in the home violated the Second Amendment. (Regulation is not a synonym for ban.) The Court stated that its holding should not cast doubt on all regulation of firearms. (See District of Columbia v. Heller, 554 U.S. ___ (2008)).

Richard Dolan said...

Ann: "There is something simple, neutral, objective and restrained, but it is the nature of complex legal decisionmaking that background beliefs and understandings — Stone would say 'political and ideological convictions' — affect the path of a judge's thoughts, no matter how faithfully objective he wants to be."

Agreed. But that "something" is not enough to take the sting out of Stone's point even if Stone himself ultimately refuses to draw the only sensible conclusion from his own critique.

The basic issue is which institution should be making the fundamental value judgments involved in setting social policies in a democracy. Judicial resolution of those disputes under the guise of "constitutional decisionmaking" makes sense if the result would be the same had the court deciding the issue been composed of a random selection of federal judges -- i.e., despite the individual preferences of any particular judge, there was enough agreement across the spectrum to be able to say that 'the law' dictated a particular result. If that's not true (and I don't think anyone who litigates cases for a living would suggest that it is), then Stone's point is a stark indictment of the very idea of allocating that decisionmaking power to the SCOTUS. Stone doesn't want to make that point, because his preferred outcome is to have his team of judges in charge, and he is hopeful that Obama may get to appoint them. But that is no more acceptable, given his critique, than having the righties making those judgments.

Stone says, and you agree, that judicial decisionmaking in these cases is not an exercise in calling "balls and strikes." Instead, while the decisionmaking process is certainly more complex as you say, the results are often fairly predictable once you know who the judges are. If honesty and candor have any place in this discussion, you would have to admit that the judge's personal values are often the determinative factor in the major 'constitutional' cases. It is why, for example, lefties today are rooting for Obama to pick someone like Judge Diane Wood, and a few years ago, righties were cheered by Bush's pick of Roberts and Alito. Both sides know where those judges are likely to come out on the 'constitutional' cases and issues that really matter.

If you accept Stone's basic point that constitutional adjudications are ultimately about judges making "value judgments" (I do), then it makes no sense to have those values imposed on the Nation in that way. It becomes much worse when you take into account the life tenure of federal judges.

The politicians who control the nomination and approval process have internalized that idea, which is why the federal judicial nomination process has turned into a nasty train-wreck. We're not far from the time when no one will be able to get confirmed. IMO, the crisis will boil over when a president of one party gets to name the resplacement for a SCOTUS justice deemed to be a reliable member of the other team. If Obama were considering a replacement for, say, Justice Thomas, of if Bush had been considering a replacement for Justice Ginsberg, we would be in the middle of the perfect storm.

That day is coming, and the institution of the SCOTUS as we've known it won't survive when it does. Bromides about "complex constitutional decisionmaking" and competing "theories of interpretation" won't be able to hide the political reality at work or the stakes in play.

Mike said...

Where did the U of Chicago law school end up in the leaked rankings, because if that Geoffrey Stone guy is teaching there...I mean, wow.

He doesn't even provide any sort of defense of his assertions. I'm not asking for a treatise on each case he cites but the fact that he doesn't even consider it useful to his argument to try to defend his position is telling.

David said...

When I was in law school, one of the first things I was taught was to state the holding of a case succinctly and accurately. Don't think Professor Stone would have done very well in my classes.

Mike said...

Saw this at the Corner.

“At that moment,” E. Bulver assures us, “there flashed across my opening mind the great truth that refutation is no necessary part of argument. Assume your opponent is wrong, and then explain his error, and the world will be at your feet. Attempt to prove that he is wrong or (worse still) try to find out whether he is wrong or right, and the national dynamism of our age will thrust you to the wall.”

- C.S. Lewis essay "Bulverism"

Quasimodo said...

Mike said:
"He doesn't even provide any sort of defense of his assertions. I'm not asking for a treatise on each case he cites but the fact that he doesn't even consider it useful to his argument to try to defend his position is telling."

No need. The choir needs no proof or defense of his position to shout its Amen.

Paul Zrimsek said...

Where do you get the idea that umpiring doesn't have a human element? It does. What it hasn't got is a mass of experts telling umpires that they should wallow in their subjectivity rather than trying to rise above it.

Mike said...

I'm sort of surprised NYT.com didn't allow comments on this piece (for guest editorialists sometimes they do and sometimes they don't).

You'd think they'd want to give their choir a place to chant their 'Amens' at least, right?

Maybe they're getting them all on the Journolist.

Zach said...

That's a really odd set of cases to object to in this context:

*Two cases of the First Amendment protecting speech

*One case of the First Amendment protecting free association

*One case of the Second Amendment protecting the right to bear arms

*One case of the Fourteenth Amendment prohibiting racial distinctions

Isn't that pretty much exactly what each of those amendments say in simple language? I mean, it isn't exactly the Interstate Commerce clause allowing regulation of wheat grown on your own farm for your own consumption.

mesquito said...

What the hell is so hard about "Congress shall make no law"?

tim maguire said...

Is this guy really a law professor?

Apart from his simplistic argument that the problem with conservative judges is that they don't issue liberal opinions, can he really be unaware of the longstanding (roughly 150 years) concept of corporate personhood?

I'm not a fan of corporate personhood either, but it's absurd (and almost certainly dishonest) to suggest that it is some newfangled conservative attack on...whatever it is he thinks it attacks.

Duscany said...

What Stone is saying is that Obama should appoint an activist judge who doesn't let the law, the constitution or anything else stand in the way of his liberal ideology.

There. I said in one sentence what it took Stone a whole column to say.

Adam said...

Geoff Stone was the dean of the law school when Obama was hired as a Lecturer, and was provost of the university when Obama was promoted to Senior Lecturer. So we already know how poor his judgment is.

Kirby Olson said...

Obama should appoint Stone.

Adam said...

Obama should appoint Stone."

I'd guess that's the subtext of Stone's op ed piece. Payback--it's the Chicago Way.

wv=scingide: true porn for the sightless

Stephen said...

I think that the mistake Professor Althouse makes is in assuming that either side really can or will live with and faithfully apply a restrictive set of canons of interpretation. Both sides need more to justify the decisions they already like, overrule the ones they don't like, and seize new terrain.

Given that, who deviates most in practice from the ideal (and publicly popular) standard of neutral principles and hence can most readily be charged with hypocrisy in espousing it? Althouse seems to suggest its the liberals. But I don't think Professor Althouse has made the case for that, and it's not an easy one to make. Look how many federal statutes the conservative Rehnquist and Roberts courts have overruled!

So why isn't Professor Althouse urging both sides to come clean? Whatever happened to cruel neutrality?

Paul Zrimsek said...

What has overruling statutes got to do with whether or not judges are applying neutral principles? Is Stephen suggesting that statutes should never be overruled?

Synova said...

It seems to me that the function of the checks and balances of three branches of government that are *supposed* to be weighted more or less equally (ie. the President isn't King) more or less means that the role of the SCOTUS isn't to decide what people want, but to tell them what they want that they can't have.

When a legislative body passes a law it's usually something that people want to have happen. It reflects the will of the majority... at least usually.

And it's up to the judges, who do not have to be elected and re-elected, to be a check on what the majority wants or thinks is right or thinks is fair.

Just like the Constitution.

They aren't supposed to go with the "law of the land" or majority opinion or anything else or why even bother having a constitution at all?

Because if we're just going to go with whatever the most people agree is right, then minorities have no rights whatsoever. By definition.

george said...

Stone makes the mistake of using examples that are for the most part not even controversial outside of a very narrow circle of people.

He does a better job proving his own extremism than he does of making an argument against the conservatives on the court.

But lets pretend for a moment that he has a point. At least the conservatives make the proper noises and understand the role of the court if they don't always live up to their ideals. Liberal justices don't even bother trying to hide the fact that they will make the Constitution say whatever they wish it to say by whatever means they find handy. Even Obama says the Constitution is flawed and he is here to do us the favor of "fixing" it for us.

This is typical of how progressives think. They commit serial outrages against logic and then accuse the other side of doing the same thing when they are called on it. You can always tell what mischief they have been up to by what they accuse their opponents of doing. It is this inability to feel shame, and the willingness to eschew logic or consistency, that best defines the modern left.

Notice that Stone's argument isn't that liberal justices aren't guilty of making things up as they go along to get the result they want but rather that the other side does it too. There is no acknowledgment anywhere that doing such a thing is wrong. He is only concerned with making sure the other side is seen as equally guilty so that his side can continue gaming the system. So what you want about them, but conservatives do not think this way.

Chase said...

Well said, George.

American liberals, in this modern area, will use the obfuscation style of argument the majority of the time: "Yeah, well so do you, so there"

This is more common since the Reagan era. I blame the public education system.
Seriously.

Publius the Clown said...

"[L]iberal jurists and constitutional scholars have a theory of interpretation that should be explained and defended."

Prof. Althouse: What exactly is this theory? Can you elaborate? I'm not being facetious--I'm genuinely curious to know what it is, because I've never seen a coherent description of liberal judicial philosophy, and the liberal justices on the Supreme Court don't seem to have one. (At least, they haven't expressed one; I don't think that Justice's Breyer's "active liberty" counts as "coherent," because I'm not sure a judge can actually derive rules of decision from it).

Steven said...

Consider, for example, their decisions holding that corporations have the same right of free speech as individuals, that commercial advertising receives robust protection under the First Amendment, that the Second Amendment prohibits the regulation of guns, that affirmative action is unconstitutional, that the equal protection clause mandated the election of George W. Bush and that the Boy Scouts have a First Amendment right to exclude gay scoutmasters.

Mr. Stone, I've considered your examples. Now, show me that such decisions are not, in fact, the result of disinterestedly calling balls and strikes, instead of aiming for a specific outcome.

Because, you see, the fact that liberals find the result objectionable might not mean anything more than liberals do not like the results of neutral, balls-and-strikes jurisprudence, and thus favor judges imposing liberal policy preferences.

You have, accordingly, sir, assumed your conclusion—that the results indicate conservatives are non-neutral judges. That is an elementary logical fallacy called "begging the question," and it makes you look like a fool.
You might claim you did not have had space in the New York Times to explain how each of your examples deviated from balls-and-strikes, but in that case you made the foolish error of picking a forum in which you could not do other than fail to make your argument properly.

Now, sir, you are the former dean of the prestigious University of Chicago School of Law, a former clerk for Supreme Court Justice William J. Brennan Jr., the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago Law School, a member of the Board of Directors of the American Constitution Society, and a member of the Board of Advisors of the American Civil Liberties Union. You are accordingly among the most prominent and elite of liberal law professors.

This creates an interesting result, applied logically. If one of the most prominent and elite liberal law professors looks like a fool, that could suggest that liberal law professors generally are fools.

Of course, certainly it doesn't prove it. One might have to consider other reasons. For example, a generalization of the accusations hurled at liberal jurisprudence might apply. If liberals are more interested in results than in sound reasoning in cases, it may similarly apply that they have the same standards for law professors. Your foolishness, then, was no bar to your gaining such prominence because your expressed opinions were liberal orthodoxy, and accordingly won you the backing of other results-over-reasoning liberals like Justice Brennan, the ACLU, and the American Constitution Society.

Again, just a possibility. I personally can find myself finding no explanation for your logical fallacy that does not reflect discredit beyond you to your side more generally, but that may just be a case of limited imagination on my part.

AST said...

These people can't make a simple point without throwing in a dishonest loaded point, usually an irrelevant.

Personally, I think justices seeking a return to the proper role of the courts should be as activist as those whose past activism has screwed up the system by turning the judicial branch into a third political branch.

wv: AST sherpt here.