July 1, 2016

What Linda Greenhouse emailed me about what I blogged about what she wrote in The NYT about Justice Kennedy.

On Tuesday, I wrote a post titled "Linda Greenhouse notes the 'dry, almost clinical tone' and lack of 'poetry' in the Supreme Court's pro-abortion-rights opinion."

I quoted her writing:
The dry, almost clinical tone could scarcely be more different from the meditative mood the Supreme Court struck the last time it stood up for abortion rights, in Planned Parenthood v. Casey, 24 years ago this week. “Liberty finds no refuge in a jurisprudence of doubt” was Justice Anthony M. Kennedy’s mysterious opening line in that opinion.
And, among other things, I said:
And Greenhouse misstates the authorship of Casey. She wasn't quoting an opinion for a majority of the Court that was written by Justice Kennedy, but an opinion announcing the judgment of the Court that was joined by only 3 Justices and that was written not by Kennedy alone, but by Kennedy along with Sandra Day O'Connor and David Souter. However that "poetry" was created, only 1/3 of the "poets" remain on the Court.
It's indisputably true that the opinion Greenhouse quoted was published under those 3 names with no one Justice identified as the author. But I received an email from Linda Greenhouse that said:
Ann, fyi, Kennedy wrote the line in Casey that I attributed to him.  Yours, LG
I wrote back:
Is there a citation for that? 
And:
Shouldn't the article state your reason for attributing that line to him, as opposed to saying that it's how the opinion begins, as if he isn't one of 3 authors? Are you relying on extraneous knowledge? If so, shouldn't you say that in the article as oppose[d] to citing the opinion?
Here's Greenhouse's reply:
Jeffrey Toobin, "The Nine," p. 65. But Ann, I'm afraid you confuse the practice of journalism with writing for a law review. There is no convention that requires me to annotate my factual assertions. In any event, when Casey was handed down on June 29, 1992, each of the triumvirs read from the part of the joint opinion that he/she had written. Kennedy led off and started his oral announcement with "Liberty finds no refuge..." (causing a good deal of confusion in the courtroom, as you may imagine, since no one yet knew the bottom line of the case.) Souter read from his stare decisis portion, and O'Connor from her undue burden analysis. The authorship of each portion was clear from that public performance. Perhaps you were not in the courtroom.  I was.  Consequently it would have been completely superfluous for me to write: "As Jeffrey Toobin later reported..." Of course you are completely free to trash my opinions and my writing style.  I would caution you against challenging my facts. Yours, Linda
I responded:
I'm not saying you need a law review style citation, only that when you refer to the opinion — "the Supreme Court ..., in Planned Parenthood v. Casey" — and then say only "'Liberty finds no refuge in a jurisprudence of doubt' was Justice Anthony M. Kennedy’s mysterious opening line in that opinion," you appear to be referring to the opinion, which has three authors, and crediting only one of them.

I don't mind that you might choose to make an additional factual assertion without specifying how you know, but the text doesn't make an assertion that we know Kennedy alone wrote a particular sentence in the joint opinion. It just refers to the opinion and gives Kennedy sole credit for it, erasing the presence of O'Connor and Souter.

I'd like to add your explanation in an update, with your permission.
And she said:
Sure.
So there you are. What do you think? I've been cautioned against challenging Linda Greenhouse's facts — I thought we weren't entitled to our own facts — but I've got to say I don't think she's actually afraid that I confuse the practice of journalism with writing for a law review. I think it would be comforting, not fearsome, for me to have merely bumbled into a state of confusion about the difference between journalism and law reviews. Oddly, I'm not writing a law review article at all. Indeed, I eschew the practice. I'm blogging, and blogging is not a place to feel warned off challenging what people write in The New York Times. Nor is it a place for reining in criticism because there happens to be a "convention" within the journalism profession.

And I will be picky. To say "There is no convention that requires me to annotate my factual assertions" is not to say that there is a convention that requires her to refrain from annotating her factual assertions, and I continue to think that the problem was not so much the failure to support the assertion (to say how she knows Kennedy wrote that particular line) but the failure to make the assertion, to say that something is known about Kennedy and that she is not merely making a reference to the published opinion.

Sidenote: The word "triumvirs" is interesting in light of my concern about erasing O'Connor. "Triumvirs" means 3 men sharing an official position. (Toobin, by the way, used the word "troika" in the same context. "Triumvirs" harks back to ancient Roman leaders, the triumvirate. "Troika" gestures at Russian carriages with 3 horses.)

Anyway, whether one is in the courtroom when the Justices read from the writings they release to the public, it's a matter of opinion to say "The authorship of each portion was clear from that public performance." A joint opinion was released, and any reading needed to be done by one individual and not a chorus of 3.

No one said I'm reading the part that I wrote. I know that, even though Greenhouse guessed right and I was not there that day in 1992, but like everyone else on the internet, I can listen to the recording of the public performance at Oyez.com. Whatever feels clear within Greenhouse's memory, the fact is, it wasn't Justice Kennedy who "led off," it was Justice O'Connor. And when Kennedy got his turn, he did not — as Greenhouse put it — "start[] his oral announcement with 'Liberty finds no refuge....'"

I'm listening to the announcement recording and reading and searching the transcript, and it doesn't begin with or even contain the sentence "Liberty finds no refuge in a jurisprudence of doubt." That's how the written opinion begins, but Greenhouse seems to have constructed a false memory of what she experienced in her privileged position in that courtroom a quarter century ago.

I know! I've been cautioned against challenging her facts. But I've got to do it. I've got the transcript.

The Justices don't read the written opinion when they do the announcement live. They've got a different text, and the drama of "Liberty finds no refuge in a jurisprudence of doubt" is confined to the written opinion. Justice O'Connor — who went first, not last — did not indulge in any mystifying phraseology. If the audience felt confused at first, I suspect it was only because O'Connor stated that the court below was (mostly) affirmed, which meant that Planned Parenthood had lost, before she got to the straightforward "we conclude that the central holding of Roe should be reaffirmed."

O'Connor said that "Justice Kennedy and Justice Souter will have -- also have something to say about the judgment in these cases," and not that Kennedy and Souter will be talking about the part of the opinion they wrote. Kennedy's speaking begins with the workmanlike sentence: "The -- the essential holding of Roe versus Wade, the holding that we today retain and reaffirm has three parts." Further in, he's more high flown. And he does read the line from the opinion that I said, in my blog post, was the most poetic line in the case: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Perhaps that line was special to him, something he wanted to say out loud, but I don't, from that, feel that he's claiming personal authorship.

Greenhouse says "The authorship of each portion was clear from that public performance," and Greenhouse thinks O'Connor wrote the undue burden analysis, but Kennedy's recitation covered that material. So much for being there. I'm going to believe the transcript and listening to the recording, as any sensible person, including Greenhouse, will.

Now, what about Toobin? Toobin did talk to some of the Justices for his book "The Nine: Inside the Secret World of the Supreme Court" — though, as David Margolick wrote in his review, readers are left "to ponder which of those justices talked to him for this book, and which did not."
And talk to him some of them clearly did. Without their off-the-record whispers, there would be no “inside” story of any “secret” world to tell in “The Nine: Inside the Secret World of the Supreme Court.”
Margolick guesses who talked:
Reading Toobin’s smart and entertaining book, these hunches quickly solidify. Sprinkled throughout are quotes, facts, anecdotes, insights and interior monologues that could only have come from particular justices — most conspicuously, O’Connor, Breyer and Kennedy — along with flattering adjectives about each. Toobin, of course, never names names.
Here's the relevant bit about Casey, which does trace the "Liberty finds no refuge" quote to Kennedy. (Click to enlarge.)



So Toobin, based on his secret sources, refers to "Kennedy's section of the joint opinion" as containing the quote "Liberty finds no refuge in a jurisprudence of doubt." Maybe somebody who really knows told Toobin the truth and Toobin accurately reported it. But the Court released a joint opinion, and there's something deeply disturbing about letting Toobin and his secret sources supersede the Court's public, written presentation. At least let us know that's what you're doing. If you just say you're talking about Planned Parenthood v. Casey, that's a 3-Justice opinion in my book, which is volume 505 of the United States Reports.

115 comments:

damikesc said...

She comes across as brutally unlikable. She REALLY hates being questioned.

chickelit said...

But the Court released a joint opinion, and there's something deeply disturbing about letting Toobin and his secret sources supersede the Court's public, written presentation.

It's called defending rice bowls. The whole next year and beyond is going to see little else but defending rice bowls.

Oh and, the earliest reference I have for that term is from "The Sand Pebbles."

eric said...

I feel sorta bad for Greenhouse.

She tried to Trump you with experience and you embarrassed her with facts.

It's like going around telling everyone a personal experience, only to find out later that experience was recorded and your recollection, or telling of it, is at odds with the truth.

Oopsie!

David Carlson said...

It's the grey lady. Facts have been optional for years. After all, what does it matter now?

Ann Althouse said...

Blogger double posted this. I deleted the second of 2 identical posts, but here's one comment I saved:

"David Carlson said...
it is the grey lady. Facts have been optional for years. After all, what does it matter now?"

Ann Althouse said...

Hmm. Guess I didn't have to save that...

Carry on!

tim in vermont said...

Is this one of those high stakes academic arguments I have heard about?

Dan said...

I'm second to no one in despising the Supreme Court's shameless and dangerous usurpation of democracy over the last half-century, as well as the contemptible suck-ups like Greenhouse who have been ardently cheerleading the ruling junta's power-grabs from the sidelines. But in this case, the issue is pretty peripheral, and Greenhouse has a reasonable case for writing what she wrote. If the worst thing about modern Supreme Court jurisprudence and its press coverage were an excess of reliance on behind-the-scenes gossip by reporters documenting its decisions, we'd be a very fortunate country indeed.

Birkel said...

A good craftsperson never blames zir tools.

Martha said...

Linda Greenhouse is not a real attorney though she impersonates one when she opines for the pages of the New York Times.
She does have a Master of Studies in Law (M.S.L.).

Who you gonna believe? Greenhouse or Althouse ?

Note: Althouse is top graduate of N.Y.U. Law School and Professor of Law, University of Wisconsin

From Yale Law School's website:
Yale Law School offers a Master of Studies in Law (M.S.L.) degree program for a small number of non-lawyers who want to obtain a basic familiarity with legal thought and to explore the relation of law to their disciplines. It is a one-year terminal program designed for those who do not desire a professional law degree, but who are interested in a rigorous curriculum and grounding in legal studies.

BDNYC said...

"Perhaps you were not in the courtroom. I was."

How smug. Very pleased that her personal recollection turned out to be a total fabrication.

Freeman Hunt said...

"I would caution you against challenging my facts."

That's the sort of thing one writes and then feels embarrassed for having written it a couple hours later. Nearly all can sympathize.

Gahrie said...

I don't mind that you might choose to make an additional factual assertion without specifying how you know, but the text doesn't make an assertion that we know Kennedy alone wrote a particular sentence in the joint opinion.

I don't understand why you are being so pedantic about this, when you are willing to allow the text of the 14th Amendment to be tortured by worse assertions. The 14th Amendment is about overturning Dred Scott and Reconstruction, but somehow people have asserted that it means so much more.

Do we really think that the men who wrote and passed the 14th Amendment intended to create birthright citizenship for tourists and illegal aliens?

Do we really think they intended the 14th Amendment to lead to the overturning of contraception and sodomy laws?

Do we really think that they intended to create a Constitutional right to an abortion?

If they did, why not just say so in the text? If they didn't, aren't we committing an offence much greater than Greenhouse's to assert they did?

Ann Althouse said...

"But in this case, the issue is pretty peripheral, and Greenhouse has a reasonable case for writing what she wrote."

But the question is, did I do something wrong in my first post? Obviously, I think not.

rhhardin said...

Triumviri is the plural.

Kennedy with the three parts is cribbing the Gallic Wars.

Rob said...

Challenging a reporter for the New York Times: would that be contumacy, apostasy or lèse majesté?

n.n said...

The controversy is about an assertion made based on facts not in evidence, and the further demand to accept the assertion on faith (or through inference). This does not preclude the veracity of the claim, only that it cannot be verified in the scientific domain. In light of a progressive conflation of logical domains in contemporary liberal societies, it is prudent to disregard the assertion and reach conclusions based only on physical, invariant evidence.

Jack Wayne said...

When you're on the Titanic, the most important thing is to argue about the arrangement of the deck chairs.

rhhardin said...

Althouse vs Greenhouse. Set thy house in order.

FullMoon said...

Can't wait for Greenhouse response..it will be a while. First, has to exhaust all possible sources of finding facts to disagree with AA. Then, time to formulate a non-apology apology, or somehow backtrack gracefully.

Michael K said...

Who are you going to believe, me or your lying eyes ?

rhhardin said...

Greenhouse has a Pulitzer Prize for bear reporting. Evidently she lives in northern NJ.

Ann Althouse said...

This post is about something that was not at all the main point of the original post.

If you think this stuff is quibbling, please go back to the original post, which is structured around a point that the Greenhouse email does not address at all, which is that clinical-sounding opinions are effective in a way that's different from poetic ones and why the clinical approach would be the one both legalistic and political justices would select right now.

This is much more important, but I had to give Greenhouse the opportunity to respond to what she felt was misstated and then I wanted to respond to that.

rhhardin said...

Beulah Surprise.

rhhardin said...

Crossing the Rubicon perhaps is what drove Kennedy to think of the Gallic Wars, with the Roe v Wade thing.

jacksonjay said...

I ain't no lawyer but, bitch don't know who she's dealing with!

Althouse rules!

Now I appreciate the mild scoldings I've received.

David said...

Linda Greenhouse does not make mistakes. Do not be mistaken about that.

rhhardin said...

Greenhouse is older than Althouse and so has more false memories.

You start as a baby with hardly any, and you go from there.

David said...

Freeman Hunt said.. .
"Nearly all can sympathize."

Not me.

rhhardin said...

Everyone is entitled to his own opinion, but not to his own fax.

Freeman Hunt said...

Freeman Hunt said.. .
"Nearly all can sympathize."

Not me.


Heh.

Freeman Hunt said...

Clearly there was nothing wrong with the original post. That, it seems, is settled.

campy said...

That's the sort of thing one writes and then feels embarrassed for having written it a couple hours later.

Not if one writes for the NYT.

AF said...

Greenhouse said Kennedy wrote a line. Althouse said Greenhouse was wrong. In fact, Greenhouse was right. Kennedy did write the line. End of story.

James Pawlak said...

That dryness is balance the "Wet Work" (In KGB terms) of abortions.

MadisonMan said...

That's the sort of thing one writes and then feels embarrassed for having written it a couple hours later. Nearly all can sympathize.

What will this email look like on the front page of the local paper? Always, always ask yourself that.

Daley Dyan said...

'dry, almost clinical tone' and lack of 'poetry' in the Supreme Court's pro-abortion-rights opinion."
'dry, almost clinical"?

What do they want, gushy, romantic and vag-wet?

NONE of my abortions were poetic, dry or clinical.

rhhardin said...

Parts also come up in Barthelme, though not three of them. Still, it this poetic or dry? It would make a good opinion.

You know, Klipshorn was right I think when he spoke of the `blanketing' effect of ordinary language, referring, as I recall, to the part that sort of, you know, `fills in' between the other parts. That part, the `filling' you might say, of which the expression `you might say' is a good example, is to me the most interesting part, and of course it might also be called the `stuffing' I suppose, and there is probably also, in addition, some other word that would do as well, to describe it, or maybe a number of them. But the quality this `stuffing' has, that the other parts of verbality do not have, is two-parted, perhaps: (1) and `endless' quality and (2) a `sludge' quality. Of course that is possibly two qualities but I prefer to think of them as different aspects of a single quality, if you can think that way. The `endless' aspect of `stuffing' is that it goes on and on, in many different forms, and in fact our exchanges are in large measure composed of it, in larger measure even, perhaps, than they are composed of that which is not `stuffing.' The `sludge' quality is the *heaviness* that this `stuff' has, similar to the heavier motor oils, a kind of downward pull but still fluid, if you follow me, and I can't help thinking that this downwardness is valuable, although it's hard to say how, right at the moment. So, summing up, there is a relation between what I have been saying and what we're doing here at the plant with these plastic buffalo humps. Now you're probably familiar with the fact that the per-capita production of trash in this country is up from 2.75 pounds per day in 1920 to 4.5 pounds per day in 1965, the last year for which we have figures, and is increasing at the rate of about four percent per year. Now that rate will probably go up, because it's *been* going up, and I hazard that we may very well soon reach a point where it's 100 percent, right? And there can no longer be any question of `disposing' of it, because it's all there is, and we will simply have to learn how to `dig' it--that's slang, but peculiarly appropriate here. So that's why we're in humps, right now, more really from a philosophical point of view than because we find them a great moneymaker. They are `trash,' and what in fact could be more useless and trashlike? It's that we want to be on the leading edge of this trash phenomenon, the everted sphere of the future, and that's why we pay particular attention, too, to those aspects of language that may be seen as a model of the trash phenomenon. And it's certainly been a pleasure showing you around the plant this afternoon, and meeting you, and talking to you about these things, which are really more important, I believe, than people tend to think. Would you like a cold Coke from the Coke machine now, before you go?

Laslo Spatula said...

MadisonMan said...
"What will this email look like on the front page of the local paper? Always, always ask yourself that."

I do. Then I hit Publish anyway.

I am Laslo.

Freeman Hunt said...

"The `sludge' quality is the *heaviness* that this `stuff' has, similar to the heavier motor oils, a kind of downward pull but still fluid, if you follow me, and I can't help thinking that this downwardness is valuable, although it's hard to say how, right at the moment."

The tamping down of outbursts and the greasing of frictions.

Bob Ellison said...

There's a style among journalists to say things like "yours, LG". It seems like a thing where you're supposed to know whom LG is, and if you don't, you're in some kind of a poor world, possibly a cave.

That style would not suit in business, law, or anywhere else in the real world. You can't go "I said this, --HRC" in the real world.

rhhardin said...

Something once said cannot be put back in the bottle.

Freeman Hunt said...

Tamping is the wrong word. There should be no impacts. A weighing down, a suppression of outbursts.

Freeman Hunt said...

"Something once said cannot be put back in the bottle."

Now, it might be going to far to accuse her of having been drunk while typing her responses.

dreams said...

"Althouse vs Greenhouse"

This could become some serious roughhousing.

Maryland Geezer said...

Well done.

Saint Croix said...

Toobin’s smart and entertaining book

I thought Toobin's book was awful. Lightweight fluff.

In 2007 Althouse did a book review of The Nine. She mocks the hell out of it!

So when she says "smart and entertaining," we should put that within the context of "trashy fun."

PB said...

Jeez! So when journalists make assertions, we're to assume they're factual and not to be questioned?

Houston, we have a problem.

Bob Ellison said...

Uh, *who

Amadeus 48 said...

Ah, the poetry of abortion rights cases. I suppose the justices had to gin themselves up with some poetry before they could get down to some rootin', tootin' law making on abortion rights. I finally understand the famous line from Shelley, "Poets are the unacknowledged legislators of the world." It was the poetry that did it!

Linda Greenhouse's snippy and condescending note to you is a masterclass in misconceived assumed superiority. She wanted to put you in your place (you midwestern hick), and instead she made a fool of herself with her false memories and misbegotten attempts at inside knowledge. They'll put it on her tombstone: "Linda Greenhouse wasn't as smart as she thought she was."

Many thanks for publishing this. It is comedy gold.

Freeman Hunt said...

A suffocation of outbursts.

Carter Wood said...

When I was in newspapers, accurate attribution was considered a good thing. By my editor, at least.

Mattman26 said...

You go Ann!

pm317 said...

Journalism may not have law review standard but why not follow it when writing about legal stuff. Lazy bastards.

David Begley said...

Down goes Greenhouse! Down goes Greenhouse!

Knockout in the second round.

No, Linda, Professor Althouse was not in the courtroom that day as you well know.

Now another reason to hate the NYT.

JCC said...

Well done, Professor.

I don't like Greenhouse, never did. Her liberal editorializing, her diminishing of Scalia and others, her deliberate misstatement of case law and meaning, borderline disingenuousness framed with arrogance, all are so typical of the Times and her ilk.

So her superior "...you confuse the...writing in a law review" and "Perhaps you were not in the courtroom. I was." (and left unsaid but surely intended 'you Midwestern yokel') is now stuffed. In your face, b*tch.

Did I mention Well Done?

We should all go have a bratwurst or something.

Bill, Republic of Texas said...

I'm so ashamed our elites aren't very elite.

David Begley said...

Greenhouse now teaches at Yale Law School although she is NOT a lawyer.

Below is her bio. Greenhouse is part of the Ivy Ruling Class. So is Hillary. Althouse is not. Neither is Trump.

The Ruling Class must be defeated.

"born in New York City. She received her BA degree in government from Radcliffe College in 1968 where she was elected to Phi Beta Kappa. She received her Master of Studies in Law from Yale Law School in 1978."

John Tuffnell said...

Toobin never says who his source was.

Maybe it was Linda "I was there" Greenhouse who told him that because Kennedy read it, he must have written it. Maybe he did read and write it, but they all adopted it.

Judge Easterbrook is a stickler in oral argument about attributing opinions to the judge whose name appears at the beginning of an opinion. Advocates are admonished that "It's the opinion of the COURT."

Ann Althouse said...

"Tamping is the wrong word."

Ax tamp.

Saint Croix said...

We should all go have a bratwurst or something.

With extra relish!

Saint Croix said...

Skewered brats.

With jalapeños!

David Begley said...

I certainly hope dear Linda reads the post and the comments and fully appreciates how badly Althouse has exposed her.

Linda, the rest of America hates the NYT and the Ivy Ruling Class. Be prepared for your own Paulne Kael moment in November.

Mr. T. said...

Seriously-

She cites weasel journolist Jeffery Toonbin as a legitimate source?

buwaya said...

The ruling class has a pretty tight little circle of schools don't they?
Harvard and Yale, and maybe a couple more (Princeton? doesn't seem so).

dbp said...

"...and you, a Law Professor..." is sometimes thrown-around derisively. Heh! Althouse showing what a real Law Professor is capable of.

Ann Althouse said...

"Greenhouse said Kennedy wrote a line. Althouse said Greenhouse was wrong. In fact, Greenhouse was right. Kennedy did write the line. End of story."

1. She said X ”was Justice Anthony M. Kennedy’s mysterious opening line in that opinion." That reads as a statement of what the opening line is in the written opinion.

2. Did Kennedy write that opinion? It is published under the authorship of 3 justices, not Kennedy writing for the set.

3. I said "And Greenhouse misstates the authorship of Casey."

4. You could say: Greenhouse never stated the authorship of Casey. She was actually saying something different, though it was mushed together with a discussion of the published case.

5. If you give Greenhouse the benefit of the doubt — though I'd say truth finds no refuge in a journalism of doubt — you could say she only meant the line came to the page from the mind of Kennedy.

6. If so, do we know that it did? Greenhouse cites a memory of hers which I think we can see was wrong, and an inference based on the memory that isn't well justified anyway. And she cites Jeffrey Toobin, who talked to some Justices, who took or gave credit however they did but without going on record even to be named as sources, and Toobin, who has an agenda of his own, accurately reported the needed fact when he made a passing reference on page 66 of "The Nine."

7. I'm only saying what I see is precisely true. If I could be more precise, I would. I have no ulterior motive other than slight annoyance at being cautioned not to challenge Linda Greenhouse's facts.

Ann Althouse said...

Remember, I am not out to attack Casey or the new abortion case. I support abortion rights. I don't dislike Kennedy. I've followed his whole career on the Court closely, and his "heart of liberty" passage means enough to me that I'd write a whole book about it if I thought writing a book was a better use of my time than writing this blog.

Ann Althouse said...

"Maybe it was Linda "I was there" Greenhouse who told him that because Kennedy read it, he must have written it."

Oh, that's rich!

HoodlumDoodlum said...

Ann Althouse said... and [Kennedy's] "heart of liberty" passage means enough to me that I'd write a whole book about it if I thought writing a book was a better use of my time than writing this blog.

Oh. Oh wow. Oh, that's disappointing.

jacksonjay said...

Grilled onions and/or kraut!

David said...

David Begley said...
I certainly hope dear Linda reads the post and the comments and fully appreciates how badly Althouse has exposed her.


Greenhouse expected a grovel in the face of her power and majesty. She's not not going to give much more thought to a hick law professor from a flyover school who never went to Harvard or Yale and sometimes says positive things about people like Scott Walker.

David said...

" I have no ulterior motive other than slight annoyance at being cautioned not to challenge Linda Greenhouse's facts."

Slight? A revealing adjective which is also a noun. You were slighted by a person posing as your superior in all respects and have a right to be more than slightly annoyed.

Ann Althouse said...

"Slight?"

It actually doesn't annoy me that much. It was too funny, and it popped right out as something bloggable. She agreed to let me print the email, so that was cool. She even invited me to trash her, although I did read that as sort of implying that I could go ahead on my little blog here and do that scurrilous little thing that bloggers do.

Birkel said...

And we should note - well and truly - that the Times is wrong on this minor point about law because we have Althouse to prove it so. She cares enough to do what I take for granted: assume journalists are largely incompetent, highly politicized and generally unlikable in their false sense of superiority.

Every article modern journalists is full of shit until proven otherwise.

David said...

And you did.

A faint ripple on her elegant pond.

walter said...

"I would caution you against challenging my facts."

(said while doing the the neck roll) Oh yeaahh? Whatchu gonna do about it? Bitch.

boycat said...

Inasmuch as she's into the poetry of the court properly standing up for abortion rights, it's an easy inference that she herself is an advocate for the cause, and her writings on the subject are thusly not journalism. They are opinion pieces. Challenge away.

Gahrie said...

We conclude the line should be drawn at viability, so that, before that time, the woman has a right to choose to terminate her pregnancy….

Why does the State have a compelling interest in protecting the life of the unborn child after the point of viability? It must be because the child is a person at that point, with the right to life. Why isn't the child a person before viability? Merely because it is handicapped by being unable to survive unassisted outside the womb? Aren't we depriving unborn persons of the right to life because they are temporarily handicapped?

Would a law banning abortion after 26 weeks outright be acceptable to the Left? Of course not...that's where the "mother's health" comes in......


there is no line other than viability which is more workable.

Sure there is...implantation. At that point, the child is a unique individual, beginning the journey of life. Surely that individual has "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" every bit as much as their mother?

wildswan said...

"I would caution you against challenging my facts."

Splat.

Gahrie said...

Are you guys sure you want to hang the right to abortion, gay marriage etc to Harlan's dissent in Poe through Casey?

The laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up, as well as laws forbidding adultery, fornication and homosexual practices which express the negative of the proposition, confining sexuality to lawful marriage, form a pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis.

Given the fact that "the laws regarding marriage" no longer "form a pattern so deeply pressed into the substance of our social life" isn't his dissent moot?

Why does Constitutional doctrine in this area no longer build on the basis of laws forbidding adultery, fornication and homosexual practices ?

We have actually come to the point where the Left is partially justifying gay marriage on an opinion that relies on the fact that homosexuality is illegal.

lllll Alaska Jack said...

What I find interesting about Greenhouse (and, more specifically, the NYT) is this:

Here is this *intensely* partisan, ideologically driven writer. And yet -- this is who the NYT had on for years, not as a columnist, but as their supposedly "unbiased" news reporter giving all of us readers a neutral, balanced look at the issues relating to Supreme Court decisions.

As a guy who works with and around journalists all the time, this just seems like *lunacy*.

lllll AJ

n.n said...

Elective abortion. Clinical cannibalism. Final solution. Never again?

It started with a liberal interpretation of religious instruction received from gods in the twilight zone, then progressed to something planned and cannibalistic, and finally converged to something concrete.

We really need a separation of Cult and State.

Gahrie said...

Eisenstadt v. Baird:

"[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."

Sounds good right? But under current case law, men are not free from "unwarranted government intrusion "in the decision whether to bear or beget a child". His decision in this area is actually entirely up to the woman...she gets to decide whether he begets a child, whether he wants to or not.

Saint Croix said...

I don't dislike Kennedy.

Faint praise indeed!

It's bizarre to read Casey and Carhart and reflect that the same man co-authored/authored both opinions. (And I say "co-authored" so Althouse won't skewer me like a shish kabob). Even if you like the poetry of Casey, it's so strange to compare it to the realism of Carhart. And the anger of Kennedy's two Carhart opinions is rather shocking.

The implication, to me, is that when Kennedy wrote Casey, he had no idea what a D&E abortion was.

Here is Kennedy, writing about the D&E for the first time:

As described by Dr. Carhart, the D&E procedure requires the abortionist to use instruments to grasp a portion (such as a foot or hand) of a developed and living fetus and drag the grasped portion out of the uterus into the vagina. Dr. Carhart uses the traction created by the opening between the uterus and vagina to dismember the fetus, tearing the grasped portion away from the remainder of the body. The traction between the uterus and vagina is essential to the procedure because attempting to abort a fetus without using that traction is described by Dr. Carhart as “pulling the cat’s tail” or “drag[ging] a string across the floor, you’ll just keep dragging it. It’s not until something grabs the other end that you are going to develop traction.” The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn from limb from limb. The fetus can be alive at the beginning of the dismemberment process and can survive for a time while its limbs are being torn off. Dr. Carhart agreed that “[w]hen you pull out a piece of the fetus, let’s say, an arm or a leg and remove that, at the time just prior to removal of the portion of the fetus, … the fetus [is] alive.” Dr. Carhart has observed fetal heartbeat via ultrasound with “extensive parts of the fetus removed,” and testified that mere dismemberment of a limb does not always cause death because he knows of a physician who removed the arm of a fetus only to have the fetus go on to be born “as a living child with one arm.” At the conclusion of a D&E abortion no intact fetus remains. In Dr. Carhart’s words, the abortionist is left with “a tray full of pieces.”

The man who wrote this is obviously appalled by these killings. One would not suspect that this man, with the stroke of a pen, could allow us to outlaw the D&E.

And yet he continues to insist that the D&E is a constitutional right!

Why not overrule the obvious mistake? Justice Kennedy was so happy to overrule the Supreme Court in Carhart II. What's the difference? Why can we overrule the Supreme Court's D&X opinion, but not its D&E opinion? Why does "stare decisis" allow one overruling and forbid the other?

Fernandinande said...

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Sebastian said...

"this just seems like *lunacy*. Why? Progs have an agenda and they pursue it rationally. Everything else is secondary. Greenhouse is a good worker bee, an open partisan. Althouse's "exposure" of her mistake will have no impact at all, because it is irrelevant to the cause. What difference, at this point, does it make?

"[Kennedy's] "heart of liberty" passage means enough to me that I'd write a whole book about it if I thought writing a book was a better use of my time than writing this blog." Great! I'm looking forward to the brutal fisking of a philosophical poseur who eviscerated anything resembling legal argument to impose his will arbitrarily, abusing the hallowed concept of liberty to justify the most blatant authoritarianism, making a mockery of the actual Constitution. I'd even use the AA Amazon portal to buy it.

Saint Croix said...

If Kennedy was rational and logical, you might expect him to say good things about the D&E (required by his opinion in Casey). After all, he's trying to prop up the D&E as the proper form of abortion, while attacking that awful D&X (a.k.a. partial-birth abortion).

And yet, Kennedy is so mad he's attacking every abortion in sight. None of them are good! They're all bloody decapitation and baby-killing.

It's rather shocking when you consider that all 9 Supreme Court Justices are disparaging the D&E in Carhart. Here are the liberal Justices, including Mr. Health and Safety, Justice Breyer, warning us all about the dangers of the D&E.

“sharp bone fragments passing through the cervix”

“uterine perforations caused by (the doctor’s) instruments”

“infection-causing fetal and placental tissue in the uterus”

“potentially fatal absorption of fetal tissue into the (bloodstream)”

D&E is bad, bad, bad. That's why we need to kill babies in the middle of birth. The D&E is a risk to the health and safety of women.

So now that the Supreme Court has overruled Carhart, and partial-birth abortion is out, what do they do?

Bring back the D&E! It's great, it's wonderful, it's so healthy and fine. We don't need regulations at all!

h said...

In my opinion, journalists, and politicians, (and I guess bloggers), need to be cut a little slack on the issue of strict adherence to face versus prose style.

For example, Greenhouse might have been more factually correct to start her article with something like: "Many supreme court decisions include uplifiting prose. For example the decision in x v. y (published under the authorship of justices A, B, and C, but probably drafted by Justice A's clerks -- Babe Ruth, Ted WIlliams, and TY Cobb -- though it is generally believed that Ty Cobb was more involved in other decisions at that time) started: 'Love is a many splendored thing....' "

But a reasonably good line editor would rewrite that sentence as "in x v. y, Justice A started his opinion with 'love is a many splendored thing".

The editor's rewrite is much cleaner, it makes the same point as the longer sentence, but it is in the fine-point details, less precise. But is it worse? I'm not sure that Althouse is right about that.

dwick said...

Good lord... 'law school ladies' mud-wrestling via e-mail.
My eyes glazed over after about 5 paragraphs. Who the f*** cares? Geesh...

n.n said...

Dr. Carhart uses the traction created by the opening between the uterus and vagina to dismember the fetus, tearing the grasped portion away from the remainder of the body.

Nobel Piece Prize...

Anyway, the poetry was aborted in favor of legalese because the "final solution" is universally comprehensible and utterly grotesque. No one in their right mind actually believes in the fantasy of spontaneous conception or accepts on faith or by State mandate the quasi-religious/moral proclamations of its fanatical acolytes and judges.

The cognitive dissonance must be deafening.

David Begley said...

Leroy Carehart used to practice in NE and Judge Richard Kopf drew the cases. He got fed up for being reversed and recused himself from ALL abortion cases.

Recent tweet from Judge Kopf below.

"Since I recused myself from abortion cases after Gonzales 'cause I refused to play any more shell games, more like a chuckle. RGK"

Unknown said...

"Linda, the rest of America hates the NYT and the Ivy Ruling Class."

Speak for yourself Begley. The "rest of America" does not hate the NYT. I will agree that the Althouse commentariat which is 95% conservative does, but conservatives are roughly 1/2 of the US population, so you conveniently excluded non conservatives to give your hysterical comment more weight.

Jeffrey said...

Cat fight. And one in which both lose. Embarrassing.

Birkel said...

UnknownInga:

What is the NYT circulation? I expect it must be 80 or perhaps 100 million based on your comment @ 8:06 PM.

Please provide a link.

Jeffrey said...

Oh, Lord. What a joke. Okay, if it makes you feel better: Dog fight. And one in which both lose. Still embarrassing.

Gahrie said...

Square there statements:

[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

Of course, as we have said, § 3209's real target is narrower even than the class of women seeking abortions identified by the State: it is married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement. The unfortunate yet persisting conditions we document above will mean that in a large fraction of the cases in which § 3209 is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion. It is an undue burden, and therefore invalid.

So if merely notifying a man that you are pregnant is an "undue burden" on a woman's right to an abortion......just when does a man's "decision whether to bear or beget a child." take place?

Jeffrey said...

Really?

EDH said...

MEEEOOOW!

Yeh-yeh-yeh cat fight.

fizzymagic said...

I am gobsmacked.

LG wrote to you:

But Ann, I'm afraid you confuse the practice of journalism with writing for a law review. There is no convention that requires me to annotate my factual assertions.

Apparently, in her view of "journalism," there is no need to back up assertions of fact. We, the reading public, should Just Take Their Word For It. We are, after all, Not Journalists.

I can't imagine a more concise description of all that is wrong with the so-called profession of "journalism."

Jon Ericson said...

Ann, what the hell, are you waking up?
You go girl!

Earnest Prole said...

distinctions not cost effective

MayBee said...

I wonder if you will hear back.

MayBee said...

I would caution you against challenging my facts.

You know how, when you write a comment making fun of someone's spelling, and then you hit publish and realize you misspelled something? This is like that.

surfed said...

Damn girl... defined evisceration.

damikesc said...

Apparently, in her view of "journalism," there is no need to back up assertions of fact. We, the reading public, should Just Take Their Word For It. We are, after all, Not Journalists.

That's what I got. "How dare you question us?" from a member of a field that has basically zero credibility.

She'd be well-advised to DEEPLY and THOROUGHLY cite her information because nobody should ever trust a journalist.

damikesc said...

So if merely notifying a man that you are pregnant is an "undue burden" on a woman's right to an abortion......just when does a man's "decision whether to bear or beget a child." take place?

As feminists would say, he made his choice when they had sex.

That she made the same choice and can change her mind is intrinsically unequal. Men should challenge child support laws on this.

Eric the Fruit Bat said...

I've got a big problem. I've pretty much nailed down "And Death Shall Have No Dominion." Have it memorized. No great accomplishment, frankly. There's ample repetition.

I'm not complaining, mind you. The repetition gives you lots to work with when you're hammered.

No. My problem is I don't know what poem to memorize next. Truth be told, I don't care for poetry very much at all. So, it's not as if there are so many from which to choose that I can't make a decision.

My problem is I can't find one that's insufficiently off-putting. A host of golden daffodils?! WTF!!!!

Maybe I should switch to memorizing the periodic table or something useful like that.

LL said...

Ouch.

Howard said...

Ca Ca Ca Cat Fight

Charlie Martin said...

Russian carriages with 3 horses.

So you're saying that if she'd have used "troika" she'd have it half-right?

Guildofcannonballs said...

"What will this email look like on the front page of the local paper? Always, always ask yourself that."

Yeah, but Trump and Welles and Hardin have shown you what happens when the answer is "name recognition."

From porn performers to religions, everybody wants to be known, but it is of utmost importance if you want wealth with no skills in the arts of material production to include insurance sales and Pet Rock salespersons too but not politicians or academics affiliated as such nor most media most of the time, though not always.

Never always.

All this extra-over insurance btw is responded to by the breaking of introvert shells of self-containment mentalwise.

Guildofcannonballs said...

As a guy who works with and around journalists all the time, this just seems like *lunacy*.

Mr. Jack why spread this lack of outsanity but its opposite?

Whom do you serve?

Guildofcannonballs said...

"His decision in this area is actually entirely up to the woman...she gets to decide whether he begets a child, whether he..."

You ain't believe the bitches raping me of my seed day and night, yo.

I ain't saying Tupac was right or nothing, but damn girl "I don't want it if it's that easy."

Anonymous said...

Just for the record and only because I care about matters of word usage: Modern English dictionary definitions of "triumvir" are gender non-specific. The "three men" phrase only appears in reference to historical use, usually only in the origin section in regard to literal meaning of the Latin phrase from which the word evolved. So in modern usage, there is absolutely nothing wrong with applying this word to any three people (particularly public officials), regardless of their genders.

triumvir
[trahy-uhm-ver]

noun, plural triumvirs, triumviri
[trahy-uhm-vuh-rahy]
1.
Roman History. one of three officers or magistrates mutually exercising the same public function.
2.
one of three persons associated in any office or position of authority.

triumvir
noun tri·um·vir \trī-ˈəm-vər\
Popularity: Bottom 20% of words
Definition of triumvir
plural triumvirs also triumviriplay \-və-ˌrī, -ˌrē\

: one of a commission or ruling body of three


trīˈəmvər/
noun
noun: triumvir; plural noun: triumvirs; plural noun: triumviri

(in ancient Rome) each of three public officers jointly responsible for overseeing any of the administrative departments.