I suspect Frank would like to soften us up for future judicial nominations. Back in 2007, Barack Obama told us about "the criteria by which I'm going to be selecting my judges": "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled or old."
If Obama delivers nominees who've demonstrated their heart and empathy by reaching outcomes that accord with liberal political preferences, will liberals forget that we need to test the soundness of their legal reasoning? If Frank succeeds in getting people to believe that judicial opinions are the kind wishes of good hearts, we will rubber-stamp these seemingly good people.
If we do that, we will have forgotten what law is, and our rights will depend on the continued beneficence of the judges we've empowered.
IN THE EMAIL: "You are a radical and a rascal and you should be on the Bill O'Reilly show."
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"If Obama delivers nominees who've demonstrated their heart and empathy by reaching outcomes that accord with liberal political preferences...." No, not if, when.
If we do that, we will have forgotten what law is, and our rights will depend on the continued beneficence of the judges we've empowered.
Heartening thought.
My only criticism of this article by Althouse is the last sentence. Professor, that train left the station long ago. We've been depending on the beneficence of our judicial overlords for a long time now.
If Frank succeeds in getting people to believe that judicial opinions are the kind wishes of good hearts, we will rubber-stamp these seemingly good people.
True. But didn't you rubber-stamp Obama merely because of the color of his skin?
One of the Trib commenters wrote "the right to bear arms is in the constitution. The right to bare buttocks is not."
I sense a campaign slogan here.
Race, disability, and age (over 40) are protected classes. Being poor, a single parent, or gay, are not.
our rights will depend on the continued beneficence of the judges we've empowered.
Yes!! but not just judges. We are already at the mercy of too much government. Those who think they like it are in for a big shock when someone takes over whom they don't like. Or don't like them. Or their income!
"If we do that, we will have forgotten what law is, and our rights will depend on the continued beneficence of the judges we've empowered."
Well put, and I agree. What we as citizens should get from the law should not depend on the particular mindset of the jurist, but rather on the intent of the law itself. Any other way introducts capriciousness into the legal system, and that's something the founding fathers spent much energy fighting against a long time ago.
"...[T]he most basic legal proposition [is] that judges must decide cases according to the law and leave the rest to the processes of democracy."
You know, because the law is crystal-clear, and judges are NEVER informed by ideology and practical outcomes. What is this horror that Obama has wrought upon us?
It comes down to ego. Scalia is rigorous in the suppression of his own ego in considering the issue before him on its Constitutional merits without, as Althouse points out, inserting some kind of humane, personal caveat to appease the onlooking cultural peanut gallery.
P.S., isn't countermajoritarianism a theory of constitutional interpretation?
I read this in my paper about ten minutes ago. It is an excellent editorial.
But Scalia has written no such thing. Either Frank is an incompetent reader or he is deliberately trying to mislead people into believing that justices vote for results in cases the way legislators vote a bill up or down.
Frank is both an incompetent reader and he is deliberately trying to mislead the public. I agree that his statement is a set up for future appointees; social thinking versus legal thinking. But there is also hypocrisy here. Look at the AIG bonus issue. They were perfectly legal. They were righteously unpopular, yet under the law there was nothing to be done. He was the poster boy for fomented rage, mob action, and confiscation. He turned a legal issue into a political and social issue.
Frank is also resorting to the oldest method in the world; when you are intellectually outclassed, you call people names. You demonize them. You revert to the locker room bully. It is sad and dangerous that we have such people in government who wield so much power.
The left has always loved the feeling of wind in their hair, as they have repeatedly won changes from the courts that they could never get from their fellow citizens.
There can be no debate on the point - the American left today are anti-democratic elitists and must be ridiculed as such.
If we do that, we will have forgotten what law is, and our rights will depend on the continued beneficence of the judges we've empowered.
What evidence do you have that we are not already there?
I mean, that's the entire reason for the existence of the 9th Circuit Court of Appeals. All the evidence points that direction.
And now the Iowa Supreme Court - in the most tortured reasoning that makes the California Supreme Court look downright right wing - decides that heart rules over law.
Sorry Ann - it's already too late for the US. Barney Frank and the liberal vision won a long time ago. Roberts and Alito are just anomalies on the way to a patronage court society.
And by the way - though I sincerely do not wish an eternity in everlasting hellfire for Barney Frank, since he's determined to spend forever in hell there should be special place for those who dishonestly label those they disagree with. The homophobe label is the height of dishonesty in debate and "so-called" civil discourse. Perhaps the clearest since yelling "racist".
Shame on you Barney Frank. It obviously wasn't satisfying enough to keep lying about your part in bringing the recession to the world.
How can Barney Frank be wrong? He's in Congress, where the best and the brightest of the country congregate.
Excellent op-ed.
Note that Althouse does not tell her reader that she favors gay marriage, thus adhering to the same principle that she describes in Justice Scalia.
I knew Scalia in law school. He was a young and popular professor, nearly my age. Scalia is simply not a bigoted person in any sense of the word. He ain't humble. either.
He has a lot to not be humble about.
The truly amazing fact is that an op-ed like yours needed to be written at all.
Am I not to be concerned then if nominees have demonstrated their piety or other emotional/religious/patriotic/political "heart", masked as legal reasoning? Why assume it's only the case for liberal appointees that their hearts lead their reasoning? Why not scrutinize whether Scalia is more faithful to the Constitution or the Vatican? When we ask those kinds of questions we're accused of being overly partisan or anti-Catholic, but I don't see the distinction. If you want to argue that Scalia or Roberts can be both overtly pious and rigorous in legal reasoning, I have to assume the same can easily be true of any liberal nominee known for their empathy and heart.
How can Barney Frank be wrong? He's in Congress, where the best and the brightest of the country congregate.
Frank has been labeled as the most intelligent person in the legislature. Listening to him speak, seeing what he advocates, and seeing what he does, I think his village wants their idiot back.
Outstanding editorial, Professor.
Beth, do you really believe that Scalia was ignoring the law and dissenting in Lawrence because of his personal religious beliefs? How can that reading of the dissent be supported?
Joan, I'm not commenting on a specific ruling. I'm asserting that it's naive to believe liberals appoint judges based on outcomes and conservatives do it based on some other, more noble and purely reasonable basis. I don't believe for a minute that Scalia's values - religious, nationalist - don't influence him, and more importantly, that they didn't influence the lawmakers who approved his appointment. Substitute any judge's name there. We do rely on our perception of judges' "beneficence," whatever that mean according to our particular political bent. Do you really believe only liberal judges step outside of "sound legal reasoning" and think about outcomes? I don't.
I will repeat myself, I don't want judges empathizing with either side of an issue. Unless, of course, they empathize equally with both sides, which kind of makes it moot.
If you're not in law school, the outcome is all that matters. Law schools teach people to generate "sound legal reasoning" for any side of any issue. That makes "sound legal reasoning" an oxymoron. Logic dictates that if two lines of reasoning lead to different results, at least one of them must be unsound.
In the real world the best lawyer wins, and not through reasoning--just ask O.J. And if you want to appreciate sound reasoning, try a math book.
As a member of the protected homosexual class Barney can spew any vomit he desires. He's a good guy by definition.
Jack-
You can perform sound mathmatical reasoning and end up with different results, if you start with different constraints. ( See Euclidean vs. Non-Euclidean geometry ).
One of the big problems with the law is that it is vastly underconstrained because it relies on terms that require value judgements. ( unreasonable searches, cruel and unusual punishment. )
If Obama delivers nominees who've demonstrated their heart and empathy by reaching outcomes that accord with liberal political preferences,
I wasn't here for Alito's nomination. Did Professor Althouse share the concern of those who noted that Alito had consistently ruled against women, workers and the poor, when he was a Circuit Court judge? (Alito Project at the Yale Law School) Or was it just ducky when Bush delivered nominees who demonstrated their lack of heart and empathy by reaching outcomes that accorded with authoritarian political preferences?
The foundation of the oped is the homophobia Barney Frank allegedly misperceived in Scalia's dissent in Lawrence v. Texas. Most of Scalia's dissent was essentially a dry, sterile, law review article comparing and contrasting the Supreme Court's approaches to abortion and to sodomy. But then Scalia makes an eloquent case for those who want to keep sodomites away from their children, unbalanced by any recognition that gays require food and shelter and thus have to earn a living. Certainly Scalia appears unsympathetic to gay rights, while being completely sympathetic to those who rationally want to keep gays out of their law firms, their homes, their schools, and their children's scout troops:
Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653. One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Ante, at 575. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as “discrimination” which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal
Thanks, fls. To read the Althouse editorial, one would think Scalia commented dryly on the legality of the statute and left it at that. Instead, he articulated those Texans' feelings quite empathetically and in exquisite detail. He knows what it's like to be a parent protecting themselves and their families from a lifestyle they believe to be immoral and destructive. He has the empathy to understand what it's like to be beset by the anti-anti-homosexual culture.
Nothing touchy feely there; just pure legal reasoning.
Nothing touchy feely there; just pure legal reasoning.
Wasn't Scalia's point that the state legislature has the right to pass laws based upon the moral reasoning of the constituency? I think Scalia's referencing of the Texas folks feelings on the matter is that the gay community needs to work within the legislature rather than the courts. I don't think he was empathizing at all.
Considering we're well on the way to nationalizing private industry, why not just abolish state legislatures, constitutions and statutes and simply lay out an encompassing Federal statute to rule all? It would certainly free up a lot of Supreme Court time.
From Scalia's quotes above:
...its [The Court's] role of assuring, as neutral observer, that the democratic rules of engagement are observed.
[...]
They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.
I'm pretty sure that if you could get the people,of Texas to vote in the booth for what you believe is right Scalia would be right there with you.
Laws that are based on broadf public support are a lot easier to implement.
In Vermont you have exactly that.
Same with some other states.
Scalia is saying what he thinks the people of Texas have wanted so far.
As to taking a shot at Scalia et al for being Catholic...
The Catholic religion is ANTI death penalty....
In which way do you think Alito, Thomas, Roberts, and Scalia have been unduly influenced by their Catholicism when it comes to States and death penalty cases?
There is no getting around it - the structure of the left’s current argument today is anti-democratic and elitist – i.e. fascist.
Having foreclosed any possibility that fundamental rights come from God, the only remaining source of rights are the people.
Ah, but we can't really trust the people of Texas to determine what those rights are. They might chose to not extend certain popular right to some favored groups.
So, while we insist that right come from the people, we also are forced to insist that those rights must come from the proper people.
In other words, let us, the ruling elite of the left and academia, tell you other rubes what rights must be extended, predict what rights you dopes are going to finally adopt after you see the light, and foretell what acts in defense of your "moral standards" you and your grandkids will feel future shame for doing.
And best not get uppity about it or we'll impugn your motives, criticize your methods, demonstrate in front of your churches, and smear your personal reputations.
And to that I say, as politely and kindly as I can, in language quietly pondered and carefully crafted: ‘screw you.’
‘Screw you and your fascist methods’ just as clearly and adamantly as the founding fathers said ‘screw you’ to King George.
You are not any smarter or wiser than the rest of us, and your use of the courts to bypass the majority and force your minority view of the country is anti-constitutional, is morally wrong, and will ultimately fail.
In recent interview with Hoover Institution, elaborating on his earlier statement that “devotees of The Living Constitution do not seek to facilitate social change but to prevent it” (Scalia & Gutmann, 1998), Justice Scalia said:
"To make things change you don’t need a constitution. The function of a Constitution is to rigidify, to ossify, NOT to facilitate change. You want change? All you need is a legislature and a ballot box. Things will change as fast as you like. My Constitution, very flexible changing. You want right to abortion? Persuade your fellow citizens that it is a good idea, and pass a law. And then you find out, the results are worst than we ever thought, you can repeal the law. That’s flexibility. The reason people want the Supreme Court to declare that abortion is a constitutional right is precisely to rigidify that right, it means it sweeps across all fifty states and it is a law now and forever or until the Supreme Court changes its mind. That’s not flexibility."
"By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all." (Scalia & Gutmann, 1998)
Source(s):
Scalia, A., & Gutmann, A. (1998). A Matter of Interpretation: Federal Courts and the Law. Princeton University Press.
You want change? All you need is a legislature and a ballot box. Things will change as fast as you like.
Had Congress passed the National Origins Act a mere decade earlier, we wouldn't have had to worry about Scalia at all -- his dad would have had to remain in Sicily.
Althouse blog community synchronicity, I get a letter on Armstrong and Getty on my favorite topic, the news. (real audio)
Professor,
Becoming a closet Originalist?
We're glad to have you aboard.
Cordially,
Cabbage
Its an interesting and well written piece, but as you did in your blog entry on the same topic, you decline to quote the actual passages Frank cited from Scalia's Lawrence dissent in favor of passages that support your point of view.
And how fantastically convenient it is that Scalia gives us this tour de force of "adhering to the most basic legal proposition that judges must decide cases according to the law and leave the rest to the processes of democracy" and "modeling upstanding judicial behavior" all while upholding a law that makes it illegal to be gay.
Contrast that with his willingness in Adarand v. Pena to reach deep into the realm of inference and analogy to determine that a "concept is alien to the Constitution's focus upon the individual", and is therefore unconstitutional. It's wonderful how he pulls in the 14th amendment (not applicable, as its establishment clause applies specifically to the States, but it does give a nice feel for the concept), the 15th amendment (again, not on point, but does provide at least one example of the Constitution prohibiting dispositions based on race), and Art. III §3 & Art. I §9 (same, but for blood) and takes them and mixes them all together into a big gumbo, and out pops the conclusion that "under our Constitution there can be no such thing as either a creditor or a debtor race".
Just like that, our strict originalist has somehow conjured an opinion that the Constitution explicitly prohibits racial preferences in federal grants.
Isn't it funny how these things work out?
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