Althouse: "Now, I'll give my answer. It is exactly what I, a law professor, would expect to hear from another law professor!"

January 23, 2010

"Now, I'll give my answer. It is exactly what I, a law professor, would expect to hear from another law professor!"

I answer that question I asked back here.

59 comments:

Ignorance is Bliss said...: Okay, maybe you're being a little too enigmatic for me. Are you saying that you agree with President Obama and disagree with the Supreme Court? Or are you saying that if you disagreed with the Supreme Court you would respond the way he did?

And are you saying his response is correct for a president who was a former law professor, or are you saying it is correct for a law professor, but incorrect for a president?; 1/23/10, 4:59 PM
rhhardin said...: A University of Chicago philosopher would make them define their terms.; 1/23/10, 5:06 PM
Ignorance is Bliss said...: Okay, I'm an idiot. I reread the linked post, and I see that you are specifically not saying any of those things, you are just commenting on law professors in general.

Sometimes I feel I'm not quick enough to keep up with this blog. Most of the time, however, I'm blissfully ignorant of my inadequacy.; 1/23/10, 5:06 PM
Sprezzatura said...: I don't get it either.

My conclussion: "there's something very strange about the mind of" Althouse. "Does it mean anything more generally about right-leaning people on the web?"; 1/23/10, 5:07 PM
Ann Althouse said...: It's okay, Ignorance. My aim is to sharpen you up!; 1/23/10, 5:10 PM
Steve M. Galbraith said...: Taking a stab:
It - the law - is now a game. Perhaps it always was but just moreso now.

The person who can come up with the most novel interpretation of a law wins.

Indeterminacy of language and all that. There are no final answers. Or right ones or wrong ones.; 1/23/10, 5:11 PM
rhhardin said...: Shortest path in the thesaurus from flexible to rigid :

flexible adaptable changeable wayward mulish rigid; 1/23/10, 5:14 PM
Mark O said...: What subjects do those dolts teach and where?

Or, is it, to misquote Paul Simon, that their education hasn't helped them none?; 1/23/10, 5:17 PM
Automatic_Wing said...: I guess I'm not really understanding how Obama's response differs from that of all the non-lawprof liberals out there.

Obama, the NYT, Keith Olbermann, Ritmo - it all sounds like the same populist boilerplate to me.

Enlighten me, Professor!; 1/23/10, 5:17 PM
Lem Vibe Bandit said...: A day has passed, and you've chewed over the question...

False teeth need not apply ;); 1/23/10, 5:21 PM
Synova said...: Thinking back to the comments on that thread I think that a lot of people other than myself did not think that the checks and balances of the three branches of government meant not questioning the Supreme Court or pushing against the Supreme Court.

But maybe a more representative cross-section of Americans would more uniformly figure that the Supreme Court is the last word, Amen. (There's certainly no lack of that claim concerning Roe vs. Wade, It. Is. Decided. The end.)

I did think that Obama's statement was sort of outrageous and reflected the very weak and modified notion of what free speech means these days... sort of... we can half free speech if we can only shut every one up.; 1/23/10, 5:25 PM
Sprezzatura said...: The ignorant (and absurdly arrogant) thinking around here is actually when the Law Prof earnestly thinks they know more about politics than the POTUS.

Hilarious.

Look BHO is continuing to put more heat in this debate, so according to Althouse he's really screwing this up (in political terms) by being a typical law professor (or lecturer).

And, Althouse has had what success in politics? At least we can assume that she supports winning politicians: can she can point to a POTUS voting record that perfectly aligns with election winners? Ha ha ha.; 1/23/10, 5:25 PM
Synova said...: ... we can have free speech... not half free speech...

If something was going on that made my brain misfire and do so many word replacements between my brain and my fingers, I'd have other symptoms, right? ;-P; 1/23/10, 5:30 PM
Lem Vibe Bandit said...: I like what Supreme Roberts said in his opening confirmation hearings. I understand the role of the umps.

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

But it is a limited role. Nobody ever went to a ball game to see the umpire.; 1/23/10, 5:33 PM
Synova said...: 1jbp,

Maybe you missed the campaign where Obama would say something outrageous and we'd go "Oh my gawd, why would he say something so tone deaf stupid?" and Althouse would explain that the sort of terms or phrases he used were common among the law prof social set and didn't really mean what it sounded like.

This isn't something new, and it's probably something she wouldn't have noticed if it wasn't for so many of us going... "He said what?!"

Oh, and you're not really going with a "you can't question the POTUS" in a thread about "you can't question the SCOTUS."

Are you?; 1/23/10, 5:34 PM
Ann Althouse said...: I would be a terrible politician. *Terrible.* I was going to put that in the post about Feingold and Tommy Thompson, where someone suggested that I run for Senator against Feingold. I would *never* picture myself running for any office. I'm not willing to do any of the things required, nor do I think I'd be any good at it. For one thing, I enjoy blurting out what I think. I like stating what I think is the truth with a sharp edge. I like saying things in a funny way that can easily be misunderstood. I challenge you to figure it out. I like to speak in questions and to explore different sides of things. I like to make quirky leaps from one subject to another in a way that makes some people think I might be stupid or crazy. I get bored by most people when I'm trapped in a room with them, and when I'm bored, I behave badly. I'm not interested in policy details. I don't care about money. Etc. etc. etc.; 1/23/10, 5:35 PM
Steve M. Galbraith said...: Dunno, seems to me that Mr. Obama is being outmaneuvered by a bunch of (mostly) 60- and 70-year olds in walkers waving tea bags.

Wingnuts they are.

I exaggerate only because this is the internet and you're supposed to.

Anyway, every day is election day in America.; 1/23/10, 5:40 PM
Ignorance is Bliss said...: How about a seat on the Supreme Court? I hear Stevens is so old and senile now that he's writing opinions for the conservatives.; 1/23/10, 5:41 PM
Irene said...: @ Althouse, all of the reasons you've given for why you would be a "terrible politician" are exactly the factors that make you a *great* teacher.

;-); 1/23/10, 5:43 PM
T J Sawyer said...: And we can probably look forward to the "Judiciary Reorganization Bill of 2010" adding about six members to the Supreme Court. After all, the current president does think of himself in FDR-style images.; 1/23/10, 5:57 PM
Sprezzatura said...: "Oh, and you're not really going with a "you can't question the POTUS" in a thread about "you can't question the SCOTUS.""

Of course I am. That's what makes this whole thing so awesome. It's very circular. You have a law prof giving political advice to the POTUS regarding how the public wants him to talk about the judiciary.

I love the extreme difference between Althouse's precise political suggestions for BHO and what we can see BHO is actually doing (e.g. in the video I linked to above).

It's even better because Althouse asserts her credentials by noting 1) that BHO wasn't a real professor and 2) she's been a law prof for a quarter century. Hence she's qualified to tell BHO that, for political (i.e. nothing related to law) reasons, he should "tend to the voters' feelings. Obama should have said that he would like to explore ways to write a new statute that will respect the rights the Court has articulated and still serve the good and proper goals that the defective statute was meant to serve. With some sugar about how rights are important."

This "advice" seems like the kind of thing Althouse would normally ridicule if a politician tried it in practice. But, here she's promoting it. Odd.

So to recap, Althouse is critiquing BHO's political skills because she's a law professor. And, she means it!!! Ha ha ha.; 1/23/10, 6:00 PM
Steve M. Galbraith said...: The Administration and the Democrats will try to find a way around the ruling. Yeah, duh.

The law is malleable, words are indeterminate. A law professor, like Obama, knows this more than everyone.

"Let's see how we can do the same thing the Court just said we can't."; 1/23/10, 6:02 PM
Lem Vibe Bandit said...: I'm not a lawyer so I'm not going to pretend to know law.. K N O W law.. ;) but I think I have something relevant to say.

Baseball came up with a new rule recently. While partially motivated in the interest of speeding up the game it also serve another purpose.

The rule is (to be used a the umps discretion) a batter maybe thrown out of the game for arguing balls and strikes.

I cant say exactly when it started but the barrage of players arguing balls and strike was noticeably increasing.. Salaries based on performance and the ever increasing pressure to perform also contributed to the shameful steroid era.

The rule not only helped restore the role of the umps but it also prevented it from slowly and surely deteriorating into irrelevance, and this is where I'm making my point.

If we are going to use words to resolve disputes we need the rule of law to prevail, and for that the role of the supremes has to be respected.; 1/23/10, 6:03 PM
miller said...: "I hear Stevens is so old and senile now that he's writing opinions for the conservatives."

Wins. The. Thread.; 1/23/10, 6:07 PM
Trooper York said...: I think batters should be thrown out of the game if they argue balls and strikes.

But it is ok if you spit in the umpire's face.

You might even get a lot of votes for the Hall of Fame.; 1/23/10, 6:14 PM
Anonymous said...: Wait just a minute - I thought the left believed that the President can't have opinions on the constitutionality of laws.

At least that is what I gathered from their hissy fits about Bush's signing statements.; 1/23/10, 6:22 PM
Lem Vibe Bandit said...: But it is ok if you spit in the umpire's face.

Of course not.. But thats what was happening.. umps were getting pushed and physically threatened.

The verbal (i'm trying not to use the word assault) had to be brought down a bit before it could spill over into chaos.; 1/23/10, 6:29 PM
Peter V. Bella said...: Nobody ever went to a ball game to see the umpire.

Good thing Roberts isn't a hokey fan. Everybody goes to the hockey game to see the Zamboni driver!!!!!!; 1/23/10, 6:33 PM
The Ghost said...: "Shall make no law" ???

Is there anyone who doesn't understand the meaning of that line from the Constitution ?

If you understand it then you agree with the decision ...

otherwise you are simply rationalizing you obvious dislike for the rule of laws that you don't like ...; 1/23/10, 6:39 PM
Lem Vibe Bandit said...: This comment has been removed by the author.; 1/23/10, 6:41 PM
Lem Vibe Bandit said...: Anyway, my point in chief has to do with the preservation of the integrity of the game.. Ditto the rule of law.

Supremes come and go but the rule of law remains.

I was trying to dig up transcrips from House Manager Henry Hyde ie Clinton's Impeachment but I cant find it.

Henry Hyde spoke about the rule of law in a way I never heard anybody else speak.; 1/23/10, 6:43 PM
Steve M. Galbraith said...: Shall make no law" ???

Yes, but rights conflict and the state must adjudicate between the parties. And make laws limiting those rights.

My speech stops when it injures you. E.g., slander, defamation, falsely yelling fire.., et cetera.; 1/23/10, 6:48 PM
Anonymous said...: "And are you saying his response is correct for a president who was a former law professor, or are you saying it is correct for a law professor, but incorrect for a president?"

This one. Or if not incorrect, at least stupid. She's saying he's talking like a law professor when his job is to be president. Being president has different requirements than being a law professor, at least if the job is going to be done well. It's another example of the "gifted" Obama not really knowing what the hell he's doing. There's a political aspect that comes in when you're president that doesn't come in when you're a law professor.

My own personal view falls along the lines of that old chestnut, "With great power, comes great responsibility." Law professors don't have great power and can act like that and say things like that because it doesn't matter too much what they say. But a president is the head of one of the co-equal branches of government and, if wise, he will act accordingly. His great power comes with great responsibility that he should exercise judiciously (pun intended, mostly).

Ann: "It's okay, Ignorance. My aim is to sharpen you up!"

That, from what I hear, is also something law professors do.

(I seriously doubt most presidents see that as their job, though. Usually it's quite the opposite.); 1/23/10, 6:49 PM
rhhardin said...: Yelling "No fire!" is even frowned on.

There's no logic to it.; 1/23/10, 6:54 PM
Sprezzatura said...: Lem,

Was it this jem re blue stained dress:

"A failure to convict will make the statement that lying under oath, while unpleasant and to be avoided, is not all that serious...We have reduced lying under oath to a breach of etiquette, but only if you are the President...And now let us all take our place in history on the side of honor, and, oh, yes, let right be done."

Brings a tear to the eye. [I mean a real eye, not some sort of euphemism for what Monica did to WJC's lower parts.]

P.S. How many folks bought their own copy of the Starr Report. I got one. I was a certifiable Clinton hater at the time--my level of disdain seems a little lame in retrospect. Of course, WJC is still an awful person, but those years could have been more mismanaged, as W showed me.; 1/23/10, 6:59 PM
TennLion said...: The Constitution DOES mean something. As a retired soldier, I swore and oath to support and defend that Constitution against all enemies, foreign and domestic. And if LawProfs in general DON'T think it means something, than I would put them in the domestic enemy camp.; 1/23/10, 6:59 PM
Lem Vibe Bandit said...: How many folks bought their own copy of the Starr Report. I got one.

I did too..; 1/23/10, 7:05 PM
Ignorance is Bliss said...: I had one, but ended up throwing it away because all the pages were stuck together.; 1/23/10, 7:07 PM
Lem Vibe Bandit said...: I had one, but ended up throwing it away because all the pages were stuck together.

LOL.. Who did you speep with to get the one with the illustrations..; 1/23/10, 7:11 PM
rhhardin said...: So Limbaugh's answer translates as that Obama hates the Presidency.; 1/23/10, 7:28 PM
Steve M. Galbraith said...: Yelling "No fire!" is even frowned on.

Your honor, can we have that gentleman escorted from the courtroom?; 1/23/10, 7:31 PM
traditionalguy said...: The Constitution is a fun document when a side uses it against their foe. The Dred Scott decision was a beaut. Then along comes a more forceful political movement and the stars are falling from Stare Decisis. Obama will have his fit about division of powers, and a new equilibrium will be found. But the fun is coming. Kings and Messiahs do not obey laws. They are the law.; 1/23/10, 7:36 PM
David said...: Althouse is reminding us of the necessity to be clear on what the question is before providing an answer.

A law professor would make a statement like Obama's because they are professors, expected to critique, and not constitutional officials.

But Obama is no longer a teacher.

He's President of the United States of America.; 1/23/10, 7:44 PM
Ralph L said...: My conclussion: "there's something very strange about the mind of" Althouse.
What did you expect? It says on the masthead that her mind was delivered by wolves, or something like that.; 1/23/10, 7:49 PM
Alex said...: Just to reiterate, we do live in a center-right country that does not really want to outlaw corporations. I know that's a SHOCK to Huffers.; 1/23/10, 7:51 PM
David said...: Althouse: "I get bored by most people when I'm trapped in a room with them, and when I'm bored, I behave badly."

If ever we meet, Althouse, I will keep a door open, if only to save myself the embarrassment.; 1/23/10, 7:57 PM
Robert J. said...: > I challenge you to figure it out.

It's simple: Ann is an ENTP.

(Test yourself here.); 1/23/10, 8:40 PM
Peano said...: "It is exactly what I, a law professor, would expect to hear from another law professor!"

No no no. That will never do, Professor. It isn't what you would expect to hear from just any other law professor -- witness all the law professors who applauded the Court's decision.

So please, Professor, qualify your answer. How would you characterize the law professors whom you would expect to take Bambi's position? And (bonus points) how would you characterize the law professors who recoiled from Bambi's position?

Don't slink away from the legal and logical challenge here: Refine, define, clarify. If you please.; 1/23/10, 8:43 PM
AST said...: LEGAL MAXIMS:

When the facts are on your side, argue the facts. When the law is on your side argue the law. When neither is on your side, baffle them with BS.

If Marbury v. Madison is inconvenient, you quote Andrew Jackson.

If you can't achieve your goals through politics, file a suit based on Marbury v. Madison arguing that you're being denied a civil right. Chances are good, if your argument would enhance the power of SCOTUS, you'll get away with it.; 1/23/10, 8:52 PM
Steve M. Galbraith said...: People for the American Way, The Center for Media & Democracy, Fairvote.org, Friends of the Earth and Public Citizen have all stated that they will work to get a constitutional amendment passed to overturn the recent court ruling that corporations have free speech rights.

No, I did not make that up.

(hint: what do they, I believe, all have in common?); 1/23/10, 9:02 PM
AST said...: This proves that law professors' minds operate like a "Sudanese Möbius Band" or Klein Bottle. In common parlance, this often results in students being told to pull their heads out of their swagogfa after they attempt to follow the professor's arguments.; 1/23/10, 9:02 PM
pdug said...: Its not just "separation of powers". Its also checks and balances.

So when the court overreaches, the other branches are welcome to try their best to do what they think is right.

Hopefully, the best will come from all the conflicting ambitions.

Its why I agree it was Bush's job to contravene congress if he considers their laws unconstitutional breaches of his own authority.; 1/23/10, 9:53 PM
From Inwood said...: I guess we're continuing the previous post over here, so I'll bring my answer to this thread:

Richard Dolan (1/22 @11:48)

You’re spot on.

I agree with Prof A as to how she thinks most Con-law Profs today would interpret a decision of a conservative court, that is, as Obama (but not a seasoned pol) did about this one.

As for the general public, it is uneducated or undereducated about the Constitution. (As are law school grads who just read the cases & take notes from the Orthodox Liberal Prof.) All they see is that it is the subject of endless nit picking, angels on the head of a pin, Talmudic disputations. Thus, they are susceptible to the inevitable encroachments of the judicial power-seekers & the politicians who enjoy their decisions.

I would argue that "Independence" of the Judiciary means simply that it is a co-equal branch of government.

That "Independence" does not mean that its foolish pronouncements, such as

-Dred Scott,
-No Income Tax,
-Segregation in Public Accommodations = OK, or
-the WW II Japanese imprison decisions,

may never be questioned, much less vitiated by another branch of the tranche or by a Constitutional amendment.

So when Conservatives in recent history have questioned SCOTUS' activism and argued for congressional action to reign it in or for a Constitutional Amendment to overturn/modify/clarify a decision, many Liberals thoughtlessly accused such Conservatives of attacking the "independence" of the judiciary or, worse, suggested that conservatives were advocating that its decisions do not have to be "obeyed". The fact that the four decisions referred to above, are now generally thought of as wrong & that three were overturned, one by the Civil War, no less & one “fixed” by reparations? Nevermind!

Now, many Liberals when it comes to this decision are questioning SCOTUS' activism and arguing for congressional action to reign it in.

And, since the ends do not justify the means, even if independent thinkers & serious students of the Constitution approve of the result of a particular SCOTUS decision, they may & should correct thoughtless rigid people who say that a SCOTUS decision like this & the reasoning behind it are fixed & unchangeable.

And Prof A, with all due respect, when you claim that

“Non-lawprof Americans tend to think that the Constitution really means something and that that the Supreme Court has a special role and expertise in saying what it means, that a 5-4 decision is something more than just a vote on what 9 power-wielders would like the law to be”,

I suggest, er, yes, except when the 5-4 decision is obviously nothing more than just a vote on what 9 power-wielders would like the law to be.

And, yes, I too would expect a politician to tend to the voters' feelings. As you note:

”Obama should have said that he would like to explore ways to write a new statute that will respect the rights the Court has articulated and still serve the good and proper goals that the defective statute was meant to serve. With some sugar about how rights are important.”; 1/23/10, 10:33 PM
Revenant said...: The ignorant (and absurdly arrogant) thinking around here is actually when the Law Prof earnestly thinks they know more about politics than the POTUS.

I'm starting to wonder if ANYBODY knows less about politics than the current POTUS.

Nancy Pelosi is the real President at this point. We should celebrate the historical first that represents. :); 1/24/10, 1:55 AM
traditionalguy said...: Th Supreme Court is deferred to on Con Law issues to avoid Civil Wars. Rational middleclass Americans see the value in that. Does Obama the Great or the John Birch Society see any thing except a casaus belli in the hard decisions? No. Civil War is another name for Politics among the mentally ill.; 1/24/10, 6:12 AM
Peano said...: Ann, I just realized how incredibly disingenuous you've been on this.

Your question: Why would a law professor oppose a Supreme Court decision on a matter of constitutional law and not respect the authority of the Court and honor our system of separation of powers?

Your "answer":It is exactly what I, a law professor, would expect to hear from another law professor!

Imagine the following exchange:

Professor Althouse (to law students): Why did the Court rule as it did in the campaign finance case?

Law student: That's exactly what we would expect the Court to do.

A "why" question requires a "because" answer. Why did you run away from your own question?; 1/24/10, 8:56 AM
Ignorance is Bliss said...: Peano-

To understand the Professor's post, it helps to realize it was not a question, but a riddle. So the better analogy would be:

Why do fish swim?

Because they are fish.

I guess you could quibble that her answer should have been in the form of 'Because he was a law professor', but overall I think her point was made.; 1/24/10, 9:46 AM
Ignorance is Bliss said...: Or, as a wise man said-

First principles... Of each particular thing ask: what is it in itself? What is its nature? What does he do, this man you seek?; 1/24/10, 9:52 AM
Peano said...: Ignorance is Bliss: Your handle tells the tale.; 1/24/10, 12:06 PM

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