October 4, 2010

It's the first Monday in October, time for people like Barry Friedman and Dahlia Lithwick to tell us "the court has taken the law for a sharp turn to the ideological right..."

"... while at the same time masterfully concealing it." And, annoyingly enough — to them, anyway — ordinary Americans still think the Supreme Court is too liberal.
How to explain the justices shoving the law rightward, while everyone thinks it is dead center or too far left? 
Their metaphor is magic — the article is accompanied by a photoshop of the Chief Justice in magician garb about to pull something out of a hat — and that question fails to acknowledge the difference between absolute and relative position. Obviously you can push — or shove as the exaggerated language of anguished liberals will have it — something to the right and have it still be on the left if the thing started out way the hell to the left. And obviously liberals know this: Tell Friedman/Lithwick that Anthony Kennedy is in the legal/political center because he's at the center of the current array of Supreme Court Justices. It will take them much less than a second to decide to inform you of the distinction between absolute and relative position.

Like TV's "Masked Magician," Friedman and Lithwick want to reveal the secrets behind what they'd like you to think are magic tricks the Court uses to conceal its terrible right-wingitude.

First, they say, there's "stacking the deck": "picking cases with facts so extreme that only one outcome seems possible." One of only 2 examples they give is Gonzales v. Carhart, in which the Supreme Court, in 2005, upheld the federal law banning so-called partial-birth abortion. Friedman and Litwick say:
The law bans late-term abortions in which the fetus is partially delivered before its brains are sucked out and skull collapsed. If you find it hard even to read that, you've caught the point: That's deck-stacking.
But the Court didn't choose that case out of a big pool of abortion cases in order to get something with "gruesome facts" that would keep us from "notic[ing] the major inroads the case makes on women's rights more generally." Congress passed the Partial-Birth Abortion Ban Act in 2003, right after the Supreme Court had stricken down Nebraska's partial-birth abortion law in 2000, in Stenberg v. Carhart. The Court in Stenberg showed legislatures what would be needed to pass a law against these abortions that would avoid the same constitutional flaw and Congress responded with a statute that we knew would have to go through judicial scrutiny and end up in the Supreme Court.

That it came to the Supreme Court in 2005 has nothing to do with the Court "stacking the deck"! Friedman and Lithwick just don't like what the case said about abortion rights, but the truth is that Gonzales v. Carhart was a moderate decision that avoided both extremes and, because of that, produced a separate opinion by Justices Thomas, joined by Justice Scalia (rejecting abortion rights altogether and questioning Congress's use of the Commerce Clause to regulate abortion), as well as a dissenting opinion consisting of the 4 Justices who, with the now-retired Justice O'Connor, had formed the majority in Stenberg.

The second "trick" Friedman and Lithwick identify is "misdirection":
While we are watching the term's "big" cases, it works its magic on the ones we aren't paying attention to, which often matter more. In this enterprise, the court is aided and abetted by the media.
Speaking of tricks, calling this a trick is itself a trick! It lets Friedman and Lithwick discount all the big cases that came out liberal and cherry pick any and every case that came out conservative. Hey! Look what the Court did in here! They proceed to tell you about their least-favorite recent cases.
Iqbal, Twombley, Garrett, Gross, Rapanos, Rent-a-Center. Maybe you haven't heard of most of those. But these are the cases that, read together, are making it harder and harder for everyday litigants to walk into a courthouse and hold unscrupulous employers, manufacturers of defective products, or polluters to account.
And you could pull out an equivalent list of little cases that make it easier. So what?

Friedman and Lithwick have 3 more tricks to reveal/do, so if you're up for their whole show, click through and read.


A.W. said...

this is the court that declared that 1) gay sex is constitutionally protected, 2) its cruel and unusual to execute child rapists (never mind that the framers executed people for horse theft), and 3) a fetus is not a person and no law by congress can make it a person, and thus it is entitled to no rights whatsoever until it passes out of the birth canal (and according to our president, not even then, unless it was supposed to do that).

As long as those precedents are upheld, the court will not be seen as right wing.

As for the supposedly right wing decisions, well, let's see here. We have citizens united where a law limiting freedom of speech was struck down by citing a part of the constitution that says that congress shall pass no law abridging freedom of speech, and a decision striking down a breach of the right to bear arms, citing a portion of the constitution declaring we had a right to bear arms.

those radicals!

Josh said...

All 5 of their "tricks" fall flat. See http://joshblackman.com/blog/?p=5201

lucid said...


You are truly a smart woman. It is a pleasure to watch your mind at work (sometimes).

Calypso Facto said...

"so if you're up for their whole show, click through and read"

I'm not, and I won't. I have NEVER read anything convincing (nor even entertaining) from Dahlia Lithwick. I frankly have no idea how she got her job or why. Her writing at Newsweek was another shovel of dirt on that mag's grave.

Thanks for slogging through and exposing her logical fallacies, Professor.

John said...

It infuriates me that someone as biased and misinformed as Lithwick gets to cover the Court for an allegedly serious magazine. When you read much of her writing it becomes obvious why Daddy thought maybe journalism was a good career choice rather than working at the family law firm.

Lithwick has never done anything in her life besides go to law school and work at her daddy's law firm. There have to be hundreds of burned out or retired lawyers who have had real careers before the court or teaching Constitutional Law who would love to write the Supreme Court beat for Slate. And would unlike Lithwick bring something besides snark to the table.

It is not so much that Lithwick is silly and ignorant. That would be annoying but forgivable. It is that she has no idea of how silly and ignorant she is. She is completely unaware that she sounds like a babbling moron to anyone but the most partisan brain dead reader. Worse still she is one of the most smug human beings on the planet. I honestly can't think of a more grating and incompetent writer today. She is just a joke.

Fred4Pres said...

John Paul Stevens claimed on NPR that the court moved right and he has stayed the same. A moderate conservative.

Well compared to the activist nature of the court in the 60s and 70s, that may be true. Most of that was not a good thing.

Unknown said...

Yes, Ann. They seem to be saying that protecting and applying the Constitution is anti-Liberal?!
Who knew?? Hmmm.

A.W. said...


lithwick used to be a good, albeit left-leaning, reporter on the court. but in recent years her bias has made serious commentary impossible.

John said...


People will say that, but I don't see any evidence of it. At best she was kind of a Maureen Dowd of Supreme Court reporting. She could make silly and shallow but mildly amusing observations about the Court. I defy you to find one piece of solid reporting and analysis she has ever done.

Anonymous said...

lithwick used to be a good, albeit left-leaning, reporter on the court. but in recent years her bias has made serious commentary impossible

I'm glad that I'm not the only one who's noticed this. When I first started reading her, she struck me as an astoundingly good writer who made me think, even if I ultimately disagreed. She still appears to have a talent for writing, but her reasoning has turned unbearably lazy and knee-jerk. Thus, a person who was once a valuable alternative point of view to challenge my own way of thinking has turned completely useless to me.

What a frustrating waste of a great talent.

- Lyssa

John said...

"What a frustrating waste of a great talent."

If she is a "great talent" then the world hasn't any great talents left.

Automatic_Wing said...

Kind of funny to cite Gonzales v. Carhart as a case "with facts so extreme that only one outcome seems possible", when in fact it was a 5-4 decision. Is she trying to insinuate that Ginsburg and company were totally out to lunch on that one?

Ignorance is Bliss said...

Is she trying to insinuate that Ginsburg and company were totally out to lunch on that one?

Of course not. She's trying to say that the liberals are able to see beyond the facts, the law, and even the written text of the constitution to come to what we all know are the right results.

Anonymous said...

It's classic - Lithwick is a slave of group think.

They're speaking their own vocabulary, tied closely to their own world view, and outsiders need not intervene or interpret.

They all went to the best schools, and they all have a lot of (daddy's) money, and everyone they know agrees with them, so who can doubt their omni-competence?

If you don't get it, you're an ignorant narrow-minded hater.

A Conservative Teacher said...

Those are all pretty good tricks, but none are as good as the liberal judges trick of making the Constitution disappear!

Anonymous said...

"the liberal judges trick of making the Constitution disappear!"

It doesn't disappear, it just graciously moves out of the way.

lemondog said...

...weirdly rooted in the notion that women share a "bond of love" with the fetus and many come to "regret" their decision. That's based on junk science....

On what basis do courts in 95% of the time (or whatever the %), award child custody to mothers? Is it primarily the lovey-bondy thing or something else?

Hans Bader said...

It's not just cherry-picking that's present in Dahlia Lithwick and Barry Friedman’s attack on the Supreme Court, but outright falsehoods.

Their illogical attack on one case, the Seattle School case (Parents Involved in Community Schools v. Seattle School District No. 1), which they peculiarly claim had to be upheld based on one past Supreme Court decision, Grutter v. Bollinger (2003), is a classic example:

The Grutter v. Bollinger decision upholding affirmative action in the University of Michigan’s law school expressly FORECLOSED the Seattle School District’s race-based plan, since it said (a) you can’t use race in a mechanical way (which is why the affirmative action in Grutter v. Bollinger’s companion case, Gratz v. Bollinger (2003), was struck down — it assigned a mechanical weight to race and other factors for admission to the University of Michigan undergraduate college), and (b) expressly said that “racial balancing” is constitutionally forbidden (Seattle, unlike the University of Michigan, expressly and openly race-balanced, fitting school racial percentages to demography).
Both of these criteria cut AGAINST the Seattle school policy invalidated in Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007).
The Seattle Schools used race in a mechanical way like the invalid policy in Gratz — not an amorphous way as in Grutter.
And they obviously engaged in “racial balancing,” which the Grutter decision expressly said was constitutionally forbidden. (It also happens to be expressly forbidden in a section of the 1964 Civil Rights Act).

(This is putting aside the fact that Grutter allowed race to be used at all based on “academic freedom,” a higher-education notion that probably does not apply to K-12 schools like Seattle – meaning they arguable could not use race even under circumstances otherwise permitted by Grutter).
Lithwick and Friedman apparently think the Roberts court should have ignored its many prior decisions limiting the use of race (Croson, Bakke, Gratz, Wygant, Adarand, etc.) while expanding on its few decisions upholding the use of race (like Grutter).
But it’s not clear why. Stare decisis doesn’t apply just to liberal decisions, nor does it allow many Supreme Court decisions to be ignored to expand the reach of the few – especially when doing so contradicts express language even in those few that are purportedly being followed, as well as the contrary holdings of many other cases.

Kirk Parker said...

"so if you're up for their whole show, click through and read"

Good grief, no. Why do you think we pay you the big bucks?

Steve M. Galbraith said...

Conspiracies, connecting dots (real and contrived).....

This is the Glenn Beck School of Constitutional Analysis.

Just give them a chalkboard and I'm sure MSNBC would give them a show.

A.W. said...


> I defy you to find one piece of solid reporting and analysis she has ever done.

Well, the last time i remember her doing that was like 2002 or so. So its hard to go back that far on the web.

i mean mind you, you knew even then she had liberal sympathies. But she reported enough facts and went against groupthink enough that it was still worthwhile to read it.

But today her writing is extremely hacky.

Also the "magic tricks" piece is uniquely silly given that they don't seem to know that it only takes 4 justices to get the court to hear the case, and there are 4 liberals.

Anyway, we agree about our present assessment of lithwick. But disagree that she always stank this badly. :-)

Chip Ahoy said...

I used to love those connect the dot puzzles, but they were frustrating. Some numbers were not near to the previous number so I'd end up with a straight line clear across the whole page, and I would think while drawing it, "what kind of bear is drawn with a a long straight line like that?" Continuing by their numbers, "These lines for a bear must be wrong. They're all jagged and they never cross." And then, "This isn't even looking like a bear." And finally, "DON'T EVER DRAW BEARS LIKE THIS !"

Then I'd do another one just to see how numbers can ruin another picture.

Same thing with paint by numbers. I'd tediously find all the numbers of a certain color one at a time and then behold idiotic picture unnaturally segmented. I'd thought that one time. "This is so incredibly stupid. It misses the whole point of blending.

Christy said...

Yeah, I stopped reading Lithwick sometime during George W. Bush's first term, which accords with A.W.'s 2002 date. Was she totally subsumed into the BDS of the era, losing any independence or freshness of thought? I notice that Michael Kinsley has finally emerged from the penumbra of BDS and has written a couple of pieces lately that weren't totally predictable.

Alex said...

Who cares? I bet Lithwick doesn't get more then a few thousands readers a week. Althouse is much BIGGER!

Chase said...

Thank you Professor. Well done.

David said...

Friedman and Lithwick are one of the following:

Blinded by bias and preconception.
Fearful of being fired.

Whatever the reason, they are unreliable reporters on their chosen subject.

Anonymous said...

Friedman and Lithwick state:

But these are the cases that, read together, are making it harder and harder for everyday litigants to walk into a courthouse and hold unscrupulous employers, manufacturers of defective products, or polluters to account.

Althouse says in response:

And you could pull out an equivalent list of little cases that make it easier. So what?

I say:

Which cases would those be, professor? I must have missed them the first time through, as I generally try to read as many Supreme Court cases as I can, and I don't recall a single one. Please enlighten us.

Stephen said...

What's the equivalent list, Professor Althouse?