"The same justices who feel harassed and exposed because reporters are combing through their undisclosed financial dealings right now could have solved this problem..."

"... with candor and honest reporting of their financial dealings on the routine occasions on which they were asked. In the midst of the crisis, they eschew a commitment to candor to instead mutter something about the nature of checks and balances, with the proviso that they are susceptible to neither. These are the ploys of emperors.... He wields a gavel, not a scepter. And the Constitution grants him no overarching right to insulate his entire court from the kind of minimal accountability without which no democracy can thrive."

Write Dahlia Lithwick and Mark Joseph Stern, in "King Roberts/The chief justice’s latest trick to ward off oversight is the ploy of a royal, not a judge" (Slate).

But the Constitution does insulate the Court from political pressure. It's not complete insulation, but that's why this article is framed as a call for "minimal accountability." The question then is whether what Roberts's refusal to do was in fact only a request for minimal accountability. Senator Dick Durbin asked him testify before the Senate Judiciary Committee about the Court's ethics. Roberts, declining, wrote: 

“Testimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.” 

Was Durbin seeking "minimal accountability" or a theatrical occasion to smack the Chief Justice around? Roberts had good reason to suspect the latter.

And speaking of theatrical: that Lithwick and Stern piece in Slate. All this talk of emperors and wielding a scepter! 

I remember when that was the rhetoric of the right. Here's Ed Meese in 1997, railing about "The Imperial Judiciary":

"But in recent weeks we’ve been treated to a boomlet of pieces suggesting that maybe women aren’t really all that angry about Dobbs after all."

"In this telling, women just kind of burned hot for a few weeks, until they came to realize that they cared about gas prices and milk prices more than they cared about reproductive justice. Central to this story was the narrative that Democrats face-planted in every possible way by focusing on abortion as the only election issue. Indeed, this mistake is supposedly so catastrophic that they are poised to be walloped in the midterms for it.... Just as there was no place for Alito to park reproductive freedom in the Constitution, so too, there is nowhere to park it in larger electoral politics. Abortion, pregnancy, and birth control: These issues will directly affect at least half the electorate, yet even now they remain hopelessly niche.... As far back as the time stamp on Alito’s shallow dive into history allows, women were being told that their interests were secondary, were a distraction, and were subsumed under bigger more important interests that are in the care of men.... If you accept the framing that women’s rights will always be lesser, you are pretty much signing up to guarantee that women’s rights will always be lesser in the future."

Writes Dahlia Lithwick in "Don’t Bail on Abortion/Women have been asked to stop prioritizing this problem for centuries" (Slate).

ADDED: What happened to the reports of individual women and girls impregnated by rape or pregnant and facing serious health problems? Was a decision made not to pursue this form of persuasion? It seemed to be presumed, right after Dobbs, that these stories would be powerful, but then they were gone. Why?

Mary Trump on How She Keeps Getting Away with Talking About Her Uncle.

Just kidding. The article — in Slate, by Dahlia Lithwick — is "Mary Trump on How Her Uncle Keeps Getting Away With It."

"But if we can all agree what the GOP agenda has been, I remain utterly mystified by the Democrats. They have the votes to confirm [Ketanji Brown Jackson]..."

"So what are they afraid of? I wrote earlier this week about the utter failure on the part of Senate Judiciary Committee Democrats to connect this hearing to what is going to be a catastrophic series of progressive losses at the Supreme Court this term, and the almost staggering inability to lay out any kind of theory for progressive jurisprudence, or even a coherent theory for the role of an unelected judiciary in a constitutional democracy. My colleague Mark Joseph Stern wrote today about a broadside attack on the whole idea of unenumerated rights, substantive due process, and the entire line of cases that protect Americans from forced sterilization, indoctrination of their children, and penalties for using birth control, and afford them the right to marry whom they want. More mysterious than this coordinated GOP project... was the almost complete silence from Senate Democrats on these issues of substantive due process, privacy, and bodily autonomy. On the simplest level, the hearing might have been an opportunity to explain why Roe v. Wade is in fact the tip of the constitutional iceberg [sic].... I understand that the decision was taken to just get the nominee confirmed. Take the win. But for those of us watching and waiting to see Democrats support and back the nominee, there was an immense sense of underreaction."

Writes Dahlia Lithwick in "Cory Booker Aside, Democrats Stranded Ketanji Brown Jackson" (Slate). 

Here's the Cory Booker performance:

 

Sen. @CoryBooker to Judge Jackson: "I'm not letting anybody in the Senate steal my joy...Don't worry, my sister. Don't worry. God has got you. How do I know that? Because you're here and I know what it's taken for you to sit in that seat." pic.twitter.com/m7cGjLrftZ

— CSPAN (@cspan) March 23, 2022

Do I need to explain my "[sic]" on "the hearing might have been an opportunity to explain why Roe v. Wade is in fact the tip of the constitutional iceberg [sic]"? Lithwick cannot have wanted to characterize Roe and related cases as the iceberg. Aren't we rooting for the ship?

ADDED: I think I can solve the mystery of what the Democrats are afraid of. They're afraid of the electorate and that to lay out a "theory for progressive jurisprudence" would only alienate people. It's better to hold back, blandly honor the historic!!! nominee, and wait for the Republicans to create the opportunities to call them meanies. I strongly suspect that Lithwick knows this very well.

"Attorney General Merrick Garland is, like Mueller before him, a diligent institutionalist. And while the institutionalists are not to be faulted for..."

"... attempting to prop up institutions—answering chaos with chaos is not an option—it is now amply clear that propping up institutions in response to the carnival is not enough. As Garland’s testimony Thursday morning revealed, the big lie is already going to be halfway across the world while the institutionalists are still double-knotting their loafers. When we comforted ourselves with the bromide that boring old institutionalists and reliably respected institutions would serve to cool the fever dreams and the fearmongering that characterized every day of the Trump administration, what we forgot was that boringness and stability are no match for the show. Garland is currently attempting to restore confidence in an independent, professionalized, apolitical Department of Justice, but he is doing so in the face of claims by his opponents that the DOJ is the new KGB and that its jackbooted thugs are coming to arrest you in the dark of night for expressing peaceful opposition to a classroom curriculum.... Garland is well aware that decreasing confidence in the Justice Department is a crisis that will accelerate acts of violence and self-help. That’s why he’s trying to bore us into believing that nothing nefarious can really happen on the watch of a silver-haired man with earnest centrism. The problem is that to the bulk of the GOP, anything done to uphold the rule of law now codes as nefarious. The trouble with boringness is that it’s boring.... But nobody craves boring sincerity anymore.... I used to believe that answering hysteria with vanilla bean–flavored institutionalism would restore confidence in institutions."

Writes Dahlia Lithwick in "Why Merrick Garland Can’t Win" (Slate). 

I have a lot of problems with that!

1. No one is "still double-knotting their loafers." Loafers are, by definition, slip-on shoes. No laces at all.

2. Vanilla is a very real, exciting, and complex flavor. I happen to have a very low sense of smell, and I test it from time to time by sniffing at the bottle of vanilla. I remember the smell, and oh, how I would love to smell it in its full-bodied beauty once again. Tears come to my eyes as I imagine that moment. 

3. Nobody craves boring sincerity anymore? I do.

4. Even if people find boring to be boring, we love boringness very deeply, even if it's a don't-miss-your-water-'til-the-well-runs-dry kind of love. We hate chaos. And Lithwick's incitement to chaos is loathsome to me because I have the sense to foresee the long-term losses to a short-term fling with chaos. 

"It’s boring, at this point, to talk about the cost of living with Donald Trump as president... the massive toll, in terms of time and energy stolen from Americans forced to pay attention..."

"... to inane tweets and half-baked policy, this presidency has had on all of us," writes Dahlia Lithwick  "The Demoralizing Reality of Life Under Trump/Every day is the same, but still awful" (Slate).

And I just wonder why people keep giving Trump what he's only asking for. He's not stealing your attention.

I know the reflexive answer is that because he's President, we must keep paying attention, jumping at his every instigation, but you have to look at yourself. You can only do your part in this wild enterprise. Why can't you figure out how to do that in a way that doesn't give him perpetual dominance?

The reflexive answer to that question is that you think you're defeating him. But no, he's doing it in a way that makes your opposition energizing to him. That's how he became President in the first place. You can't stop, and he's doing it again and again and again.

A little more Lithwick:

The actual psychic toll on our mental health is crippling. The lost sleep, the grinding anxiety, the escalating fears don’t just represent squandered time. They start to chip away at your health and at your soul. The healthy response would be to tune it out altogether, but since actual people are actually suffering the brutal consequences, we cannot. And so here we are back in the narcissist’s loop, fueling his need to be at the center because, well, there he is at the center....

Take responsibility for yourself. Any therapist will tell you that!

Self-care in the form of manicures and time with the kids isn’t making a dent in it.... We are all doing too much. And we are all also not doing enough. And there is nothing wrong with you, beyond being a human being in categorically insane times.

To say "there is nothing wrong with you" is to assert that there's nothing you can do. But you can always only ever do you.

"But what is exhausting about the current debate over the use of the words concentration camp goes beyond Trump and his made-up reality."

"At its heart, the question is: Should we call these camps, where a distinct group of people is being detained by the government, by their proper scholarly name? Or should we avoid it because it invokes* the Holocaust and might somehow diminish from the attendant suffering of those who perished there? Again, the question turns on emotion, on individualized reactions to the specific words, rather than on accuracy and precision; as many have pointed out, the term 'concentration camp' predates the Holocaust and does not require an intention toward genocide.... Are we now spending more time on the labels than on the actual harms? In a time of information overload and outrage fatigue, is fighting over what we call things coming at the cost of fighting against the things themselves? The sometimes threadbare political axiom 'if you’re explaining, you’re losing' comes to mind.... But we must question whether battles over who is most affronted by references to the Holocaust come under the category of explaining, or trying to find shared meanings, or reaching for truth.... What matters is that words still have the capacity to move, inspire, and terrify us. If they can still do that, perhaps they can still push us to act, even if we don’t always agree."

I'm reading "The AOC–Liz Cheney 'Concentration Camp' Fight Might Just Be a Distraction" by Dahlia Lithwick and Susan Matthews (Slate).

______________

* In an essay about words, it's a good idea to use the right words yourself. It should be evokes, not invokes.

"By 2039, the Supreme Court basically doesn’t matter anymore. It’s just wallpaper."

"We have very fanciful ideas about a protective, progressive Supreme Court, and that is almost entirely a function of a chunk of time in the 1960s and ’70s. The truth is, for almost all of history, the Court was protecting monied business interests at the expense of minorities. And we survived. But from the 1960s and ’70s, progressives got this notion that the Court was going to save us. More recently, Democrats thought we were winning because of the Obergefell gay-marriage case. But actually, we’ve lost everything, including the right to free and fair elections. We might continue to lose. There’s been a 40-year laser focus on the political right around the Court. There has been an absolute sucking noise on the left around the same issue. We had a 4-4 Court for a year, and I didn’t see Americans going to the polls over it. I didn’t see anybody thinking about it."

Writes Dahlia Lithwick in one of the "8 Predictions for What the World Will Look Like in 20 Years" (NY Magazine). She says "By 2039, the Supreme Court basically doesn’t matter anymore," but I guess it all depends on what "doesn't matter" means. Maybe it means it shouldn't matter when it's not doing what I want.  That is, Lithwick and the people she likes won't channel their political aspirations into litigation. But I don't see how that makes the Court "just wallpaper," because if it's so bad at doing what you want, it's maybe good at doing what the other guy wants.

By the way, I love the phrase "I didn’t see anybody thinking about it." Maybe by 2039, we will be able to see what people are thinking.

Anyway, what are the other 8 predictions?, you might wonder. Is anything else as scintillating as the incipient wall-paperization of the Supreme Court?

Well, according to Kate Julian, "There Will Be a Lot Less Sex and a Lot More Masturbation":

Masturbation and other varieties of solo sex will continue to be more prevalent than they were before; porn aficionados will enjoy VR sex and sex robots. Like many other aspects of our world in the decades to come, the gap between the haves and have-nots will continue to grow. Those who have many advantages already will be disproportionately likely to find romantic and sexual partners if they desire them and to have fulfilling sex lives. There will be good parts of this: Nonconsensual sex will be far less common than it is today. There will be little to no social stigma attached to being unattached. Those who approach singledom with psychological and financial advantages will flourish. It will be the best time in human history to be single. But there will be less unambiguously positive developments as well: For better and for worse, the birth rate will continue to fall, and those who are less suited to solo life will suffer from profound loneliness....

"Rather than the deep substantive discussion that the moment demands, the treatment of Kavanaugh’s nomination has been dominated by aggrieved demands for civility..."

"... decency, and the earnest pinkie swears of the 1 percent. But the person who drove a stake in the heart of whatever remained of civility and decency is the same person who nominated Kavanaugh. This is Trump’s M.O.: to offer neither civility nor decency to anyone who isn’t wealthy and powerful, and then to demand it for himself and those with whom he chooses to associate. By these lights, tearing apart families seeking asylum is civil. Refusing service to Sarah Huckabee Sanders is not. Trashing the media and people of color is civil. Speaking ill of Judge Kavanaugh is not. So let’s be done with the civility of convenience, which we’ve learned only flows in a single direction and doesn’t apply if you are poor or brown or suffering.... Ask any law clerk at the Supreme Court to name the warmest, kindest justice on the bench and they will tell you Clarence Thomas is that guy. Every time. That’s not nothing, but it isn’t anything close to everything. Being lovely to people around you isn’t a proxy for judicial ideology and methodology. Let’s please respect Kavanaugh enough to stop talking about his mad carpooling skills... The state of Brett Kavanaugh’s niceness is not a constitutional question."

Writes Dahlia Lithwick in "No More Mr. Nice Justice/Brett Kavanaugh’s kindness and courtesy has no bearing on whether he should be confirmed to the Supreme Court" (Slate).

This gets my "civility bullshit" tag, and I agree with her about "the civility of convenience, which we’ve learned only flows in a single direction." But I laugh at her effort to put a one-way spin on that one-way flow. The larger idea of civility bullshit is that all sides use it when it serves their interest and — in the normal political discourse of the United States — it's only used to get your opponents to quiet down. It's not just used to shush the "poor or brown or suffering." It's used whenever it's useful, and no one is for civility as a neutral principle. It's bullshit. So, much as I agree with the first half of Lithwick's sentence — "So let’s be done with the civility of convenience, which we’ve learned only flows in a single direction" — I call bullshit on the second half — "and doesn’t apply if you are poor or brown or suffering."

"For 20 years, I’ve felt it was too early to speak up about Judge Alex Kozinski. Now I fear it’s too late."

"He Made Us All Victims and Accomplices," by Dahlia Lithwick (at Slate).

I have seen Judge Kozinski dozens of times in the past two decades, moderated his panels, sat next to him at high-powered, high-status events and dinners. My husband will tell you he once fielded a call from the judge to my home, in which Kozinski described himself as my “paramour.” I have, on every single such occasion, been aware that part of his open flouting of empathy or care around gender was a show of juvenile, formulaic bad-assery designed to co-opt you into the bargain. We all ended up colluding to pretend that this was all funny or benign, and that, since everyone knew about it, it must be OK. It never was....

But now it’s 2017....

You don't want to be thought of as a cog in a complicity machine.

Get out!

"If Mr. Trump had lost the Electoral College while winning the popular vote, an army of Republican lawyers would have descended on the courts and local election officials."

"The best of the Republican establishment would have been filing lawsuits and infusing every public statement with a clear pronouncement that Donald Trump was the real winner. And they would have started on the morning of Nov. 9, using the rhetoric of patriotism and courage."

That's by Dahlia Lithwick and lawprof David S. Cohen in a NYT op-ed, "Buck Up, Democrats, and Fight Like Republicans."

And that gets my things not believed tag.

Lithwick and Cohen offer as proof of their assertion the way the GOP fought in Florida in the 2000 election. But that had absolutely nothing with denying the fundamental constitutional structure that is the Electoral College.

"As Monday’s Electoral College vote approaches, Democrats should be fighting tooth and nail," they say. But what arguments could possibly be made? They say:

Impassioned citizens have been pleading with electors to vote against Mr. Trump; law professors...

Law professors!

... have argued that winner-take-all laws for electoral votes are unconstitutional; a small group, the Hamilton Electors, is attempting to free electors to vote their consciences; and a new theory has arisen that there is legal precedent for courts to give the election to Mrs. Clinton based on Russian interference.

Let's just hear from Chris Wallace:

"Upworthy showed everyone that you get more pageviews with two-sentence headlines. What happened next will blow your mind."

From a Facebook discussion of the Slate article titled "Republicans Stole the Supreme Court/Democrats, don’t let them get away with it."

"Paradoxically, Justice Antonin Scalia..." — I'm not seeing the paradox.

From "Pseudoscience in the Witness Box/The FBI faked an entire field of forensic science," by Dahlia Lithwick:

Paradoxically, Justice Antonin Scalia has emerged as a vocal early skeptic about the risk of taint in the work of crime labs, even though he contended in 2006 that, “It should be noted at the outset that the dissent does not discuss a single case—not one—in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby.” It is clearer now than ever that crime labs and prosecutors’ officers do make mistakes, shameful, devastating mistakes, and that they don’t usually distinguish between capital and noncapital cases when they do so.

What's the paradox? It sounds coherent to me — concern about evidence and the proper role of the court.

By the way, the original meaning of "paradox," now obsolete, was "A statement or tenet contrary to received opinion or belief, esp. one that is difficult to believe" (OED). The current meaning is "an apparently absurd or self-contradictory statement or proposition, or a strongly counter-intuitive one, which investigation, analysis, or explanation may nevertheless prove to be well-founded or true" or "A proposition or statement that is (taken to be) actually self-contradictory, absurd, or intrinsically unreasonable." So, Scalia's 2 positions may be paradoxical to those who don't immediately see the coherence, as I did. Lithwick may have a point of view and assume the reader shares it, which makes "Paradoxically" an exciting segue rather than what it felt like to me — distracting nodding at the we-loathe-Scalia crowd.

"Indeed, it seems to me that the more Christian a country is, the less likely it is to regard the death penalty as immoral."

"Abolition has taken its firmest hold in post-Christian Europe and has least support in the church-going United States. I attribute that to the fact that for the believing Christian, death is no big deal.... The post-Freudian secularist... is most inclined to think that people are what their history and circumstances have made them, and there is little sense in assigning blame.... You want to have a fair death penalty? You kill; you die. That's fair. You wouldn't have any of these problems about, you know, you kill a white person, you kill a black person. You want to make it fair? You kill; you die.... In my view... the choice for the judge who believes the death penalty to be immoral is resignation rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty.... I am happy to have reached that conclusion [that the death penalty is not immoral] because I like my job and would rather not resign."

Said Justice Scalia, back in 2002. The part I've boldfaced was quoted in Slate yesterday, which links to the longer quote at (of all places) the World Socialist Web Site. The WSWS calls Scalia's statement "reactionary drivel." The Slate article, by Dahlia Lithwick is: "Pope Francis’ Message Isn’t Echoed at Red Mass/A reminder that the only faith that should matter at the Supreme Court is faith in the Constitution."

Lithwick speculates about why Justice Scalia did not show up for the Pope's lecture to Congress. That is... she doesn't speculate.... she only observes that "there was some inevitable speculation" that Scalia stayed away because he didn't want to have to be seen hearing the Pope call for the abolition of the death penalty.

But nothing in that Scalia quote is an objection to the abolition of the death penalty! I hope you can already see why, and I hate be to so pedantic as to spell out something so obvious, but Lithwick seems not to get it. She's probably only pretending not to get it, but it's significant that she doesn't mind posing publicly in the position of someone who doesn't get it.

Scalia is talking about how he can continue to be a judge when he's forced to decide death penalty cases and must decide them according to the Constitution, which, in his view, cannot be interpreted to ban the death penalty. As a judge, he's bound by the limitations of judging, which preclude importing his religion into the analysis, and at some point, his religion might require him to resign from the Court. He's explaining why he does not need to resign. There's utterly no reason to interpret that to mean he'd object if Congress or any state legislature were to pass a statute abolishing the death penalty.

There's more detail in this earlier post, from 2005, which quotes another speech of Scalia's in which he explained the difficulty which "need not be faced by proponents of the living Constitution who believe that it means what it ought to mean. If the death penalty is immoral, then it is surely unconstitutional, and one can continue to sit while nullifying the death penalty. You can see why the living Constitution has such attraction for us judges."

"Death is no big deal" wasn't a statement of callousness toward the convicted murderers our government executes. It's an observation about the mindset of societies that choose to keep the death penalty as part of their statutory law, the law that judges can only invalidate if it is unconstitutional.

"Deeply... it's such a poser word."

Said Meade, reading the previous post "The NYT poll reports terrible numbers for Democrats, but calls the Republcian Party 'deeply unpopular.'" It made me wish I'd had a tag on the word "deeply" all along. It's a metaphor, creating an image of abstract concepts in space. Where are you when you are "deeply in love"? There are so many trite usages — deeply in love, deeply disappointed, deeply religious, thinking deeply, deeply troubled, deeply concerned, deeply offended, deeply regret — and "deeply" is deeply embedded in constitutional law doctrine with the phrase "deeply rooted in this nation's history and tradition." But I'm interested in seeing how is "deeply" is deployed in various political and cultural statements, so I've searched this blog's archive, and here's the best of what I found:

1. "Beauty is a system of power, deeply rooted, preceding all others, richly rewarded," wrote Garace Franke-Ruta, explaining "Why Obama's 'Best-Looking Attorney General' Comment Was a Gaffe."

2. "During the period when [Althouse] rose to blogging prominence, conservatism as an ideology was deeply discredited and unpopular.... But if you look at her whole body of work, you can't escape the conclusion that she's deeply conservative."

3. Sarkozy said "I deeply enjoy the work" (of being President of France), and I said: "Wouldn't it be amusing if some day, a President resigned because he just wasn't enjoying the work — not deeply, anyway?"

4. Talking about libertarians, I said: "I am struck... by how deeply and seriously libertarians and conservatives believe in their ideas. I'm used to the way lefties and liberals take themselves seriously and how deeply they believe. Me, I find true believers strange and -- if they have power -- frightening. And my first reaction is to doubt that they really do truly believe."

5. Last May, Tina Brown said: "Now that Chelsea is pregnant, and life for Hillary can get so deeply familial and pleasant, she can have her glory-filled post-presidency now, without actually having to deal with the miseries of the office itself..."

6. This John Stuart Mill passage came up in the context of a discussion about free speech: "Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practices a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself.”

7. Something President Bush said in 2006: "It is deeply troubling that a country we helped liberate would hold a person to account because they chose a particular religion over another. I'm troubled when I hear, deeply troubled when I hear, the fact that a person who converted away from Islam may be held to account. That's not the universal application of the values that I talked about."

8. "Clinton’s interest in global women’s issues is deeply personal, a mission she adopted when her husband was in the White House after the stinging defeat of her health care policy forced her to take a lower profile." [SEE ALSO: the use of "deeply personal" to refer to Sonia Sotomayor's dissent in a case about affirmative action. I find it deeply interesting when a woman's interest in an important issue is called "deeply personal." I'm reminded of the old feminist slogan "The personal is political," which I'm inclined to jocosely reword: "The deeply personal is deeply political."]

9. Somebody called Dahlia Lithwick "deeply frivolous" for what she said about the Supreme Court case known as "Bong Hits 4 Jesus," and I said: "I mean, if I were stoned I might be fascinated by the phrase 'deeply frivolous,' but I don't think Carney meant to divert us into contemplating an oxymoron."

10. A sociologist said: "I live on puns and snide, sarcastic asides. I don't look too deeply into myself or anyone else...  I drink a lot, take recreational drugs, don't care about much except being clever. I recently broke up with my girlfriend, and while I am eager to have sex, which I do often given the zillions of available women in New York, the sex is not especially fulfilling, and emotions rarely enter the picture. I am deeply shallow. And I know it."

ADDED:

11. One of Hillary Clinton's most famous quotes: "This video is disgusting and reprehensible.  It appears to have a deeply cynical purpose, to denigrate a great religion and to provoke rage."

12. A self-professed liberal says: "the liberal commitment to Roe has been deeply unhealthy — for American democracy, for liberalism, and even for the cause of abortion rights itself....  Roe puts liberals in the position of defending a lousy opinion that disenfranchised millions of conservatives on an issue about which they care deeply while freeing those conservatives from any obligation to articulate a responsible policy that might command majority support...."

"Compare this reception of Sotomayor’s deeply personal dissent with how her colleagues talk about Thurgood Marshall’s time at the court..."

Dahlia Lithwick invites us into the world of comparative race consciousness. There are so many disparate points of comparison. Thurgood Marshall was a black man born in 1908. Sonia Sotomayor is a Hispanic woman born in 1954. And Lithwick is comparing written responses to a written judicial opinion and spoken reminiscences about private personal interactions with a colleague. But anyway, here are Lithwick's musings:

Maybe the outcry at Sotomayor’s reflections on why race and racism still matter is merely a function of her tone. Nobody likes to be told they are out of touch with reality, even if they work in a palace and surround themselves with silent, sock-footed clerks. Or maybe it was different when Marshall lectured them, or browbeat them into changing language in written opinions because he was a man. Or maybe they endured it because he was funny. Or maybe, and I suspect this is it, they could hear him because he was a part of the era that the majority of the current court wants to relegate to history: Marshall argued Brown. But Brown solved racism! 

There's no reason to suspect that anyone on the Court thinks "Brown solved racism!" Does anyone anywhere think that?

Maybe Marshall was allowed to talk about race because Marshall lived in a time the current justices still acknowledge was an era of “real” racism. Which in their view ended with the passage of the Civil Rights Act. Or maybe Marshall was allowed to speak so pointedly and openly about the intersection of race, law and his own life, precisely because, as Justice White explained it, White and his colleagues were well aware of all that they “did not know due to the limitations of our experience.” But maybe the time of acknowledging that you don’t know as much as you thought you knew about race is over. Because, seemingly, and by popular acclaim, racism itself is over.

Where is this "popular acclaim"? Stressing the importance of "reality," Lithwick invents a cartoon picture of how other people think. The issue that divides the Court isn't whether or not racial problems persist, but whether the government should be classifying human beings by race as it goes about trying to solve the various problems and risks making them worse.

And Lithwick never even mentions Clarence Thomas, who would seem to offer a second basis for comparison. How have his colleagues received the things he's written that disrupted the way they wanted to think about race? To be fair, Clarence Thomas did not write an opinion in this new case Schuette v. Coalition to Defend Affirmative, Integration and Immigration and Fight for Equality by Any Means Necessary, which had 5 opinions, only one of which was a dissenting opinion. Thomas joined Justice Scalia's opinion, which deserves a separate post. I'm just calling attention to Thomas because Lithwick is ignoring him, even as she patronizes those who act like it's passé to acknowledge that you don’t know as much as you thought you knew about race. Those other people need to acknowledge that they don't know as much as they think, but the things not known surely don't include the things Clarence Thomas has been writing — notably in Grutter v. Bollinger, which begins with a passage from Frederick Douglass, who was born 90 years before Thurgood Marshall. 

"The Supreme Court on Wednesday issued a major campaign finance decision, striking down limits on federal campaign contributions for the first time."

"The ruling, issued near the start of a campaign season, will change and most likely increase the role money plays in American politics," reports Adam Liptak in the NYT.

The decision, by a 5-to-4 vote along ideological lines, was sort of a sequel to Citizens United, the 2010 decision that struck down limits on independent campaign spending by corporations and unions. But that ruling did nothing to disturb the other main form of campaign finance regulation: caps on direct contributions to candidates and political parties.

This is extremely important. The case is McCutcheon v. Federal Election Commission. 

ADDED: Chief Justice Roberts writes for 4 members of the Court — himself and Justice Scalia, Kennedy, and Alito — but the 5th vote from Justice Thomas would go even further. Roberts writes:

Hey, remember civility?

I remember when liberals were pushing civility in public discourse. I made the tag "civility bullshit" for this topic right away, because I knew it was bullshit, and this morning it seems that everywhere I look on the web, I'm seeing inflammatory rhetoric from liberals. Here are 3 things I happened to see first thing today:

1. "Right-wing nutjobs’ last stand: The debt limit endgame arrives/As the debt limit deadline approaches, conservatives are trotting out the real nonsense. The fantasy is almost over." That's a headline at Salon for an article by Brian Beutler. Apparently, at Salon, they think news analysis is just fine when it calls leaders in the political party they disapprove of "right-wing nutjobs." Does Beutler deserve that presentation? I don't know. Maybe Salon is just fighting for clicks in this crazy world.

2. And here's President Obama, the man who lectured us about civil discourse after the Tucson massacre, talking about the shutdown/debt ceiling problem, and he's using crime as a metaphor: "Think about it this way... The American people do not get to demand a ransom for doing their jobs." Why should we think about it that way? We're supposed to see the Republicans as kidnapping... I don't know... somebody. The Republicans are elected members of Congress, which makes the decisions about spending. They're having a hell of a time getting through this decision, but what makes it crime-like? The comments at that link, which goes to the NYT, pick up the President's cue. One comment — a NYT pick, highly rated by readers —  begins: "President Obama is right. He should not be forced to negotiate with a rope around his neck." Suddenly, the metaphor is lynching.

3. "Will the Supreme Court Allow the Richest Donors to Corrupt American Politics Even More?" That's a front-page teaser at Slate leading to "Poor Little Rich Guys/The Supreme Court clamors to protect the right of Richie Rich, Scrooge McDuck, and the Koch brothers to further corrupt American politics." The article is by Dahlia Lithwick, who's been describing Supreme Court oral arguments for years. She's reporting on yesterday's argument in McCutcheon v. Federal Election Commission, which is a challenge to the limit on how much a person can donate to various candidates. It's not about how much you can give to any single candidate, just the ceiling on total contributions, when you're spreading money around to many candidates. (The limit is $48,600 every 2 years.) Richie Rich? Scrooge McDuck? Will Slate allow the stupidest bullshit to erode American minds even more?

You know who's also rich? In addition to those characters from comic books that Baby Boomers read when they were children? The owners of the Washington Post and the New York Times. How about a law that puts a ceiling on how much they are allowed to spend putting out their political speech? Poor little rich guys. Boo hoo. Who cares? Fuck them, she said, sarcastically.

"I used to believe that public school open houses required little more than the obligatory clean shirt with buttons and a swipe of lip gloss."

Says Dahlia Lithwick in a piece titled "Parents Left Behind: How public school reforms are turning American parents into dummies."

That made me wonder: Did I miss a memo about buttons?

I get "clean," and obviously one's upper body must be clothed, but is there a thing about buttons? Do buttons mean something?!

"Antoinette Tuff Had Empathy for the Georgia School Gunman. We Can Learn a Lot From Her."

Writes Dahlia Lithwick.

In her first interview after the standoff, Tuff mentions that in the initial terrible moments she thought about a sermon series on “anchoring” that her pastor had been preaching, and it helped her to see that Hill was bereaved and in pain, and she was praying for him. I don’t know anything about anchoring, but I know I want to learn. Tuff’s compassion and her ability to see herself in her assailant (and him in her) might be as useful a way to think about school violence as any other I’ve seen. In the course of a few days, Tuff proved that the national debate doesn’t have to be about “bad” guys and “tough” guys (or even just “guys” at all). This doesn’t have to be about lose-lose split-second decisions or the simplification of complicated situations for political gain. She shows that this debate is about ongoing, years-in-the-making problems: isolation and loneliness, medical failures, depression, and the allure of being a copycat in a culture that celebrates violence. She shows that polarizing debates about bad guys and good guys in the heat of battle are both fatuous and pointless.

Much more here, with details about the hour-long interview Anderson Cooper did with Tuff last night. I highly recommend that. You'll see that Tuff is very strongly grounded in religion — more than Lithwick seems to want to talk about. I don't think religion is essential to developing the kind of skill that Tuff displayed, but it is most certainly Tuff's own understanding of why she was able to do what she did, as she continually returned to statements like "God gives us a purpose in life" and "God has a way of showing you what's really in you."