"Hi Ann - long-time local reader. After Breyer mused on 'super stare decisis' today I duck-duck-go'd it and your 2005 post was one of the first results...."

"I was struck by how it felt like this post could have been written today. Plus ça change." 

That's from my email. The 2005 post is "Luttig and 'super-stare decisis.'" I'll just print the whole thing (below) so you can read it and see how up-to-date it is.

First, here's what Justice Breyer said:

It is certainly true that we cannot base our decisions on whether they're popular or not with the people. Casey seemed to say we shouldn't base our decisions not only on that but whether they're going to -- whether they're going to seem popular, and it seemed to me to have a paradoxical conclusion that the more unpopular the decisions are, the firmer the Court should be in not departing from prior precedent, sort of a super stare decisis, but it's super stare decisis for what are regarded as -- by many, as the most erroneous decisions. Do you think there is that category? Is there -- or is it just normal stare decisis? 

And here's what I wrote 16 years ago (when GWB needed to fill a Supreme Court seat):

The sanctuary cities issue has the left inspired about federalism.

There's Jeffrey Rosen in the NYT, "States’ Rights for the Left."

IN the wake of the presidential election, as Democrats realized that Republicans will soon control all three branches of the federal government, progressives disinclined to secede from the Union rediscovered another exit strategy: states’ rights.

Mayors in several so-called sanctuary cities, including Los Angeles, Oakland, Chicago and New York, immediately reaffirmed their commitment not to work with federal immigration officials in detaining and deporting illegal immigrants....

More detailed, doctrine-wise, is Ilya Somin in WaPo, with "Federalism, the Constitution, and sanctuary cities," explaining Printz v. United States (the anti-commandeering doctrine) and NFIB v. Sebelius (the limit on using the spending power to coerce compliance).

This is the main subject I wrote about when I wrote for law journals. See, e.g., "The Vigor of Anti-Commandeering Doctrine in Times of Terror." My experience was that liberals and lefties got annoyed at the suggestion that doctrine from conservative Justices could serve liberal causes.

ADDED: The post title is not intended to imply that Ilya Somin is himself a man of the left. And he now has a newer post: "Trump, federal power, and the left – why liberals should help make federalism great again."

"But I hope he sends us someone smart," said Scalia to David Axelrod. "I hope he sends us Elena Kagan."

Writes Axelrod, at CNN.com today.

He's relating a conversation he had with Scalia when they happened to have been seated together at the White House Correspondents Association dinner, right after David Souter had announced his retirement.

I was surprised that a member of the court would so bluntly propose a nominee, and intrigued that it was Kagan.... Later, I learned that Scalia and Kagan were friends.... Each was a graduate of Harvard Law School and had taught at the University of Chicago Law School, though in different eras. They were of different generations, he the son of an Italian immigrant, she a Jew from New York City's left-leaning West Side. But they shared an intellectual rigor and a robust sense of humor. And if Scalia could not have a philosophical ally in the next court appointee, he had hoped, at least, for one with the heft to give him a good, honest fight.

Kagan did not get that nomination, though she got the next one, when Justice John Paul Stevens retired a year later. The Souter seat went to Sonia Sotomayor... and perhaps you remember that before she was nominated, when she was thought to be the top candidate, she was openly attacked in the press as not smart enough. Jeffrey Rosen made "The Case Against Sonia Sotomayor":

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It's customary, for examples, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn't distinguish between substantive and trivial points, with petty editing suggestions--fixing typos and the like--rather than focusing on the core analytical issues.

ADDED: I assume Axelrod's story is true. He did wait to tell it until the one who could contradict it died, but what advantage is there in this that would make it seem like a lie? To my ear, it hurt Sotomayor, but Axelrod might not have thought about that. So I see an advantage in saying that the honorable conservative wanted a worthy liberal with whom to engage and therefore, perhaps, that it might honor him to be replace by a really smart person of Obama's choice.

"As corporate rather than government actors, the Deciders aren’t formally bound by the First Amendment."

"But to protect the best qualities of the Internet, they need to summon the First Amendment principle that the only speech that can be banned is that which threatens to provoke imminent violence, an ideal articulated by Justice Louis Brandeis in 1927. It’s time, in other words, for some American free-speech imperialism if the Web is to remain open and free in twenty-first century."

This is a big subject for me, something I've argued with Bob Wright about, notably in this March 2011 post: "The Bob Wright/Ann Althouse email exchange about what free speech means in the context of saying Roger Ailes needs to kick Glenn Beck off Fox News."

ADDED: Here's a clip from March 2011:

A New Yorker article about Supreme Court history makes a big error.

Says lawprof David Bernstein — who's written a great book that covers the era of history in question:

[Jill] Lepore writes, “In 1910, Taft appointed Hughes to the Supreme Court, where, as a champion of civil liberties, he often joined with Holmes in dissent.”...

For decades Holmes’s liberal acolytes and fans argued to the contrary, but it’s well-established at this point that he was no champion of civil liberties. Holmes did eventually become a defender of freedom of speech, but that didn’t occur until after Hughes quit the Court to run for president in 1916.

Much more detail at the link.

And here's the New Yorker article. For all the history, it's really another one of those articles — like the Jeffrey Rosen TNR essay we talked about yesterday — trying to shape public opinion around the potential Supreme Court opinion that strikes down the Affordable Care Act. Like Rosen, she says:

What people think about judicial review usually depends on what they think about the composition of the Court. When the Court is liberal, liberals think judicial review is good, and conservatives think it’s bad. This is also true the other way around....

And like Rosen, she ends with an embrace of the value that law and politics should be separate — even as, like Rosen, she nudges us to think that it's the conservatives on the Court who pose the threat:

The separation of law from politics... has proved elusive. That’s not surprising—no such separation being wholly possible—but some years have been better than others. One of the worst was 2000, when the Court determined the outcome of a disputed Presidential election. The real loser in that election, Justice John Paul Stevens said in his dissent in Bush v. Gore, “is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”...

Federally, few rulings have wreaked such havoc on the political process as the 2010 case Citizens United v. Federal Election Commission, whereby the Roberts Court struck down much of the McCain-Feingold Act, which placed restrictions on corporate and union funding of political campaigns. Stevens, in his dissent, warned that “a democracy cannot function effectively when its constituent members believe laws are being bought and sold.”

That, in the end, is the traffic to worry about. If not only legislators but judges serve at the pleasure of lobbyists, the people will have ceased to be their own rulers. Law will be commerce. And money will be king.

That's a strange way to end it, since federal judges are appointed and don't have to run for election. The independence of the federal judiciary isn't threatened by Citizens United. The independence of the federal judiciary, if anything, produced Citizens United — in which the Supreme Court, stocked with election-free judges, struck down a federal statute that was an effort by elected officials to control who gets to speak during elections.

And since we're talking about New Yorker fact-checking, I don't like: "the McCain-Feingold Act, which placed restrictions on corporate and union funding of political campaigns." Citizens United struck down a restriction on spending on one's own speech. It wasn't about contributions to political campaigns, i.e., funding.

Jeffery Rosen's complicated idea about why the Supreme Court really should uphold Obamacare.

Generally, I'm tired of these MSM articles that seem to be trying to push the Court to uphold the Affordable Care Act — as if the Justices are reading these articles and vulnerable to efforts — by writers who obviously politically support the law — to scare them into thinking people will lose respect for the Court. I say "seem to be" because I think these articles are really about shaping public opinion. They're not telling the Justices that people will disrespect them. They are stoking the people's disrespect in advance of an opinion that strikes down the law (in case that's what happens), and they are laying the groundwork for arguments about why Obama should be reelected (and Democrats need to keep control of the Senate).

But I'm going to link to this new Jeffrey Rosen piece in The New Republic. Why? It's just so amusingly complicated. I'll paraphrase the points he makes, in order:

1. A new poll (which we talked about on the blog here) shows declining approval for the Supreme Court and a belief that the Justices are sometimes influenced by their personal/political beliefs.

2. Some people — including Chief Justice John Roberts — think that public opinion is affected by all the 5-4 decisions that reveal that there is a set of conservative Justices and a set of liberal Justices.

3. There's a new study (by Nathaniel Persily and Stephen Ansolabehere) that says people decide whether they approve of the Court based on whether they like the outcomes of the cases, which suggests that an effective way for the Court to get respect would be simply to provide the outcomes people want.

4. A survey shows that people do like the outcomes of most of the big Roberts Court cases, and that's out of line with the declining approval of the Court, but it might be that people are giving extra weight to some of the big cases, the ones they don't like — maybe Kelo (for Republicans) and Bush v. Gore (for Democrats).

5. Maybe people support or reject the Court based on whether they are conservative/liberal and whether they believe that the Court is what they are — conservative/liberal.

6. A lot of people don't know which Justices were appointed by Republican Presidents and which were appointed by Democratic Presidents. (Rosen assumes the conservative/liberal split among Justices tracks whether they were appointed by Democrats/Republicans, which happens to be true of the current Court, though it was untrue before the Obama appointments were made.) But a study found that in the set of people who know that Republican Presidents have appointed a majority of the Justices, Republicans tend to support the Court, and Democrats are less supportive.

7. Even though a large majority of Americans say they want to see the health care law stricken down, and despite the Persily/Ansolabehere finding that people like the Court when they like the outcome, it's a mistake to think that the Court's approval rating will climb if it strikes down the law by a 5-4 vote. This is because, over time, 5-4 decisions remind people that the Court has a partisan split, and while this will make Republicans like the Court more, Democrats will like it less. Rosen doesn't specify this point, but it needs to be understood here: Only 24% of Americans surveyed by the NYT/CBS want the Court to uphold the law, so it would seem that many, perhaps even a majority of Democrats will approve of the outcome. But Rosen is saying that somehow it will still hurt the Court's approval among Democrats because they will see the Court as partisan and conservative — especially with "elites, including the President" pestering them to think about the Court that way. 

8. Rosen concedes that even if everything in point #7 is right, the Court might move up in the approval rankings because of the increased approval coming from Republicans who like the Court for being so partisan and conservative.

9. John Roberts should eschew that method of moving up in the approval ratings, because he'd be a better leader if he avoided the appearance of partisanship.

ADDED: Here's my analysis:

1. Rosen had material that added up to the conclusion that the Court would improve its stature among Americans if it struck down the health care law.

2. Rosen doesn't want the Court to strike down the health care law.

3. Rosen wrote some complicated paragraphs and then declared that he'd shown why the Court shouldn't strike down the health care law.

"[I]f the court overturns Obamacare 5 to 4, Roberts’s 'stated goal of presiding over a less divisive court will be viewed as an irredeemable failure.'"

"Oh? Viewed by whom?"

George Will, pushing back Jeffrey Rosen (the source of the internal quote).

In case you're wondering why I never blogged about that Jeffrey Rosen article (which got a lot of attention), I thought it was the usual propaganda, quite boring to someone who's very familiar with all the law.

Did I fail you? Did you want me to pick it apart... explain everything... because it's being talked about... because it was in The New Yorker?

I have an interestingness standard, not an it-was-in-The-New-Yorker standard.

Oh, wait! I'm mixing up my Jeffreys. Jeffrey Toobin wrote the article in The New Yorker that I thought was the usual propaganda. Jeffrey Rosen's usual propaganda was in The New Republic.

Seriously, tell me if you want me to do more dissecting of the Jeffreys. They talk about law to the general public and thus have a lot of influence. Should I be more vigilant? Please advise.

Bush v. Gore is "the case of the century" because it "truly altered history," even though it "didn’t change constitutional doctrine."

Writes TNR's Jonathan Cohn setting up a discussion of whether this year's big Obamacare decision will be the new case of the century. Well, the century is pretty young, and admittedly Bush v. Gore felt like a huge deal at the time. But "truly altered history"?

Just think how the years after 2001 would have unfolded if Al Gore had been president.

Ridiculous! I can't believe Cohn doesn't know that if the case had gone the other way Gore would still have lost in the end!

George W. Bush would have won a hand count of Florida's disputed ballots if the standard advocated by Al Gore had been used, the first full study of the ballots reveals. Bush would have won by 1,665 votes — more than triple his official 537-vote margin — if every dimple, hanging chad and mark on the ballots had been counted as votes, a USA TODAY/Miami Herald/Knight Ridder study shows. The study is the first comprehensive review of the 61,195 "undervote" ballots that were at the center of Florida's disputed presidential election.

That's the news from 2001. And speaking of 2001, does Cohn actually think that Gore would not have responded vigorously to the 9/11 attacks? 

Anyway, I have close to zero interest in reading what Cohn has to say about this year's big case.

I generally leave the sophisticated constitutional analysis to Jeff Rosen, my (much) more informed colleague. But you don't have to be a legal expert to....

Fortunately, I can do my own legal analysis. I'm certainly not interested in Cohn's. As for Rosen's... I don't need to read that either. I know what he'll say. 

The right to be forgotten.

A new privacy right. From Europe.

The word "law" only appears once on the NYT list of "100 Notable Books of 2011."

Maybe the New York Times is missing some great law books, but this is some kind of read on something that ought to matter to legal academics and other law folk.

What's the one book? It's "Rights Gone Wrong/How Law Corrupts the Struggle for Equality," by Richard Thompson Ford. Here's the NYT review of it by Jeffrey Rosen:

In “Rights Gone Wrong,” Richard Thompson Ford, a law professor at Stanford, argues that both the progressive left and the colorblind right are guilty of the same error: defining discrimination too abstractly and condemning it too categorically, with similarly perverse results....

Ford does not offer an equivocal, cautious, middle-of-the-road critique of civil rights law....

Ford ends his stimulating polemic by arguing for a more “nuanced” approach to civil rights. He calls for the return of thoughtful, pragmatic judges who will take the time to distinguish justified from unjustified acts of discrimination, rejecting selfish or perverse claims of “rights gone wrong” while protecting people from truly invidious indignities.

Noted.

Why should Obama think in terms of what the Supreme Court might say about his power to single-handedly raise the debt ceiling?

Jeffrey Rosen wonders, noting that the Supreme Court would probably not hear the case.

And even if the justices did agree to hear it, the conservative justices would be torn between their dislike of Obama and their commitment to expanding executive power at all costs. If all the justices are true to their constitutional philosophies, the Court would rule for Obama by a lopsided margin.

In fact, it makes plenty of sense for Obama to refer to what the Court would say even if he doesn't believe the question will end up in court. Why shouldn't he act deferential to judicial interpretation when it's not obstructing anything he presently wants to do? It's exactly the right time to strike that pose if he thinks it's flattering.

Anyway, Obama left himself plenty of room to shake off the deference if and when he wants. All he said was: "I’ve talked to my lawyers... They are not persuaded that that is a winning argument." Not only could the lawyers later become persuaded, Obama could make his own decision disagreeing with his lawyers, and he could decide to rely on a reading of the Constitution that he believes is correct even if he's not persuaded it's a "winning argument."

Now, is it true that the Supreme Court would say the President can, on his own raise the debt ceiling? The constitutional hook for this power is "The validity of the public debt of the United States, authorized by law … shall not be questioned." Rosen says:

All four liberal Justices are committed to a vision of “living constitutionalism” that interprets the historical evidence broadly...

He says a bit more than that, but not much to find 4 votes for presidential power. Only one more needed.

What about the conservative justices? Here the divisions in the conservative ranks might become relevant. There are three distinct strains of legal conservatives on the Court: the tea party conservative, Clarence Thomas, the libertarian conservative, Anthony Kennedy, and the pro-executive power conservatives, John Roberts, Samuel Alito, and Antonin Scalia.

The tea party conservative, eh?

Of these five justices, Thomas is the only one whose judicial philosophy might lead him to side with Congress over Obama. As someone who believes that Congressional power over the purse should be construed strictly, Thomas might conclude that Article I gives Congress, and not the president, the power “to borrow money on the credit of the United States”—a power that it has exercised by establishing a debt ceiling. The debt ceiling doesn’t repudiate the debt or question its validity, Thomas might hold; it simply threatens default by prohibiting the president from assuming extra debt beyond what Congress has authorized. According to this argument, Obama’s unilateral decision to take on additional debt to avoid a government default would not represent debt “authorized by law,” as the Fourteenth Amendment requires, and therefore wouldn’t be justified by the Amendment.

Isn't it funny how this "tea party" philosophy just sounds like a fair reading of the text? But only Clarence Thomas is crackpot enough to do that! I added the boldface to highlight what to me seems like the obvious interpretation: No one is talking about questioning the validity of the debt! When you fail to pay debts, you're not claiming they aren't valid. Why wouldn't all the Justices say that? Why would that inapt clause take precedence over the specific and clear clause in Article I, listing among Congress's powers the power "To borrow Money on the credit of the United States"?

"The hope that the next justice will be a check on the power of corporations is entirely appropriate."

Writes Jeffrey Rosen:

After all, Stevens holds the seat that was previously occupied by William O. Douglas and Louis Brandeis, two of the leading anti-corporate crusaders of the twentieth century....

Anti-corporate crusaders? Sure, pick an anti-corporate crusader, Obama, and let's see how the back-and-forth in the Senate Judiciary Committee plays out. I mean, the nominee will still be confirmed, but in the rest of the political arena, leading up to the November elections? That would be brutal for the Democrats.

Yet none of the leading candidates for the Court appears to be an economic populist....

Why the absence of liberal economic populists from the shortlist?...

Since the 1960s, grassroots progressives have focused on non-economic issues: reproductive choice, for example, or civil liberties in an age of terrorism. That means that the current Supreme Court candidates had their legal sensibilities shaped in a political environment that was less preoccupied with questions of economic justice....

The Supreme Court itself stopped its own progressive forward glide when the opportunities for expanding constitutional rights arose in the context of redistribution of wealth (which is what Rosen and his ilk spin as "economic justice").

That’s a shame, because the most important issues the Roberts Court will confront over the next decade involve the constitutionality of environmental measures and economic regulations passed in the wake of the crash of 2008.... [I]t will not be enough for liberals simply to champion judicial deference for its own sake. The next justice will, like Brandeis and Douglas, need to make a substantive case for why these regulations are indispensable to protecting American democracy from the narrow interests of a corporate oligarchy....

If "environmental measures and economic regulations" are going to be passed, then why is anything more than deference to legislatures needed? Why should a Supreme Court Justice think he could bolster arguments for deference to democracy by expressing enthusiasm for the substance of the choices that legislatures have made?

The judicial role is strengthened by the appearance of neutrality and fidelity to law. Conversely, judges undercut their own power when they make it sound as though they are reaching their decisions because of their support for legislation that is challenged as a violation of constitutional rights. When arguments for constitutional rights fail, it should be (or at least appear to be) because the claimed rights don't exist, not because the rights claimants' interests are "narrow" and run counter to what the majority wants. Rights are supposed to work against the preference of the majority, so we should be wary of someone who says courts must "protect[] American democracy from... narrow interests." He is saying rights are not rights.

Although the next justice may not be an economic populist, the confirmation hearings ahead are an opportunity to cast the spotlight on the intersection between economic populism and the law. Leahy and other Senate Democrats should use the hearings to ask the nominee to discuss these questions in depth. 

Great! A bloodbath. Sounds exciting. I'll watch.

Jeffrey Rosen asks whether the Supreme Court might find the Stupak Amendment unconstitutional.

But first: Caption contest. This is the picture TNR uses to illustrate Rosen's article. May I draw special attention to Scalia's left-hand gesture?

Now, here's the serious part:

Let’s imagine that it’s impossible to pass a health care bill without a version of the Stupak amendment. Might the Supreme Court strike the amendment down? In upholding the Hyde amendment in 1980, the Court stressed that Congress could refuse to subsidize medically necessary abortions because it left “an indigent woman with at least the same range of choice … as she would have had if Congress had chosen to subsidize no health care costs at all.” By contrast, the Stupak amendment doesn’t leave self-employed women who receive federal subsidies with the same range of choice: It makes it much harder for them to find alternative coverage for abortion and therefore, in practice, leaves the federal government less neutral toward abortion than even the Hyde amendment. For this reason, it’s possible that some liberal Supreme Court justices might conclude that the Stupak amendment violates the Constitution. But this argument is unlikely to convince a majority of the Roberts Court, which means that pro-choice Democrats shouldn’t count on the Court to bail them out.

I think Rosen is right. The answer depends largely on who's on the Supreme Court. "[S]ome liberal Supreme Court justices might conclude that the Stupak amendment violates the Constitution," and the question, then is: How many liberal Justices will be on the Court when the question comes up? We'll call it "the Roberts Court" as long as John Roberts is Chief Justice, but the current balance of liberals and conservatives, plainly, is open to...

... change.

"I basically thought of it as a blog entry."

Blaming blogging for what wasn't even blogging.

4 reasons I'm glad Obama nominated Sonia Sotomayor.

1. Finally, a Supreme Court Justice with a [last] name longer than 3 syllables. (Thanks to downtownlad for noting the possible distinction and my son John Althouse Cohen for confirming it.)

2. Finally, a Hispanic Supreme Court Justice... and we won't have to keep talking about how some day there ought to be a Hispanic Supreme Court Justice.

3. We'll get back to the historical high water mark of women on the Court. Wow! To hit 2 again!

4. Jeffrey Rosen gets his comeuppance.

CORRECTION: James Taranto on #1:

Blogress Ann Althouse claims that Sotomayor will be the first justice with a four-syllable last name and credits her son for confirming this. But it isn't true. John Althouse Cohen apparently is too young to remember Justice Willis Van Devanter.

I'll bet John thought his middle name was Van.

Jeffrey Rosen loves Diane Wood.

After what he said about Sotomayer, this is ardent admiration:

After nearly 14 years on the appellate court, she has proved to be such an impressive match for her conservative colleagues that it appears that, of all the current Supreme Court candidates, her temperament and moderate, incremental liberalism most resemble Ginsburg's. "She is very careful, she is respectful of precedent, she is a craftsperson, and she is fairly incremental in her approach," says Geoffrey Stone of the University of Chicago and the author of a book on the suppression of speech during war. "I think she does believe that the role of judges, in part, is to ensure that the oppressed and the disenfranchised and dissenters get a fair shake in the political system, which would be a significant part of the moderate liberal element of Diane. But she's certainly not in any way result-oriented."

Don't worry, conservatives!

Jeffrey Rosen defends his attack on Sonia Sotomayor.

As you may recall, on Monday, Rosen quoted unnamed former clerks to make what the headline called "The Case Against Sotomayor." The "case" seemed to be mainly that she wasn't smart enough. Rosen got slammed. Finally, today, he responds:

I've just returned from London to find that my piece on Sonia Sotomayor has provoked an energetic response in the blogosphere.

Everyone knows there's no way you can check the internet in London, and anyway, why would you even think to look when, after all, you only just threw a huge stinkbomb?

Many people have mischaracterized my argument, and I can understand why. The headline--"The Case Against Sotomayor"--promised something much stronger than I intended to deliver...

Blame the headline writers. Yes, they do have a tendency to state bluntly the things you swathed in verbiage.

Readers have asked for more information about my sources....

Rosen assures us his sources are trustworthy and must remain anonymous.

I was satisfied that my sources's concerns were widely shared when I read Sotomayor's entry in the Almanac of the Federal Judiciary, which includes the rating of judges based on the collective opinions of the lawyers who work with them....

Yeah, the evaluations are bad — not on the point that she's not smart enough, but that she lacks "judicial temperament."

Some readers have also questioned my confession at the end of the piece that I hadn't read enough of her opinions to make a fully confident judgment.

Now, he's read some more opinions. He stands by his original opinion, which, he notes, accords with that Almanac of the Federal Judiciary.

Rosen concludes:

[I wanted] to encourage the White House to weigh considerations of temperament against the many other factors they'll be considering.

Ah, he's shifted to the temperament argument. He really didn't defend the "not smart enough" position.

For the next Supreme Court seat, the president needs to be sure that the nominee's temperament and abilities are not merely impressive but absolutely stellar. She--and the next justice should indeed be a she--must be ready to challenge the conservatives and persuade her fellow liberals from the very beginning.

Must be a woman. (I agree.) Must be a woman who can interact well with the Justices already on the Court. Fine... boilerplate. But read as a whole, this new Rosen piece — put bluntly, in the manner of a headline writer — is saying that Sonia Sotomayor would be a terrible choice for the Supreme Court.

Is Letterman mocking Sonia Sotomayor or mocking the mocking of Sotomayor?

If he's not mocking the mocking, he looks anti-Hispanic, and I'm pretty sure his show is careful about avoiding the appearance of bigotry.

Brian Beutler opines:

The campaign against Second-Circuit Court of Appeals Judge (and potential SCOTUS nominee) Sonia Sotomayor began in earnest when nameless former clerks on that court told The New Republic's legal correspondent Jeffrey Rosen that the Hispanic judge (and one-time George H.W Bush appointee) is too temperamental--and not intelligent enough--to serve on the Court....

The charges have been challenged loudly--almost immediately after the article came out, other people familiar with her work came forward to call the piece baseless. But once the cat was out of the bag, there was no stuffing it back in....

[T]he coup de grâce may have come last night when Sotomayor bashing traveled outside the beltway, and on to the Late Show...

Beutler notes the speculation that Rosen was trying to help his brother-in-law — go to the link for the details — and procures a denial from Rosen.

Here I am on May 4th wondering whether Rosen had ulterior motives:



I anticipate a careful response from Rosen (whose reputation is now on the line).

Meantime, while it counts, Sotomayor's been wounded. Her stock on Intrade has spiked and plunged.

Is the f-word indecent or just coarse and unmannerly?

It makes a difference, according to Jeffrey Rosen, talking about the Supreme Court's pending "fleeting expletives" case. (The question is what can the FCC do to broadcasters if Cher suddenly says "People have been telling me I'm on the way out every year, right? So fuck 'em" and so forth.)

At the Supreme Court argument, Justice Antonin Scalia lamented the "coarsening of manners," adding, "I am not persuaded by the argument that people are more accustomed to hearing these words than they were in the past." I share Scalia's concerns about the coarsening of public manners on television, but he is willfully denying the evidence that most Americans no longer view fleeting expletives as indecent. The Supreme Court has said that the FCC can only ban epithets that are considered genuinely offensive by contemporary community standards. For that reason, the justices should strike down the Bush FCC's fleeting expletive policy, and, if they don't, the Obama FCC should repeal it. But this suggests a real problem--the vulgarization of culture--without a clear legal, political, or even technological solution.

I originally wrote out "fuck" in the post title, but then I changed it.... if that means anything. I doubt if my sensibilities here are much more probative of what "people" are accustomed to hearing these days than Scalia's.

Why Jeffrey Rosen thinks the issue of gay marriage should be relegated to democratic decisionmaking.

Jeffrey Rosen writes:

[W]hen the constitutional arguments for judicial intervention are ambiguous, uncertain, and intensely contested, judges should defer to the political branches.

In my view, gay marriage, like abortion, is one of those areas. The Supreme Court was right to strike down bans on interracial marriage in 1967 because the only plausible social meaning of those bans was to degrade black people and to promote white supremacy. By contrast, the arguments on behalf of gay marriage are less clear. Although bans on gay marriage are (literally) a kind of sex discrimination, it's not intuitively obvious to most people that the bans should be viewed as an effort to promote male supremacy.

Rosen is talking about male supremacy because the primary constitutional argument for recognizing a right to same-sex marriage is that to ban it classifies individuals by whether they are male or female. Obviously, the bans involve heterosexual supremacy. But, here, Rosen asserts that classification by sexual orientation is not entitled to heightened judicial scrutiny. That's a point of legal doctrine, but why is it correct? As far as I can tell, Rosen thinks it's correct because he already believes that this is a matter best left to political decisionmaking.

Then the question is how to win majority support:

[A]s the social conservatism of blacks and Hispanic voters suggests, it wasn't enough for California voters to see the reality of gay couples in meaningful marriages. This suggests the challenge, in the short term, is greater that many gay marriage supporters hoped. At a Yale Law School conference on the future of reproductive rights in October, Pam Karlan of Stanford predicted optimistically that the gay rights movement was doing better than the pro-choice movement because "gays have come out of the closet" while "women who've had abortions have gone back in the closet." The third of American women who have had abortions, she suggested, should consider discussing their experiences for the good of the movement as a whole.

How did that follow? Women have their abortion rights. Why should they act more like people who don't have recognized rights? There is concern that abortion rights could be lost, so there is a continuing political issue and potential for a new all-out political battle.

But the question was what more could gay people do to win favor in the political arena? Rosen doesn't really have an answer. He concedes that many people have strong moral views that are not going to change and asserts "the future of gay marriage will be determined not by judicial activism but by demography." But why? Because he thinks it should?

Why should a minority group that perceives itself as oppressed accept the will of the majority? Why should the intransigency of the political majority convince them that they should refrain from using the courts?