"Is the legal standard for libel outdated? Sarah Palin could help answer. Her lawsuit against the New York Times will hinge on an earlier case. Some critics think it’s time for a new rule."

Headline at The Washington Post for an op-ed by University of Chicago lawprof Genevieve Lakier:

It’s rather strange that such a heated debate is raging over the 'actual malice” standard. These words, now a lodestar of constitutional law, almost didn’t make it into [New York Times v.] Sullivan at all. None of the litigants in that case argued for such a rule, nor was there much debate about it during oral argument. Justice William Brennan, who wrote the opinion in the case, claimed that his clerks came up with it in chambers. Perhaps unsurprisingly for a rule fashioned on the fly, there really is much to criticize about it.... 

Lakier puts a link on "clerks," and it goes to a law review article that says, "In later years, Justice Brennan would recall that his clerks discovered the opinion’s 'actual malice' language, but in fact, it was contained in Herbert Wechsler’s brief." Wechsler argued the case for the New York Times.

Lakier's conclusion calls the "actual malice" standard "an accident of history":

The rule is an icon of American constitutional law and unique in the common-law world. It’s an emblem of American free-speech exceptionalism and a source of pride. But it’s also, to some extent, an accident of history. We need not let Sullivan limit our imagination of how First Amendment law could better serve the public interest in a vastly different media environment from the one in which the decision was handed down.

As a writer in this "vastly different media environment," I think New York Times v. Sullivan is more valuable than ever. Go ahead ahead and exercise your "imagination" over how First Amendment law could "better serve" your idea of "the public interest," but the Supreme Court needs to keep the iconic precedent that we have relied on for so long.

The movie "The Happytime Murders" uses "Sesame Street" puppets in a way that is "explicit, profane, drug-using, misogynistic, violent, copulating, and even ejaculating."

The Daily Beast reports on the lawsuit brought by the "Sesame Street" company to stop the distribution of the film, which, of course, it did not license or authorize in any way. The film is directed by "one of Jim Henson's family member."

“Sesame seeks an injunction that forces Defendants to cease and desist their trading upon the goodwill associated with Sesame Street in furtherance of box office receipts,” the lawsuit says. “The promotion of The Happytime Murders should succeed or fail on its own merits, not on a cynical, unlawful attempt to deceive and confuse the public into associating it with the most celebrated children’s program in history.”

I assume "deceive and confuse" relates to trademark law. Is it deceptive and confusing or will pretty much everyone know it's a send-up, a satire or parody? When do the rights to characters you've created give way to the right of expression of those who want to make fun of them?

[ADDED: I’m now thinking the headline to this post misstates the facts. I think there’s just a Muppet character that is not a “Sesame Street” character and the poster slogan “No Sesame. All Street.”]

[MORE: I put up a new post with the "restricted" trailer for the movie that makes the overlap with "Sesame Street" very clear. Having seen that — not saying I liked it, but having seen it — I think it's easily within the zone of satire that should be protected.]

This makes me think of "Superstar: The Karen Carpenter Story" — "a 1987 American short biographical film portraying the last 17 years of singer Karen Carpenter's life. Directed by Todd Haynes, the film uses Barbie dolls as actors, as well as documentary and artistic footage... [and] an unauthorized soundtrack consisting mostly of the hit songs of The Carpenters."

"Superstar" was never distributed because it was stopped by claims of copyright in the music. But what about the use of Barbie dolls?

... Haynes detailed Karen's worsening anorexia by subtly whittling away at the face and arms of the "Karen" Barbie doll.

This is only tangentially related, from Woodward and Armstrong's "The Brethren," an account of the Supreme Court in the early 70s:

The National Lampoon, a humor magazine, had just released its February issue. The centerfold was entitled “Amicae Curiae”—Friends of the Court—and it depicted, in a color cartoon, all nine of the Justices engaged in a variety of sexual activity. 

View image here...

The Chief, naked except for holster and pistol, was on the floor licking the boot of an otherwise naked young woman. Brennan was standing in front of two very young girls holding his robe open. Stewart was measuring the throat of a young woman with a ruler, apparently in preparation for oral sex. Rehnquist, clad in a woman’s bra and red garter belt, was parading before the others cracking a black whip.

"Tone policing (also tone trolling, tone argument and tone fallacy) is an ad hominem and antidebate appeal based on genetic fallacy."

"It attempts to detract from the validity of a statement by attacking the tone in which it was presented rather than the message itself. In Bailey Poland's book, [Haters:] Harassment, Abuse, and Violence Online, she suggests that tone policing is frequently aimed at women and attempts to derail or silence opponents who may be lower on the 'privilege ladder.'... In Keith Bybee's How Civility Works, he notes that feminists, Black Lives Matter protesters, and anti-war protesters have been told to 'calm down and try to be more polite.' He argues that tone policing is a means to deflect attention from injustice and relocate the problem in the style of the complaint, rather than address the complaint itself."

From the somewhat Wikipedia article on "Tone Policing," which is a term I feel as though I'm hearing about for the first time. Here's the context where it came up.

The Wikipedia article is kind of badly written. Am I tone-policing Wikipedia? But Wikipedia itself tone-polices its writers. Everything's supposed to be edited into sober neutrality. 

Tone-policing is just about the same thing as what I've been calling "civility bullshit." (It's my observation that calls for civility are always bullshit. It's always because of what you are saying, because if the civility enforcers agreed with you, they'd be celebrating your passion.)

I want to stress that men get tone-policed too. The most tone-policed person in the world is Donald Trump. 

And I want to connect this to something I wrote about yesterday: that NYT op-ed arguing that speech that comes in the wrong form — like Milo Yiannopoulos, but not Charles Murray — should be understood as "literally a form of violence" and suppressed.

Form is part of expression. I like this passage from Justice Brennan, dissenting in the case that upheld the FCC's power to censure the radio station that played George Carlin's "Filthy Words":

My Brother STEVENS [writing for the majority]... finds solace in his conviction that "[t]here are few, if any, thoughts that cannot be expressed by the use of less offensive language." The idea that the content of a message and its potential impact on any who might receive it can be divorced from the words that are the vehicle for its expression is transparently fallacious. A given word may have a unique capacity to capsule an idea, evoke an emotion, or conjure up an image.... Mr. Justice Harlan, speaking for the Court [in Cohen v. California], recognized the truism that a speaker's choice of words cannot surgically be separated from the ideas he desires to express when he warned that "we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process."

"When judges are not interpreting, they’re creating, and to understand judicial creation one must understand first of all the concept of 'priors.'"

Writes Judge Richard A. Posner in a WaPo column titled "The Supreme Court is a political court. Republicans’ actions are proof."

Priors are what we bring to a new question before we’ve had a chance to do research on it. They are attitudes, presuppositions derived from upbringing, from training, from personal and career experience, from religion and national origin and character and ideology and politics. They are unavoidable tools of decision-making in nontechnical fields, such as law, which is both nontechnical and analytically weak, in the sense that there are no settled principles for resolving the most difficult and consequential legal controversies. The tools I am calling priors can in principle and sometimes in practice be overridden by evidence. But often they are impervious to evidence, being deeply embedded in what we are, and that is plainly true of judging — not in every case but in cases that can’t be resolved by interpretation or some other decision-making tool that everyone understands and uses in an identical way. The priors that seem to exert the strongest influence on present-day Supreme Court justices are political ideology and attitudes toward religion....

I may seem to be criticizing the court by calling it politicized. That is not my intention....

IN THE COMMENTS: PB says: "Singling out one party over the other is idiotic, in spite of my respect for Posner."

I think Posner would admit that if the parties were reversed and the President were Republican and the Senate Democrat that the same strategies would be followed by the President and the Senate. His theory does dictate that, even though the WaPo headline writer makes this piece looks like a swipe at Republicans.

This reminds me of a passage I was just reading in the great book about the Supreme Court, "The Brethren.": "Brennan liked to tell his clerks that Harlan had been the 'only real judge' on the Court in the years of Brennan’s service, the only Justice who weighed the legal issues with sufficient dispassion."

ADDED: Posner makes much of judges' religion and elsewhere in WaPo today there's "What would a Hindu justice mean for the Supreme Court?" (by Julie Zauzmer). One of the buzzed about names is Sri Srinivasan, who is Hindu, so Zauzmer — speaking with much less depth about law than Posner — asks how Hinduism might affect "religiously charged issues like abortion and gay rights." She finds an expert on Hinduism who isn't thinking about Posner's notion of "priors" when he tells her:

“There is no such thing as a Hindu belief about, say, abortion or stem cell research right now which would influence any particular case. Any Hindu who occupies a judicial position will interpret the law as it is, rather than through his or her religious viewpoint... There is no Hindu baggage, as such, at all.”

By the way, if we're going to think about the religion that exists in the minds that will be making decisions for us, and I think it is something important to consider, we ought to remember that there are currently no Protestants on the Court. Yes, a Hindu would give us another "first," but in terms of representing the majority of Americans and the history and tradition of America, the complete absence of Protestants is dramatic. 

"I was consistently struck by how much the Court did its work in a thoughtful, rational, process..."

"... exchanging written drafts and memos until as much rewriting had been done as was likely or possible."

Says Stephen Wermiel, who was given exclusive access to Justice Brennan's papers.

"Justice John Paul Stevens is the greatest Justice in Supreme Court history."

Argues Cliff Sloan, a partner at Skadden, Arps, Slate, Meagher, & Flom and a former Stevens law clerk. A key move in this argument is excluding the Chief Justices on the theory that they have extra powers so it's not a proper comparison. Then Sloan has 4 reasons:

First, his record of protecting and maintaining the rule of law during the “war on terror” stands unique in Supreme Court annals....

Second, Justice Stevens has fundamentally changed – and strengthened – the Court’s jurisprudence regarding personal freedom.... [He] has successfully re-framed the Court’s conceptual framework for personal freedom from a general “privacy” right, which is not mentioned explicitly in the Constitution, to a “liberty” right, which is prominently and explicitly protected in the Constitution....

Third, Justice Stevens has steadfastly sought to enforce the rule of law even when the Presidency hangs in the balance....

Fourth, Justice Stevens has powerfully re-shaped the law in an astonishing range of areas....

Go to the link to see the cases Sloan discusses. I would note that in some of the cases, Stevens has had something akin to the superpower that Sloan used to exclude Chief Justices from the analysis. When the Chief Justice isn't in the majority, the most senior Justice in the majority decides who will write the opinion. As such, over the last 20 years, he's authored many of the important opinions where the liberal side of the Court had the majority. That he wrote the opinion on the side that Sloan prefers isn't the evidence of a personal stamp on the law that Sloan would have us think.

Once Sloan gets to identifying and excluding the the competition for greatest Justice, the argument falls badly apart. He has to really strain to minimize Brandeis, Holmes, Brennan, Story, and the first Justice Harlan. He lost me here, but you've got to give Sloan credit for writing what would be a strong entry in a competition requiring an essay titled "Justice John Paul Stevens is the greatest Justice in Supreme Court history."

Christopher Hitchens has a few more problems with Rick Warren as the inauguration prayer-leader.

He asked:

Will Warren be invited to the solemn ceremony of inauguration without being asked to repudiate what he has directly said to deny salvation to Jews?

Will he be giving a national invocation without disowning what his mentor said about civil rights and what his leading supporter says about Mormons?

Will the American people be prayed into the next administration, which will be confronted by a possible nuclear Iran and an already nuclear Pakistan, by a half-educated pulpit-pounder raised in the belief that the Armageddon solution is one to be anticipated with positive glee?

As Barack Obama is gradually learning, his job is to be the president of all Americans at all times. If he likes, he can oppose the idea of marriage for Americans who are homosexual. That's a policy question on which people may and will disagree. However, the man he has chosen to deliver his inaugural invocation is a relentless clerical businessman who raises money on the proposition that certain Americans—non-Christians, the wrong kind of Christians, homosexuals, nonbelievers—are of less worth and littler virtue than his own lovely flock of redeemed and salvaged and paid-up donors.

So who should do the invocation -- assuming we must have an invocation? "[L]et it be some dignified old hypocrite with no factional allegiance."

What Hitchens would prefer, it seems, is what Justice William Brennan called "ceremonial deism":

[G]overnment cannot be completely prohibited from recognizing in its public actions the religious beliefs and practices of the American people as an aspect of our national history and culture. While I remain uncertain about these questions, I would suggest that such practices as the designation of "In God We Trust" as our national motto, or the references to God contained in the Pledge of Allegiance to the flag can best be understood, in Dean Rostow's apt phrase, as a form a "ceremonial deism," protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content. Moreover, these references are uniquely suited to serve such wholly secular purposes as solemnizing public occasions, or inspiring commitment to meet some national challenge in a manner that simply could not be fully served in our culture if government were limited to purely nonreligious phrases. The practices by which the government has long acknowledged religion are therefore probably necessary to serve certain secular functions, and that necessity, coupled with their long history, gives those practices an essentially secular meaning.

More recently, Justice O'Connor wrote:

Given the values that the Establishment Clause was meant to serve, ... I believe that government can, in a discrete category of cases, acknowledge or refer to the divine without offending the Constitution. This category of “ceremonial deism” most clearly encompasses such things as the national motto (“In God We Trust”), religious references in traditional patriotic songs such as the Star-Spangled Banner, and the words with which the Marshal of this Court opens each of its sessions (“God save the United States and this honorable Court”). These references are not minor trespasses upon the Establishment Clause to which I turn a blind eye. Instead, their history, character, and context prevent them from being constitutional violations at all.

In my Religion & the Constitution class, I like to say that no one believes in ceremonial deism. It's no one's religion, just a mode of using religion in the public setting. And yet, if anyone is a ceremonial deist, I'd say that person is Barack Obama. I air my suspicion -- and praise that religion of no religion -- here:

George Carlin died.

What a terrible loss. You know I thought he was the best living comedian. We were just talking about that here — last April. I've loved him since the 1970s. There are decades-old routines that spring to mind immediately as the most brilliant comic riffs I've ever heard — the one about all our "stuff" and the comparison between football and baseball (and golf).

"That's the whole meaning of life: trying to find a place for your stuff."



And here's the football/baseball one:



When someone dies, maybe you think about religion and the afterlife. Here's what George Carlin thought of such things:



Now, George Carlin has a special place among comedians because he's got a Supreme Court case about him — FCC v. Pacifica Foundation. You can read the case, and you can watch his 7 Dirty Words routine:



He elaborated on that over the years:



The text of the Supreme Court case includes the FCC's transcript of the version that got played on the radio:

The big one, the word fuck that's the one that hangs them up the most. [']Cause in a lot of cases that's the very act that hangs them up the most. So, it's natural that the word would, uh, have the same effect. It's a great word, fuck, nice word, easy word, cute word, kind of. Easy word to say. One syllable, short u. (laughter) Fuck. (Murmur) You know, it's easy. Starts with a nice soft sound fuh ends with a kuh. Right? (laughter) A little something for everyone. Fuck (laughter) Good word. Kind of a proud word, too. Who are you? I am FUCK. (laughter) FUCK OF THE MOUNTAIN. (laughter) Tune in again next week to FUCK OF THE MOUNTAIN. (laughter) It's an interesting word too, [']cause it's got a double kind of a life - personality - dual, you know, whatever the right phrase is. It leads a double life, the word fuck. First of all, it means, sometimes, most of the time, fuck. What does it mean? It means to make love. Right? We're going to make love, yeh, we're going to fuck, yeh, we're going to fuck, yeh, we're going to make love. (laughter) we're really going to fuck, yeh, we're going to make love. Right? And it also means the beginning of life, it's the act that begins life, so there's the word hanging around with words like love, and life, and yet on the other hand, it's also a word that we really use to hurt each other with, man. It's a heavy. It's one that you have toward the end of the argument. (laughter) Right? (laughter) You finally can't make out. Oh, fuck you man. I said, fuck you. (laughter, murmur) Stupid fuck. (laughter) Fuck you and everybody that looks like you. (laughter) man. It would be nice to change the movies that we already have and substitute the word fuck for the word kill, wherever we could, and some of those movie cliches would change a little bit. Madfuckers still on the loose. Stop me before I fuck again. Fuck the ump, fuck the ump, fuck the ump, fuck the ump, fuck the ump. Easy on the clutch Bill, you'll fuck that engine again.

Hey, I love the "[']." Try to do a Carlinesque riff on [']. Not easy, is it?

And God bless Justice Brennan, who dissented in Pacifica:

My Brother STEVENS, in reaching a result apologetically described as narrow, ante, at 750, takes comfort in his observation that "[a] requirement that indecent language be avoided will have its primary effect on the form, rather than the content, of serious communication," ante, at 743 n. 18, and finds solace in his conviction that "[t]here are few, if any, thoughts that cannot be expressed by the use of less offensive language." Ibid. The idea that the content of a message and its potential impact on any who might receive it can be divorced from the words that are the vehicle for its expression is transparently fallacious. A given word may have a unique capacity to capsule an idea, evoke an emotion, or conjure up an image. Indeed, for those of us who place an appropriately high value on our cherished First Amendment rights, the word "censor" is such a word. Mr. Justice Harlan, speaking for the Court, recognized the truism that a speaker's choice of words cannot surgically be separated from the ideas he desires to express when he warned that "we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process." Cohen v. California, 403 U.S., at 26.

They don't write them like that anymore. They don't even say "My Brother Stevens" anymore. They couldn't bring themselves to say "My Sister O'Connor," I guess, so they had to stop saying "My Brother Stevens."

Was Carlin political? Here's what he said back in 2004 when Tim Russert (of all people) asked him "Do you vote?":

No, I don't. No. I voted up to McGovern. I feel, actually, a little purer, a little more detached emotionally from it. I really have no stake. If you dropped me from an airplane, I would come down left of center, because I believe more in humans than I do in property. But in terms of the minor machinations and the way they put these things together, I've no interest.

He was on Russert's show promoting his book "When Will Jesus Bring the Pork Chops?" On the longest 1-day solo drive I ever took — from Austin, Texas to Madison, Wisconsin — I listened to Carlin read "When Will Jesus Bring the Pork Chops?"

I have a problem with the Ten Commandments. Here it is: Why are there ten? We don't need that many. I think the list of commandments was deliberately and artificially inflated to get it up to ten. It's clearly a padded list...

When these guys were sittin' around the tent makin' all this up, why did they pick ten? Why ten? Why not nine, or eleven? I'll tell you why. Because ten sounds important. Ten sounds official. They knew if they tried eleven, people wouldn't take them seriously. People would say, "What're you kiddin' me? The Eleven Commandments? Get the fuck outta here!"

I'm really sorry to see this man go. He worked long and hard so many years, making us laugh, bringing us enlightenment:

Mr. Carlin is constantly scribbling notions down in a notebook or recording them on a small voice recorder, and he spends most of his time typing, organizing and reorganizing his ideas in a library of 2,300 files he keeps on his computer — raw material he may someday forge into actual jokes, monologues or material for his books. And as soon as he has recorded a new HBO routine, he begins cycling in fresh material, so that over the course of two years, his entire routine is replaced, and he's ready to record another.

"It's like a sock," Mr. Carlin said. "I darn the sock so much that none of the original material is left. It's the same sock — it's my show — but the old material is gone."

"I have no hobbies and I have no leisure activities," Mr. Carlin added. "My greatest joy is working at the computer with my ideas."

RIP.

"Argument by impressionistic psychodrama."

I have a review of Jeffrey Toobin's "The Nine: Inside the Secret World of the Supreme Court" in the New York Sun.

ADDED: My main problem with the book is a general problem with popular writing about law (and politics and plenty of other serious subjects). To make it readable and entertaining, you forefront the people, not the ideas, you use a lot of colorful details, and, like a novelist, you make the details seem to express deep things about the characters. Within this rhetorical style, when there are any ideas or events to describe, they seem to arise from the depths of your characters.

Toobin describes Supreme Court cases like that, and because his book is entertaining and readable, many people will get their view of the Court from it. The material analyzing the actual arguments and opinions in the cases is cut way back, as if the author wrote with constant awareness of how little patience you would have for any legal analysis. This is understandable, up to a point. But this extreme minimization of the legal material allows for much sleight of hand, and like a novelist, you are led to take the point of view of some characters over others. He's really making an argument -- an "argument by impressionistic psychodrama."

You don't get to read how Chief Justice John Roberts analyzed the equal protection precedent in deciding the Louisville and Seattle school integration cases and how Justice Breyer saw the same precedent in a different way. Instead you feel along with Justice Breyer: "Breyer's wan longing for stare decisis will stir few hearts," Toobin writes (at page 339). Wan longing! It reminds me of something Stephen Colbert said on the first episode of "The Colbert Report": "Anyone can read the news to you. I promise to feel the news at you." Anyone can explain the cases to you. Toobin feels the cases at us. And the reader, who's had his feeling massaged for 300+ pages, will read of Breyer's "wan longing" and think: I will be one of the few! My heart is stirred!

But you haven't been given the material to decide if the bad guys are really trashing the precedents. You're just accepting the viewpoint of the judges you've been felt at to think are the good ones. They feel sad, so it must be a calamity. "David Souter was shattered" (page 177), so Bush v. Gore was atrocious.

What is missing is the analytical substance that would let you decide for yourself. In the review, I write:

[H]uman individuals drive the law, as Mr. Toobin tells it. The story of Jay Sekulow, "a nice Jewish boy from Brooklyn" whose "ignorance" was "his best weapon," swells the 12-page chapter on the Supreme Court's religion cases, but there isn't a word about the Rehnquist Court's most important Free Exercise case, Employment Division v. Smith. Smith, written by the conservative Justice Scalia, said religion was not entitled to special exceptions from generally applicable laws. (You can't avoid the Controlled Substances Act, for example, by saying you need to use peyote in a religious rite.)

Smith doesn't fit the theory that the conservatives are out to favor religion or the proposition that the religion cases "usually come down simply to ‘What will Sandra do?'" Justice O'Connor opposed the doctrinal shift in Smith, as did the three most liberal justices: William Brennan, Thurgood Marshall, and Harry Blackmun. It was a liberal tenet that the Free Exercise Clause relieves religious practitioners from requirements the law imposes on everyone else. To bring up Smith would require Mr. Toobin to acknowledge that conservatives favor equality and liberals want to favor religion and that would mess up the narrative arc of his story.

There's something else in the religion chapter that I couldn't fit into the review. When Toobin writes that Jay Sekulow's "ignorance" was "his best weapon," he's portraying the lawyer as someone who bumbled into using the Free Speech Clause to win protection for religious activities. Toobin writes that Sekulow didn't realize that "cases involving religion were always argued under the Free Exercise Clause."

But a mere 3 pages earlier, he was praising Robert Jackson's 1943 opinion in West Virginia Board of Education v. Barnette -- the case that said schools couldn't force Jehovah's Witnesses to recite the Pledge of Allegiance. Toobin doesn't mention that Barnette is a free speech case and that Sekulow competently cited it.

(And what about all the cases based on the Establishment Clause? They involve religion, even if they aren't litigated by Jay Sekulow.)

The pop culture approach Toobin uses demands that the individual, not the case law, governs what happens. It's a little like the "great man" theory of history -- the inferior man theory of the law.

It is fun to read though. Jay Sekulow is "a nice Jewish boy from Brooklyn," who moved to Atlanta and out of laziness attended Atlanta Baptist College. There, accepting a challenge by a "Jesus freak" to take the Book of Isaiah seriously, he saw that the messiah must be Jesus and became one of the "Jews for Jesus." Etc. etc.... and that's why we have the recent cases that say it violates the Free Speech Clause to discriminate against the religious viewpoint.

It makes sense if you get caught up in the seductive pop culture reading that is "The Nine."

And another thing....

Writing about Barnette, Toobin enthuses about Justice Jackson's idealistic prose: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." But he makes Justice Kennedy seem foolish for his love of "drama and what he called 'the poetry of the law'" (page (147), "flowery language about the First Amendment" (page 167), and "Kennedyesque flourish like 'the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" (page 223). But Toobin's not much different from everyone else there. Jackson had the knack for high-flown phrases, and Kennedy can't quite pull it off.

And I'm not completely opposed to pop culture writing about law. I do it too, and I follow my own standards of fairness. Like I think it's fair to tweak Toobin for making a big deal out of Kennedy's glasses -- how he changed from "seventies-style steel-framed aviators" to "a Euro-chic frameless model." This supposedly symbolized how much Kennedy is soaking up the influence of Europeans and European law as he travels to various conferences. What I find so hilarious is that on the back cover of the book jacket -- where there aren't any words at all, just a big picture of the smiling Jeffrey Toobin -- he's wearing rimless glasses. Meaningful!

(And aren't steel-framed aviator glasses in style right now?)

Are dissenting opinions vanity or dishonesty?

Tony Mauro has an interview with Supreme Court Justice Samuel Alito:

Alito ... commented on Roberts' efforts to achieve greater unanimity on the Court, even at the expense of making broad rulings. Alito thinks there is merit in the idea, and says Roberts has already "worked to prevent fractured opinions." But Alito says Roberts has not made the pitch for unanimity to the justices as a group. For his part, Alito says, "I don't feel too strongly about writing separate opinions."

But he says Roberts' campaign points up a problem that any appellate judge "struggles with," namely, how far to go in compromising in the interest of unanimity and giving clear guidance, without crossing the line into endorsing "something you don't believe in."

Alito recalled that in his early days as a judge on the 3rd Circuit, he heard a judge -- whose name he can't recall -- lecture on the evils of writing dissents. "He said it was nothing but vanity, and that it didn't achieve anything. That's one side of it."

Aw, come on, who was it?

The other side, which Alito worries about, is the dishonesty of signing onto an opinion with which you disagree.

"I think of the analogy of someone coming to your door and asking you to sign a petition," says Alito. "You say no, you don't agree with it, and the person at your door says, ‘Sign it anyway.'"

So, dissenting opinions: vanity or dishonesty? I think it's somewhere in between. It's not really dishonest to sign on even though you disagree. Once a majority of the Justices have one opinion, it will be the precedent in future cases, and you'll cite it and follow it then. What difference does it make if you start following it before it issues? Should you always do that then? Should we agree with the unnamed Third Circuit judge who said that dissenting opinions were nothing but vanity? I'd say that is going too far, but reading dissenting opinions, you can encounter a lot of unseemly preening. Still, there is an important place for dissent:

Justice William J. Brennan, Jr., published an article in the January 1986 Hastings Law Journal, “In Defense of Dissents,” confessing that when he first came to the U.S. Supreme Court, he did not write a single dissent, although 42 of the 56 opinions he authored in 1985 were just that. So why dissent?

After all, the law is made by those who command the majority, not the outsiders. Even Justice Oliver Wendell Holmes, the "Great Dissenter" at one point opined that dissents are generally "useless" and "undesirable." Justice Potter Stewart labeled dissents "subversive literature."

But by the time he wrote the article Justice Brennan was a true believer in the power of dissent. In this way flaws are demonstrated in the majority’s legal analysis, thereby laying the basis for future corrective action. And a dissent holds the majority accountable for the rationale and consequences of its decision. "At the heart of that function is the critical recognition that vigorous debate improves the final product by forcing the prevailing side to deal with the hardest questions urged by the losing side."

Too much antagonism toward dissent -- in judicial opinions and elsewhere -- betrays a fear that one's arguments are flawed. But that doesn't apply to what Chief Justice Roberts has talked about, which is simply narrowing the scope of the decision to the point where it can eliminate the disagreement.

"It cannot be gainsaid..."

I don't know about you, but when I'm reading a judicial opinion and run into the phrase "It cannot be gainsaid..." I feel a sense of revulsion... almost dread. Why is the judge (or clerk) writing like this? Why the sudden desire to sound like a fusty old gasbag? I start mistrusting everything.

The one I just ran into is in Byrd v. Blue Ridge Rural Electric Cooperative, a 1958 opinion written by Justice Brennan: "It cannot be gainsaid that there is a strong federal policy against allowing state rules to disrupt the judge-jury relationship in the federal courts." What purpose do the first five words of that sentence serve (other than to annoy me)?

Supreme Court justices have only used the word 113 times in the entire history of the Court, but more than 70% of these were since 1950. It was only used 18 times before 1900. (There are also 59 occurrences of "gainsay.") I mention these details because they bear out my suspicion that this is sheer pretension, a modern person's idea of how to sound like you came from the 19th century. I'm irked that the modern Justices ever affect a 19th century tone, and I'm further irked that they lack an ear for it.

IN THE COMMENTS: Other irksome expressions that judges need to stop using: "it is beyond peradventure," "it is beyond cavil," and "obloquy."

On taking Justice O'Connor's seat.

John -- my son, John Althouse Cohen -- emails this passage from the WaPo:

Alito would replace retiring centrist Sandra Day O'Connor, the decisive justice on numerous 5 to 4 rulings, further raising the stakes for the Judiciary Committee hearings, which will begin Monday. By contrast, Roberts had a shorter paper trail -- three years as an appellate judge, compared with Alito's 15 -- and he succeeded a fellow conservative, the late William H. Rehnquist, thereby having modest impact on the court's balance.

John:

This is just illogical. If it had been the opposite—that is, if Roberts had replaced O'Connor and if Alito were the nominee to replace Rehnquist—the balance of the court would have been the same (aside from the Chief Justice's power to sometimes choose who writes opinions, and aside from the transitional months when only one of the Justices has been replaced). As long as two Justices are leaving the court at about the same time, it's superstitious to focus on who is replacing whom.

True, though I can certainly see why Democrats who are gearing up to do the questioning next week will emphasize that it is O'Connor that Alito is replacing. The WaPo seems to be channeling a little bit too much of their spin. On the other hand, I do think there is some effect on the new Justice's mind. Would David Souter have turned out exactly the same if he had been replacing, say, Lewis Powell, instead of William Brennan? It may very well affect the new Justice to know he is taking O'Connor's seat, and not just because he's susceptible to a superstition.

What he thinks about it is a different matter. He may think, Justice O'Connor played a role in keeping the Court on an even keel, so I need to think carefully about whether I have a special responsibility for preserving the balance. He may think, by balancing things in the middle, she created an opportunity for me to come on the Court and make a strong contribution to the development of the law, and I have an obligation to work with the other Justices to crystallize doctrine that has been unclear for too long.

Don't you want to know? But you can't. If asked, Alito will say that he deeply respects Sandra Day O'Connor and that he can only hope to live up to her great example of profound devotion to the rule of law, which requires him to study the texts and the arguments and to call them as he sees them.

Just guessing!

How Brennan and, later, Breyer affected O'Connor.

From Cliff Sloan's piece in Slate about Joan Biskupic's new biography of Justice O'Connor:

[S]ome of [what is in the book] is new—an apparent rivalry between liberal lion William Brennan and O'Connor for influence on the court, and Brennan's clumsiness in his maneuvers; the effectiveness of Justice Stephen Breyer in reaching out to her. With Potter Stewart's departure in 1981 and O'Connor's replacement of him, Brennan seemed to have lost an important occasional ally. He viewed his new colleague with suspicion, and—though he is often thought of as the consummate court politician—he made the same mistake that Scalia would make several years later: He caustically attacked her, and if anything seems to have driven her away. Brennan's approach to cases became particularly arch and unyielding in his later years, and even when he had O'Connor's vote he could not get her to join his opinions. Breyer's style would prove far more hospitable to O'Connor than Brennan's broadsides; like her, he was attuned to the particularities of each case and searched for common ground.

The subject of the relationships among the justices and the effect on the decisions is highly interesting -- and exceedingly hard to study.

"So many of the brightest stars in the conservative legal firmament are Catholics."

WaPo's Alan Cooperman explains why, in recent years, so many Catholics have been chosen for the Supreme Court. (Samuel Alito will be the fifth Catholic on the Court.)

[USC Political Science professor Howard] Gillman believes that beginning in the 1960s, many conservative Catholics went into the legal profession "because they felt the constitutional jurisprudence of the country was not reflecting their values," particularly on abortion, funding for parochial schools and restrictions on religion in public places. "I think you're seeing the fruits of those efforts now," he said.

Bernard Dobranski, dean of Ave Maria School of Law, a Catholic institution founded in 2000 in Ann Arbor, Mich., said the number of highly qualified conservative Catholic lawyers is also a tribute to the strength of Catholic schools, the determination of immigrants to educate their children and a rich tradition of legal scholarship in the Catholic Church.

A hallmark of that tradition is the belief in "natural law," a basic set of moral principles that the church says is written in the hearts of all people and true for all societies. Though long out of favor in secular law schools, the natural law approach is resurgent among conservatives, Dobranski said.

Another reason for the prominence of Catholics in conservative legal circles is that many have graduated from Ivy League colleges and law schools. Attending those schools has practically been a prerequisite for the clerkships that launch high-flying legal careers.

Evangelical Protestants are also becoming more visible on Ivy League campuses and at top law schools. But, said Notre Dame's Bradley, "I do think that there is an important truth in saying that Catholics are the intellectual pillars of social conservatism. Compared to their political allies in that movement, Catholics are heirs to a richer intellectual tradition and . . . are more inclined to believe that reason supplies good grounds for the moral and political positions characteristic of social conservatism. Call it the 'natural law' thing."

Interesting. The article also notes that Justice William Brennan, the Court's last passionate liberal, was also Catholic. Liberals are missing something if they lose the sense that rights are real and substantial. As I listen to the attacks on Judge Alito, I hear, relentlessly expressed, the idea that law is political and judges are all ideologues who, given power, will work their will on us. Where are the passionate, Brennanesque liberals of yore, who really believed we have rights? Is that belief becoming solely a conservative notion ?

Let's try shaming first.

John Fund has a Wall Street Journal editorial arguing for term limits for Supreme Court Justices:

A seat on the high court is now so powerful and so heady that many justices stay long past their prime. Legal scholars have concluded that half of the last 10 retirees have been too feeble or inattentive to fully participate in the work of the court.

The secrecy that shrouds the high court can also allow someone to turn his chamber into a nursing home, as William O. Douglas did in the 1970s. He was so determined to hang on until a new president could appoint someone philosophically compatible with him that he refused to leave after an incapacitating stroke. This is not only irresponsible, but for, say, a liberal justice hanging on through a series of Republican presidents, it is directly at odds with the preferences of the electorate. In Douglas's case, his colleagues were so concerned that they informally agreed that during the last year of his service none of the court's decisions would be valid if his was the deciding vote. They finally pressured him to resign in 1975. A weakened Thurgood Marshall often looked to his fellow octogenarian William Brennan on how to vote because he no longer could hear well enough to understand the arguments other justices made during their conferences.

Fund makes a strong argument. (Read the whole thing.) But he does not address how term limits would affect presidential campaigns. We'd know which Justices were slated to leave in the upcoming presidential term. As it is now, we just engage in a guessing game, saying things that are often ridiculously off-base. (In the 2000 campaign we were told the next President would probably get three appointments, but in fact, he got zero.) Maybe the people voting for President should know which Justices are coming up for replacement. And there is something unseemly about the Justices -- supposedly aloof from politics -- timing their retirements to try to control the ideology of the next occupant of their seat.

But I still resist changing the Constitution, and even if I didn't, I'm realistic enough to know how incredibly difficult it is to amend. A more moderate approach, which I want to recommend, is shaming.

While we do criticize Justices for their opinions, we hold back from criticizing them for clinging to their seats too long. I think we may be observing the general social norm that frowns on age discrimination and accommodates disability. But maybe we ought to set aside that generality and get specific about Supreme Court Justices: they wield immense power and they cling to it. Why don't we talk about that? Why don't we shame them for staying too long?

We don't spare the criticism for other persons who tighten their grip on power. Before we try to amend the Constitution, let's try shaming. I think the Justices are vulnerable to our criticism. Much as they may love their power, they must also love our good opinion. They must want to be remembered as great Justices. But insulated on the Court, surrounded by respectful admirers -- should I say sycophants? -- they may need to hear stronger voices from the rest of us. Why don't we put aside our stock politeness and say more clearly and more often that it is wrong to hold your seats too long and wrong to let too many years pass without giving the President a chance to appoint someone new.

I'll leave you with this passage from Bill Maher's book "New Rules":

New Rule

Just because you have a job for life doesn't mean you have to do it for life. It's well and proper that we venerate our elders -- but give it a freakin' rest....

Now, I know it must be hard to give up your job when your job is literally sitting on a throne, or being on a "supreme" court, or keeping women out of the priesthood to make room for the gays -- but at some point it starts to look like you think of yourself as indispensible, and no one is indispensible, including you, the late Mr. Infallible...

[T]here's a reason that names like Cary Grant, Joe DiMaggio, and Johnny Carson inspire a special kind of awe: They all did something that made them more beloved than anyone else -- they left before we got sick of them.

The dreaded Justice Kennedy.

Here's a front-page NYT piece on Justice Kennedy, whose nomination to the Court was sold to conservatives as "Bork without the beard" and who, 18 years laters, has conservatives fuming about impeaching him.

For more than a decade, Justice Kennedy has infuriated the right, writing decisions in cases that struck down prayer at public school graduations, upheld abortion rights, gave constitutional protections to pornography and gay sex and banned the death penalty for juveniles. With talk of a possible court resignation to follow the term that ends Monday, Justice Kennedy is looming in many conservatives' minds as just the kind of painful mistake they hope President Bush avoids. Showing few sharp edges in life or in law, the justice emerged as a consensus third choice, after President Ronald Reagan's first two selections failed. Demanding more ideological clarity in what could be the first Republican selection in 14 years, the right is now mobilized with a cry: "No more Tony Kennedys."

I thought the cry was "No more Souters." But Souter, appointed by the first President Bush, veered all the way to the liberal side of the Court. Kennedy just took up the middle position. It's not enough, I suppose, to avoid a Souter. You've got to avoid a Kennedy. I tend to think that if O'Connor retires, vacating one of the center spots, the new Justice will feel drawn to play the centrist role -- and if he does not, someone else will move toward the center. There's a certain small group dynamic going on here. But there is a more pervasive problem that has dogged conservatives over the years:

Ever since the elevation of Earl Warren, Republican presidents have picked justices who disappoint the Republican faithful: William J. Brennan Jr. (President Dwight D. Eisenhower), Harry A. Blackmun (President Richard M. Nixon), John Paul Stevens (President Gerald R. Ford), Sandra Day O'Connor (President Reagan) and David H. Souter (the first President Bush). One result is rage at what [rejected Reagan nominee Robert] Bork sees as subverted democracy. Even though Republicans keep winning elections, he said, the court "can say that the majority may not rule" in areas where permissiveness reigns, including abortion, gay rights and pornography. Calling most justices "judicial oligarchs," Mr. Bork said they reflected "the intelligentsia's attitude, which is to the cultural left of the American people." Some conservatives blame the judicial selection pool, which is largely confined to graduates of elite law schools that they describe as liberal (Justice Kennedy studied law at Harvard). Some say the Senate confirmation process weeds out strong conservatives. Many critics argue that justices drift left after reaching the court, in the hopes of pleasing "liberal elites."

Much more in the article about Kennedy. And much more carping by Bork. Myself, I like Justice Kennedy. He's a moderate who takes some strong positions on individual liberty.