Tags: Ponnuru

Defending Justice Thomas


In Slate, Doug Kendall and Jim Ryan question whether Justice Thomas is really a principled originalist. They consider three cases.

In the “Bong Hits 4 Jesus” case, they claim that Justice Thomas found that “students simply do not have any right to free speech in school” on the basis of “conducting an imaginary séance with 18th- and 19th-century Framers and ratifiers.” (As an aside: Their description of the holding is slightly better than the descriptions found elsewhere, from both supporters and opponents of the decision. Thomas did not conclude that students have no First Amendment rights; he concluded that their rights do not bear on the policies of public schools. The state legislature, presumably, could not pass a law restricting what protests public-school students can attend on the weekends.)

Kendall and Ryan point out, correctly, that there can be a distinction between how ratifiers expect a legal provision they’re ratifying to apply and the meaning of the provision they actually ratified. But it is reasonable to assume that most of the time there will be no such distinction, and the claim that there is one will depend on a pretty solid argument—which they do not provide, and which is hard to imagine.

Second, they take up the racial-integration case. They point out that Thomas does not engage in any sort of originalist analysis. Here I think they score a real point, although they seem to assume that Thomas’s opinion therefore cannot be justified on originalist grounds. His decision, however, seems to me to be consistent with a straightforward reading of the Civil Rights Act.

Third, they go after Thomas on campaign-finance reform. They want to assail his decision in the recent FEC v. Wisconsin Right to Life case. But their chosen means is to point out that Chief Justice John Marshall thought that a corporation is an “artificial being,” unlike a person. This is, for a variety of reasons, insufficient. Marshall’s comment is entirely compatible with the proposition that the government may not choose to regulate the financing of certain advertisements more stringently than others depending on their political content.

Justice Thomas may not be perfect, and it may be that nobody applies originalism with perfect consistency. But Kendall and Ryan are trying to show that Thomas is merely a political hack without real principles, and they fall far short of the mark.

Tags: Ponnuru

Remystifying the Court


I agree with what Matthew Franck had to say about the dangers of Chief Justice Roberts’s apparent desire to issue unanimous opinions in order to strengthen public respect for the Court. It put me in mind of the Court’s decision in Casey, in which a plurality of justices decided that overruling Roe would make the Court seem less “legitimate” even if it was an error. “Legitimacy” is a word that pops up a few times in Rosen’s article on Roberts, and Rosen himself has more or less advocated a split-the-difference approach on the partial-birth abortion case as a logical implication of Roberts’s statesmanlike desire for unanimity.

Rosen is right, I think, to say that the justice who takes the most stylistically opposite approach to this one is Antonin Scalia. His famously “bitter” dissents can be seen as an attempt to demystify the Supreme Court—to expose it as a political actor merely pretending to interpret the Constitution. Roberts does not appear to accept this critique. Linda Greenhouse, during his confirmation hearings, remarked that he seemed to be at home and at ease in the world of modern constitutional law. For whatever it’s worth, I think Scalia is right, perhaps even understating the case, and that the last thing our country needs from the Supreme Court is a more Delphic voice.

Tags: Ponnuru

One Theory


that I’ve heard to explain the Court’s shrinking docket, Matt, is that a closely divided committee will tend to decide as few things as it can, and decide those in the narrowest manner possible. That might explain both the number and nature of recent opinions, and the recent vogue for “judicial minimalism.”

Tags: Ponnuru

No Activism Here!


Dahlia Lithwick argues in Slate that “there is nothing ‘activist’” about the New Jersey marriage decision”: “Memo to Karl Rove: Those who oppose this decision aren’t opposed to judicial activism. They are opposed to judges.” Here are her reasons for asserting that the decision is obviously non-activist: The court “could have gone much further”; it left “the really crucial decision” about whether same-sex unions should officially be called “marriages” to the legislature; and the court was construing New Jersey law, not other states’ laws or federal laws.
None of this makes any sense at all. The fact that a court could have been more activist does not establish that it wasn’t activist: If it did, then any decision that fell short of ordering the men of New Jersey to pair up and marry each other would have to be applauded for its restraint. Whether the official title for same-sex unions is really more crucial than the bundle of rights that such unions should have is a debatable proposition. More important, not allowing a legislature to decide what the crucial questions are and how to answer them is one of the features typically associated with activism. And can it really be the case that a state court is within its proper bounds–is steering clear of activism–so long as it concerns itself only with state laws? Who has ever held that state-court activism consists only of rewriting laws extra-territorially? If the New Jersey court, “interpreting” state law, dissolves the legislature and appoints its own, are we to refrain from calling it activist?

Tags: Ponnuru

More on Greenhouse


I wrote a bit about her in The Party of Death:

In the spring of 1989, as the Supreme Court considered the Webster case. . . supporters of abortion rights staged a big march in Washington, D.C. Many reporters were there, of course. But not all of them were there to cover it. Several journalists from prominent newspapers were there as marchers. Linda Greenhouse, who has long covered the Supreme Court for the New York Times, was one of them.

The journalists’ participation in the rally became controversial. The editors of the Times said that Greenhouse should not have marched. Other reporters tut-tutted her for bringing her objectivity into question. The dispute was somewhat otherworldly. No well-informed observer has ever thought that Greenhouse, or the Times, was unbiased, before or since the march. Conservatives even coined the phrase “the Greenhouse effect” to refer to the possibility that Supreme Court justices move left to get better coverage from her and like-minded scribes.

Greenhouse spent the second half of 1992 praising Casey in the Times as a “tightly reasoned” decision by “centrist” justices. She has described the dissenters—Scalia, Thomas, and Rehnquist—as “the Court’s far right.” She has written that Roe has “taken on a life of its own, evolving into something . . . in tune with the ideals of the American mainstream.” And she has written an admiring biography of Harry Blackmun.

If anything, the marching journalists had done everyone a favor by making their biases better known. . . . 

Which makes my reaction something like Ed Whelan’s to her latest provocations.

I come back to Greenhouse a few pages later, when I am contrasting the Times’s distaste for the phrase “partial-birth abortion” with its treatment of pro-choice slogans: 

When pro-life presidents cut off family-planning funding for groups that counsel women to have abortions, pro-choicers called the policy a “gag rule”—and the press did not handle the phrase with gloves and tongs. Headlines, including New York Times headlines, regularly used variants of the phrase. Greenhouse casually referred to Rust v. Sullivan, which concerned the policy, as “the abortion gag-rule case.” 

And I return to her one more time, mentioning that she was putting pro-abortion spin into the Times at the start of the 1970s, when she uncritically repeated Cyril Means Jr.’s false claim that New York had prohibited abortion solely to protect women from unsafe surgery, and not out of any concern for fetal life. 

Tags: Ponnuru

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