The Enlightened Despot

• President Barack Obama announced his nominee to replace David Souter: Sonia Sotomayor. Jeffery Rosen wishes conservatives wouldn’t use his critical article about her from a few days ago as a source for criticism of her now. He won’t get his wish.
• California’s highest court upheld Proposition 8, but maintained that existing same-sex marriages were still recognized.
• Rumblings that North Korea is only getting warmed up in its latest campaign to bum the rest of the world out.
• Everything you learned in sex-ed was a lie.

Law professor John Culhane responds to my earlier post thus:

Your vituperative post (”this man is a law professor”) overlooks the possibility that I’d read and digested the briefs, heard the three hours of oral argument, and understood the legal issues on both sides before the ruling was handed down. In fact, though, all of these things are true. My reaction was based on what I knew the court to have done, and I had a pretty good sense of the reasons it might have given for doing so. Mostly, I was right. (I’ve since done a sort of long legal analysis, but one geared for the “lay” audience.)

Admittedly, I could have been clearer about what I meant by “blinking”; it’s not surprising you were at a loss. What I meant, and should have conveyed more clearly, is that the court, with at least a couple of key justices soon up for retention, was intimidated by the populist rhetoric to the extent that its judgment was occluded; a judgment that I thought should have gone the other way, pretty much along the lines expressed in Justice Moreno’s dissent.

I confess freely that I was writing with a good deal of vituperativity. Public discourse on matters of jurisprudence have a way of filling me with mind-numbing despair, so perhaps I was lobbing criticisms a bit too erratically, rather than inflicting targeted scorn on the world, as per usual. But I would have hoped it was clear that Culhane’s understanding of the law wasn’t my target here. I was highlighting the post he actually wrote as an example of the way we think and talk about judicial review.

I suppose I did “overlook[] the possibility” that he had been through the briefs already, but not out of nastiness, but simply because it didn’t matter much to the point I was making, which is that the response of a law professor to this news was a condemnation of the court that made no reference to the legal merits of the case. I also pointed out, and was much nastier about, a post from an opponent of gay marriage, which also ignored the legal questions at hand.

The clarification over the “blinking” business is helpful. That was certainly the heart of my complaint, so I’m happy it was merely a misunderstanding on my part. But I do think that the order of operations here - a post reacting to the awful news, with a legal explanation for the lay audience to follow - reinforces my point that the nuts and bolts of legal reasoning are essentially epiphenomenal to the process through which people make up their minds about these issues. (Culhane’s charge that my post was ‘vituperative’ clearly establishes that it is Vocabulary Day, thus licensing my use of ‘epiphenomenal’. There’s  precedent here.) There’s nothing particularly original or groundbreaking about that observation, but that doesn’t make it any less accurate.

So, John Culhane, I’m sorry I spilled my vituperation on you, it was to a large extent unwarranted. I still think the fact that you can blog about the tragedy of a decision to an audience that you assume does not yet have enough information to know what is wrong with that decision is a pretty good example of the cognitive dissonance our society maintains regarding judicial matters. But I also realize that actually being bothered by this puts me in a small, crazy minority. And, as should go without saying at this point, on the actual substance at issue here I am firmly on your side, not Maggie Gallagher’s.

As was widely expected, California’s Supreme Court has upheld Proposition 8, which amended the state’s constitution to ban gay marriage, but held that existing gay marriages were still legally valid. Here are two reactions that sum up why I find constitutional law so depressing. First, John Culhane:

Yet I’m overcome by a profound sense of grief. The courts are supposed to be on the side of justice and protection of the rights of minorities. This time, the California Supreme Court — admittedly with precedential justification — blinked.

They blinked! Now, we all know from our dear friend Sarah Palin that blinking is a terrible thing to do, but I’m at a loss as to what constitutes judicial blinking. Culhane notes that he hasn’t read the decision yet, and legal analysis will follow. But he already knows the court did wrong. Not based on the merits of the case, mind you, but because courts are supposed to stick up for minorities. This man is a law professor.

Now, here’s Maggie Gallagher, who is thrilled, because she doesn’t like gay people, but cautious, because she doesn’t like Californians or judges either:

Six to one. Even in California there is only one justice willing to strip 7 million voters of their core civil right, expressly guaranteed, to amend their own constitution. I should be grateful, right?

Amending one’s constitution by a direct majority vote of the electorate is a core civil right? That’s bad news for anyone who lives in, say, the United States of America where no such right exists. True, Californians are expressly granted that right in regards to their Constitution. But the bar for revising the Constitution is different. The legality of Prop 8 comes down to whether it constitutes and amendment or a revision. Perhaps Gallagher is aware of this, but the argument she actually puts forward is that amending constitutions is a core civil right. Neat.

For what it’s worth, ‘revision’ - as opposed to ‘amendment’ - refers to a “substantial alteration of the entire constitution rather than to a less extensive change in one or more of its provisions.” That’s pretty vague, but it’s as good as it gets. You might think that the treatment of marriage is pretty obviously just a set of provisions within the document. On the other hand, you might think changing the Constitution froma document that doesn’t draw distinctions between the union of men and women and the union of men and men or women and women to one that does is a pretty substantial, overarching disaster. I’m not really sure, but I am sure that just about nobody cares.

Which is fine, so far as it goes. I’m not wild about giving practically unlimited legislative authority to unelected lawyers, but it’s a system that’s worked well enough for us so far, and it’s not going anywhere. What is frustrating is the near-universal denial about what is going on. As far as I can tell, these three things are true of almost everyone:

1.) They believe that legislators should interpret the law, rather than read into it what they want. ‘Legislating from the bench’ is a bad thing.

2.) The right decision for the courts to make on the major Constitutional issues of contention (abortion, affirmative action, gay rights, abortion, abortion, etc.) is - happily! - the decision whose outcome lines up most closely with what they think the law should be.

3.) They have absolutely no idea what the legal arguments on which these questions balance are. Not a clue. There are core, Constitutionally guarunteed rights that people are certain are in there, but they wouldn’t know what Article to open to to find them.

This is a fairly ludicrous combination, but I find it to be true even of most well-educated people. There are some differences of degree, especially with regard to item 1. Conservatives will talk about strict, literal interpretations, whereas liberals are generally more happy with talk about ‘the spirit of the law’, whatever that might be. But this is nonsense. Conservatives want the courts to do conservative things and liberals want them to do liberal things. How many conservatives had to look at precedents on the distinction between ‘amendment’ and ‘revision’ in Californian Constitutional Law?

There are some lefties - especially younger ones, it seems to me - who are pretty openly happy about saying they think Justices should make stuff up to justify decisions that will help people. But for the most part, conversation about the Supreme Court is located firmly within a collective fantasy about what it does. And it hurts my head.

On the other hand, I note with some satisfaction that Sotomayor is - according to our president, anyway - a life-long Yankees fan. So her heart is in the right place. And that’s what matters, isn’t it?

Some catch-up to attend to after two missed installments, so, without further ado, the links:

• Terrorists were arrested for attempting to blow up a synagogue a few blocks away from my childhood home. I assume the punishment is especially severe for that sort of thing. Unfortunately for them, they were using fake bombs sold to them by the FBI. The men had been under investigation for almost a year.
• The NYT reported the other day that ammunition sent to the Afghan government by the US and its allies had been discovered in Taliban hands. No one was under any illusions about the existence of ties between the Taliban and elements within the government so, in a sense, this isn’t news at all. It would be surprising if some of our ammo weren’t being used against us. But this sort of concrete discovery can sometimes focus thinking on an issue we already knew about.
• California is facing bankruptcy, and not just the moral kind. Voters rejected five out of six ballot measures introduced to address the fiscal crisis in a special election on Tuesday. The good news is that there has been a surge in public support for overhauling California’s constitution. Just about everyone who has even briefly thought about it agrees that the requirement for a supermajority on all matters budgetary is a complete disaster.
• CATO’s Jerry Taylor is apparently still not afraid to get jerrytaylored.
• The boy who hacked Sarah Palin’s email during the campaign has asked that the case against him be thrown out on the grounds that her emails were public records.
• Peter Kirsanow thinks that despite Dick Cheney’s unpopularity, Americans would want him in charge of any effort to defend the earth from destruction via asteroid. That is, to the extent that Peter Kirsanow thinks.
• Felix Salmon says there is nothing to worry about in the possibility of a downgrading of US debt, because the ratings agencies are now irrelevant. I hope he’s right, and there have certainly been some positive signs, but I think some more concrete steps need to be taken to make the ratings system in its present form as irrelevant as it deserves to be.

The quote of the day is this beautiful piece of understatement from Ben Smith:

The Palin family media strategy can be hard to figure.

You don’t say. He’s reacting in particular to the magazine cover above, which, in case you missed it, includes this equally quotable gem from Bristol Palin:

If girls realized the consequences of sex, nobody would be having sex. Trust me. Nobody.

Ah, Bristol. Ah, humanity.

Finally, apropos of nothing in particular, here’s Nino Brown’s defense of his murderous - though fictional - reign as a crack kingpin: