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June 03, 2008

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Encouraging, Publius.

Given what "24" has come to represent politically, I'm feeling bad/embarassed that I have always found that show entertaining, warts and all.........

Why can't you just make a law that says such "discrimination" is illegal? I totally think it should be, by the way, but I think it's a big, big stretch to call it discrimination, and discrimination is what the law deals with. Why do you have to engage in talmudisation just to do something so simple as enact clearly appropriate protection for outspoken employees? I have a theory. I discussed it at length with a guy claiming to be an US politician once. I think that it's because laws are so hard to pass, they can be vetoed at so many levels (first congress, then senate, then president). So there is an institutional bias against passing new laws, even much needed laws. The system is basically set up so you'd rather lack three laws you genuinely need, than have one law you don't. Talmudisation is a bad solution, I think. Right now, it's liberal forces that use it, but it could just as well be used by the other side, with a little change of political climate. I don't imagine you would approve of it if laws were stretched similarly for less worthy causes.

(I put line breaks in there, honest! What happens to them?)

Given that Roberts and Alito presumably respect firmly-established precedent enough to act against their own political interest at times, I think it’s somewhat less likely that they would join an frontal assault on Roe. I’m sure they oppose it — and I have little doubt that they’ll chip away at it.

Just wanted to interject here that of course they already have, in Gonzales v. Carhart (2007). While I also found the respect for precedent in these two discrimination cases reassuring, the Gonzalez case represents a troubling tendency on the part of the Roberts court to essentially overturn standing precedents without acknowledging that it's doing so. Stenberg v. Carhart (2000) had found that Nebraska's partial-birth abortion law violated the mother's due process rights because it didn't include an exception for her health, and there was also some concern that its language was broad enough to include a wider range of procedures than those it targeted. Gonzales didn't overturn Stenberg explicitly, but Kennedy's opinion basically held that a similar law could stand because its language wasn't so broad. The main rationale of Stenberg was ignored, and what Stenberg had found would be an "undue burden" on maternal rights--the state's deciding in the face of some medical dissent that this procedure would never be required to preserve the mother's health--was now acceptable. Kennedy's majority opinion in Gonzales is a recycled version of his dissent in Stenberg; by vacating the reasoning of the Stenberg ruling if not its result, the court basically reversed it as a meaningful precedent, while pretending that they'd done no such thing.

So while it's good to see a little respect for precedent from this court, it doesn't help much to reassure me about its willingness to overturn precedent as long as it can find a specious argument to cover the fact that it's doing so.

It would have been pretty preposterous to go any other way in these cases (how did Scalia justify his position?).

It simply makes no sense to say, "you have a right not to be subject to an adverse employment action based on your age, color, race, etc ... but if you try to enforce that right (or help another enforce the right) your employer is free to subject you to an adverse employment action."

I can't say that I'm enthusiastic about "showing respect" for precedent when it requires showing disrespect for what the law in question actually SAYS. Wrong precedents SHOULD be overturned. The text is the law, and the people who the text is on the side of are entitled to prevail in court. That's the rule of law, after all.

Upholding precedents that are contrary to text is just saying, "We've made this mistake before, so we're going to keep making it, even though we know it's wrong!"

Roe vs. Wade is fine with me. But I don’t like the tone of:

Roberts and Alito are quite different from the more reactionary Scalia/Thomas wing.

The tone of that is authoritative.

There is nothing wrong with reacting. Reaction is half of a natural balancing act and it beats overreacting. Overreaction is bad.

Action-Reaction.

Failure to react leads to overreaction. I support reaction.

"Modern judicial conservatism’s DNA was forged not so much by race, but by opposition to the New Deal and its legacy."

Exactly right. Though some would take it back past the alleged evils of The Square Deal.

I've always been for a solid Republican idea, myself: The Square Deal.

"The tone of that is authoritative."

Ooh, scary.

"I support reaction."

I see no inaccuracy problem in calling you a "reactionary": would you agree, or disagree?

Oh good, name calling by comment 8. Personally I try to wait until at least comment 100. ;)

Equally interesting is the Santos case, see comment here.

How often do you see Scalia, Thomas, Souter, Ginsburg and Stevens on the pro defendant side with Roberts, Kennedy, Alito, and Breyer on the other side?

I think the dividing line there is really how pro-government you are. The prosecution suggested that concealing money during physical transport is enough to count as money laundering, which is a rather broad expansion of the term. (Putting ill-gotten money in your wallet and then driving in a car would probably count as money laundering under the prosecution's definition). So you get the rather odd Court lineup with Breyer and Kennedy taking the government's side and Scalia and Thomas siding with the more regular criminal defendant rights side of the Court.

"Oh good, name calling by comment 8."

Perhaps I can't count, but where is there "name-calling" here in comment 8?

If you're referring to the 9th comment, I asked Bill a question. I made no declaration other than that I saw no problem with the label, but was nonetheless asking him his opinion. If he says "no, I'm not a reactionary," I'd not say that he was.

That's not "name-calling." Name-calling is calling someone something pejorative that they don't agree is a fair label. I'm asking Bill if he thinks the word is fairly applied to him, or not.

"Personally I try to wait until at least comment 100"

And then you're quite repetitive about it. In email, too. Ten times in a single email is something of a record in my experience.

But you didn't ask me if I thought it was fair or not, nor withdraw the assertion after I informed you that I did not think it was. So I'm not feeling terribly guilty just now.

(Please note that I write this with no animus or ill will; I just strongly don't like name-calling, as it happens (bad family history and childhood with that), and would otherwise like to have fully friendly relations with you again: which I can do whenever you feel like withdrawing your past assertions, if the urge ever strikes you.)

Re: Strong Arm Tactics

"Sergeant M., this is Captain Brandon Friedman." I had no idea what I was going to say, but I knew I was going to raise my voice.

Friedman left the Army in 2004 and is now selling books. He apparently served honorably. But he still calls up enlisted men and introduces himself as ‘Captain’. That reflects poorly upon Brandon.

You need better sources Eric.

There are bad apples in recruiting, no doubt. Our men should pull back to remote airbases in a strategic retreat, just like the Russians did with Napoleon and Hitler.

Heading out.

I haven't read that opinion yet, but it's on my to-do list.

I feel like roberts is someone with infinite potential energy -- he could really be a force to be reckoned with. frankly, i think the scalia/thomas whiny-baby arm-thrashing routine has become stale. roberts is more politically astute and i think he'll be more effective.

I can't say that I'm enthusiastic about "showing respect" for precedent when it requires showing disrespect for what the law in question actually SAYS. Wrong precedents SHOULD be overturned. The text is the law

The text may be the law, but the law is not composed exclusively of the text.

I've been practicing law now for 30 years. When I first started out, statutes were construed to effectuate the legislative intent, with considerable allowance made for the reality that many statutes were badly drafted. Courts saw it as part of their job to takebadly drafted stattues and make them workable. The judiciary, after all, is a seperate, co-equal branch of government, and courts have been "making" law in the Anglo-American system for a thousand years or so.

Nowdays, the fetish for textual literalism often precludes this, and the judciary, and the coutry as a whole, is much the worse for it.

"That's not "name-calling." Name-calling is calling someone something pejorative that they don't agree is a fair label. I'm asking Bill if he thinks the word is fairly applied to him, or not."

It is apparent that you don't believe you engaged in name calling, but that may be fault of extremely literal mind. Which I totally understande, I've often been accused of having the same problem. Unfortunately those who said that about me at the time were right.

"And then you're quite repetitive about it. In email, too. Ten times in a single email is something of a record in my experience."

I'm VERY tempted to publish my email and let others judge it, but that is probably the kind of drama queen thing I should avoid.

"and would otherwise like to have fully friendly relations with you again: which I can do whenever you feel like withdrawing your past assertions, if the urge ever strikes you.)"

I have comments about that in both tone and content, but making them probably isn't going to help anything. If you'd like to hear them, you can email me.

with considerable allowance made for the reality that many statutes were badly drafted

Please forgive a silly question, but why does this happen? I don't mean "why do legislatures occasionally make mistakes?" but rather "why have legislatures failed to adopt new processes that reduce the likelihood of poorly written or ambiguous statues?". I write code for a living and a fair amount of my time is taken up by thinking of systemic issues in this area: how do I write this so that the intent is clear to the next person who reads it, what extra stuff can I add that is not strictly needed but will make it obvious when someone misuses this later on, how do I add tests that force me to discover problems before I release this code to anyone else, etc.

It seems that there are fairly high costs to unclear or contradictory legislation that gets signed into law and so there should be large benefits to fixing laws during the drafting process rather than at the courthouse. Perhaps I'm ignorant, but I haven't heard of these efforts being used by legislatures. Some examples might be real revision control that established authoritative authorship history for every damn line of legislation through various drafts, continuous metrics on failures in the drafting process with names attached to them, checklists for common mistakes and a rigorous process to ensure that those checklists are signed off by an objective reviewer, etc. It just seems weird that I hold college interns at my company to higher standards of professionalism than I do Senators.

You can see the abortion case as both respecting and rejecting precedent. Kennedy commented in Carhart v. Stenberg that it wasn't what he thought he was signing on to when he sided with O'Connor in Casey, and so his dissent from Carhart was basically his expression that he thought it violated the precedent set up in Casey. There's much in Gonzales v. Carhart that reaffirms that dissent. He does at one point say that you can say all he's saying in a way consistent with Stenberg, but it's also clear that he's rejecting some of the spirit of Stenberg because it goes against Casey. So whether it respects or rejects precedent depends on which precedent you mean. It rejects the more recent one in favor of the earlier precedent, at least as Kennedy sees it.

It's important to note that both Scalia and Thomas are open to deciding based on precedent even if they wouldn't have decided the original case that way. Both of them respect stare decisis to some extent, Scalia moreso than Thomas. They don't just overturn precedent because it was wrongly decided. They agree with the other seven justices that sometimes there are circumstances that justify retaining a wrongly-decided precedent for the sake of orderly justice being carried out. They just disagree on how easily that standard can be met, and sometimes they both or just Thomas will say that the circumstances don't justify going against the text just because it will produce a better consequence. In many cases the difference in consequences has to be tremendous to be worth overcoming the text, whereas for some justices it just has to lead to a slightly better effect (e.g. Justice Goldberg's admission that he would always decide the right outcome before even looking at whether any good arguments supported deciding according to that outcome).

What rea said. I'll simply add that we're talking about statutes that Congress can change any time it wants. While the textual basis for the retaliation claims is shaky (and I suspect that if the question had come up for the first time this term it would come out the other way), Congress had decades to change things if it disagreed and didn't. To decide now that one particular anti-discrimination statute didn't cover retaliation when others with no better textual basis for the claim had long been held to cover them would make a hash out of the law that no one could endorse.

How often do you see Scalia, Thomas, Souter, Ginsburg and Stevens on the pro defendant side with Roberts, Kennedy, Alito, and Breyer on the other side?

That's the Apprendi majority -- they've teamed up in favor of defendants before. (For non-lawyers, Apprendi v. New Jersey in 2000 and several cases following it were a major expansion -- or, if you prefer, restoration -- of defendants' jury trial rights that ended up almost, but not quite, leading to the demise of the federal Sentencing Guidelines system in the 2005 Booker case. The courts are still working out the implications of Booker -- and Apprendi, for that matter.)

publius said: I should note that Alito tried much harder in his opinion to ground the result in text than Breyer did. Breyer’s opinion focused more heavily on stare decisis.

This in itself is very interested, is Justice Alito signalling that he thinks the text of these statues actually support retaliation even without the precedents?

It seems to me that Justice Breyer was playing it very safe, determined not to lose his majority by making the decision all stare decisis and even hints at the fact that he thinks the textual approach in his case would have given rise to the opposite result.

"That's the Apprendi majority -- they've teamed up in favor of defendants before."

Yes that is right. Thank you, I knew it had happened somewhere before. Both cases are very interesting in the sense that they make a hash out of knee-jerk understanding of how the Court operates.

"why have legislatures failed to adopt new processes that reduce the likelihood of poorly written or ambiguous statues?"

Because the processes you cite would get in the way of unaccountably sneaking provisions into (and out of) bills. You have to remember that a lot of the way Congress operates is intended to facilitate abuses.

Why have legislatures failed to adopt new processes that reduce the likelihood of poorly written or ambiguous statues?

Actually, the parallels with computer coding are there: the people doing the actual drafting are (at least in the UK) experts who try and produce non-ambiguous legislation. The problem is the people higher up (the politicians/managers) who a) want things done to completely unrealistic timetables, b) don't understand how one change to a complex system can have far-reaching ramifications and c) often want outcomes that a logically consistent system cannot realistically produce. Maybe most legislation should be marked as still in beta testing...

"Actually, the parallels with computer coding are there: the people doing the actual drafting are (at least in the UK) experts who try and produce non-ambiguous legislation."

They have another name here: "lobbyists."

It's far worse in most state legislatures.

I'll be convinced when they side with good when it would actually make a difference, i.e. a 5-4 ruling, or a 6-3 ruling where they both rule on the side of liberality.

Apprendi and Santos were both 5-4 decisions. The age retaliation case was 6-3.

"Scalia and Thomas have little regard for precedent that they consider to be wrongfully decided. It doesn’t matter what sort of reliance has been constructed upon these older cases — they’d be happy to blast away the foundation and let the chips fall where they may. Roberts and Alito, by contrast, seem more anchored in real-world consequences in this respect. And that leads to Point #2."

Of course they'll chip away at precedent that goes against the Constitution. A doctor doesn't leave a tumor in "because the body might be used to it," he or she removes the tumor. Likewise, judges should not leave intact precedents that fly in the face of the Constitution. If stare decisis were always preferred, public schools might be segregated to this day. On the other hand, if we simply followed an originalist/textualist doctrine, we might not have the current eminent domain abuses we see today, which amount to anti-Robin Hood - taking from the poor to give to the rich.

Is it possible at least in Alito's case that he's still used to writing opinions as a Circuit judge and ergo hasn't yet internalized that he gets to make the rules now? I don't know that this is particularly likely, but if so, I wouldn't count this as a bellweather.

I write code for a living and a fair amount of my time is taken up by thinking of systemic issues in this area: how do I write this so that the intent is clear to the next person who reads it, what extra stuff can I add that is not strictly needed but will make it obvious when someone misuses this later on, how do I add tests that force me to discover problems before I release this code to anyone else, etc.

I think I can answer this. I write code for a living, and have more than a passing interest in law.

Contrast a career programmer like it sounds like you are with a consultant, and you'll see the difference. 75% of the consultants out there never have to look at the code again, and so have no incentive to think carefully about maintenance, readability, or edge cases. That's someone else's (schmucks like you and me) job.

Legislators are similar. In many cases, the law doesn't apply to them, and the people who give them money or votes have little interest once a law is passed. Making it work in the real world is someone else's (the court's) job.

Please forgive a silly question, but why does this happen? I don't mean "why do legislatures occasionally make mistakes?" but rather "why have legislatures failed to adopt new processes that reduce the likelihood of poorly written or ambiguous statues?". I write code for a living and a fair amount of my time is taken up by thinking of systemic issues in this area: how do I write this so that the intent is clear to the next person who reads it, what extra stuff can I add that is not strictly needed but will make it obvious when someone misuses this later on, how do I add tests that force me to discover problems before I release this code to anyone else, etc.

The short answer is that judicial review of statutes just is the mechanism you are talking about. When coding, you can compile and give things a test run, and then go back and revise and fine-tune particular applications that operate out of line with efficiency or your best intentions. Legislatures cannot do this, nor do I think even the most technocratically gifted drafter of a statute could determine in advance all possible contestable applications of the text. That would require godlike powers and statutes of prodigious length. Instead, we leave it to courts to determine these particularized applications of law to fact.

When you are writing your own code, it also is much more clear what we mean when we say the code embodies your intent. For a legislature, the question of intent of hundreds of legislators who voted for the thing is more nebulous.

Courts have been struggling with these questions for centuries and have gotten quite good at construing statutes, building up canons of contruction, theories of textual interpretation, and other devices to deal with the reality that the plainest reading of a highly abstract statute won't always yield definitive or particularly sensible results. Legislatures have also helped courts out by developing ways of clarifying intent: leaving behind records of debates and legislative history, including definitions of potentially ambiguous terms in the statute, and revisiting statutes through amendment when courts make repugnant errors of interpretation.

Case in point, the statute in question in Humphrey is Section 1981, which reads “all persons within the
jurisdiction of the United States shall have the same right
in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens.”

This statute was drafted over a century and a half ago. In the interim, judicial construction has clarified and added layers of meaning, especially in response to shifts in race relations and the modern workplace. In 1991, Congress amended the Act to clarify what was meant by these rights of contract, specifically focusing on including the termination of the benefits of employment. It is safe to say that none of the original drafters of this law could have foreseen how this post-Civil War statute would be applied in 2008. I don't think that means they were poor drafters or lacked corrective mechanisms. I think it just shows that legislating inherently produces ambiguity that courts are indispensable at resolving.

i follow the court very closely, and i have read and reported on every single opinion (majority, dissent, concurrence) since roberts became the chief. publius's point is absolutely correct, and to argue that roberts/alito are scalia/thomas clones is absurd to anybody that follows the court day in and day out.

i mean, just look at baze - scalia and thomas want a "deliberate infliction of pain" standard for method of execution challenges. neither roberts nor alito will abide by that. roberts goes for a "substantially unnecessary risk" standard, and alito goes for the roberts standard on some steroids. granted, neither is with ginsburg on the "[almost any] unnecessary risk" standard, but you can read a lot out of this opinion. everyone would concede that the method of execution precedent doesn't really tell you anything, and the justices - even the ones that are big on precedent - could go anywhere they wanted with it. roberts and alito chose a more centrist tack when they didn't have to.

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