« Comma quote Jay period Dee period unquote | Main | Review: Ron Liebman's "Death by Rodrigo" »

Wednesday, September 26, 2007

A non-cartoonish discussion of SCOTUS Justices and their rulings

This is a grumpy post, but that's the way I feel tonight. Further to Sunday's post about people who write about the Supreme Court:

If you read these three blog posts by Ed Whelan on NRO's "Bench Memos" blog — here, here, and here — you will get a non-cartoonish understanding of a series of important issues relating mostly to SCOTUS abortion precedents that Jeffrey Toobin's book The Nine treats in a shallow, cartoonish, and demonstrably wrong fashion.

Ed is a smart guy. He writes well and concisely, which means that I often have to read the individual sentences in his blog posts more than once to ensure than I'm grasping what he's said. (This is a good thing; it means that sharper minds than mine can spend less time reading his posts than the ones I write here, which are intended to be mostly understandable on a quick pass-through; but I lack Ed's discipline.) He is a sophisticated observer, and he's not talking through one of his nether orifices to please some editor or any particular audience.


Let me try to come at this another way. I emphatically, fervently believe that the Supreme Court Justice of the last half-century (my life-time) whom I respect least — Mr. Justice Harry Andrew Blackmun, the author of (among many thousands of other opinions) Roe v. Wade — was a hard-working, intelligent, patriotic, admirable man who was doing his human best, as he saw it, to further the Rule of Law and to protect and defend the Constitution of the United States and the country it establishes. If his ghost appears on my doorstep tonight, I will shake its hand and praise its live human predecessor's lifetime of devout service to our country. If the sum total of my life's accomplishments amount to a fraction of his, I will die happy.

Nevertheless, I think he was, relatively speaking, an awful Justice who, by the time he retired, was messing things up as best he could, despite his best intentions, with virtually every vote.

But the explanation for why he was doing that requires a detailed discussion, and a thorough appreciation, of the issues involved in the cases on which he was voting. If I encountered someone in the proverbial bar room in which I'd had maybe one too many, who then said, "Yeah, that Blackmun, he was a real a**hole and a Communist to boot," I'd probably punch that guy's lights out and end up spending the rest of the night in jail. Even Harry Blackmun — in my view the worst Justice of the modern Supreme Court — deserves better than that sort of shallow dismissal.

I emphatically do not think that one has to have a law degree from anywhere, much less one from Harvard, Yale, or Stanford, to formulate and voice a meaningful opinion about the work of the Supreme Court of the United States. Law professors, law review students and editors, and (occasionally) judges engage in those debates in the formal, constipated, useful, and inaccessible pages of law reviews (and less often, in judicial opinions) — thereby self-limiting their audiences very sharply. But the premise of my blog — the reason I write this damned thing — is my conviction that the law is not, and ought not be, inexplicable to a broader audience.

And I'll be damned if I'll try to pander to that broader audience by writing variations of:

  • Justice ___ voted ___ because his daddy was falsely accused of insurance fraud in 1934; or
  • Justice ___ says ___ was the wrong decision because she was really chapped that Dubya didn't name another woman to the SCOTUS to take her slot; or
  • Justice ____ voted ___ because he's in BusHitler's pocket on the war on terror.

Facts matter. Prior precedents matter. Proceedings in the lower courts matter. The quality of the arguments of counsel, and of the arguments among judges, matter.

The law isn't a damned Pachinko machine, and neither Snidely Whiplash nor Dudley Do-Right sit on the Supreme Court.


UPDATE (Wed Sep 26th @ wee-small-hours): I'm late in finding it, but I endorse and adopt Prof. Ann Althouse's views in this op-ed.

Posted by Beldar at 12:58 AM in Law (2007) | Permalink


Other weblog posts, if any, whose authors have linked to A non-cartoonish discussion of SCOTUS Justices and their rulings and sent a trackback ping are listed here:


(1) EW1(SG) made the following comment | Sep 26, 2007 9:04:06 AM | Permalink

I originally stumbled across your blog because of your post about cross-examining John O'Neill.

I stay because

...the premise of my blog — the reason I write this damned thing — is my conviction that the law is not, and ought not be, inexplicable to a broader audience.
and I think you do an excellent job of it.

Sidenote: As a Navy/Coast Guard/Navy Reserve veteran, the evaluations expressed by O'Neill & many other SwiftVets have a plausibility and authenticity about them that is difficult to explain to a non-vet (not impossible, just difficult). Therefore, I was taken aback while reading Prof. Jay Rosen's comment in his comments section that

I think the Swift Boaters fraud [emphasis mine] and smear campaign was one of the lowest points in American politics recently, and that to this day it dishonors everyone who believed or supported it. But the sins of the journalists in that one are of a different type than this one.
and he immediately lost all credibility with me. He might be good at what he does, but I wouldn't send him down to Taco Bell® to get me a burrito. I was further disheartened that Prof. Rosen teaches journalism, a profession we expect to educate us about the issues of the day, when he denied the blindingly obvious fraudulence of the "Killian memos."

Sorry for the diversion, and to finally address the subject of your post: A friend was engaged as Justice Warren's private nurse during the terminal stage of the Justice's life. While matters of jurisprudence never came up between them, my friend did describe the Justice as a warm, engaging, and sometimes witty individual. No mean feat on your deathbed, and a stark contrast to the experience of other friends who have had to interact in a similar capacity with She Who Would be King Queen.

I suspect that however much or however little part Justice Warren's humanity and compassion played in his decisions will always be a matter of discussion among us laymen, because there truly are reaches of legal scholarship that we haven't the time or resources to bridge, no matter how competently explained to us by crusty trial lawyers.

(2) James B. Shearer made the following comment | Sep 26, 2007 11:53:37 AM | Permalink

I would be interested in your ranking of all the justices over the last 50 years.

(3) Milhouse made the following comment | Oct 12, 2007 2:54:42 PM | Permalink

Beldar, are you dismissing the possibility of a Justice knowing perfectly well what a constitutional clause means, and deliberately ignoring it, secure in the knowledge that he can't be reversed or disciplined, and that whatever he feels like saying will forever after be considered binding precedent? Or are you merely asserting your judgment that Blackmun never did such a thing? What would it take for you to conclude that a Justice did do that, and would you still demand that such a Justice be respected? Is there such a thing as the Supreme Court acting ultra vires in a particular case, so that its decision is not law and should be ignored by lower courts?

The comments to this entry are closed.