« Why I'm unpersuaded by Obama's disavowal of Rev. Wright's political polemics from the pulpit | Main | DKos announces preemptive civil war against Hillary and Clintonistas; no time to wait for U.N. mandate »

Monday, March 17, 2008

Most frighteningly plausible fantasy I've read this month

On the Balkinization blog, Michael Stokes Paulsen posts the Opinion of the Court (written by Mr. Justice Kennedy, and joined by Justices Souter, Ginsburg, Breyer, and Clinton) in Spitzer v. United States. (H/t InstaPundit.)

The largest flight of fantasy is that the underlying conviction is for solicitation of prostitution, which, of course, is not ordinarily a federal crime. But perhaps that was what indeed was charged, with the United States as prosecution and now appearing as the respondent on appeal because the solicitation case was filed under District of Columbia Code § 22-2701 (and not in the New York state courts under New York State's laws against prostitution). Under this scenario, Spitzer was never charged with, or perhaps pleaded out to, a separate federal financial crime (e.g., structuring) or morals crime (e.g., Mann Act) in the federal courts for the Southern District of New York.

Even the list of Justices in the majority is chillingly plausible — and under more than one scenario. Obviously, "Justice Clinton" has been the successor to Mr. Justice Stevens. But is that "Mr. Justice Clinton," or "Madam Justice Clinton"? It could be the latter if President Obama was making good on the "Great Denver Convention Compromise of 2008," whereby the Clintons were promised his first (or perhaps first two?) SCOTUS appointments in exchange for Hillary releasing her delegates. Or it could be the former if President Clinton wanted to find some way to get Bill the hell out of 1600 Pennsylvania at least a few hours every week — and who knew he and Justice Scalia would become such card-playing buddies? Either Clinton would be a historic nomination, marking either the first Justice who'd failed the District of Columbia Bar Exam, or else the first Justice whose state law license had been suspended and who'd consequently resigned (under pressure of impending permanent disbarment) from the bar of the SCOTUS itself. Notwithstanding those disabilities, either could surely expect confirmation votes from every Democratic senator.

The single best and most terrifying sentence in the opinion is this one: "There is no persuasive basis for distinguishing the Lawrence Liberty here." Those of us who are critics of Lawrence v. Texas, and of the purported constitutional theory of "substantive due process" (an oxymoron) upon which it is founded, believe that precisely this same sentence could be used in comparable opinions justifying constitutional "rights" to damn near anything, so long as Justice Kennedy can be persuaded on any given day that it's part of the "sweet mystery of life."

Posted by Beldar at 03:16 PM in 2008 Election, Law (2008), Politics (2008), SCOTUS & federal courts | Permalink


Other weblog posts, if any, whose authors have linked to Most frighteningly plausible fantasy I've read this month and sent a trackback ping are listed here:


(1) Daryl Herbert made the following comment | Mar 17, 2008 6:45:06 PM | Permalink

Why shouldn't prostitution be legal? It's sexual activity between two consenting adults.

It doesn't harm the participants. The only objection is that it harms third parties. But wouldn't it have harmed Spitzer's family just as much if he was carrying on an affair with an unpaid woman... or a man? There are a million perfectly legal ways to hurt the people around you. Prostitution isn't special.

Is it because the women are victims? "Kristen" doesn't seem like much of a victim to me. You have to be a very committed liberal to see her as a "victim." If she's a victim, we all are.

There is no justification for keeping prostitution illegal that doesn't fly in the face of the last 50 years of Supreme Court decisions (not counting the ones that were overturned!)

(2) Beldar made the following comment | Mar 17, 2008 7:06:52 PM | Permalink

Mr. Herbert: Thanks for your comment, which points out to me that I have once again presumed, wrongly, that all my readers are regular readers.

When the Spitzer story broke, I wrote: "Were I Czar, I would decriminalize the exchange of money for sexual favors among genuinely consenting adults." And so would I vote, were I a legislator.

Your comment, though, misses the difference between what's good or bad public policy as expressed through statutory law or even judge-made common law, on the one hand, and what's permitted and required by the federal Constitution, on the other.

There are many unwise laws that are constitutional. They were enacted, typically, by majority vote of democratic legislatures and a confirming signature of the executives. And legislatures and executives can change them by that same process.

But when Justice Kennedy and those to his left interpret the Constitution to prohibit or require something, the public can only directly change that by means of a constitutional amendment.

The Texas sodomy law was also an unwise, even silly law. It may have been properly held unconstitutional on equal protection grounds under well-accepted principles of constitutional law (see Justice O'Connor's concurring opinion in Lawrence). But using an illegitimate, boundless theory called "substantive due process," the Lawrence majority, led by Justice Kennedy, put their own policy-making power above that of state legislators and executives. Because under that sort of analysis a judge can overturn as "unconstitutional" any legislature-made law that the judge finds really foolish or distasteful, there are effectively no limits on such judges' power. They can make it up as they go.

Your conception of the "last 50 years of Supreme Court decisions" is badly flawed. There is no federal constitutional right to solicit prostitutes, and there never has been, and absent a constitutional amendment, there never will be — regardless of whether the laws against prostitution are or aren't good ideas. Period. That's the end of the constitutional discussion — or it should be. The only reason it's not is that Lawrence's rationale means that any and every strongly held position by a judge may suddenly, miraculously become a matter of "constitutional law," no matter what is written in the actual Constitution. And that's the excellent point, made through satire, by Prof. Paulsen's mock opinion.

(3) nk made the following comment | Mar 17, 2008 8:55:21 PM | Permalink

I also disagree with Beldar that "substantive due process" is an oxymoron. But on different grounds (^_^) than have been articulated by the Supreme Court. A duly enacted and promulgated constitutional law is indispensable to the process. And that is substantive.

As for Bowers v. Hardwick which Lawrence supposedly
"overturned", Lawrence left untouched its most horrific part. That the States could impose a fifteen-year prison sentence for adult consensual sex. No proportionality of sentence to crime in non-capital cases.

(4) Gregory Koster made the following comment | Mar 17, 2008 9:37:03 PM | Permalink

Dear Mr. Dyer: Substantive due process(SDP) has been around for a long time. Periodically it's roundly condemned and shoved back into the coffin. But the stake always misses the heart and sooner or later it will come forth again. The Nine Old Men Court a/k/a Send Frank Back to Albany Club used SDP for years to unravel the New Deal. Then But eventually the Court stopped doing so. Why? Because Roosevelt finally got enough of his own gang on board. William O. Douglas fulminated against the Nine Old Men for using SDP---and had not the slightest problem using it himself in the notorious GRISWOLD case. So: SDP is a sin against God, but only when the other fellow uses it. Kennedy is merely the latest in a long line of frauds who find legislating from the bench great fun, the more so because the actual effort of making the Court's Superior Wisdumb actually work can be dumped on the poor slobs in the district courts.

I find "Justice Clinton" far more horrifying than you do, particularly if it is Mr. Justice Billyboy. Leave Billyboy's disbarment and endless shenanigans out of it, and consider this: the reason Justice Abe Fortas got in enough trouble to have his nomination as Chief Justice filibustered in 1968, for the first time in the 20th century was the separation of powers. Having been part of Lyndon Johnson's kitchen cabinet since 22 November 1963, Fortas saw no reason to stop just becuase LBJ put him on the Supreme Court. He lied about conferring with LBJ, to the point of giving advisory opinions in his Senate testimony, it came out, result: filibuster, and the withdrawing of the nomination. This performance raised enough questions so that more investigations ensued, a number of dirty tricks from John Mitchell's Justice Department, and eight months later he was off the bench entirely.

Now imagine Justice Billyboy. How on earth could their be a separation of powers between Prez Clinton and Justice Billyboy? Short of a nasty public divorce, complete with divorce lawyers from both sides fighting duels on their clients's behalf, there is none. This ought to knock Billyboy out of contention. But I think you are right: Should Hillary become Prez, she could (and would) nominate Billyboy, the Democratic Senate would fall in line, Majority Leader Reid would be rash enough to adopt the "constitutionl option" to defeat any GOP minority filibuster, Billyboy would be confirmed, and the citizens of the United States of 2075 would be paralyzed with laughter at the resulting situation, even while the citizens of today could only look dolefully to heaven. But that's no good: God would be laughing heartily at these latest antics.

Thinking about this, John McCain doesn't seem so bad. Let's get going and get him in.

Sincerely yours,
Gregory Koster

The comments to this entry are closed.