Balkinization  

Tuesday, April 24, 2007

Welcome to Michael Stokes Paulsen

JB

Michael Stokes Paulsen, who is currently the McKnight Presidential Professor of Law and Public Policy, Briggs & Morgan Professor of Law and Associate Dean for Research and Scholarship at the University of Minnesota Law School-- and who will soon join the faculty at St. Thomas School of Law-- will be guest blogging with us at Balkinization. Mike is a prolific scholar and a leading expert on many different areas of constitutional law, including executive power. Please give him a warm welcome.

What Experts "Know" About Partial Birth Abortions

Mark Graber

I confess that I was intrigued by Professor Paulsen's comment, "I have no doubt that many (but not all) men and women, confronted with fuller information about the abortion procedure, would recoil at the idea. Being forced to see what is entailed, or to understand it more fully, will affect decisions. "

Consider the amicus briefs in Carhart. To no one's surprise, the usual suspects are in the usual places. Pro-choice groups think the ban on partial birth abortions unconstitutional, pro-life groups think the ban constitutional. Yawn. All the medical interest groups ("Medical Students for Choice," the "Association of American Physicians and Surgeons," a conservative medical lobbying group) also line up in the expected places. What I suspect is also to no one's surprise is that every major professional medical group that participated also opposed the ban on partial birth abortions. These groups included the American Public Health Association, the New York Obstretrical Society, and most important, the American College of Obstetricians and Gynecologists ACOG), an organization whose membership includes 90% of the board certified obstetrians and gynecologists in the United States. Now whatever else may be said about the doctors in the ACOG, I suspect that every day, they forgot more than Professor Paulsen, myself, or any other member of Balkinization knows about the medical procedures involved in a partial birth abortion (and, I also suspect, they will be fully capable of describing any other abortion procedure and every procedure for giving birth in ways all of us will find pretty disgusting).

In short, there is absolutely no evidence that complete knowledge about partial birth abortions (which includes knowledge about the procedure, the alternatives, and the reasons some women seek those procedures) has any tendency to make persons more pro-life or at least more anti-partial birth abortion. Does this mean government should do whatever the ACOG recommends? Of course not. But given the choice, I would take the word of obstetricans and gynecologists on what an abortion procedure really entails over a bunch of male political scientists and male law professors, most of whom would probably faint at the sight of blood during either a birth or an abortion.

As is the case with most people, I think people who really think about things seriously will agree with me on all matters I think I think about seriously. But that I sincerely believe something hardly counts as evidence that serious thinkers will reach the same conclusion.

Thoughts on Rosenberg, THE HOLLOW HOPE

Mark Graber

On Monday, I had the pleasure of participating on a panel with Gerald Rosenberg that was dedicated to exploring the implications of his seminal THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? That work is, simply put, the most important work on law and courts published in the last quarter century. The central argument is that litigation has been a poor and sometimes perverse vehicle for securing social change, that such cases as Brown v. Board of Education and Roe v. Wade had far (and in the case of Brown, far, far, far . . .) less impact than is commonly thought, that liberals can secure social change only through the mass political movements necessary to gain control of the elected branches of the national government. I do not agree with every sentence in THE HOLLOW HOPE (I think, for example, that if one adds the influence of a few state court decisions on abortion, the influence of litigation on access to abortion is greater than Rosenberg thinks), but the book has profoundly influenced my thinking, that of every prominent political scientist I know of, and numerous prominent law professors. Put simply, all persons proposing new litigation campaigns on the left and the right must at least answer the questions asked by THE HOLLOW HOPE. Why are courts likely to accept my arguments? ("because they are right" is the wrong answer). Why are elected officials likely to implement a favorable judicial decision? ("because they respect courts" is the wrong answer). Are there any benefits even if we lose? (perhaps greater attention and increased membership) Is litigation the best use of scarce resources?

I do hope the next generation of outcome studies expand their focus. THE HOLLOW HOPE and related studies tend to limit analysis to the influence of judicial decisions and litigation campaigns on the policy actually being litigated. So whether Roe was a success depends on the extent to which Roe directly or indirectly enabled more women to procure safe, legal abortions. This, however, may be too narrow an emphasis and MAY (emphasis on "may") miss another problem with litigation as a liberal political strategy. One difference between litigation campaigns and political campaigns is that persons can perform solos when litigating, but must form alliances when engaged in electoral politics. By this I mean that leftwing litigants do not have to compromise with each other. The anti-death penalty litigants do not have to agree to go slower in order to accommodate the pro-choice litigants. Everyone can demand as much as they think they might get, leaving the justices to resolve their appeals on a piecemeal basis. Electoral politics is the art of compromise. Proponents of gay marriage who wish to participate in the Democratic Party may have to accept that the party is presently going to stop at civil unions. Pro-choice advocates may have to stomach a few bans on partial birth abortions and so on. Litigation, by offering the possibility of total victory, may present the illusion that one can avoid the necessary compromises of politics.


I do not know how the success of some litigation campaigns for liberal goods influences political campaigns for other liberal goods (other than claims that Roe is partly responsible for Reagan, a claim that does not seem supported by the evidence). But there is a lot of room for good and creative studies.

UPDATE: After posting this, I remembered that Paul Frymer has done terrific work studying the way in which litigation helped further fray relationships between the civil rights movement and the labor movement. Indeed, I suspect he is the inspiration for the above two paragraphs. See especially, Paul Frymer, "Acting When Elected Officials Won't: Federal Courts and Civil Rights Enforcement in U.S. Labor Unions, 1935-1985" AMERICAN POLITICAL SCIENCE REVIEW (August 2003).

Monday, April 23, 2007

Don’t do anything you’re going to regret later

Andrew Koppelman

"Marry, and you will regret it. Do not marry, and you will also regret it. Marry or do not marry, you will regret it either way. Whether you marry or you do not marry, you will regret it either way. Laugh at the stupidities of the world, and you will regret it; weep over them, and you will also regret it. Laugh at the stupidities of the world or weep over them, you will regret it either way. Whether you laugh at the stupidities of the world or you weep over them, you will regret it either way. Trust a girl, and you will regret it. Do not trust her, and you will also regret it. Trust a girl or do not trust her, you will regret it either way. Whether you trust a girl or do not trust her, you will regret it either way. Hang yourself, and you will regret it. Do not hang yourself, and you will also regret it. Hang yourself or do not hang yourself, you will regret it either way. Whether you hang yourself or do not hang yourself, you will regret it either way."

Soren Kierkegaard's observation, just quoted, is pertinent to Justice Kennedy's observation, in Gonzales v. Carhart, that abortion methods may be restricted because "some women come to regret their choice to abort the infant life they once created and sustained," possibly resulting in "[s]evere depression and loss of esteem." Justice Ginsberg responds by citing peer-reviewed studies showing that women who abort show no higher rate of psychiatric disorder than those who carry pregnancy to term. But this doesn't really disprove Kennedy's point. Kennedy admits that he has "no reliable data to measure the phenomenon," but thinks that it is "unexceptionable" that this story is true of "some women." All he needs to sustain his claim is anecdotal evidence that this kind of thing sometimes happens.

But what is the major premise of this argument? That constitutional liberties can be restricted if it sometimes happens that someone regrets exercising the liberty in a given way? It's hard to imagine any liberty that no one ever regrets. Some people who criticize actions of the government later wish that they had kept their mouths shut. Some criminal suspects regret that they didn't confess everything when the police first interrogated them. Some of the slaves freed by the Thirteenth Amendment were old and infirm, and some of them probably regretted leaving the plantation.

It is hard to imagine the boundaries of this principle as Kennedy has stated it. He cannot possibly mean it. One can only hope that, at some point, contemplating what he has written, he regrets it.

Half a Cheer (or Less) for the Partial-Birth Abortion Decision

Michael Stokes Paulsen

Call me a glass-half-empty kind of guy: But as a pro-lifer and an opponent of the lawfulness of Roe v. Wade and Planned Parenthood v. Casey, I find almost nothing to cheer about in the Court's decision last week in Gonzales v. Carhart, upholding the federal partial-birth abortion statute. The result is right -- the federal statute is not unconstitutional -- but Justice Kennedy's majority opinion is truly horrible.

A warning about what comes next. I'm the resident guest conservative, and a pro-lifer. My tone will reflect my perspective. And I tend not to pull my punches. This will not be the usual Balkinization fare. But I challenge readers to consider it. One may well not agree with my political orientation on this issue. But is my legal analysis wrong?

1. The essence of the decision is that it is not unconstitutional to ban "partial-birth" abortion (inducing delivery past a certain "anatomical landmark" before killing the fetus by puncturing the skull with a scissors, vacuuming out the brains, collapsing the skull, then completing delivery of a dead, intact fetus) because there is always another way to kill the fetus before delivery, by dismemberment -- and there is a constitutional right to such dismemberment abortions. As long as an abortionist intends to commit a dismemberment abortion, rather than an intact-partial-delivery abortion, the federal law does not prohibit such action. And the Constitution of the United States affirmatively protects it.

There it is, on pages 25-26 of the slip opinion: "Respondents have not shown that requiring doctors to intend dismemberment before delivery to an anatomical landmark will prohibit the vast majority of D&E abortions. The Act, then, cannot be held invalid on its face on these grounds." There is more to the opinion, of course. But this is the controlling rationale. The statute is constitutional because it does not ever prevent -- and only so long as it does not ever prevent -- any pre-viability abortion from occurring. The only prohibition is of a particular method of abortion. Indeed, Kennedy's opinion offers these words of encouragement to abortion innovators (p.30): "The medical profession, furthermore, may find different and less shocking methods to abort the fetus in the second trimester, thereby accommodating legislative demand."

And, the Court holds, the partial-birth ban is constitutional because it does not ever prevent even any post-viability abortion that is justified on the ground of protecting a woman's "health," if it can be shown in a particular case (that is, in an as-applied as opposed to a facial challenge) that the partial-birth method is required to preserve the mother's health. Moreover, once again, Kennedy insists that there is always another perfectly good way to kill a fetus. There it is on p. 34-35: "If the intact D&E procedure is truly necessary in some circumstances, it appears likely an injection that kills the fetus is an alternative under the Act that allows the doctor to perform the procedure. * * * Here, the Act allows, among other means, a commonly used and generally accepted method, so it does not construct a substantial obstacle to the abortion right." No worries, mate. You can always get a dead human fetus. The federal partial-birth ban never really prohibits any abortion from occurring, so it is constitutional.

This latter holding is not without some consequence, and it is a meaningful change in the law. It will result in a detectable cut-back in the number of obtainable post-viability partial-birth-method abortions. And the practical difficulties of bringing as-applied challenges on health grounds might result in fewer post-viability abortions, period.

But this is peanuts. What counts as "health" for purposes of the Roe-Casey line's post-viability entitlement to abortion is essentially any physical, psychological, emotional, family-planning, economic or social reason that the woman and abortionist/doctor agree should count as a sufficient reason for having a late abortion. The federal law upheld in Gonzales v. Carhart does not prohibit post-viability abortions. It prohibits one post-viability (and pre-viability) abortion method. A late abortion may still be obtained for essentially any reason the woman chooses, including economics, social convenience, spite of a boy friend, and (probably) sex selection of children. Nothing in Gonzales v. Carhart changes any of that, or portends much if any change in the scope of "health" exceptions generally. And if accomplishing such a late-term abortion is shown, in a particular instance, actually to require the partial-birth method to further the woman's "health," and if Kennedy's suggested lethal injection before partial delivery won't do the trick, the Court still leaves open the prospect that such a challenge to the statute will succeed.

So this is a huge reverse for pro-choice forces, a horrible intrusion upon women's autonomy and doctor's medical judgment? This is a dramatic win for the pro-life movement, a foothold for reversing Roe? Be serious. The opinion is the smallest of possible steps in the pro-life direction. As noted in an earlier post, it does not even make the claim that Stenberg v. Carhart was wrongly decided and should be (and now is) overruled -- the type of statement that Kennedy was more than willing to make in his opinion for the Court in Lawrence v. Texas. Instead, the judgment in Gonzales rests on artificial distinctions of Stenberg, "anatomical landmark[s]" designated with sufficient specificity, on-its-face-versus-as-applied challenges, and the ultimate, unquestioned right to an abortion had by some other means, in any and all circumstances when it could have been had before. Gonzales v. Carhart changes essentially nothing. While one can understand the internal-dynamic political forces on the Court that led Scalia (and perhaps others) to hold their tongues (see my earlier posts), the language and "reasoning" of Kennedy's majority opinion is so horrible as probably not to have been worth the effort. It is a legal and moral disgrace. It is an embarrassment.

2. But not at all for the reasons cited by my Balkinization colleagues. Obviously, my reasons for objecting to the majority opinion are different from Jack Balkin's and Marty Lederman's (posted nearby). Jack thinks that the "big news" in the opinion is beefing up the state's ability to use "informed consent" to talk women out of abortions (and to prohibit some abortion methods) by confronting them with "information" designed to inform them out of making that choice. Both Jack and Marty cite the condescending tone with which Kennedy makes this point. I will return to the tone point presently (with which I largely agree). But first the substance.

I submit that nothing in Kennedy's opinion in Gonzales v. Carhart is, in substance, different from Planned Parenthood v. Casey in this regard. I regularly pose to my students hypotheticals concerning what exactly Casey regards as an "undue burden" and whether the state may attempt to talk women out of having abortions, as long as it does not ban the choice entirely. May it tell a woman that "abortion is the killing of a unique, human person living within you" as part of the "informed consent" process? May it require a (state-subsidized) ultrasound and present the woman with pictures of the (developed) "tissue" within her -- essentially forcing her to see what is living within her womb? May it require description of precisely what is entailed in various types of abortion procedures, in the same clinical yet raw terms as is contained in Supreme Court opinions? (Last week, I asked my students whether it would be an "undue burden" on the right to choose pre-viability abortions to ask women seeking abortions to read the Court's majority opinion in Stenberg. They thought it would . . . on grounds of length and tedium, but not in terms of actually restricting a woman's ability to exercise a choice for abortion.)

Casey is not perfectly clear as to how these hypotheticals would be answered, but Kennedy's reading of it in Gonzales v. Carhart -- as permitting statements of moral value judgments concerning abortion-- is not at all implausible. In substance, I do not think there is anything much new here. Perhaps it signals that Kennedy (and the four others) would uphold many such laws, including several of the hypotheticals in the preceding paragraph. Is this so terribly surprising? It seems like the line in the sand Kennedy has drawn for a number of years: The state may not prohibit abortion, but the state (and individuals) should be free to talk people out of abortions. (Hill v. Colorado, decided the same year as Stenberg, illustrates this line. Kennedy was in vehement dissent in both cases.) Gonzales v. Carhart adds some moralistic rhetoric about the value of the human fetus, and the possibility of regrets by the mother (which I discuss below), but that's it. (I leave for another day whether Kennedy's opinion here, reflecting the permissibility and even desirability of legislation reflecting moral value judgments concerning abortion, can be reconciled with his opinion in Lawrence, one core prop of which is that the state may not base legislation on moral value judgments concerning homosexual conduct.) I don't think this is big news.

All right, then, what about the tone? I suspect that liberals and conservatives can find some common ground here. Left and right alike can be appalled by the pomposity, vacuity, hypocrisy, vanity, and I-know-better-than-all-of-you wisdom of the typical Anthony Kennedy substantive due process opinion. Liberals' objections to Gonzales v. Carhart -- how arrogant and condescending! -- sound much like conservatives' objections to Casey and Lawrence, as far as tone goes.

But what Jack, Marty and others on the left seem to find so objectionable in Kennedy's Gonzales v. Carhart opinion is the idea that some or many women (and, I would add, some or many men) might really have no true idea of what, exactly, it is that they are doing when they decide to have an abortion and that, if they really knew, they might very well come to regret their decision deeply.

Yep. Sounds pretty darn condescending and superior-wisdom-ish, even downright paternalistic and moralistic -- a typical work of Kennedy vanity. The author, and his style, certainly tarnish the message.

But is it untrue? I doubt it. In terms of how many women (and men) do not know, fully, what they are doing, or might later come to regret the abortion decision, I suppose this is a factual, empirical question. But is it really the case that this is rarely or never the case? Surely, at least sometimes, and I suspect not entirely infrequently, "some women come to regret their choice to abort the infant life they once created and sustained." Kennedy's opinion recognizes the absence of "reliable data to measure the phenomenon," and cites anecdotal evidence from an amicus brief to support the proposition. Kennedy's opinion is not a model of analytic rigor, and it is burdened by paternalistic prose, but the point is sufficiently made: some people do not fully realize what abortion entails; some may come to regret the decision later; some might in retrospect wish they had known more; and this tends to support the legitimacy of legislation requiring provision of more information in advance.

I have no doubt that many (but not all) men and women do not fully grasp what abortion entails. The determined (or negligent) human mind can engage in truly heroic efforts to avoid confronting difficult realities, and abortion is a difficult reality. The prospect that abortion might be the intentional killing of living human beings -- children -- is an almost unbearable thing to contemplate. Surely most folks seriously considering abortion would rather not entertain such a thought. Similarly, I have no doubt that many (but not all) men and women, confronted with fuller information about the abortion procedure, would recoil at the idea. Being forced to see what is entailed, or to understand it more fully, will affect decisions. Confronting such information for the first time after having had an abortion no doubt could create feelings of intense regret. One need not be paternalistic to recognize that this is simple reality about the way human beings are, psychologically and emotionally.

And my Exhibit A for this is Justice Anthony Kennedy himself. After writing in Planned Parenthood v. Casey, Kennedy seems almost to have been shocked -- shocked! -- to find out, as though for the first time, in Stenberg v. Carhart, that abortion involves the destruction of what bears a striking resemblance, omigosh, to a very small human baby boy or girl. If only this had been explained to him more clearly earlier! Even now, Kennedy seems less concerned if the abortion can remain an "unseen" act. It seems to make a difference to him if the abortion can be accomplished, earlier in the pregnancy, by means of a vacuum tube. And (rather stupidly) it even seems to make a difference to him if a later abortion can be accomplished by dismemberment in the womb, rather than intact-partial-birth abortion. It is scarcely surprising that a man who himself is affected, partially, in his own inconsistent moral reasoning, by the what-is-seen-and-known / what-is-not-seen-or-known distinction should believe that some who contemplate abortion might actually have their decisions altered by fuller information about abortion.

What is the point of the ban on partial-birth abortion? Exactly what many committed pro-choice folks believe and fear: It is a calculated political (and legal) strategy by pro-life folks to force more people -- and more Supreme Court justices -- to face exactly what is involved in abortion and to provoke more cognitive dissonance and moral doubt for those on the pro-choice side. It is a device for holding people's eyes open to harsh realities in their harshest setting. Kennedy himself is an ironic illustration of the situation he describes: people often would prefer not to confront the reality of abortion, and might come to regret the decisions they have made. In Kennedy's words: "The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form."

Kennedy might have been talking about himself, as much as women choosing abortion.

* * * * *

Gonzales v. Carhart thus merits, at most, half a cheer from the people who one would expect to be cheered by it. It does not overrule Stenberg. It upholds the federal law only because, and only to the extent that, it prohibits no abortions. It does add some rhetoric suggesting the Court will take seriously the power of government to jawbone against abortions. And it does reflect some recognition by a majority of justices of the awfulness of at least some abortion procedures (but without any suggestion that the result, rather than the method, might be awful). And it does so in a pompous, windy opinion by the Court's most pompous and windy justice.

Hip, hip.

Michael Stokes Paulsen

Friday, April 20, 2007

The Electoral College

Sandy Levinson

This comes under the category of what another listserv labels "shameless self-promotion." In any event, PENNumbra, the electronic complement to the U. Pa. L. Rev. has just put on line a debate between myself and Professors John McGinnis and Dan Lowenstein about the electoral college. I am agin' it; my worthy adversaries are for it. (Therefore this is not completely self-promoting.) In any event, anyone who is interested in thinking more about the College as we move ever closer to the 2008 election might want to log on and read it.

The Rubber Stamp

Marty Lederman

"[T]his was a process that was ongoing that I did not have transparency into."

That says it all, no?

The transcript of the Attorney General's hearing (in fifteen parts) begins here. Not surprisingly, the gist of the story is that when he recommended that the President remove the U.S. Attorneys, the Attorney General was not surprised to see some of the names on the list -- because he had previously heard complaints about them, including from Senator Domenici about David Iglesias -- but he didn't really know, nor inquire into, why these particular high-ranking officials were singled out for removal. Indeed, he had no idea who was responsible for putting any one of the names on the list. (And according to Senator Feinstein's account of Kyle Sampson's testimony, it wasn't Sampson, who described himself as merely "the aggregator." Nor was it Mike Battle, director of the Executive Office of the United States Attorneys, who said in an interview with the Committee, "I had no input. Nobody asked me for my input.")

[UPDATE: I belatedly just noticed Dahlia Lithwick's superlative take on Slate. A must-read. Samples: "How gloriously mechanical: The 'consensus judgments of the senior leadership' are fed to the 'aggregator,' who in turn passes them along to the AG who, as he claims, made a final decision without reviewing any criteria for the firing or any written document. It seems that at no point in this 'process' or 'project' did any human brain fire an actual neuron that triggered the message to terminate an actual U.S. attorney. . . . Those of us who arrived today thinking that Gonzales had some sort of brilliant master plan for winning over the judiciary committee are puzzled by the AG's strategy. You can't help but wonder what condition he was in last month before he started preparing full time." Also, check out Dahlia's description of what perhaps was substantively the most important exchange of the day, the one that actually has some explanatory force: Senator Whitehouse's comparison of the Clinton and Bush DOJ protocols for appropriate contacts between the White House and DOJ (with graphics!).]

Other highlights, such as they are:

FEINSTEIN: All right. And you're testifying to us that you made these decisions without ever looking at the performance reports.

GONZALES: Senator, that is correct.
* * * *
FEINGOLD: Did you at any time probe the information that Kyle Sampson provided to you, including the recommendations that he ultimately made in the seven U.S. attorneys to be fired?

GONZALES: Senator, I don't recall having specific questions or -- about specific -- I do recall that when the recommendations were made, I was not surprised to see five of the names on the list.

FEINGOLD: Did you ever talk to Deputy Attorney General Mr. McNulty about whether he was comfortable with the process that was under way?

GONZALES: With the process that was under way, I don't recall such a conversation, but afterwards, on the evening of Mr. Sampson's testimony I asked...

FEINGOLD: OK, I'm less interested in the -- I'm interested in the effects prior to. Did you ever talk to the head of the Executive Office of U.S. Attorneys or anyone else other than Mr. Sampson about whether the process was identifying the proper U.S. attorneys to be relieved of their positions?

GONZALES: What I recall were a conversation with Mr. Sampson -- that's what I recall, Senator.

FEINGOLD: Did you, at any time prior to your meeting on November 27th, 2006, ask for a report in writing on the progress of the project?

GONZALES: I don't recall asking for a report in writing.

FEINGOLD: How about when the final decisions were made at any time prior to November 27th, 2006, when you approved the firings? Were you given or did you request a written memo or report giving the justifications for each of the decisions?

GONZALES: Senator, I don't recall that occurring. Again, what I recall is Mr. Sampson presenting to me a recommendation which I understood to be the consensus recommendation of senior officials of the department.
* * * *

DURBIN: Did you ever have a conversation, after the appointment of Patrick Fitzgerald as the special counsel to investigate the White House over the Valerie Plame incident, with either the president or Mr. Rove about the removal of Patrick Fitzgerald?

GONZALES: Senator, I believe the answer to that is no.

DURBIN: And can I ask you about the other U.S. attorneys that were removed? Did you ever have a conversation with Karl Rove about the removal of David Iglesias?

GONZALES: Senator, I recall a conversation with Mr. Rove, but it wasn't a recommendation or a discussion about removal of Mr. Iglesias. But there was a discussion that I recall Mr. Rove had with me about voter fraud cases in three district, including New Mexico, which, of course, Mr. Iglesias is the United States attorney.

DURBIN: And what did Karl Rove say to you?

GONZALES: Senator, my recollection of the conversation was basically, "I've heard complaints about voter fraud prosecutions or lack of prosecutions." And again, I could be -- I'm paraphrasing. I don't recall precisely what he said, but it was general about voter fraud prosecutions, voter fraud cases in three districts including New Mexico.

DURBIN: And there was no conclusion to that conversation about the fate of Mr. Iglesias?

GONZALES: Senator, I believe that I communicated this information to Mr. Sampson, but I don't remember or recall what happened after that.
And so, we still do not know -- nor does the Attorney General himself -- exactly how the names of any of the U.S. Attorneys found their way onto the unadorned list in Kyle Sampson's desk drawer. In his written statement, the Attorney General said that he wanted to make sure "the Congress and the American people can be 100 percent assured of the facts." That's a worthy objective, of course. And because officials in the White House had significant involvement in the creation and development of the list that was presented to the Attorney General, Congress would need to have full disclosure of communications within the White House in order to be "100 percent assured of the facts" that led to the removals.

The President ordinarily does not assert Executive privilege without a recommendation to that effect from the Attorney General. If the Attorney General genuinely wihes to ensure that Congress and the public "can be 100 percent assured of the facts," will he recommend to the President that he assert Executive privilege in order to withhold communications within the White House (and in RNC databases) that would shed light on those facts?

"Beyond Alice in Wonderland" . . .

Marty Lederman

. . . to criminalize abortion to protect women. That's how Reva Siegel puts the point in this important piece from Linda Greenhouse in the New York Times. Greenhouse elaborates:
[N]ever until Wednesday had the court held that an abortion procedure could be prohibited because the procedure itself, not the pregnancy, threatened a woman’s health — mental health, in this case, and moral health as well. In his majority opinion, Justice Anthony M. Kennedy suggested that a pregnant woman who chooses abortion falls away from true womanhood.

“Respect for human life finds an ultimate expression in the bond of love the mother has for her child,” he said.

Justice Kennedy conceded that “we find no reliable data” on whether abortion in general, or the procedure prohibited by the Partial-Birth Abortion Ban Act, causes women emotional harm. But he said it was nonetheless “self-evident” and “unexceptional to conclude” that “some women” who choose to terminate their pregnancies suffer “regret,” “severe depression,” “loss of esteem” and other ills.

Consequently, he said, the government has a legitimate interest in banning a particularly problematic abortion procedure to prevent women from casually or ill-advisedly making “so grave a choice.”

* * * *

In an article to be published shortly in The University of Illinois Law Review, Professor Siegel traces the migration of the notion of abortion’s harm to women from internal strategy sessions of the anti-abortion movement in the 1990s to the formation of legal arguments and public policy.

* * * *

On his blog, Balkinization, Prof. Jack M. Balkin of Yale Law School defined the message behind what he called the “new paternalism”: “Either a woman is crazy when she undergoes an abortion, or she will become crazy later on.”

Despite the activity in the states, the anti-abortion movement’s new focus remained largely under the radar until it emerged full-blown in Justice Kennedy’s opinion. As evidence that “some women come to regret their choice to abort the infant life they once created and sustained,” Justice Kennedy cited a brief filed in the case by the Justice Foundation, an anti-abortion group that runs a Web site and telephone help line for women “hurting from abortion.” The brief contained affidavits from 180 such women, describing feelings of shame, guilt and depression.
As the Greenhouse piece explains, this new woman-protective component in the Court's jurisprudence consists of at least two parts. The first is an empirical presumption that women choosing abortions regularly suffer "regret," "anguished grief," "profound sorrow," and (as if that weren't enough) "severe depression and loss of esteem."

The second is a form of paternalism in which the Court (in Justice Ginsburg's words) "deprives women of the right to make an autonomous choice, even at the expense of their safety." As Jack writes below, "[t]he basic goal of this new rhetoric is to undermine the notion that women exercise any kind of choice when they decide to have abortions. It seeks to turn the rhetoric of the pro-choice movement on its head. Women, the new rhetoric argues, don't really understand what they are doing when they decide to have abortions; as a result, they often regret having them later on."

The argument for abortion restrictions (and the informed-consent laws that Jack idetifies) is based in no small part not only on such empirical presumptions about the dire fate of women who choose abortions, but also on essentialist sex-based generalizations, most importantly that "respect for human life finds an ultimate expression in the bond of love the mother has for her child."

There are (at least) two obvious and significant problems with this new move. The first is that, until this week, to base state policy on such stereotypes and paternalism was itself a violation of the Equal Protection Clause, under numerous modern precedents. "This way of thinking," Justice Ginsburg lamented in dissent, "reflects ancient notions about women’'s place in the family and under the Constitution— ideas that have long since been discredited." As Justice Ginsburg's citations demonstrate, the Court itself had played no small role in discrediting those ideas, in a series of cases litigated by, if not (in the case of the 1996 VMI decision) written by, Justice Ginsburg herself over the past 40-plus years. (Hence my quotation in the Times yesterday that the Court's women-protective rationale was "an attack on [Justice Ginsburg's] entire life's work.") (For more on this theme, see Dahlia Lithwick here.)

The second problem is that even if what Jack calls the "New Paternalism" would be justifiable if based on actual empirical trends -- again, something that the Court has routinely rejected as unconstitutional since 1970 -- the assumptions the Court invokes about the effects of abortions upon women are concededly based not on any reliable evidence ("While we find no reliable data to measure the phenomenon . . . "), but instead merely on anecdotes culled from an amicus brief (the only authority cited).

In this respect, as Jack notes below and as as Reva Siegel's article examines in great detail, the Court's opinion is the striking culmination of a concerted litigation strategy that abortion-rights opponents designed in the past few years, in which they have so resolutely publicized anecdotal "proof" that abortions are bad for women that Justice Kennedy is now comfortable stating -- as the law of the land -- that the Court finds these truths to be "self-evident" and "unexceptional." (For much more on how this counter-narrative strategy took root and flourished so quickly, see this important article by Emily Bazelon in the New York Times Magazine back in January. And this Sarah Blustain piece in the American Prospect just last week.)

This reliance on anecdote and popular myth, rather than on empirical proof, is a troubling development, one that has echoes in the Court's first decision of the Term, the little-noticed but significant per curiam opinion in Purcell v. Gonzales.

Purcell involved an Arizona voter-identification law that had been challenged as a violation of the Constitution and federal election laws. The court of appeals temporarily enjoined operation of the law, and Arizona made an emergency application for a stay to the Supreme Court. The Court sua sponte treated the request as a petition for certiorari, granted it, and reversed the court of appeals just before last November's election, thereby allowing the identification requirements to be implemented pending a full trial on the merits. In so doing, the Court described constitutional interests on both sides of the case.

The State's compelling interest, the Court said, was preventing so-called voter fraud: "Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy. Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised."

The Court in Purcell thus unanimously credited the view that voters "feel" disenfranchised when voter fraud (allegedly) takes place in elections, and that such a "feeling" offsets the interests of voters who are disenfranchised by voter ID laws by actually driving honest citizens out of the democratic process!

This striking claim was accompanied by no citation of authority, and was based on no evidence whatsoever. Indeed, as Rick Hasen has explained in decrying the Court's "wholly unsupported empirical assumption":
[T]he available evidence . . . seems to suggest that voter identification requirements are more likely to depress turnout than to increase it, and that voter confidence in the electoral process, at least among African-Americans, is decreasing because of voter identification requirements. The empirical case for that contrary point is not yet solid, but the assumption is at least plausible given the evidence. The Court’s supposition does not even rely on any suggestive evidence, and I am aware of none. . . . Moreover, the Supreme Court did not acknowledge that some voters might “feel” disenfranchised when the state imposes barriers on voting such as a voter-identification law without proof that such laws are necessary to deter voter fraud. At the very least, the Court should have ordered briefing and oral argument on the question, which would have allowed the challengers to bring to the Court’s attention the Missouri Supreme Court’s important discussion of the issue [in its 2006 Weinschenk decision], which concluded that "if this Court were to approve the placement of severe restrictions on Missourians’ fundamental rights owing to the mere perception of a problem in this instance, then the tactic of shaping public misperception could be used in the future as a mechanism for further burdening the right to vote or other fundamental rights."

As we have learned in the wake of recent events, and as I discussed last week in connection with the several scandals swirling about the Department of Justice, this common perception of widespread voter fraud -- like the new recevied wisdom that abortions harm women -- is overwhelmingly the result not of any actual problem, but instead of a concerted effort (in this case, alas, powerfully supported by those wielding state power) to establish a mythical but increasingly canonical narrative. And here, the object of that narrative is to disenfranchise likely Democratic voters. (See, e.g., recent stories in the New York Times, McClatchy, and In These Times. See also Rick Hasen's account of one district court's recent rejection of a DOJ case based on alleged but nonexistent "voter fraud.")

Unfortunately, as in Wednesday's abortion case, the myth has so successfully taken hold in the public imagination that it has now been enshrined as the predicate for the Law of the Land.

Curiouser and curiouser . . .

Thursday, April 19, 2007

The Big News About Gonzales v. Carhart-- It's the Informed Consent, Stupid

JB

You might think that the Gonzales case will affect only one infrequently used medical procedure, intact dilation and evacuation (D&E).

Think again.

Justice Kennedy argues that the government may ban intact D&E because it has the right, under the Casey decision, to ensure that a woman's choice is informed. Kennedy then argues that given a mother's natural love for her child, some women will regret having abortions after the fact. And some women may especially regret having an abortion if they knew the details of the procedure-- intact D&E-- used to perform the abortion. Hence, Kennedy argues, the state may ban that procedure, because it will cause some women not to have abortions, and because it will force doctors to "find different and less shocking methods to abort the fetus in the second trimester."

There is a problem with this argument-- it would seem that the proper remedy is to inform the woman and then let her decide if she wants to undergo the intact D&E procedure. But at the very least, Kennedy's argument suggests that the state could take the lesser step of requiring doctors to inform the woman about all the details of the D&E procedure she will have to undergo and about what will happen to the fetus.

If that is correct, then Gonzalez v. Carhart is quite important. It might lead states to pass a wide range of new laws under the rubric of "informed consent" that would require doctors to show women the results of ultrasound imaging of the fetus before it is aborted, to describe in gruesome detail how the fetus will be terminated, dismembered and removed, to offer the state's views on the existence of any pain the fetus might feel when it is destroyed; and, in general, ratchet up the emotional anxiety of women who are about to undergo abortions.

The state will justify all of these demands to doctors under the rubric of informing women about their choices and the consequences of those choices. Pro-choice advocates will point out that these attempts at "informed consent" go far beyond that. They are attempts to frighten and upset women in the hopes that they will not have abortions. The problem, however, is that Kennedy's language encourages the passage of these new laws (South Dakota has already adopted one); it suggests that many of them may be constitutional. Thus Kennedy'shis opinion opens the door for states to pass increasingly unreasonable versions of abortion restrictions designed to frighten, manipulate, and discomfit women under the guise of providing informed consent.

This consequence of Gonzales v. Carhart is hardly accidental. It is the result of a long and sustained strategy by pro-life advocates that has now borne fruit in Supreme Court doctrine. In his discussion of informed choice and in his purple prose about the natural bonds of love between mothers and children-- call it Kennedy's "mother and child reunion" speech-- Justice Kennedy adopts some of the rhetoric of Operation Outcry-- an anti-abortion group which has honed the new style of pro-life rhetoric. The basic goal of this new rhetoric is to undermine the notion that women exercise any kind of choice when they decide to have abortions. It seeks to turn the rhetoric of the pro-choice movement on its head. Women, the new rhetoric argues, don't really understand what they are doing when they decide to have abortions; as a result, they often regret having them later on.

The amicus brief that Justice Kennedy cites for these propositions was written on behalf of Sandra Cano, who was the original Mary Doe in Doe v. Bolton, the companion case to Roe. Cano regrets her association with Doe v. Bolton (she did not in fact have an abortion), and she sees in her experience the experience of all women. Anti-abortion activist Harold Cassidy has been instrumental in refining this style of argument over the past decade, even coming up with an invented medical syndrome, post-abortion syndrome (or PAS) that women suffer as a result of making the immoral and unnatural decision to have an abortion. As Justice Ginsburg's dissent explains, the medical evidence for PAS is flimsy; there is no evidence that women suffer more stress from having abortions than from having to bear and raise children that they aren't prepared to mother. PAS is junk science that has been championed by a new generation of anti-abortion advocates to explain why almost any woman would be out of her mind to undergo an abortion.

But don't take my word for it. Listen to Harold Cassidy himself:
Let's talk about the woman who has given her baby up to adoption. The woman who gives up the baby, turns the baby over, signs the relinquishment document, and then goes home to sleep, and can't sleep. The woman makes the decision, and what she doesn't know is what it feels like after she's given up the baby, and then she goes home and she finds out she can't sleep, and it was a mistake and she loves the baby, and her heart is breaking, and she thinks the baby will hate her, and it's not good for the baby, and the baby should be with her mother, etc. etc. etc. But she at least has the protection of the law that says she can go back and say, ‘You know what, I changed my mind.'

What if that same phenomenon is present in abortion. There are women who think they are informed, and later find out that they are not informed. And that phenomenon comes in many degrees. There can be women, and there are some, surely, who make a decision that is informed, and it is voluntary, and even they will find out later that it's not. They're not liberated by it; they're enslaved by the experience. In fact, in many ways they were enslaved by the experience before they made this so-called free and informed decision, because there is a culture and society and sexual partners who have come to expect her to be able to perform or to act in a certain way, and those expectations have enslaved her. Not only have they enslaved her in terms of her ability to get an abortion, but also to behave in ways that lead to the pregnancy in the first place.


Cassidy's argument is that because of the kind of culture we live in, women who think they know what they are doing when they have abortions actually don't know. They only think they know at the time. Later on, they will come to regret it, and we can say that they weren't informed. And because we can't tell which women will come to regret the decision later on, the state needs to pass laws that discourage all women from having abortions.

This is the New Paternalism that is now central to the rhetoric of the pro-life movement. Either a woman is crazy when she undergoes an abortion, or she will become crazy later on.

Forgive them Father, for they know not what they do.

The new rhetoric of pro-life forces is no longer just rhetoric. It's now part of Supreme Court doctrine. That is the big news about Gonzales v. Carhart.

Another view of stare decisis

Mark Tushnet

Here's a different take on the stare decisis issue that Michael Paulsen addressed: If you've re-examined all the relevant legal materials and concluded that a prior decision was mistaken, you've missed the point (or at least one of the points) of stare decisis. Stare decisis conserves decision-making energy. In a large number of situations, someone who considers a legal question “from the ground up” will reach the same conclusion as those who have already considered that question. Rather than rethinking the question and coming to the same conclusion that everyone else has, the decision-maker can simply take what others have concluded as a predicate for the decision at hand. Stare decisis also encourages an appropriate humility in decision-makers about their own capacity to arrive at correct decisions. Suppose you think through a problem from the ground up and reach a conclusion, then observe that others have engaged in the same process and reached a different conclusion. You might then think it reasonable to reexamine your own reasoning – itself an expenditure of decision-making energy – to see whether your reasoning went off track somewhere. Stare decisis -- the practice of taking the very fact that someone before you reached a specific conclusion after examining all the legal materials as a strong reason for reaching the same conclusion -- stops you from wasting your time (overall -- that is, taking all cases into account, not just the one in front of you at the moment), and might make you appropriately humble about your own reasoning abilities.

Wednesday, April 18, 2007

Gonzales v. Carhart-- Three Comments

JB

I shall have more to say about the Supreme Court's partial birth abortion decision later on, but in the meantime, there are three things worth noting in today's Gonzales v. Carhart opinion.

The first is that the Court emphasizes Casey's holding that states have legitimate interests in protecting potential life throughout the pregnancy. The Court uses this interest to justify the ban on intact D&E. But there is a strange lack of fit between the interest asserted and the means used to further it. Banning intact D&E does not save a single fetus' life. Rather, it requires doctors to use standard (non-intact) forms of D&E or, as the Court at one point suggests, to inject the fetus with a chemical that kills it and then to remove the fetus intact. The actual interest the Court is asserting is not the interest in protecting potential life but rather an interest in not having the life of fetuses ended in ways that the legislature regards as particularly gruesome. That might be a legitimate interest (pace Lawrence v. Texas), but it is not the interest in potential life recognized in Casey.

The second point worth noting is that Justice Kennedy invokes what has become the new rhetoric of abortion opponents-- the notion that women often regret abortions and that they are deceived by doctors into having them. This new (post Casey) line of argument arose in the mid 90s when abortion opponents realized that arguing primarily about the status of the fetus would not convince a majority of the public. Instead pro-life advocates sought to argue that abortion hurts women as well as fetuses. The new anti-abortion rhetoric attempts to demonstrate that few women in their right minds, who really understand what abortion involved, would defy their natural love for their children and consent to an abortion, much less seek to procure one. It tries to perform a rhetorical jujitsu move on the idea of choice, by suggesting-- without any empirical evidence, that women don't really choose abortions, and that to have an abortion is actually a violation of their "true" choices.

Elements of this new anti-abortion rhetoric appear in Justice Kennedy's argument that because of a mother's natural bond of love for her child, some women would not have abortions if they knew about the intact D&E process. Therefore Congress may ban the procedure entirely. But there are a couple of non-sequiturs here. First, the appropriate remedy for the problem Justice Kennedy identifies would be informing the women about the nature of intact D&E, not preventing the women from choosing whether to undergo the procedure. Second, if a woman did not want to undergo intact D&E, she might still choose to abort the fetus because, as the Court itself point out, the doctor could still perform regular D&E or terminate the fetus by injection before withdrawing it intact. In that case, "the bond of love the mother has for her child," would not prevent the mother from ending the fetus's life. In fact, the argument about mother love seems to be a makeweight; it seems to involve the claim that Congress knows better than women do about what they would choose in certain situations. The law forecloses choice rather than informing it. As Justice Ginsburg points out in her dissent, this is the very sort of paternalism about women ability to make decisions about their reproductive lives that the right to abortion seeks to counter. Justice Kennedy's use of this new form of anti-abortion rhetoric reveals that this particular line of opposition to abortion, at least, is premised on the notion that women don't really know or really understand what they want when they seek abortions.

The third interesting feature of Gonzales is that it retreats from Casey by requiring an as-applied challenge for those cases in which intact D&E is a safer procedure. The problem with this holding is that it allows legislatures to pass laws that have unconstitutional elements while placing the burden on individual women to raise as-applied challenges to each of these provisions. Given the time and expense of bringing such challenges, it is likely that they will be quite difficult to raise, and so many unconstitutional features of abortion laws will continue on the books for some time. The problem extends well beyond the issues in Gonzales-- it applies to many different types of abortion regulations that previously could have been challenged under Casey's undue burden standard.

Here is what I said back in 2005 when this issue was first raised in the Ayotte case:

The second, more technical issue in Ayotte is what plaintiffs have to show to get an injunction against a newly passed abortion statute. The Supreme Court's 1992 Casey decision suggests that if a new abortion law poses an undue burden to some signficant class of women to whom the regulation applies (or as the Court put it, "it operates as a substantial obstacle" to a "large fraction" of the cases to which the regulation is "relevant"), a court may enjoin it immediately. That is what the Supreme Court itself did in Casey with Pennsylvania's spousal notification provision. The Attorney General of New Hampshire argues that the correct procedural rule is the rule of United States v. Salerno-- that when plaintiffs bring facial challenges to enjoin a new statute, the court should reject the challenge unless the statute has no constitutional applications. Salerno was a 6-3 decision upholding a federal statute that allowed detention of criminal suspects awaiting trial. Because the pre-trial detention statute had at least some constitutional applications, a facial challenge (and an injunction) were inappropriate.

If the Court applied the Salerno rule to abortion cases, it would mean that plaintiffs could not directly challenge new abortion regulations as soon as they were passed. Instead, a series of plaintiffs would have to go to court and prove that the law was unconstitutional as applied to their individual circumstances. This process would be time consuming and expensive, and it would take years to produce a jurisprudence limiting the statute's unconstitutional reach. Thus, the effect of applying Salerno (as opposed to what the Court actually did in Casey) would be to allow states to pass significant restrictions on abortion and keep them in force for long periods of time until a series of time consuming and expensive cases gradually eliminated their unconstitutional features. Indeed, precisely because creating an appropriate factual record for an individual as-applied challenge by a pregnant woman may be time consuming and expensive, the series of suits may never be brought, with the result that a whole host of abortion limitations that are actually invalid under the undue burden test will remain in force and will be applied to limit women's right to abortion. Applying Salerno to abortion litigation, in short, would drain much of Roe's and Casey's practical applicability to the real world. And because this will be achieved through an abstruse and technical doctrine of court procedure, many members of the public will not even realize that Roe and Casey have been effectively gutted.


The Court fudged this issue in Ayotte, but it has taken up the invitation in Gonzales. And the rule that Justice Kennedy seems to have crafted has most of the disadvantages I pointed out back in 2005.

The Pernicious Doctrine of Stare Decisis

Michael Stokes Paulsen

posted by Michael Stokes Paulsen

My thanks to Jack Balkin for inviting me to guest-blog for a while. (I had been ribbing Jack about the need for an occasional more-conservative voice, to give Balkinization a modicum of respectability.) Today's Supreme Court decision in Gonzales v. Carhart, the partial-birth abortion case, seemed like as good a time as any to start.

I was, quite literally, teaching *Stenberg* v. Carhart (following on the heels of Monday's class on Roe v. Wade and Tuesday's on Planned Parenthood v. Casey), when a student broke in with the comment that the Court had decided today's partial-birth abortion case, upholding the federal statute. (Ah, the joys of internet access in the classroom.) Seamlessly weaving the student's interjection into the class decision, I asked him about the holding: "Who wrote?" (No one needed to ask the vote or the lineup.) "Kennedy?! Makes sense. Was Stenberg overruled? Could he do that, consistent with his opinion in Casey?"

The answer (as most readers of this Blog probably know by now) is that Stenberg was distinguished, rather than directly overruled -- and not on the most persuasive of reasoning. This, of course, was probably inevitable: Kennedy's vote was crucial to the majority to sustain the federal law; he had dissented vigorously in Stenberg (decided in 2000), on the ground that Casey's purported "balance" should have permitted the partial-birth ban; yet Kennedy was to some extent boxed in by his fifteen-page ode to stare decisis in Casey. You remember Casey: The promise of constancy once given, to all those "tested by following" the Supreme Court's "watershed" decisions -- "whether or not mistaken" -- lest the people's "belief in themselves" be shaken and the nation's "understanding of itselfs as a constitutional Republic" be disturbed by the Court's failure to "remain steadfast" in its efforts to preserve its institutional capital as the body entitled speak before all others on behalf of The People. And all that.

There is thus nothing much surprising, even if there is something more than a little regrettable from the standpoint of principle, about the narrow-almost-(but-not-quite)-to-the-point-of-nothingness opinion today. (An additional virtue, if it is one, is that it gives Chief Justice Roberts and Justice Alito a little more time to work out their views on stare decisis, Casey, and Roe, before being outed by necessity.) The dissenters certainly knew, and said, that today's partial-birth decision is not easily reconcilable with the majority opinion in Stenberg v. Carhart seven years ago. The majority certainly knew it, too.

Stare decisis is a charade. The doctrine, taken seriously, suggests that judges should deliberately decide cases in ways they otherwise are fully persuaded are wrong, on what they otherwise would regard as the proper interpretive criteria -- sometimes. (When that "sometimes" is is itself a disputed aspect of the doctrine.) Taken seriously, the doctrine is unconstitutional: it suggests that a court should prefer the (by hypothesis) faithless earlier departure from the Constitution to the correct understanding of the Constitution, in situations where they conflict. This is directly contrary to the reasoning of Marbury v. Madison -- a sound precedent if ever there were one. (Marbury is right in its argument for judicial review not because it is Marbury, but because it is right.)

But of course the doctrine of stare decisis is not taken seriously, and with good reason. Rarely, if ever, does the Supreme Court, or any individual justice, reach an outcome different from how the Court (or justice) would decide the matter independent of precedent. (Ironically, Planned Parenthood v. Casey may be the one true, significant counterexample.) Usually, stare decisis is just a dishonest or disingenuous cover for a decision reached on other grounds. And, as Gonzales v. Carhart today shows, stare decisis does not truly constrain departures from prior decisions either. (Gonzales v. Carhart is hardly the most compelling illustration of this reality: Casey itself overruled two prior abortion decisions and altered, slightly, the legal framework of Roe -- on the ground that "stare decisis" required it. Lawrence v. Texas overruled Bowers v. Hardwick, with Kennedy there searching desperately, and unsuccessfully, for persuasive reasons why Casey's stare decisis analysis should not bar such overruling.) The notion of stare decisis thus hides the ball, and often drives the true basis of decision underground. The result (when it isn't an outright wrong answer) is proliferation of artificial distinctions, exacerbartion of confusion, creation of a greater and more contradictory body of decisions (from which to permit courts to pick and choose, ostensibly on the basis of stare decisis), and general dishonesty (or at least a lack of candor) in constitutional law.

The question with which I left my class is this: "Does the Court's current doctrine of stare decisis require adherence to the Court's current doctrine of stare decisis, if one were to apply (as if it could be taken seriously) the Court's current doctrine of stare decisis to such a question?"

The answer, of course, is that the doctrine is a cruel hoax, leading (most of the time) to dishonest or strained distinctions (like today's) of prior cases, rather than straightforward discussion of a precedent's correctness or incorrectness. It leads (other times) to dishonest or disingenuous adherence to prior decisions, where the real ground is that the Court either believes the precedent is correct in its interpretation or reaches a desired policy result. (That is, the doctrine is a pure makeweight.) It never requires adherence to a prior case; and it never bars departures. It permits a court to either follow or not follow the holding, and logic of prior decisions. As I have quipped to my students, the doctrine of stare decisis is that courts adhere to their prior precedents except for when they don't.

The true ground for the decision in Gonzales v. Carhart is that Stenberg v. Carhart was crushingly and horribly wrong, as a matter of first principles of constitutional understanding. But whether one agrees with this view or not, that is the issue. Is there anyone -- anyone on the planet -- who thinks that Gonzales v. Carhart and Stenberg v. Carhart were both right? Is not this an observation on which liberals and conservatives can agree?

The study and use of precedent in legal argument, including constitutional argument, is such an ingrained feature of legal training and practice that it has acquired the thoughtlessness of familiarity. But lean on the doctrine of stare decisis just a little bit and it collapses. My position is extreme-sounding, but on reflection should not be thought extreme at all: The doctrine of stare decisis, in the sense of deliberate adherence to precedent decisions one otherwise is fully persuaded are simply wrong, has no legitimate place in U.S. constitutional law. By definition, if taken seriously, the doctrine always directs decisions away from their proper answers (and does so unconstitutionally). And in practice, it adds nothing but mild-to-strong dishonesty and confusion. Witness Gonzales v. Carhart.

MSP

We Take Judicial Notice . . .

Marty Lederman

From today's opinion (pp. 28-29):
"Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well." Whether to have an abortion
requires a difficult and painful moral decision. . . . While we find no
reliable data to measure the phenomenon
, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. See Brief for Sandra Cano et al. as Amici Curiae
in No. 05–380, pp. 22–24. Severe depression and loss of
esteem can follow. See ibid.
(Not surprisingly, no citation, except to the amicus brief.)

Isn't there something a bit chilling and/or paternalistic in the use of this statement to justify preventing women from obtaining medical procedures that would, according to their physicians, be necessary for the preservation of their health? The Court is saving women from their own bad choices: Some mothers might not, after all, realize what five men on the Court do -- namely, that they enjoy a bond of love for their children that is the "ultimate expression" of respect for human life, and that therefore they ought to choose an alternative "way in which the fetus will be killed." "It is self-evident," writes the Court, "that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form."

Thank goodness the Court sits to protect women from this fate.

As one participant on a CONLAW list noted this morning, shades of Bradwell v. Illinois . . . .

Much, much more on this type of neo-paternalism in this terrific article by Reva Siegel.

UPDATE: Apologies to Justice Ginsburg. Now that I've read part of her dissent, I should add that she much more pointedly and powerfully makes the point that the Court's opinion is redolent of 1873:

[T]he Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “[s]evere depression and loss of esteem. [Note 7, below.] Because of women'’s fragile emotional state and because of the “bond of love the mother has for her child,” the Court worries, doctors may withhold information about the nature of the intact D&E procedure. Ante, at 28–29. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Cf. Casey, 505 U. S., at 873 (plurality opinion) (“States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning.”). Instead,
the Court deprives women of the right to make an autonomous choice, even at the expense of their safety. [Footnote 9, below.]
——————
This way of thinking reflects ancient notions about women’'s place in the family and under the Constitution— ideas that have long since been discredited. Compare, e.g., Muller v. Oregon, 208 U. S. 412, 422–-423 (1908) ("“protective "”legislation imposing hours-of-work limitations on women only held permissible in view of women’'s "“physical structure and a proper discharge of her maternal function"]”); Bradwell v. State, 16 Wall. 130, 141 (1873) (Bradley, J., concurring) ("“Man is, or should be, woman’'s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. . . . The paramount destiny and mission of woman are to fulfil[l] the noble and benign offices of wife and mother."”), with United States v. Virginia, 518 U. S. 515, 533, 542, n. 12 (1996) (State may not rely on "“overbroad generalizations”" about the "“talents, capacities, or preferences”" of women; "“[s]uch judgments have . . . impeded . . . women'’s progress toward full citizenship stature throughout our Nation’'s history”"); Califano v. Goldfarb, 430 U. S. 199, 207 (1977) (gender-based Social Security classification rejected because it rested on "“archaic and overbroad generalizations”" "“such as assumptions as to [women'’s] dependency”" (internal quotation marks omitted)).

Though today’'s majority may regard women’'s feelings on the matter as "“self-evident,"” ante, at 29, this Court has repeatedly confirmed that "“[t]he destiny of the woman must be shaped . . . on her own conception of her spiritual imperatives and her place in society.” Casey, 505 U. S., at 852. See also id., at 877 (plurality opinion) (“"[M]eans chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it."”); supra, at 3–4.

NOTE 7: The Court is surely correct that, for most women, abortion is a painfully difficult decision. See ante, at 28. But "“neither the weight of the scientific evidence to date nor the observable reality of 33 years of legal abortion in the United States comports with the idea that having an abortion is any more dangerous to a woman’s long-term mental health than delivering and parenting a child that she did not intend to have . . . ." ” Cohen, Abortion and Mental Health: Myths and Realities, 9 Guttmacher Policy Rev. 8 (2006); [followed by citations to numerous other authorities, in contrast to the majority's . . . nada.].

NOTE 9: Eliminating or reducing women'’s reproductive choices is manifestly not a means of protecting them. When safe abortion procedures cease to be an option, many women seek other means to end unwanted or coerced pregnancies. [again, citing several authorities].

The Profound Effects of Justice O'Connor's Retirement

Marty Lederman

Back in July 2005, I posted to SCOTUSblog a list of precedents that were the most vulnerable in the wake of Justice O'Connor's retirement. The list is republished below. At the time, I wrote that the most important and most vulnerable of those precedents were in the areas of the Establishment Clause (especially the direct funding cases such as Mitchell v. Helms), affirmative action (and just watch what happens to Grutter later this Term), and abortion, where Stenberg v. Carhart was hanging by a thread. Today, the thread snapped, as a five-Justice majority upheld the federal "partial-birth abortion" prohibition.

In its decision today, the Court effectively overruled Stenberg's "undue burden" test for facial challenges to abortion-restriction statues (see pages 36-37 of the opinion).

[By the way: Justice Thomas in his concurrence suggests that he might have voted to invalidate the statute if a Commerce Clause challenge had been raised. In other words, if the Respondents had raised a Commerce Clause challenge, as well -- something they were wise not to do, not of least of which because statutes governing medical facilities plainly are valid Commerce legislation -- the Court might well have invalidated the statute, even though there would have been no majority of the Court for any particular ground of invalidation (a form of "Tidewater Transfer" disposition). That's not really very important, however, because the practical significance of today's case is not so much the fate of the federal statute itself as the evisceration of the Casey/Carhart undue burden test for facial challenges.]


My post from July 2005:

These are among the cases in which Justice O'Connor's has been the decisive vote or opinion, and in which a more conservative Justice might well vote to overrule the governing precedent.

Note: Because most Justices consider stare decisis a more serious obstacle in cases of statutory construction, those cases (e.g., the Davis and Jackson Title IX decisions) might be more secure, even if Justice O'Connor's replacement would not have agreed with her as a matter of first impression.

McCreary County v. ACLU (2005) -- Ten Commandments displays

Jackson v. Birmingham Board of Educ. (2005) -- Title IX Liability for Retaliation

Rompilla v. Beard (2005) -- standard of reasonable competence that Sixth Amendment requires on the part of defense counsel

Johanns v. Livestock Marketing (2005) -- assessments for government speech

Smith v. Massachusetts (2005) -- double jeopardy

Small v. United States (2005) - felon firearm possession ban doesn't cover foreign convictions

Tennessee v. Lane (2004) -- Congress's Section 5 power

Hibbs v. Winn (2004) -- Tax Injunction Act

Alaska Department of Environmental Conservation v. EPA (2004) -- EPA authority under Clean Air Act to issue orders when a state conservation agency fails to act

McConnell v. FEC (2004) -- campaign finance

Groh v. Ramirez (2004) -- sufficiency of non-particularized search warrant

Grutter v. Bollinger (2003) -- affirmative action

Brown v. Legal Foundation of Washington (2003) -- no takings violation in IOLTA funding scheme

American Insurance Ass'n v. Garamendi (2003) -- presidential foreign-affairs "pre-emption" of state law

Stogner v. California (2003) -- ex post facto clause as applied to changes in statutes of limitations

Alabama v. Shelton (2002) -- right to counsel

Rush Prudential HMO v. Moran (2002) -- upholding state laws giving patients the right to second doctor's opinion over HMOs' objections

Kelly v. South Carolina (2002) -- capital defendant's due process right to inform jury of his parole ineligibility

FEC v. Colorado Republican Federal Campaign Committee (2001) -- upholding limits on "coordinated" political party expenditures

Zadvydas v. Davis (2001) -- prohibiting indefinite detention of immigrants under final orders of removal where no other country will accept them

Easley v. Cromartie (2001) -- race-based redistricting

Rogers v. Tennessee (2001) -- "judicial" ex post facto

Brentwood Academy v. Tennessee Secondary School Athletic Association (2001) -- state action

Stenberg v. Carhart (2000) -- "partial-birth abortion" ban

Mitchell v. Helms (1999) -- direct aid to religious schools

Davis v. Monroe County Board of Educ. (1999) -- recognizing school district liability under Title IX for student-on-student sexual harrassment

Schenck v. Pro-Choice Network (1997) -- injunctions against abortion-clinic protestors

Richardson v. McKnight (1997) -- private prison guards not entitled to qualified immunity in section 1983 suits

Camps Newfound/Owatonna v. Town of Harrison (1997) (dormant Commerce Clause)

Morse v. Republican Party of Virginia (1996) -- provisions of the Voting Rights Act are constitutional as applied to choice of candidates at party political conventions

Schlup v. Delo (1995) (habeas, actual innocence)

Tuesday, April 17, 2007

Does the Second Amendment Prevent Gun Control? Some Notes on the First Amendment, the Second Amendment and the War on Terror

JB

We are all shocked and saddened by the disturbing story of the massacre at Virginia Tech. One question we will face in the coming weeks is whether this massacre, and previous ones in our history-- including the Columbine massacre in April 1999-- should spur reforms concerning the ownership, use and possession of guns.

I believe that the Second Amendment protects both an individual and a collective right, and I also believe-- contrary to existing doctrine-- that it applies to the state governments as well as the federal government. But that is the beginning of the inquiry, not the end of it. Constitutional rights are subject to reasonable regulations. That is true of the First Amendment's guarantees of free speech and press, and it is no less true of the Second Amendment's guarantee that "the right of the people to keep and bear arms, shall not be infringed."

Although many think the First Amendment's textual guarantee seems absolute, in fact the key phrase is not "no law" but rather "abridging the freedom of speech." The Constitution does not define what abridgment is, nor, does it define the contours of "the freedom of speech." These have to be worked out over time, as well as the scope of permissible regulation consistent with that freedom.

The freedom to speak is limited by scores of content-neutral regulations that structure the time, place and manner of expression, and by content-based regulations that penalize defamation, fraud, incitement, conspiracy, obscenity, threat, harassment, and perjury. Many acts that occur through communication-- including contractual formation and contractual breach-- are treated as completely outside the guarantees of freedom of speech.

Nevertheless, the freedom of speech does protect some activities that cause significant harm to other people. Protecting freedom of speech imposes genuine costs on society; our hope is that its benefits-- in terms of freedom, dignity, and an open society-- outweigh those costs. As Justice Holmes said, the constitutional guarantee of free speech is an experiment, as all life is an experiment.

What we can say about the First Amendment we can also say about the Second. The Second Amendment does not prohibit reasonable regulations on the possession and use of arms; moreover, some possession and use of weapons falls completely outside of the constitutional guarantee. The most obvious example of the latter would be nuclear or biological weapons. At the same time, the Second Amendment does protect some activities that predictably cause significant harm to others. It also imposes significant costs on society, and we must hope that, properly construed, its benefits outweigh those costs.

This brings me to the issue of gun control. It is likely that a wide range of steps we could take today to limit the use and possession of dangerous weaponry are consistent with the Second Amendment, although there are probably some existing regulations that run afoul of that Amendment. Within that domain of permissible regulation, the Constitution is largely silent, and everything turns on questions of public policy. Moreover, even with respect to defining the enforceable boundaries of the Second Amendment right, practical consequences will inevitably play some role.

The Second Amendment has two central purposes: to act as a check on tyrannical governments (the classical republican theory) and to protect the right of self-defense where the state is unwilling or unable to defend the citizenry (the Reconstruction theory). These theories are consistent with a wide range of weapons regulations, although they do not permit wholesale confiscation of guns. We do not know whether any particular legislative solution would have prevented the slaughter at Virginia Tech, or whether such a solution is worth the additional costs it would impose. But we should not presume in advance that the Second Amendment rules out a solution that would work.

My final point concerns the War on Terror. Events like the Virginia Tech shootings put issues on the public agenda; they make things newly salient and create the appearance of emergency or at the very least a sense of an urgent need for governmental response. But we should not confuse salience either with importance or with good policy. The War on Terror is an excellent example: Following the 9-11 attacks, Congress rushed through a series of provisions-- some good and some bad-- without paying much attention to them, or in some cases, even reading them. (It also passed an authorization for the use of military force that was entirely too broad, but that's another story.) The Bush Administration used the crisis to institute a series of policy decisions that bordered on the authoritarian. What happened after 9/11 is exactly what one would expect. Our leaders panicked in a crisis, and cast about for proof that they were doing something. The sense of crisis opened the door for various forms of demagoguery and overreaching whose effects are still with us today. Ever since 9/11 our leaders have used the threat of terrorism and the need to wage a potentially endless War on Terror to justify shutting down important civil liberties protections. They have used fear and a sense of crisis to increase their power, abridge individual rights, and undermine important public values.

What happened at Virginia Tech could easily produce analogous political pressures to find solutions to what is also an ongoing danger to our country-- the widespread availability of firearms in the hands of criminals and terrorists, as well as emotionally disturbed persons who should not be trusted with weapons of any kind, much less guns. However, in this case, the familiar political valences would be reversed. Defenders of the Second Amendment-- many of whom are conservatives, will decry the rush to pass new gun controls, arguing that the fear of gun violence is overstated and insisting that granting more freedom to carry weapons will actually improve security. Meanwhile liberals-- many of whom have never thought the rights of gun owners very important-- will use the crisis generated by the Virginia Tech shootings as a justification for responding quickly and forcefully to what they see as an ongoing and urgent threat to American lives and national security. They might argue, to take a line from George W. Bush's arguments about the War on Terror, that if we don't work to win the battle against gun violence now, it will strike again when we least expect it.

Although there are abundant rhetorical similarities, I don't think that the issues arising from the Virginia Tech shootings and 9/11 are at all the same. What I do think they have in common is a tendency for overreaction: a tendency for salience-- and a sense of emergency-- to displace good public policy. If there is anything we should have learned from 9/11, it is that a sense of emergency can justify all sorts of bad decisions that we will come to regret later on.

Monday, April 16, 2007

"You Can't Prevent Something Like This"

Stephen Griffin

JB can correct my usage, but surely one of the most demoralizing and misleading memes ever released into the public sphere is represented by my title, which I heard already today on local talk radio, in reference to the mass killing of students at Virginia Tech. I've heard something like this after every mass slaying or, rather, every mass slaying committed by someone with a gun. After mass slayings committed by terrorists, presidential assassinations, or killings in areas supposedly secure like courts, we commit ourselves to the actions necessary to prevent such killings in the future, whether through better security, use of intelligence, confiscation of weapons, and the like. But with mass killings committed in country with a gun, we are encouraged to believe, by people who should know better, that they are akin to natural disasters or freak occurrences like an asteroid strike in your backyard. This is one meme that ought to be wiped out by the application of some common sense. If it is reasonable to act to prevent terrorism, it is reasonable to make every effort to make sure that nothing like this ever happens again.

Sunday, April 15, 2007

Three Takes on Imus

Mark Graber

My first thought on the Imus case was that Imus clearly went over the line and deserved to be fired.

My second thought was that the matter was more complex. Imagine a law school dean instructs one young professor to make aggressive use of the Socratic method and tells another that class should consist almost exclusively of lecture. Both professors are accused of bullying students. We might give the first professor a bit more slack than the second. The first, after all, has been instructed to go as close as possible to the line that distinguishes challenging students from bullying students. The second has been instructed to remain far away from that line. We should not be surprised if the first professor, given the nature of the instructions, will cross over the line more than the second professor. Indeed, a professor instructed to aggressively challenge students is likely to do some bullying some of the time.

My sense of Imus (I have never listened) is that he was paid to make offensive remarks, to outrage persons on the basis of race, gender, and other characteristics. Given the nature of the shock/jock business, we might not be surprised if Imus or anyone else with similar job responsibilities once in a while crosses the line between acceptable and unacceptable offense. In this sense, Imus’s remarks seem more forgivable than if they were made by a law professor, who is not paid to make offensive remarks.

My third thought is the real scandal is the distinction between what is considered acceptable and unacceptable offense. As a result of some programming changes, the local sports talk show at the time I drive home features Steve Czabin and Andy Pollin. Their commentary on the Rutgers team runs the gamut from stupid to immature and offensive. The main topic of conversation seems to be the sexual attractiveness of women athletes. Not only do I not hear any calls that they be fired, but both seem to be getting more air time. They have not crossed the line. All I can do is change the station.

The best case for firing Imus is that the line between acceptable and unacceptable offensiveness on radio is clear and ought to be easy to follow. No epithets. Everything or almost everything else that is offensive is okay and probably desirable. Imus stepped over the bright line and so his actions merit firing. But we should be as disturbed about how "normal" sports talk hosts chat about women’s basketball as we have been about the one who went too far.

More on presidential dictatorship

Sandy Levinson

I have gotten into hot water before by suggesting that our vaunted (and highly defective) Constitution in effect creates a partial presidential dictatorship. Some people, wrongly I believe, assume that the notion of "a partial...dictatorship" is an oxymoron. I will address that point more below. Others, just as wrongly, say that we can't describe the President as a dictator because, after all, he (and I won't bother adding the usual "or she" in this particular posting) is "accountable" to We the People, unlike "real" dictators.

So let me explain: First, as to the "partial" nature of the dictatorship. No one would argue that the president has anything approaching dictatorial power with regard to making changes happen on the domestic side. Indeed, presidents traditionally learn early on in their terms that we have a constitutional system geared for gridlock and that they can achieve little, if any, of their more ambitious agendas, such a medical care reform for Clinton or privatizing social security for Bush. To be sure, as Elena Kagan explained in a brilliant article on the Clinton Administration's version of the administrative state, aggressive presidents can try to capture control of some of the executive agencies and use their power to get compatible regulatory changes that have not (and might well not) be approved by Congress, but, at the end of the day, it would indeed be hyperbolic to describe this as "dictatorial," not least because an aroused Congress has a variety of ways of exacting revenge against administrative agencies who become clear outliers relative to congressional preferences.

Where "dictatorship" becomes somewhat less hyperbolic is with regard to the policy-based presidential veto that I have previously railed against. Here, one man, with the stroke of a pen, can negate the judgment of majorities of both houses. Yes, it's true that vetoes can theoretically be overridden, but as I demonstrate in my book (which I won't bother to name, since you can find it in the right margin), the "success" rate for presidents is approximatly 95%. So even if presidents have limited power to make things happen, with regard to domestic policy, they have close to absolute power to prevent things from happening, at least at the national level, unless the particular policy in question can survive both a partisan-gerrymandered House and a Senate that gives unconsionable power to senators representing small-population states. (States, of course, may take the lead, as is happening to an extent both with medical and environmental policy, but for all sorts of well-known reasons, policy in these areas must ultimately be made at the national (or, re the environment, international) level rather than left to smaller units of government.

One defense of the veto, as well as other exercises of presidential power (especially by "unitary executive" buffs) is that the president is "accountable" to the electorate. This may be true in the first term of a presidency, when one assumes a) that a president will wish to run for re-election and b) that a president will behave as a "rational actor" and shape actions around the prospect of appealing to voters. But this model has not apparent application to a second-term president, who knows above all that he will be out of office in a measurable number of days (currently, I believe 655) and will never be facing the electorate again. If the president is a loyal party man, then one might build in a "transferred accountability" notion, by which the altruistic president will shape actions about what will help a future candidate from his own party, but that may be a stretch, particularly when we come to the area where the term "dictatorship" is most appropriate, which is foreign and military policy.

Ironically, in these areas, it's not even crystal clear that we would want a president to be "accountable" to the public in the way described above if that meant that a president would engage in actions that he believed would be harmful to American foreign policy or security interests merely to pander to voters. Sure, this occurs--see, e.g., the idiotic boycott of Cuba because of the fortuitous power of Cuban-Americans in Miami (and, to some degree, in Jersey City)--but there are few who will defend such phenomena on "political grounds" alone. (If you think the boycott is a good idea, fine. Then the president is doing the right thing and not pandering. Don't bother sending in comments about how bad Castro is and how efficacious the boycott is.) But does anyone believe, for example, that someone so smart as Bill Clinton believed that our Cuba policy made the slightest bit of sense? And does anyone believe that Hillary Clinton is any more committed to that policy on the merits than her husband most probably was(n't)?)

And, incidentally, one might place the presidential pardon in the basket of "dictatorial powers," if presidents choose to use them that way. Just as veto can negate the solemn judgment of majorities of both houses of Congress, so can a pardon negate the conclusions of a jury and of the judiciary. Can you spell I. Lewis Libby or, for that matter, Caspar Weinberger, the beneficiary of a pardon at the very end of George H. W. Bush's administration, a far, far more serious act than Bill Clinton's presumptively indefensible pardon of Marc Rich? Pardons, of course, are directly traceable to the prerogatives of kingship. I'm actually not opposed to a presidential pardon power, but we should note that it is in fact subject to abuse, whether or not there is a legal remedy for such abuse.

In any event, second-term presidents have none of the "electoral connection," with regard to their own retention in office, that David Mayhew so memorably describes when discussing members of Congress. And even if a lame-duck president has an interest in the mid-term election, given its relevance to the potential success of his agenda, there is no such "connection" in the last two-years of an eight-year term, which is, of course, our own present situation. Let me suggest, incidentally, that one relevant difference between Clinton's request for the resignation of all 93 US Attorneys and Bush's more recent efforts, is precisely that Clinton as acting at the beginning of his first term, and if there's anything we know about Bill Clinton, it is that he was thinking from day one of his next campaign. Thus he presumably expected to be held "accountable" in the 1996 campaign, though, interestingly enough, no one seemed to care. George W. Bush, on the other hand, is acting in an extremely different context, where there is no such electoral incentive to keep him (or Karl Rove) minimally honest (and, guess what, they aren't).

Nor can one maintain that "accountability" is provided by some previous "authorization" by an electorate. Even if one believes that mass electorates can be said to "authorize" particular policies, to rely on past elections for some general decisional authority by a president is to adopt something far closer to a notion of "limited-term dictatorship" than a truly "accountable" presidency. (As I shall note below, there is no necessary contradiction in describing someone as a "limited-term" dictator.)

So, as Mr. Bush so unforgettably described himself, in certain realms he is, indeed, "the decider," with little or no accountability in any formal sense. The threat of impeachment doesn't work, for at least two reasons. One is that it is spectacularly unlikely in fact to work as a means of getting rid of a president. The second is that the Constitution forces us into an almost entirely beside-the-point debate about whether the president has committed a "high crime and misdemeanor" rather than the proper debate about whether his policies are in fact a menace to the nation and the world (not to mention the brave young (and not so young) men and women whose lives are indeed being "wasted," as was said in incautious moments by Sen. John McCain
and Sen. Barack Obama). What I believe we need, as most of you know, is some system for a vote of no-confidence, which would make a president accountable, but there's no point in rehearsing that oft-presented argument.

Most Americans have an unanalyzed picture of "dictatorship," revolving around, say, "ideal- type" dictators like Stalin, Hitler, Castro, or Saddam Hussein. But, as Clinton Rossiter pointed out almost sixty years ago in a marvelous (and scary) book, Constitutional Dictatorship, such dictatorships are only at one end of a spectrum. The notion of institutionalized (and limited) dictatorship goes back to ancient Rome. One might not be able to be partially pregnant, but one can be a "partial dictator" if there is a policy domain over which one has basically near-absolute authority, even if it's only for a specified period of time, without fearing political consequences beyond loss of popularity. (And certain "leaders," including, one suspects, Mr. Bush, to some extent luxuriates in his present unpopularity as a sign that he is indeed standing up for principles, just as did his hero Winston Churchill during theh 1930s.) Some defend the DOJ purge on ground that the US Attorneys are mere "employees at will," subject to presidential whim; would they support the right of Bush, like Caligula, to appoint his horse (named, in this case, Alberto "Fredo" Gonzales)? In any event, I believe they are adopting a theory of government akin to dictatorship. I might be unfair to them if they recognize Congress's genuine participation in the appointment process and the right to refuse to confirm some of these nominees, though I would then expect them to support the repeal of the the Administration's cleverly salted recent legislation that operated precisely to cut Congress out of the loop.

It's probably true that I wouldn't be moved to be reflecting so much on "constitutional dictatorship" if it weren't for my opposition to George W. Bush, which I know that some of you believe is over the top. Even if it is, I am offering an institutional analysis that applies to all of our contemporary presidents, particularly in their second terms after mid-term elections. And, for what it is worth, for all of my loathing of Mr. Bush, I have publicly opposed, in an essay in The Nation, impeaching him. Even I concede that there is nothing that can be done (other, for those who believe it is efficacious, than to pray that the great "decider" gains some wisdom to go along with his arrogance) about the Bush presidency. But we have another president who will take over on Jan. 20, 2009, and, regardless of our political preferences, we might have a useful conversation about whether we're entirely happy with the kinds of powers--including smothering with "executive privilege" communications from party hacks whose sole job is to aggrandize presidential power--that that man or woman will have, particularly in the second term.

Carl Sandburg once wrote that "the fog comes in on little cats feet." So can authoritarian/dictatorial governance. This is the discussion we ought to be having as we decide who shall next inhabit the White House. But, of course, one thing that prevents its taking place, besides the "horse-race" media coverage of the races, is that such a discussion requires admitting that our sacred Constitution might not be the barrier against tyranny (even if the tyrant has only a limited term) that we'd like to think it is.

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