Balkinization: The Chief Justice and Selective Good Faith

The Chief Justice and Selective Good Faith

Mark Graber

When preparing an excerpt of Schuette v. BAMN for the textbook I do with Keith Whittington and Howard Gillman (on sale in the lobby, and we will be happy to send our updates—free—to all interested parties), I was struck by the last sentence of Chief Justice Roberts' concurrence. The Chief Justice, responding to Justice Sotomayor’s dissent, declares that “People can disagree in good faith on this issue, but it does more harm than good to question the openness and candor of those on either side of the debate.” The next opinion is Justice Scalia’s concurrence, which begins by referring to “this Court’s sorry line of race-based admissions,” contains such “bot mots” as “moving from the appalling to the absurd,” and more generally expressed Scalia’s philosophy that justices who disagree with him are both legal idiots and moral cretins. For space reasons, I omitted the Roberts concurrence. Nevertheless, I confess to have found very tempting to ask students (as I am asking readers of this blog) the following questions. Why is the Chief Justice so concerned when he perceives that Justice Sotomayor is questioning the good faith of conservatives? Why not criticize both Justice Sotomayor and Justice Scalia for inflated rhetoric? For that matter, why has the Chief Justice never criticized Justice Scalia or any white, male, conservative justice for challenging the good faith of those who dispute their cherished legal principles? Does the Chief Justice believe that Scalia’s opinions are never guilty of Sotomayor's apparent offense in Schuette. Or does the Chief Justice limit such personal criticisms to liberals? To women? To persons of color?

No doubt these questions are over the top (and for that reason, among others, not in the text). Nevertheless, am I right that it seems singularly out of place for the Chief Justice to single out Justice Sotomayor?

Posted 8:21 AM by Mark Graber [link]

Comments:

CJ Roberts' "umpire" concept might suggest a "home team" advantage for the conservative majority. Or perhaps a reluctance on his part to incur the wrath of Justice Scalia. I'll leave it for others to address whether Roberts is gender paternalistic as in the manner of the Founders/Framers. But calling "balls" on his conservative soul mates and a "strike" on Justice Sotomayor does seem a tad unseemly.

# posted by

Shag from Brookline : 8:59 AM

This is standard conservative rhetoric: over the top when it comes to attacking opponents, and wringing handkerchiefs when those opponents respond in anything approaching their vehemence. In their hearts they know they're RIGHT, which of course excuses any excess.

As my mother used to say: they can dish it out but they can't take it.

Additionally, I have little doubt that the CJ is mainly appreciative of Scalia. The dynamic is not unlike the Republican's establishment's (former?) relationship with the Tea Party: an energetic and mostly reliable vote for their side. Evidently poor manners do not disqualify them from their eminence.

# posted by

Larry Koenigsberg : 9:39 AM

I think it's because he's very touchy about being impliedly called a racist (or at least insensitive to racism).

# posted by

Mista Whiskas : 11:01 AM

"People can disagree in good faith on this issue, but it does more harm than good to question the openness and candor of those on either side of the debate.”

This does not sound like a chiding over lack of judicial comity.

Scalia will often eviscerate his colleagues for poor reasoning or adherence to the law (and the Sotomayor dissent was a target rich environment), but he has not implied that I can recall that they are closet racists.

# posted by

Bart DePalma : 5:55 PM

In the aftermath of Hobby Lobby, with the dissent by the three (3) female Justices to a post-Hobby Lobby ruling, the Court's VC (Vatican conservatives) and not just CJ Roberts may suffer from gender paternalism as in the manner of the Founders/Framers.

# posted by

Shag from Brookline : 7:30 AM

"I long to hear that you have declared an independency. And, by the way, in the new code of laws which I suppose it will be necessary for you to make, I desire you would remember the ladies and be more generous and favorable to them than your ancestors. Do not put such unlimited power into the hands of the husbands. Remember, all men would be tyrants if they could. If particular care and attention is not paid to the ladies, we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice or representation."

-- Abagail Adams (Laura Linney)

# posted by

Joe : 4:39 PM

he has not implied that I can recall that they are closet racists.

This is a sly way of attributing to Sotomayor the sin of implying that the conservative Justices are closet racists. But what did she actually write? I'm sure you've all read this part of her dissent:

"In my colleagues’ view, examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable. The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter."

A racist might indeed use the rationale she condemns as a cover for their bigotry. But it seems to me that it is more accurate to view her condemnation as directed to the blindness of her colleagues rather than towards any imputed maliciousness.

In contrast, Mr. DePalma's sly attack on Justice Sotomayor does seem to bear a stink of malice.

# posted by

Larry Koenigsberg : 12:09 AM

Larry, thanks for setting forth the quote from Justice Sotomayor's dissent.

Regarding our CO gasbag being sly gives him too much credit. I think he was responding more to Mista W's comment. Mista W, it seems clear to me, was referring to CJ Roberts. Our CO gasbag's:

" ... but he has not implied that I can recall that they are closet racists."

suffers from lack of clarity as to who "he" and "they" are. I assume that the "he" refers to CJ Roberts and not to Justice Scalia (or Justice Sotomayor). I assume the "they" refers to Roberts' conservative soul mates. But why did our CO gasbag come up with "closet racists" as Mista W's comment was focused on CJ Roberts? I don't think the Roberts conservative majority closets its views which are transparent to many of us.

# posted by

Shag from Brookline : 8:22 AM

"In the aftermath of Hobby Lobby, with the dissent by the three (3) female Justices to a post-Hobby Lobby ruling,"

It's a crying shame the way the 3 female Justices threw logic and reason aside, and just tried to rule on the basis of pure gender interest. "This law mandates women be given something? Constitutional!"

Seriously, why are we supposed to assume that, if a vote comes down with all the women on one side, that must be the right side?

# posted by

Brett : 6:25 AM

Seriously, Brett, if anyone can really take you seriously, a banding together of male Justices is okay, perhaps because the Founders/Framers were males? That may be Brett's version of originalism, including slavery. Brett is just an ordinary angry white guy, a minority recognized by Sen. Lindsay Graham (Cracker, S. Car.) of which there are apparently not enough, at least capable of making white babies,to compete with the changing demographics. So let's add misogynist to Brett's credentials as a 2nd A absolutist AND anarcho libertarian.

# posted by

Shag from Brookline : 7:19 AM

This refusal to accept the stark reality that race matters is regrettable. The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society.LOL Elo Boost
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# posted by

Cicy : 9:39 AM