Monday, December 20, 2004

Let's Get The Criticisms Right, Shall We?


This poster from the Center for American Progress tries to raise the public's awareness of the dangers of appointing another justice like Antonin Scalia or Clarence Thomas. The problem is that it tends to confuse whether Scalia or Thomas think a policy is constitutional with whether they support the policy itself. And this is a very bad mistake to make, because it lends credence to the notion that liberals too often confuse what is just with what the Constitution requires.

The irony is that if the CAP simply reported the facts, it would still have a pretty persuasive indictment of the work of these two Justices. Regular readers of this blog know that I am a fan of neither Scalia's nor Thomas's jurisprudence, but I think they deserve to be criticized fairly based on a reasonable assessment of their records.

Here is what the CAP says about Scalia and Thomas, followed by my explanation of what is actually the case.

(1)"Scalia Opposes Efforts to Desegregate Schools." In fact, Scalia opposes the use of (some) federal judicial power to desegregate schools; he does not oppose desegregation per se.

(2)"Thomas favors state-sponsored religion." In fact Thomas believes that there is no constitutional bar for a state to have an established church as long as non-believers are not coerced. He does not say that he thinks that all (or any) states should have established churches.

(3)"Scalia supports sex discrimination." In fact, Scalia believes that separate educational institutions for men and women (or institutions just for men or just for women) are constitutional where there is a long history of sex-segregated practice. He does not say that states should have such institutions.

(4)"Thomas would allow the President to effectively waive due process rights." This one is more or less correct. Thomas argues that the courts should defer to good faith presidential decisions to declare certain persons as unlawful combatants and to detain them indefinitely without access to legal counsel. Thomas believes that the procedures offered by the President are all the process that is due, not that the President has the power to waive due process rights.

(5)"Scalia and Thomas oppose family and medical leave." Scalia and Thomas (and Justice Kennedy, too) believe that States cannot be sued for money damages if they fail to provide family and medical leave to their employees. They do not say that they oppose family and medical leave as a matter of policy.

(6)"Scalia and Thomas support executing the mentally retarded." Scalia and Thomas believe that doing so does not violate the Eighth Amendment's ban on Cruel and Unusual Punishments. They do not say that they favor the practice as a matter of policy.

(7)"Scalia and Thomas support brutality against prisoners." Once again, Scalia and Thomas believe that certain forms of prisoner mistreatment or brutality (which they regard as insignificant or which they do not believe involve "punishment") do not violate the Eighth Amendment's ban on cruel and unusual punishments. They do not say that they approve of these practices by states.

(8)"Scalia and Thomas support criminalizing consensual sex." Scalia and Thomas believe that the Due Process Clause does not prevent states from criminalizing consensual sex. They do not say they support such laws, and indeed, in Thomas's dissent in Lawrence he specifically says that he would not support Texas's law.

(9) "Scalia and Thomas oppose federal environmental regulation of polluters." Scalia and Thomas believe that the EPA should not have authority to prevent certain forms of air pollution even when states improperly fail to act. They do not say that they oppose federal regulation, merely that Congress has not authorized it.

(10) "Scalia and Thomas would allow states to discriminate against the disabled." Somewhat more accurate, but still not quite right. Scalia and Thomas believe that Congress does not have the power to allow suits for money damages against states when they discriminate against the disabled, but they have not said that states do not violate federal law when they do so, and presumably injunctive relief is still available.

Here's what the CAP should have said:

(1)Scalia wants to cripple judicial efforts to desegregate racially segregated public schools.

(2)Thomas would allow states to have established churches, and use tax money to promote a state's favored religion.

(3) Scalia does not believe that sex discrimination violates the Constitution if the practice has a long history.

(4) Thomas would allow the President to declare any citizen an unlawful combatant and imprison him indefinitely without any protections of the Bill of Rights.

(5) Scalia and Thomas would allow states to avoid paying damages for violating federal guarantees of family and medical leave.

(6) Scalia and Thomas would allow states to execute the mentally retarded.

(7) Scalia and Thomas don't think that brutality against prisoners violates the Constitution.

(8) Scalia and Thomas would allow states to criminalize consensual sex between unmarried adults.

(9) Scalia and Thomas would strip the EPA of the ability to protect air quality.

(10)Scalia and Thomas would allow states to avoid paying damages when they discriminate against the disabled.

It seems to me that these claims are troublesome enough-- particularly number 4-- without any additional embellishment. There is no need to misstate things to explain why the public should not support more judicial appointments like this.


It seems to me that your revised claim is subject to the same indictment that you level against the CAP.

After all, you don't offer any reasons in the list for thinking that Thomas and Scalia are wrong on a particular issue. That is, the claim isn't, for example, that "Thomas would allow states to have established churches, and use tax money to promote a state's favored religion, *despite the constitutional bar on such acts*."

Similarly, the charge that "Thomas would allow the President to declare any citizen an unlawful combatant and imprison him indefinitely without any protections of the Bill of Rights" could be rephrased--to much less effect--to say "Thomas believes that the Constitution requires him to find that the President may declare, in certain instances, any citizen to be an unlawfl combatant who may be imprisoned indefinitely and without the usual protections afforded criminal defendants."

And your No.1 should be re-written to remove any reference to what Scalia "wants"--he may well want the constitution to be amended to give the courts the power that some believe the courts now have. Your assumption that a disagreement on the outcome is driven by the outcome, and not the reasons, leads on to believe that the you've confused what is just with what the constitution requires.

Dear Thomas:
I think you've missed the point of the posting. It should be fairly obvious to anyone who reads the post that I believe that each of these interpretations of the Constitution are wrong, and that is why the positions that Scalia and Thomas take are legally objectionable. Obviously I do not offer arguments for each of these legal positions in this posting, but that was not my purpose. The point, rather, was to correctly state the legal positions Scalia and Thomas *have* taken, which the CAP descriptions do not. If you want to claim that Thomas and Scalia are misinterpreting the Constitution, you should at least begin by getting their legal positions correct.

I guess I was taking you seriously when you suggested that just reporting the facts would be a pretty persuasive indictment of Scalia and Thomas. I don't think that announcing the outcome of a case, without offering any reason for thinking that the outcome was other than required by law--except for a possible suggestion that what is just is what the constitution requires, and that these outcomes are unjust--counts as a pretty persuasive indictment.

That takes an argument. Not a bumper sticker or a poster.

Another salient point about Thomas's suitability as a Supreme Court justice that probably should be included is his opposition to the concept of "stare decisis" as emphatically stated by Scalia in the recent biography "Judging Thomas".

Back in the late 1950s, a Probate Judge in Boston who at times questioned the performance of the legal profession would make the point that he was not exalting judges (who are after all part of the legal profession) by stating: "All a judge is is a lawyer who knew a Governor." So let's not exalt federal judges, including those on SCOTUS. After all, they are merely lawyers who knew a President. The personal views of Scalia and Thomas (as well as other Justices) can easily be hidden behind what they perceive to be the meaning of the Constitution, which many of us can concede is not always that clear. That's why it is necessary to put the feet of nominees to the fire. CAP may not be perfect, but then who is?

After Bush v. Gore, can we still honestly say that the Justices' personal political views are kept separate from their legal analysis? I don't think so.

Bravo. This kind of overblown rhetoric from CAP, which immediately cedes the question of legal correctness to those who should be on the defensive, drives me nuts.

Shag, you miss the point. CAP's demonization of Scalia & Thomas is the equivalent of demonizing the ACLU by saying they "favor letting criminals go free" or "oppose government efforts to fight terrorists" or "support Nazi marches." Perhaps they secretly do hold some or all of these beliefs, but it's demagoguery to describe the legal positions they take in those terms.

It poisons public discourse and makes intelligent debate difficult when positions are misrepresented in such fashion.

Although I don't entirely disagree with what you're saying, I think you may be bending over backwards to be fair. As to (1), isn't it fair to say that Justice Scalia's reading of the Equal Protection Clause in cases like Croson and Adarand and Grutter would prevent even most effective *voluntary* efforts to desegregate schools? (So CAP cited the wrong case, but didn't really miss the point.) As to (3), isn't the tone of Justice Scalia's VMI dissent a bit more celebratory of single-sex education than you let on? As to (10), Justices Scalia and Thomas have said that Title II of the ADA is not proper Section 5 legislation. To be sure, they haven't taken the next step and said that it is not proper Commerce Clause legislation either, but there's serious question whether they would, so it's unclear whether in their world injunctive relief would still be available.

The better you become as each day goes by, the more you heap dust upon you past until you completely bury it. No matter how obnoxious it was
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