Balkinization  

Saturday, December 06, 2008

Samuel Alito, lurker

Sandy Levinson

I learned last week from a reporter who called me that Justice Alito had selected me out for gentle (or not-so-gentle) comment while giving at speech I believe at the annual Robert L. Bartley Dinner sponsored by the conservative magazine The American Spectator. (I wonder, incidentally, what the reaction of our conservative friends would be if, say, Ruth Bader Ginsburg showed up to give a speech at a dinner sponsored by The Nation, but I digress.....)

Justice Alito apparently is a lurker on legal blog sites, perhaps including this one. In any event, he made mention of my strong criticism of both the Scalia and Stevens opinions--he, of course, joined in the former--in Heller because of their formal commitment to "originalism" as a method and, more to the point, their demonstrable incompetence in carrying out the kind of nuanced historical inquiry that one might be believe to be part of the "originalist" project. He also apparently identified me as a supporter of the DC ordinance that was struck down, though he did note, accurately, that I had expressed pleasure in the de-facto gift that was given to the Democratic Party (and to Barack Obama) by the majority decision striking down the ordinance and, therefore, basically minimizing guns as an issue in the presidential election. Though the latter is certainly correct, the former is not: That is, I publicly suggested, in an op-ed, “Why use originalism?” National Law Journal, February 25, 2008 (unfortunately, no hyperlink is available) , that the Court embrace the excellent brief submitted by Solicitor General Paul Clement in behalf of the Bush Administration. In that piece, moreover, I suggested, as has Akhil Amar in the current issue of the Harvard Law Review, that a far stronger defense of the outcome could be found in a "living" or "dynamic" Constitution that didn't stop in 1791.

But Justice Alito also apparently suggested that my criticism of the professional incompetence (from the standpoint of trained historians) was vitiated by the fact that I myself am not a professionally trained historian. My own Ph.D. is in political science, not history. He apparently used this as an occasion to jibe at law professors (especially those who blog?) as quite willing to opine on subjects on which they are not professionally competent. There is, of course, much truth in what Justice Alito says, and I am sure that I can legitimately be criticized on those grounds. Mark Tushnet has coined the term "the lawyer [or law professor] as astrophysicist" to describe the their pretensions to understand very complex bodies of thought after relatively minimal study.

What I find disturbing, though, and therefore worth this otherwise self-indulgent posting, is Justice Alito's apparent unwillingness to mention Jack Rakove's post on this site, tellingly titled "Thoughts on Heller from a "Real Historian," that states, among other things,
"I agree with Mark [Tushnet] that neither of the two main opinions in Heller would pass muster as serious historical writing, but I would disagree with Sandy that the two opinions are equally incompetent."

I.e., Jack Rakove, who of course won a Pulitzer Prize in history and has taught American history at Stanford for decades, believes that the Stevens opinion, whatever its inadequacies, is less egregious than is Scalia's, which may be true. But to get a D rather than an F shouldn't be good enough for Supreme Court opinions that affect people's rights and lives.

Be that as it may, if Justice Alito was aware of such criticisms as those offered by Rakove or by, say, Saul Cornell and other professional historians, and if was aware that, at least to my knowledge, not a single professional historian has offered kudos to Justice Scalia's opinion (that Justice Alito signed), then, to put the matter gently, he knowingly and deliberately suppressed relevant evidence in order to score a cheap point by pretending that the only critic(s) of the opinion(s) lacked the same professional training as did the relevant Justices. But, as indicated, that is demonstrably false.

I don't want to make a mountain out of a molehill, and I confess to a certain amount of pleasure at being mentioned by Justice Alito (whom I've never met); my general view is that all publicity is good publicity, unless I am described as being "stupid," which Justice Alito did not do. Still, I do think that this anecdote, if that's the right word, does reveal something about the current state of debate about the Court and its handiwork, where even a Supreme Court Justice, speaking in front of a hyper-partisan audience--see, e.g., R Emmett Tyrrell, Jr.'s speech, which begins with a reference to the "lamentable election"--gets one important fact totally wrong and, more to the point, engages in a highly selective presentation of relevant evidence. And I wonder, incidentally, if anyone bothered to note, should Justice Alito have entertained any questions, the savage criticism of Heller penned by Fourth Circuit Judge J. Harvie Wilkinson, who can scarcely be dismissed a just another lefty law professor/blogger with too much time on his or her hands.

Should Justice Alito wish to offer any further reflections--perhaps emulating Richard Posner, whose duties as a federal judges certainly don't prevent him from authoring extremely interesting and provocative blogposts (not to mention articles and books) on various issues of the day (including, of course, Heller, about which he was also savagely critical--I'm sure that Jack Balkin would welcome him as a guest contributor (though perhaps he'd feel more comfortable at the Volokh Conspiracy).

Comments:

As we who do litigation often say:

"These things are sent to try us!"

I understand that when FDR was in the White House, as the cry to announce the entry of the Justices finished, it became fashionable to slightly amend the final words under one's breath to "God save the United States.. and save us from this Honourable Court".

 

As I recall 71 briefs were filed in Heller, including two described as from historians. Rakove, Cornell and several other historians joining on one of such briefs focused upon the history of the colonies to the Revolution and beyond to the Civil War, whereas the other historiean brief focused upon English history and law. The former brief was much more persuasive than the latter. Those who dispute this comparison should go back and read them and then read Heller, as well as the dissent in Heller, and then read Rakove's post at this Blog. Surely the majority cherry-picked on the historical aspects of the Second Amendment.

Alito also recently took a shot at VP Elect Joe Biden on plagiarism, which brings to mind "legal plagiarism" by judges who adopt language in briefs usually without attribution. Sometimes no heavy lifting is involved even with the lighter SCOTUS loads of recent years.
 

Hope springs eternal!

This morning's WaPo had this article: Legal Organization May Become Influential Beyond Its Dreams discussing the influence of the American Constitution Society for Law and Policy may have on the new Administration.

Several of the quoted comments indicate that there is an understanding of the some of the problems with the present federal judiciary. The article rightly points out that President-elect Obama was very elusive on legal issues during the campaign, but even allowing for his connections in the University of Chicago, I do not see someone with his experience of deprived urban areas being happy with a judiciary so heavily weighted with former prosecutors, an absence of lawyers with labour experience and so forth.

I put up one or two thoughts on this thread and also here.

I suggest a case can be made for comprehensive reform of the Court system, of the judicial appointment process, of terms of service (especially retirement) and of the criminal and civil procedure rules.
 

"I.e., Jack Rakove, who of course won a Pulitzer Prize in history and has taught American history at Stanford for decades, believes that the Stevens opinion, whatever its inadequacies, is less egregious than is Scalia's,"

I stand by my remarks in that thread; We're talking about a historian who defended Belesilles' fraud long after it was exposed. He might be a hot-shot historian, but his judgment where this subject is involved is demonstrably compromised.

Both opinions were substandard, Scalia's as a result of his well known fear of overturning long established laws, (Long established because the Court avoided 2nd amendment cases for so long!) and Stevens out of a desire to render an Amendment he disliked a nullity.

But at least Scalia only got it partly wrong, Stevens got it entirely wrong.
 

Brett, Prof. Rakove provided substantial evidence within that thread that he did NOT "defend" Bellisles "long after the fraud was exposed". You did not then and have not now provided any counter evidence. Given these circumstances, I trust the irony of your post here is pretty obvious.
 

No, he did not. He defined "the fraud being exposed" as when Belesilles' more stubborn defenders finally gave up, rather than when the evidence that Belesilles was a fraud was produced. Getting himself off the hook by definition, not by innocence.
 

He didn't mention the timing at all. If you want to show that the timing demonstrates he was late to the party, you need to do that.
 

It seems unnecessarily pejorative to describe Justice Alito as a "lurker." Most blog readers rarely or never post comments.

Incidentally, is there a list somewhere of Justice Ginsburg's speaking engagements? I wasn't aware that justices avoided events sponsored by partisan or politically-engaged organizations, although I think they generally avoid making partisan speeches themselves, and maybe try to avoid events sponsored by organizations with cases pending before the Supreme Court.
 

Brett:

I stand by my remarks in that thread; We're talking about a historian who defended Belesilles' fraud long after it was exposed. He might be a hot-shot historian, but his judgment where this subject is involved is demonstrably compromised.

So says John Lott's sock-puppet, Mary Rosh, as well....

Cheers,
 

It seems unnecessarily pejorative to describe Justice Alito as a "lurker."

I think that's just the usual term, no pejorative intent implied.
 

Right. Remember that in the blogosphere, lurker can be a category above contributor in terms of respect.

The lowest form of life is, of course, anyone who uses the term "blogosphere."
 

The lowest form of life is, of course, anyone who uses the term "blogosphere."

Isn't that the pressure-sealed device within which a regular person (for instance, a print journalist) descends into the depths of the blogs, there to report on what he or she finds in that stygian darkness?
 

I recently came across your blog and have been reading along. I thought I would leave my first comment. I don't know what to say except that I have enjoyed reading. Nice blog. I will keep visiting this blog very often.


Sharon

http://www.autoloans101.info</a
 

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