Wednesday, January 01, 2020
The Unteachabilty of Brown v. Board of Education: Reflections on Chief Justice Roberts's New Year homily
Chief Justice Roberts has delivered his annual end-of-year message, this time bewailing (altogether correctly) the fact that most Americans know very little about how the American political system actually works. He has therefore mounted the "civic education" bandwagon, though, like almost all judges, he is apparently incapable of suggesting that one aspect of such education might be a more critical perspective of the Constitution itself, which continues to exhibit its ominous impact on the American polity literally every day. Instead, he commits the fallacy of believing that civic education requires knowledge of the way that the judiciary works (and emphasis on the kinds of controversies that come before the judiciary) rather than knowledge of the ways the wider system does (or, more accurate, does not) work. Judges are almost literally the last people one should turn to for genuine insights into the actualities of the American political system, given the fact that few have the kinds of rich governmental experience that was once viewed as highly desirable in those who reached our apex court.
I'm not sure how much the report matches the baggage the comments suggests it brings, but perhaps it is best to focus on the professor's own message.
The report is about the judiciary so is going to view things from theor lens. I think CJ Roberts brings some baggage (and the aims he is promoting can be helped by certain things such as a mandatory ethics system applied to the Supreme Court or live streaming of the Court's proceedings instead of limited, time delayed, coverage) but the basic message is okay, at least on some level.
Federal judges from the beginning in some fashion promoted civics education and "circuit riding" was understood to help that. They were understood to be taking the federal Constitution to the people and used things like charges to juries to promote broad republican messages. Civics will include understanding one third of the government. And, that is what Roberts says -- judges have an important role here, including as they do their jobs and interact in various ways with the public. On a basic level, they will be part of the effort here.
I don't think the Federalist plays much of a role in the report. The Report usually has some somewhat cute historical event that is used to make a point and he uses Jay being hit by a rock to flag the concerns of appeals to the mob. Something rather raw these days, regarding the person who nominated two of his colleagues. Yes, at one point he says they provide a "foundation" but even he says they are "only a starting point." Which is a useful reminder. Mind you, I think the Federalist Papers are given too much attention. But, I'll take that reminder from him.
As to Brown v. Bd., the whole reference is basically this:
"Chief Justice Earl Warren illustrated the power of a judicial decision as a teaching tool in Brown v. Board of Education, the great school desegregation case. His unanimous opinion on the most pressing issue of the era was a mere 11 pages—short enough that newspapers could publish all or almost all of it and every citizen could understand the Court’s rationale."
The limits of the opinion is duly noted though we can say that about so many opinions. But, for the limited use of the reference, it seems to me acceptable. The opinion did provide a teaching function. It's core message was and is very important. As with anything important here, there are hard questions that the opinion for sake of unanimity etc. papered over. That's fine to note. Still, like the Federalist Papers reference, I would caution to put too much weight in the citation.
I think the the author of Shelby v. Holder preaching democracy has issues, let's say. Anyway, that's my .02 and Happy New Year.
[A final comment in the last open thread was posted before I had a chance to reply. It linked to an interesting bit of history on impeachment practice that to me reaffirmed the agnosticism I expressed. I won't say anything more about it here.]
Important, but more than bit exaggerated. Chief justice Roberts didn't claim in no way, that it is easy or really comprehensible to deal so with the law, or reasoning or whatsoever legal production, but rather I quote:
" When judges render their judgments through written opinions that explain their reasoning, they advance public understanding of the law "
So, they advance it, no one would become really familiar with the law so. But, it can generate, better understanding and may support sympathetic approach to the judiciary.
And, the respectable author of the post, is severely wrong with all due respect. Judges, know very well, how the system work. Far greater than politicians or officials. This is really baseless with all due respect. This is because of the very fact, that politicians or officials, are stuck in one very narrow perspective or domain typically. But a judge,typically, is handling and ruling in issues that touch every domain or aspect of governance: Military, national security, privacy, criminal cases, tort, international, you name it. This is not the only reason, there are too many, but very good one.And sufficient as such.
Maybe you're approaching Brown too narrowly. Instead of trying to teach it as doctrine or as legal reasoning, perhaps you could
1. Teach it as an example of the limits of judicial authority in the face of massive resistance. A little education of the students on that aspect of history would be very useful.
2. Alternatively, you could teach the progression from the vague standard of Plessy (what is "equal"?) through the sordid history of evasion and the inadequacy of judicial remedies in the face of that, to the bright line rule of Brown. I think that discussion of these points would be very helpful in understanding commerce clause and abortion rulings.
As for your last paragraph, it's downright Trumpian for Roberts to talk about restoring "constitutional faith" when his whole project has been to undermine that faith in the Court's voting rights decisions; in campaign finance law; in re-writing the ACA; and in so many other areas of law.
Bảng giá dự án dinh thự ven sông waterpoint nam long đầu năm 2020.
Roberts is more savvy than Trump.
It's more akin to Mitch McConnell talking about congressional norms.
If someone like Justice Sotomayor [who took on Justice O'Connor's civics education campaign] wrote that thing, some would still be cynical about it to some degree, but she'd make a better messenger.
Perhaps, Roberts sees Brown as a model for reversing previous progressive precedent.
For political reasons, Warren only noted past precedent in passing and largely ignored both its underling history and reasoning. Instead, he applied the 14A EPC as written as if segregation was an issue of first impression. Roberts could use the same approach to strike down all government racial discrimination when Students for Fair Admissions (SFFA) v. Harvard reaches the Court next term.
Warren argued scientific advances allowed a modern court Court to determine that separate facilities made educational outcomes unequal and, thus, ignore past precedent. Roberts could use the same argument to determine that human life begins at conception and the unborn are legal persons, discarding Roe like Warren discarded Plessy.
Of course, I could be reading too much into the proverbial tea leaves. After all, Roberts is the one who caved to progressive pressure to save the Obamacare individual mandate which plainly violated the Constitution and then to save Obamacare exchange subsidies which violated the law of Congress as written.
Joe's posting is typically thoughtful. One might choose to be more generous to Roberts than I. I did pick on one paragraph. But I do think that his message has a kind of insouciant thoughtlessness that is in fact typical of many of his public pronouncements, including, alas, his judicial opinions (see, e.g., Shelby County). Although he apparently majored in history at Harvard, there is no real evidence that he has ever thought deeply about the American past, particularly in relation to race. Nor, frankly, do I have any reason to think he's thought deeply about The Federalist that he touts as a fine guide to civic education. The thesis of my book on The Federalist is that relatively few of the 85 essays have much to do with something that can be called "the rule of law," and that many of them are very much worth discussing today in terms of the sometimes troublesome ideas that are discussed. The most obvious examples are Federalists 41 and 42, but as readers know, I also believe that Federalist 2 has some very ominous implications.
John Roberts may in fact be a great oral advocate. That was his reputation when appointed. But after fifteen years of his service as CJ, I fail to see any real signs of genuine wisdom. Yes, he did do the right thing on Obamacare (to Mr. DePalma's consternation) but the opinion is terrible as an exercise of legal reasoning, far inferior, say, to Sixth Circuit Court Judge Jeffrey Sutton's opinion. And the final paragraph of Roberts's dissent in Obergefell is sheer demagogy, doing far more damage, in its own way, to preserving the reputation of the Court than anything Donald Trump has said.
Sandy: But after fifteen years of his service as CJ, I fail to see any real signs of genuine wisdom. Yes, he did do the right thing on Obamacare (to Mr. DePalma's consternation) but the opinion is terrible as an exercise of legal reasoning, far inferior, say, to Sixth Circuit Court Judge Jeffrey Sutton's opinion.
The jurists were coming from different intellectual positions.
Sutton engaged in the usual progressive Commerce Clause punt, so he could be honest that the Obamacare individual mandate was a penalty and not a tax.
Roberts was unwilling to punt. In the dissent he allegedly wrote and his final majority opinion, the CJ clearly recognized that holding the CC empowered Congress to command the citizenry to engage in the commerce would complete the rewrite of the clause into a general police power. In order to save Obamacare without committing that final constitutional heresy, Roberts was left with the intellectually incoherent position that the mandate was a penalty for standing, but a tax for constitutionality.
Roberts pretzel logic was worthy of a high mandarin.
Sutton's view would simply interpret the CC as written, an unqualified broad federal power to regulate (make rules concerning) interstate commerce (which the health care and insurance surely is). Rules can naturally be precrriptions as well as proscriptions.
The ludicrous part of his opinion was his stretching of the atextual 'coercion' doctrine regarding Medicaid expansion.
Mr. W: Sutton's view would simply interpret the CC as written, an unqualified broad federal power to regulate (make rules concerning) interstate commerce (which the health care and insurance surely is). Rules can naturally be precrriptions as well as proscriptions.
To regulate an act logically means performance of the act is a prerequisite to the regulation.
The cynical view would be that if Roberts can convince everyone that he is fair, he can rule regularly for Trump in the Senate trial.
Judge Sutton's same sex marriage opinion was basically the necessary "conflict in the circuits" opinion on some level (know of one other lower court opinion that decided the other way than the crowd ... maybe there was another). It had issues.
But, CJ Roberts' dissent and his felt need to announce it from the bench was one of the low points of his tenure, lesser known since most focus on his voting rights opinions in that respect. Or, maybe Parents Involved. That was offensive though. Beforehand, I actually thought he might be the sixth vote for some minimum level of constitutional equality (if not marriage). He went another way.
I think the professor's criticism of Roberts as a whole has some bite though hold to my opinion that the report (which is not merely a personal essay after all but represents the whole judiciary) is okay on face value; the problem is the messenger. Again, it is open to criticism, but the scorn basically is addressed to the messenger.
Anyway, Judge Sutton instead of the likes of Gorsuch and Kavanaugh would be my choice for a Republican nominee.
"It may be worth noting that almost no one actually reads more than, say, a half-dozen greatest hits among the 85 essays."
My (11 year old) son actually treasures his copy of the Federalist and Anti-Federalist papers. They should always be read together, you don't get much understanding from reading only one side of a debate.
"In any event, whatever else one thinks of Chief Justice Roberts's message to the American people, one should be completely skeptical that choosing to emulate Brown would prove truly advantageous to the joint aims of providing true illumination as to the meaning of the U.S. Constitution or shoring up the ever-more-fragile claims to legitimacy of a Court that is rightly perceived to be fully integrated into the operation of the most partisan and polarized American polity since 1858."
The basic problem here is that we have disjoint conceptions of legitimacy, there is no remaining common ground.
I don't mean by this that there can't be decisions that both sides would view as legitimate, but rather that our understandings of what makes a decision "legitimate" are radically different. We don't agree on what it is judges are supposed to be doing. Enforcing rules others originated, or achieving justice by any means necessary? These may sometimes lead to the same conclusion, but never by the same route. And where they don't lead to the same conclusion, one side or the other is guaranteed not merely to be disappointed, but to see illegitimacy and corruption.
"To regulate an act logically means performance of the act is a prerequisite to the regulation."
Not at all. The text as written says Congress has the power 'to regulate.' Period. No qualification such as 'already existing activity.' The word regulate means to make rules for (see the 2nd Amendment) and there's no a priori reason to think that only means proscriptions, not prescriptions. The more natural meaning of rules includes both. Further, it would be passing strange to think the power to make rules is limited to proscriptions and rules about already existing activity because if the aim of a proscription is achieved the activity ceases. Additionally, nearly everyone agrees that a goal of the commerce power is to 'stimulate' or 'further' commerce, I.e., drawing more people into it.
Of course, even these dispositive arguments are unnecessary here since there certainly was a thriving interstate commerce in health care when the ACA was passed, the fact that it pushes more people into such pre-existing commerce shows the weakness of Bircher Bart's atextual contention.
"Enforcing rules others originated, or achieving justice by any means necessary?"
99%+ of justices and opinions go out of their way to argue they are enforcing rules originated by others. The disagreement is over what that means, especially when you have rules as vague as 'no unreasonable search and seizures,' 'no cruel punishments,' 'no deprivation without due process' etc.
Mr. W: The word regulate means to make rules for (see the 2nd Amendment) and there's no a priori reason to think that only means proscriptions, not prescriptions.
The Commerce Clause grants Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian."
When limited by the term "among the several states," commerce means the exchange or trade of goods and services between the states.
The regulate simply means to make regular or uniform. The term does not mean to initiate an act.
These original public meanings have not changed over time.
Thus, the original and current meaning of the Commerce Clause as written merely grants Congress the power to specify rules to govern the manner by which people may exchange or trade goods from one state to another.
See Barnett, Randy E., "The Original Meaning of the Commerce Clause" (2001). Georgetown Law Faculty Publications and Other Works. 509. https://scholarship.law.georgetown.edu/facpub/509
I have a collection of anti-Federalist essays, and that's helpful to some degree, but that isn't even the half of it.
The Federalist Papers are mostly two guys (neither necessary median of the signatories, surely not Hamilton) writing op-eds to promote ratification. People repeatedly make it out as they are the official commentary of the document or something. It is far from a complete analysis and clearly biased. The two soon was on opposite sides and on one or more issues they changed their minds. For what it is, it's of some interest.
[As noted by Roberts, Jay wrote a few, but then got hurt and was unable to write more.]
I don't mean by this that there can't be decisions that both sides would view as legitimate, but rather that our understandings of what makes a decision "legitimate" are radically different. We don't agree on what it is judges are supposed to be doing.
There are a range of views on what judges are supposed to be doing. Putting aside the likes of Balkin, originalists alone are diverse on the point. See, e.g., Eric Segall's "Originalism as Faith." In some bland fashion, people agree on what judges do.
Enforcing rules others originated, or achieving justice by any means necessary?
See Mr. W's comment. There are a limited if still important range of cases where judges will disagree, but they are not "any means necessary" cases either. Judges agree on certain basic rules. Others they disagree over but the rules were originated by others too. If that is some veiled originalist comment, that's old ground.
These may sometimes lead to the same conclusion, but never by the same route. And where they don't lead to the same conclusion, one side or the other is guaranteed not merely to be disappointed, but to see illegitimacy and corruption.
Telling comment. I am far from alone here in being able to strongly disagree with judges w/o deeming them illegitimate and corrupt. Some find that hard, yes. Few judges are truly illegitimate or corruption.
Mr. W's comment: "99%+ of justices and opinions go out of their way to argue they are enforcing rules originated by others."
Well, of course they're going to claim to be doing that. They have no power otherwise. Like a crooked umpire throwing a game, they don't just stride out onto the playing field and declare the winner, they have to pretend to be doing their job as others understand it.
To admit they're doing anything else is to forfeit the power they're entrusted with, and then they have nothing to abuse.
The job of the 'progressive' constitutional scholars is to spin the smoke screen of sophistry that hides what is really going on, to rob the general public of the moral certainty that the judiciary are violating their role, so that the people will hesitate to act against them.
Notice how quickly Bircher Brett's 'there's just a fundamental polarization involving a disagreement about the role of a judge' folds into his standard 'it's a big conspiracy where one side is cheating and hiding it from most people, but I've worked it out on my bulletin board!'
You can put human clothes on a dog and teach it to walk on its hind legs for a few seconds, but it's back to sniffing its own butt quite soon...
regulate simply means to make regular or uniform."
Regulate means to make rules, and rules of course can be proscriptions and prescriptions (of course the rules of a 'well regulated militia' would involve lots of 'you must' as well as 'you must not's'.). Even if it meant to make regular or uniform this is exactly what the ACA mandate did (everyone must participate, can't get more uniform or regular than that). The idea that the power is qualified by a limitation on prescriptions is atextual nonsense smuggled in via some people's (such as Barnett or Bircher Bart) personal political philosophy which they'd like to see observed over and contrary to the law as written.
Don Larsen recently died. Are crooked umps why we haven't had a perfect game for so long? There were three right close together and then nothing.
Shag can provide his historical look at things by merely speaking his time experiencing Brown et. al. Hope you are doing okay.
To regulate does not mean to produce rules, but rather the production of rules is a means to regulate or to make regular.
I also hope Shag is OK. If he were lurking, the man would not miss the opportunity to opine on Brown.
Definition of regulate
1a : to govern or direct according to rule
"Don Larsen recently died. Are crooked umps why we haven't had a perfect game for so long? There were three right close together and then nothing."
The possibly apocryphal story is that when the last batter came up to face Larsen, the umpire told him "you better be swinging". Judging is just like that, you know: just calling balls and strikes.
BD: The regulate simply means to make regular or uniform. The term does not mean to initiate an act
BD: To regulate does not mean to produce rules, but rather the production of rules is a means to regulate or to make regular.
Mr. W: Definition of regulate...1a : to govern or direct according to rule
Your broad dictionary definition actually confirms both of my points.
Rules are a means to an end and apply to a preexisting thing.
For more clarity, here is the etymology of the term from the original Latin:
regulate (v.) early 15c., "adjust by rule, control," from Late Latin regulatus, past participle of regulare "to control by rule, direct," from Latin regula "rule, straight piece of wood," from PIE root *reg- "move in a straight line," with derivatives meaning "to direct in a straight line," thus "to lead, rule." Meaning "to govern by restriction" is from 1620s. Related: Regulated; regulating.
To "rule" actually refers to the use of a "ruler" to make things the same length. Once again, to make regular.
The term was always proscriptive (see "to govern by restriction") and never prescriptive.
He struck out looking. Officially.Post a Comment
Apparently, the batter thought it was a ball. Others looking at the video (it's on Youtube) suggest it would be now called a swing.
You know the vagaries of baseball common law.
[The Mets have a single no-hitter. It turned on a dubious call that a certain ball went foul. The batter at the time is now the Mets manager.]