Patterico's Pontifications

10/16/2006

More Dishonest Claptrap from Dahlia Lithwick

Filed under: Buffoons,General — Patterico @ 7:09 am



Dahlia Lithwick, speaking on an Alliance for Justice video:

What would happen if Clarence Thomas and Antonin Scalia got their way? What is their vision for America? And if you say to people what their vision is: Say goodbye to worker’s rights. Say goodbye to environmental protection. Say goodbye to women’s rights. Say goodbye to the rights of the disabled. Say goodbye to all the progress we’ve made in terms of race and gender in this country, and privacy.

Orin Kerr says:

I guess you could say this. I mean, it wouldn’t be accurate, but hey, you could still say it.

This woman is simply another poisonous partisan with a pen. Nothing more.

By the way, Scalia and Thomas believe in democracy. If this were truly their “vision” (and it is not), the people could easily vote for all the principles Scalia and Thomas allegedly oppose, and the Justices couldn’t do a thing about it.

35 Responses to “More Dishonest Claptrap from Dahlia Lithwick”

  1. As for me, I’m gonna say goodbye to Dahlia Lithwick.

    dchamil (4b18e1)

  2. I don’t get where she’s coming from. To quote people on the internet, “pics or it didnt happen”.

    AndrewGurn (c37ea2)

  3. It used to astonish me when I would read these kinds of outlandish and reckless claims. I genuinely thought that people who said these things didn’t REALLY believe them, but that it was a lefty version of Ann Coulter’s biting sarcasm. Sadly, after reading a few lefty blogs, I came to realize that there are lots of Dahlia Lithwicks in the world and they genuinely believe that these terrible things will happen if conservative ideas prevail in the courts. I’m not sure which this reveals more about: what these people really think of our justices or what they actually think the courts are supposed to do.

    sharon (dfeb10)

  4. Her statement is not without reason. She naturally assumes Scalia and Thomas would behave the way her favorite judges behave. Given that assumption, and also assuming Scalia and Thomas have the opinions she ascribes to them, she would be right.

    Amphipolis (fdbc48)

  5. What is the evidence that Scalia and Thomas “believe in democracy?” They certainly didn’t act that way when they prevented the recount in Florida. If you can point to a right for women, or an environmental protection, or a right for workers, or a right for the disabled that they support, then you might have a point about her being “poisonous.” But they don’t. Scalia and Thomas are partisan hacks, rubber stamps for the GOP, without a shred of compassion or justice in their hearts.

    Steve Smith (2f23e9)

  6. SS–Mwahhh, ha-ha! I bet they twist their finely waxed mustaches as they laugh evilly over the trussed up Paulina Pureheart as well. Holy crap, do you honestly believe what you wrote? You can’t…no one can be that dense.

    OTOH, when “one can say” damn near anything, you don’t have to be accurate. It is just as freeing as “allegedly”. Example: One can say that Dahlia has sexual congress with goats, dolphins and Henry Kissinger. And she, allegedly, writes for a living. Although, one can say, she does a poor job of it.

    MunDane (1b070b)

  7. She’s plagiarizing Teddy Kennedy:

    “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government.”

    Attila (Pillage Idiot) (68fd1f)

  8. Sharon: I think it’s plausible, though. *Federal* enforcement of environmental protection laws, womens’ rights, and the rights of the disabled (at least in the workplace) is largely due to the expansive modern reading of the commerce clause.

    Restoring the pre-depression understanding of that clause would go a long way to making such federal legislation impossible; and it’s fairly clear that Scalia and Alito want to restrict the use of that clause (although to what degree is unclear, as the court as a whole has been reluctant to make more than halting steps in that direction).

    So: would Scalia and Alito, given their druthers, interpret the constitution so as to make much modern federal legislation in the fields of environmental protection and the workplace rights of minorities impossible?

    It’s hard to say, but it’s not as implausible as you and Patterico are making it out to be.

    [Note that this doesn’t speak to their vision; it’s entirely possible that the Justices in question support such legislation as a policy matter, and simply believe that it should be reserved to the states. Which is why focusing on the policy vision of Justices is misguided. But that requires a subtly of understanding which is beyond most political commentators.]

    [But it’s certainly not beyond Dahlia Lithwick’s understanding, which is why I find her dishonest. — P]

    aphrael (e0cdc9)

  9. How dare you right-wingers try to use scare tactics and hyperbole to frighten the voters? Is that all you got left, bird-brains?

    [Hey, how come your beak moves exactly when mine does?]

    I’ve got a good mind to peck your eyes out, fascist scum! Take that!

    [Ouch, you’re parrying my every blow at light speed? What gives?]

    You twist the truth with no regard for anthing but your own egos and power. I hate you.

    [You know, you do look a lot like someone I know, but I can’t quite place it]

    There, I sure told you!

    Leftwing Budgie (a646fc)

  10. As long as judges tinker with the Constitution to ‘do what the people want,’ instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically. — Antonin Scalia, US Supreme Court Justice

    sharon (dfeb10)

  11. Apropos this article, see Josh Gerstein’s piece in today’s NY Sun….”ACLU Brings Scalia Out of the Judicial Cloister.” Link – http://www.nysun.com/article/41604
    Dahlia Lithwick should seriously consider the truth in Scalia’s argument that his approach to interpreting the Constitution is the surest way to protect liberal values in our society.

    RAZ (9f37aa)

  12. Sharon: that’s a good quote, to be sure. But there are points where there is a legitimate disagreement about what the document actually commands.

    Does the power to regulate commerce mean that Congress can only regulate goods passing across state lines? Or can it regulate the intrastate manufacture of goods which will then be distrubuted across state lines? Or can it regulate anything which might compete with goods which are distributed across state lines?

    A prima facie reasonable argument can be made for any of these. I think it’s unfair to assume that the proponent of any particular viewpoint among this set is supporting that viewpoint “to do what the people want” or out of political motives.

    aphrael (e0cdc9)

  13. Patterico said:

    “This woman is simply another poisonous partisan with a pen. Nothing more.”

    This is not accurate, she is sometimes quite funny.

    James B. Shearer (fc887e)

  14. Words change. Presuming one truly wanted to judge properly, would one interpret a word to mean what it meant at the time the constitution was written or what it means at present?

    Would it differ if the word were primarily subjective rather than objective? For example, might one use era-specific meanings for words such as “unreasonable searches and seizures” (cuz what was once considered reasonable might no longer be thought of as such) … but then use invariate meanings for other words such as “probable cause.”

    ras (a646fc)

  15. Aphrael,

    Welcome to judicial review. Justices get to determine what the Constitution says. Roosevelt forced the Supreme Court to have a liberal epiphany when he threatened to stack the court. Suddenly, they found all sorts of things in the 14th Amendment that hadn’t been there before.

    The one thing you didn’t address was the importance stare decisis plays in this. When the court could have overturned Miranda, as Renquist had bellyached about for 2 decades, it did not do so. Is it possible that many of the decisions, like Roe, that liberals depend on could be overturned and sent back to the states where they belong is something people like Dahlia should be hysterical about. I doubt much of the country feels that way, though.

    sharon (dfeb10)

  16. Sharon — I’m less concerned about Roe and its progeny than I am about things which are regulated under the commerce clause. I think undoing the post-depression understanding of the commerce clause would be nothing short of a revolution; and I think it’s a revolution the results of which most people would be unhappy with.

    But from the point of view of the Court, it’s not legitimate to take that concern into account; and so the question really is: at what point does overturning decisions you think were wrong in and of itself constitute a wrong?

    If you believe that precedent [x] constituted a judicial misinterpretation and a violent, court-imposed shift in the law; and if you believe it was wrong to do that … at what point does it also become wrong to change the judicial interpretation back, thereby creating another violent, court-imposed shift in the law?

    This is a question for which I don’t hear a coherent answer from anyone except Thomas, and I don’t like his answer.

    aphrael (e0cdc9)

  17. Scalia has a coherent answer.

    Patterico (de0616)

  18. Patterico: I thought he did, but his position in Raich confused the issue, and now I don’t understand what his answer is. 🙂

    Could you provide me with your understanding? 🙂

    aphrael (e0cdc9)

  19. Also, for what it’s worth, even as a layman I don’t have a coherent answer; ISTM that the best I can come up with is “it depends”, and that’s not very satisfying.

    aphrael (e0cdc9)

  20. This is rough and going from memory, but as I recall, it is that you generally respect precedent unless it sets out a rule so unpredictable that its application depends upon the whim of a majority of 9 lawyers. Precedent should also be easier to overturn on constitutional issues, since mistakes are not so easily fixed by Congress as are mistakes in statutory construction.

    Patterico (de0616)

  21. Roosevelt forced the Supreme Court to have a liberal epiphany when he threatened to stack the court. Suddenly, they found all sorts of things in the 14th Amendment that hadn’t been there before.

    Actually the pre-roosevelt court was finding things in the 14th amendment. Immediately post the court stacking they stopped.

    s it possible that many of the decisions, like Roe, that liberals depend on could be overturned and sent back to the states where they belong is something people like Dahlia should be hysterical about.

    If Roe gets overturned, it doesn’t “go back to the states.” Congress can ban marijuana. It can also regulate abortions

    actus (10527e)

  22. “Actually the pre-roosevelt court was finding things in the 14th amendment. Immediately post the court stacking they stopped.”

    God, while I hate to even answer an Actus post because it will end up 100 posts from now on an entirely unrelated matter because Actus can’t support his opinions, it’s hard to read the bizarre interpretations of the interstate commerce clause that we have after 1937 as anything other than a twisting of the Constitution.

    “If Roe gets overturned, it doesn’t “go back to the states.” Congress can ban marijuana. It can also regulate abortions”

    Duh. But if Roe were overturned, then the laws in the 50 states would regulate how abortions are regulated.

    Now feel free to bring up gay marriage or another of your pet projects.

    sharon (dfeb10)

  23. Sharon, I think you are mixing up two issues. The Commerce Clause is part of the original Constitution, not the 14th Amendment. Pre-FDR, the Supreme Court had a line of 14th Amendment cases, culminating in Lochner v. New York, which basically invented a Fourteenth Amendment “right” to free enterprise. It was every bit as activist as Roe and its progeny, just in a different direction. Sometimes I wish our “conservative” court would threaten to revive Lochner, just to teach liberals the importance of judicial restraint.

    As to the commerce clause, I agree post-FDR jurisprudence is indefensible, but pre-FDR commerce clause jurisprudence was a bit screwy as well, holding that such fundamentally commercial activities as insurance and major league baseball aren’t “commerce.”

    Xrlq (f52b4f)

  24. Sharon’s got you on this one, actus. The Supremacy Clause of the Constitution states that in the event that state laws conflict with federal laws, the federal laws in question will take precedent.

    If ROE Vs. WADE is overturned, states will be able to pass laws regarding abortion (for or against) without conflicting with the federal government.

    Leviticus (3c2c59)

  25. Leviticus: ok, but imagine this scenario:

    1) Roe is overturned
    2) Congress passes a law prohibiting abortion nationwide under its commerce clause powers.

    States may have the power to pass or not pass abortion prohibitions, just as they have the power to pass or not pass prohibition on the possession and sale of marijuana; but the federal government has also been deemed to have the power of prohibition.

    What’s the recourse the states have in this scenario?

    aphrael (e0cdc9)

  26. XRLQ: is there any good use of substantive due process?

    aphrael (e0cdc9)

  27. aphrael,

    I think that the scenario you propose is going to seem very unlikely in about 15 days.

    However, in the event that such legislation was passed, I would think that the states would have no recourse but to bring their issues to the steps of the Supreme Court for reevaluation of the legislation.

    Leviticus (43095b)

  28. Leviticus: since the Supreme Court has already said that such abuse of the commerce clause is legitimate, the states have no recourse at all, save constitutional amendment. 🙂

    Which is arguably how such things should be handled in the first place …

    aphrael (e0cdc9)

  29. “Sharon, I think you are mixing up two issues.”

    Eep, you are correct, Xrlq. I did mix up the 2. Mea culpa. But the bizarre interpretation of the commerce clause during FDR’s administration is every bit as indefensible as the “legal reasoning” (and yes, those quotation marks are intentional) in Roe.

    Aphrael: I have no problem with a Constitutional amendment for Roe. I’d like to see pro-choicers have to make that argument.

    sharon (dfeb10)

  30. XRLQ: is there any good use of substantive due process?

    As a practical matter, probably not. The only good uses I can think of are for laws that are actually intended to be an end run around procedural due process, e.g., a de facto fine or imprisonment dressed up as something else.

    Xrlq (f52b4f)

  31. XRLQ: is there any good use of substantive due process?

    It lets your family live in certain ways. Like you can live with your two grandkids who are cousins. Moore v. East Cleveland, 431 US 494 (1977).

    It also allows you some rights to direct the upbringing and education of your children, as well as who visits them.

    All from my commercial con law outline. I wouldn’t be surprised if there was more.

    I think these are good things.

    But the bizarre interpretation of the commerce clause during FDR’s administration is every bit as indefensible as the “legal reasoning” (and yes, those quotation marks are intentional) in Roe.

    Thats surprising. Which commerce clause opinions are you thinking of?

    actus (10527e)

  32. Actus, I think it depends on what you mean by “good.” If you mean “good, solidly reasoned court decisions,” I have little use for substantive due process. If you mean “shitty court decisions that produce good political results,” then substantive due process is a wonderful idea. If all we care about is results, then I agree that Moore v. East Cleveland was correctly decided, as were Lawrence v. Texas, Lochner itself, and too many other cases to count.

    Thats surprising. Which commerce clause opinions are you thinking of?

    I’m pretty sure she means Wickard v. Filburn and its progeny.

    Xrlq (f52b4f)

  33. So cry me a river me lithwick sounds like more of the idiotic liberal whinning about absolutly nothing i mean its like what the enviroementalists wackos did when the repubicans tok over in 1994 they whinned that the ESA would be gone and so would all those critters

    krazy kagu (520f84)

  34. “I’m pretty sure she means Wickard v. Filburn and its progeny.”

    Absolutely.

    sharon (dfeb10)

  35. If you mean “good, solidly reasoned court decisions,” I have little use for substantive due process. If you mean “shitty court decisions that produce good political results,” then substantive due process is a wonderful idea.

    He said ‘good use.’ I think these are good uses. Good reasoning? I don’t know. But certainly good uses. Political? I don’t know many people that think it a political question whether a grandmother can live with her two grandchildren of different paretns.

    Absolutely.

    I just don’t see the likeness with Roe and such. Wickard’s tied pretty explicitly to the text. It’s a matter of how you see the regulation of commerce. What you understand commerce to be. Roe doesn’t have that connection to the text.

    actus (10527e)


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