Patterico's Pontifications


Someone Explain to David Savage the Difference Between a Plurality and a Majority

Filed under: Court Decisions,Dog Trainer,General,Law — Patterico @ 1:17 pm

David Savage’s L.A. Times article on the forced integration decision says:

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Chief Justice John G. Roberts Jr. wrote in the majority opinion. Public schools must “stop assigning students on a racial basis,” he said.

Actually, that language is from Part IV of the opinion, which Justice Kennedy did not join. So it’s (unfortunately) not accurate to say it’s language from “the majority opinion.” It’s from a portion of the opinion that enjoys only a plurality, and does not have the same precedential effect. Similarly, the paper runs a separate AP piece that purports to quote passages from the “majority opinion” — and proceeds to quote passages from sections commanding only a plurality of votes.

I’m not going to make my usual sweeping indictment of the paper here; this is an easy point to miss. But it’s an important one, because it goes to the exact significance of the language in the decision. What I find interesting is that the editorial on the case picked up on the subtleties missed by the legal affairs reporter:

Thursday’s decision could have been worse. By refusing to sign the most objectionable sections of Roberts’ opinion, Justice Anthony M. Kennedy prevented a majority of the court from endorsing the simplistic notion that using race to bring children together is just as unconstitutional as using race to keep them apart. Kennedy also made it clear that schools could promote racial integration indirectly, such as by deciding where to locate new schools. Finally, even Roberts’ opinion doesn’t rule out the use of race in remedying the effects of past intentional segregation, which officials in some districts — including L.A. Unified — see as the rationale for programs that take race into account in pupil assignment.

Maybe the person who wrote that editorial should be assigned to cover the Supreme Court. Sure, the writer is biased, but no less so than Savage. And he or she does a better job than Savage did in explaining the meaning of the opinion.

P.S. I’ll be writing the Readers’ Rep about this — for accuracy’s sake.

P.P.S. Upon further reflection, even the term “plurality” doesn’t seem accurate for a portion of the opinion that garnered four votes, when there is a dissent that also commanded four votes. Better simply to note that there were portions of Roberts’s opinion that didn’t command a majority, and whose precedential value is thus highly questionable.

P.P.P.S. Then again, the sections of Roberts’s opinion not joined by Kennedy are described by the other Justices as the “plurality opinion.” This is because it’s traditional to use that term to refer to an opinion signed by four Justices, when the fifth, deciding vote is cast by a Justice who concurs in the judgment only. I suppose I’ll continue to use that term to describe those sections of Roberts’s opinion, since the Justices do — even though it seems slightly odd in the particular circumstances of this case.

Although the use of the term “plurality” is potentially debatable, the use of the term “majority” is clearly wrong.

Stashiu on Closing Guantánamo’s Camp Delta

Filed under: General — Patterico @ 12:28 pm

Our old friend Stashiu gives his opinion on the possible closing of Camp Delta at GTMO, in a new Patterico Hot Air post. His view might surprise you.

The Difference Between Legal and Illegal Immigrants Is Simpler Than the L.A. Times’s Rosa Brooks Realizes

Filed under: Dog Trainer,General,Immigration — Patterico @ 11:27 am

Rosa Brooks of the L.A. Times doesn’t bother to distinguish between legal and illegal immigrants — except in one respect . . . to praise the courage of illegal immigrants. I have a post pointing out the difference at Hot Air. In it, I describe a naturalization ceremony I once attended. It’s my view that you’ll never fully appreciate the significance of people becoming citizens until you watch it happen.

From my post:

Plenty of Americans don’t fit Brooks’s dismissive description of Americans as “fat, decadent and getting dumber all the time.” Brooks might have to walk outside the confines of the Los Angeles Times building to find them — but they’re out there.

My motto: never pass on the chance to take a cheap shot at the L.A. Times.

Erwin Chemerinsky Pens Dishonest Screed Against Justices Roberts and Alito

Filed under: General — Patterico @ 11:15 am

The sun rose again today. The sky is still blue. Politicians are still weasels. And Erwin Chemerinsky is still being dishonest on the pages of the Los Angeles Times:

THE SUPREME COURT term that ended Thursday confirmed exactly what many people had feared: that the testimony given by John Roberts and Samuel Alito at their confirmation hearings just months earlier was a lot of baloney.

During those hearings, the two presented themselves as open-minded jurists lacking an ideological agenda. Roberts likened a Supreme Court justice to an umpire, a neutral arbiter whose personal political views are irrelevant to decisions. Both Roberts and Alito promised fidelity to the court’s precedents.

But instead, Chief Justice Roberts and Justice Alito have behaved exactly as their opponents predicted. There was not one case this term in which the court was not ideologically divided, and not one in which Roberts and Alito did not vote for the result that their conservative backers would have wanted. In virtually all of these cases, they were joined by justices Antonin Scalia, Anthony Kennedy and Clarence Thomas.

Chemerinsky is saying that Alito and Roberts dissembled, even lied, in their confirmation hearings. This would be a serious accusation — if it came from a serious person. But Chemerinsky is not a serious person.

Hey, Erwin! What you apparently fail to realize is that not everyone is an ideological hack like you. The conservative justices have a principled view of what the Constitution means, and they have voted according to those principles. They follow principles of judicial conservatism, not political conservatism — and they never promised anything different.

The disconnect between Erwin’s Reality and Actual Reality is at its starkest when he claims:

At their confirmation hearings, both Roberts and Alito presented themselves as compassionate, insisting that they would not ignore the needs and rights of the powerless.

Chemerinsky proceeds to tick off cases where he complains that the powerless lost. Chemerinsky offers no legal argument that any of the cases was wrongly decided. His complaint is simply that the powerless lost. By submitting these arguments as “proof” of the Justices’ alleged dissembling, Erwin implies that Justice Roberts and Justice Alito promised to uphold the “needs and rights of the powerless” in any given case, regardless of the law.

This is arrant nonsense, as Erwin well knows. What Justices Roberts and Alito promised was to uphold the law, regardless of whether the law went for or against the powerless. Don’t believe me? That’s why we have transcripts. From Roberts’s confirmation hearings:

ROBERTS: I had someone ask me in this process — I don’t remember who it was, but somebody asked me, you know, “Are you going to be on the side of the little guy?”

And you obviously want to give an immediate answer, but, as you reflect on it, if the Constitution says that the little guy should win, the little guy’s going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy’s going to win, because my obligation is to the Constitution. That’s the oath.

The oath that a judge takes is not that, “I’ll look out for particular interests, I’ll be on the side of particular interests.” The oath is to uphold the Constitution and laws of the United States. And that’s what I would do.

That’s pretty clear, isn’t it, Erwin? And Justice Alito said much the same thing:

ALITO: Every person has equal rights under the law in this country, and that involves includes people have no money, that includes people who do not hold any higher or prestigious position, it includes people who are citizens and people who are not citizens.

Everybody is entitled to be treated equally under the law. And I think that’s one of the greatest things about our country and about our legal system.

That’s not a promise to uphold the needs of the powerless. It’s a promise to treat them equally under the law.

Moreover, Roberts’s and Alito’s promise to show appropriate respect for precedent does not mean that they promised to uphold every previous decision, regardless of its fidelity to the Constitution. Chemerinsky cites changes to precedents on partial-birth abortion, campaign finance reform, and forced integration — but each of these changes brought the Court in line with the Constitution and the precedents that have properly applied it.

Chemerinsky’s piece establishes one thing, and one thing only: that it’s impossible for a hack like him to understand people who are motivated by principles unrelated to political ideology.


My Application for the Position of Associate Justice of the United States Supreme Court Is on File

Filed under: Constitutional Law,Court Decisions,General,Judiciary,Law,Race — Patterico @ 8:21 pm

There’s a reason for that smug smile I have on my face. I just read the Supreme Court’s decision in the forced integration cases, and I’m feeling like Carnac once again. Earlier this week, I told you:

The smart money says that it will be 5-4 rejecting the race-based assignment plans, with Chief Justice Roberts writing for the majority. Anything else will come as a shock. The interesting thing will be to see how the majority characterizes the holding of Brown v. Board of Education.

In my post from December 2006, written the day of the oral arguments in this case, I described my view of these cases — and of the proper way of viewing the holding in Brown — as follows:

[N]obody is saying that government may once again institute forced segregation of schools as a matter of state policy. The issue is whether government may institute forced integration of schools as a matter of state policy. If not done to remedy a specific and demonstrated past history of discrimination, this would arguably violate the very idea behind Brown: that the state may not assign pupils to different schools on the basis of race, even if the schools are arguably similar in quality.

Now let’s read from Chief Justice Roberts’s opinion, paying special attention to the parts I have bolded (and comparing them to the bolded quote immediately above):

As counsel who appeared before this Court for the plaintiffs in Brown put it: “We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” Tr. of Oral Arg. in Brown I, p.7 (Robert L. Carter, Dec. 9, 1952). There is no ambiguity in that statement. And it was that position that prevailed in this Court, which emphasized in its remedial opinion that what was “[a]t stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis,” and what was required was “determining admission to the public schools on a nonracial basis.” Brown II, supra, at 300–301 (emphasis added). What do the racial classifications do in these cases, if not determine admission to a public school on a racial basis?

Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again — even for very different reasons. For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way “to achieve a system of determining admission to the public schools on a nonracial basis,” Brown II, 349 U.S., at 300–301, is to stop assigning students on a racial basis. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

That sounds a lot like saying: “If not done to remedy a specific and demonstrated past history of discrimination, [forced integration] would arguably violate the very idea behind Brown: that the state may not assign pupils to different schools on the basis of race, even if the schools are arguably similar in quality.”

So, as I say in the post title, I’m available if a Supreme Court spot opens up. Only problem is, that’s unlikely to happen any time soon. Do you think Hillary will consider appointing me?

P.S. If you’re interested in this issue, I insist that you watch this fascinating Nightline segment with Jan Crawford Greenburg, which is supplemented by this article by her and Howard Rosenberg.

P.P.S. I should make clear that the quoted language is from a portion of the opinion that is only a plurality. The commendable principles articulated above do not enjoy the support of the eternally squishy Anthony Kennedy.

The Incrementalism of the Roberts Court

Filed under: Court Decisions,General,Judiciary — Patterico @ 5:30 pm

It’s Greenburg vs. Greenhouse.

God Himself Appears in Human Form

Filed under: Crime,General,Media Bias,Morons — Patterico @ 5:59 am

You non-religious types must be feeling pretty stupid right about now. Because if you believe this AFP article, it appears that God Himself has reappeared in the world in human form — and it turns out that He is a statistics professor at Northwestern University.

US juries get verdict wrong in one of six cases: study

So much for US justice: juries get the verdict wrong in one out of six criminal cases and judges don’t do much better, a new study has found.

And when they make those mistakes, both judges and juries are far more likely to send an innocent person to jail than to let a guilty person go free, according to an upcoming study out of Northwestern University.

“Those are really shocking numbers,” said Jack Heinz, a law professor at Northwestern who reviewed the research of his colleague Bruce Spencer, a professor in the statistics department.

The shocking part to me is why we rely on the criminal justice system to settle factual disputes to begin with, when all the answers are already known by Northwestern statistics professor Bruce Spencer.

Also known as “God Himself.”

Think of the waste involved. In any given trial, at least 12 people (and usually two alternates) listen to evidence for days, and spend hours (often days) deliberating over a verdict. When they could have simply asked someone who knows the answer, with total, scientific certainty: Northwestern statistics professor Bruce Spencer.

Let’s review his “shocking” findings, as related by this completely unquestioning AFP article:

The study, which looked at 290 non-capital criminal cases in four major cities from 2000 to 2001, is the first to examine the accuracy of modern juries and judges in the United States.

It found that judges were mistaken in their verdicts in 12 percent of the cases while juries were wrong 17 percent of the time.

More troubling was that juries sent 25 percent of innocent people to jail while the innocent had a 37 percent chance of being wrongfully convicted by a judge.

And just how does some statistics professor sitting in his office know whether the people in these cases were truly guilty or innocent?

Spencer’s study does not examine why the mistakes were made or which cases ought to be overturned.

Instead, he determined the probability that a mistake was made by looking at how often judges disagreed with the jury’s verdict.

“If they disagree they can’t both be right,” he explained.

Spencer found an agreement rate of just 77 percent, which means a lot of mistakes were being made.

Oooookayyyy . . . I understand that if a judge disagrees with the jury’s verdict, the judge and jury can’t both be right. But just how, exactly, does this professor determine who was right, in order to come up with the “shocking” statistics mentioned above?

The unquestioning functionary who wrote this story seems to have no interest in exploring that question, or showing any of that vaunted journalistic skepticism we hear so much about. The conclusion fits the journalist’s preferred storyline. File it under “Too Good to Check.”

Don’t try to tell me that maybe the professor had some objective criteria to go on — like in each of the cases there were DNA results to show who did it. Even if that’s true, it merely shows that the sample is not reflective of criminal trials as a whole.

I haven’t seen the study itself, but I’m calling bullshit. There is, quite simply, no way that some statistics professor sitting in his office can know the true guilt or innocence of 290 criminal defendants. That’s why we have a system, pal — because there is no way for any one self-appointed individual to be the Sole Arbiter of who’s guilty and who’s not.

Unless, of course, Bruce Spencer really is God Himself, returned to Earth in human form. But if that’s really the case, then the End of the World is nigh — meaning we have a lot more to worry about than the accuracy of our criminal justice system.


Judge Richard Posner Gets With The Program

Filed under: Civil Liberties,Public Policy,Terrorism,War — Justin Levine @ 10:11 am

[posted by Justin Levine]

Why is it that the legally minded are always ‘stunned‘ when they hear common sense articulated?

— Justin Levine

Use of Racial Classifications to Assign Students to Schools Struck Down 5-4

Filed under: Court Decisions,General,Law — Patterico @ 6:28 am

SCOTUSblog reports. Chief Justice Roberts announced the decision, meaning he apparently wrote it, as expected. Justice Kennedy concurred.

Stay tuned to How Appealing for the latest, including links to this and other announced opinions.

Is Amnesty a Done Deal or Not? (UPDATE: Not.)

Filed under: General,Immigration — Patterico @ 5:25 am

This article says maybe not:

The Senate immigration bill lost supporters yesterday and hangs on by a thread heading into this morning’s showdown vote, after lawmakers voted down amendments making illegal aliens show roots to get legal status and cutting off their path to citizenship.

This morning’s vote is on a parliamentary question about limiting debate, but it boils down to a vote to block the bill.

Just two days ago, 64 senators voted to revive the bill, with many saying they wanted to give the Senate a chance to improve the bill through amendments. But after a messy day in the chamber yesterday, with dozens of objections, arguments on the floor and five amendments defeated, at least a half-dozen senators said publicly or privately that their patience has run out.

I guess we’ll know more later today. The next cloture vote takes place in a little over an hour.

UPDATE: The cloture vote came up 14 short — a huge defeat for backers of the bill.

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