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.

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