Patterico's Pontifications

11/6/2013

Emily Bazelon and Dahlia Lithwick Completely Misstate Holding of Controversial ObamaCare Opinion

Filed under: General — Patterico @ 6:31 am



UPDATE: Ed Whelan posted about this three days before Olson did, and appears to have been the one who triggered the non-correction correction. Ed’s post opened:

Wow. Is it too much to ask that those condemning a decision actually read it enough to have a basic understanding of it?

Indeed. Apparently it is.

Apologies to Ed for failing to give him credit for being (as far as I can tell) the first analyst to bust Bazelon and Lithwick on their misstatements. Here is the original post:

The redoubtable Walter Olson of Overlawyered hits it out of the park with this excellent post at PowerLine. In the post, Walter demonstrates that Emily Bazelon and Dahlia Lithwick of Slate flatly misstated the holding of a controversial ObamaCare opinion by Janice Rogers Brown. Olson’s post opens with this paragraph:

What happens when the legal analysts at Slate get things flatly wrong, in the service of generating a desired ideological frisson for their liberal-minded readers? Does anyone act embarrassed or make humble noises about not letting it happen again? These questions arise following a November 1 column in which Emily Bazelon and Dahlia Lithwick baldly, flagrantly misstate the holding of a new opinion by Judge Janice Rogers Brown deeming the Obamacare contraceptive mandate in present form to violate the Religious Freedom Restoration Act (RFRA). (RFRA, enacted in 1993, requires government to take certain steps to avoid, when it can readily do so, substantially burdening religious observance.)

Brown’s opinion (.pdf) ruled that the contraceptive mandate in ObamaCare violated the free-exercise rights of the owners of a company. Because the owners have a religious opposition to contraception, Brown wrote, the mandate infringed on their right to exercise their religion by requiring them to do an act — paying for contraception — that violated their deeply held religious beliefs.

In addition, the plaintiffs argued that the company itself was entitled to argue that its rights were violated. If a corporation’s free speech rights under the First Amendment are protected, the argument went, the corporation should also be able to assert free-exercise rights under that very same First Amendment. Not a crazy argument, right?

But Brown’s opinion rejected that argument, allowing only the individuals in the company — and not the company itself, to assert free exercise rights. Brown said that the Free Exercise Clause can extend to religious organizations and entities, such as churches. But, Brown wrote, the company in question was not a religious organization. And so, while it is not impossible that the Supreme Court could one day grant free-exercise rights to a non-religious corporation, Brown wrote that the precedent for doing so was too thin:

While we decline the Freshway companies’ invitation to accept Townley’s ipse dixit that closely held corporations can vindicate the rights of their owners, we understand the impulse. The free exercise protection—a core bulwark of freedom—should not be expunged by a label. But for now, we have no basis for concluding a secular organization can exercise religion.

I gleaned the above by reading the opinion. Evidently, Bazelon and Lithwick did not read the opinion — or, if they did, they either didn’t understand it or consciously chose to lie to their readers about its holding. It’s worth quoting Bazelon and Lithwick at length to see just how brazen their misstatement is:

On Friday, morning, it was the turn of another extremely conservative woman chosen for the bench by Bush, Janice Rogers Brown of the U.S. Court of Appeals for the District of Columbia Circuit. Brown handed down a similarly dramatic decision holding that the provision in the Affordable Care Act that requires companies to provide health care coverage that includes contraception “trammels” the religious freedom of an Ohio-based food service company, Freshway Foods, through its two owners, who claimed that the mandate violated its Catholic faith. This is a company we are talking about, not its owners. But following headlong in the wake of the Supreme Court’s wrongheaded finding in Citizens United that corporations are people, too, Brown found that the mandate violates the company’s strongly held religious convictions. To make the company provide a health care plan—from an outside insurer—that offers contraceptive coverage is a “compel[led] affirmation of a repugnant belief,” Brown wrote. The argument that a for-profit secular company has a religious conscience—separate and apart from the religious beliefs of its owners—is a notion that vaults the concept of personhood from the silly (“corporations are people, my friend”) to the sublime (also they pray).

It’s also a notion that Brown rejected as a legal matter. You see that quote above from the opinion? Here again is the part I bolded: “we have no basis for concluding a secular organization can exercise religion.” That is the exact opposite of Bazelon and Lithwick’s claim: that Brown argued that secular companies “pray.” Here is more from the Brown opinion, showing that Brown was not saying that secular corporations pray:

Perhaps Appellants’ constitutional arithmetic, Citizens United plus the Free Exercise Clause equals a corporate free-exercise right, will ultimately prevail. But we must be mindful that Citizens United represents the culmination of decades of Supreme Court jurisprudence recognizing that all corporations speak. See Conestoga Wood, 724 F.3d at 384. When it comes to the free exercise of religion, however, the Court has only indicated that people and churches worship. As for secular corporations, the Court has been all but silent.

As you can see, far from “following headlong in the wake of” Citizens United, Brown drew and explicit and quite clear distinction between corporations’ ability to exercise free speech rights and their ability to claim free-exercise rights.

Bazelon and Lithwick could have written that Brown had rejected free-exercise rights for the company, but conferred them upon the company’s owners. They could have argued that this was a distinction without a difference. They could have said that allowing a company’s owners to raise constitutional objections to a mandate directed at a company in effect confers free-exercise rights on the company. In my view, that would be a losing argument, but at least it would not be a dishonest one.

But that is not what they argued. Instead, they told readers “[t]his a company we are talking about, not its owners”; and said Brown had “follow[ed] headlong in the wake of the Supreme Court’s wrongheaded finding in Citizens United”; and indicated that Brown had ruled that a for-profit secular company is a person that prays — when Brown had said the exact opposite.

In short, they blatantly misstated the contents of the opinion to their readers. As Olson notes, it is as if they had their laugh lines written in advance, and they were going to be damned if they were going to let a little thing like the holding of the opinion cause them to rewrite their snark. And anyway: isn’t it easier to make fun of the ruling when you can conjure up the image of a corporation getting on its knees in church? If the judge rules the corporation isn’t a person for purposes of the Free Exercise Clause, there goes that cheap way to attack the opinion. Then you have to make a subtle argument equating owners’ rights with that of the corporation, and subtle arguments iz hard.

So: what did Slate do when they got caught? Slate vaguely admitted a misstatement (good) — but hid the magnitude of the error (bad), and pretended that the argument made in the column was “effectively” correct (awful). Here is the “correction” now appended to the end of Bazelon and Lithwick’s column:

Correction, Nov. 3, 2013: This article originally said the contraception mandate is losing 2–1 in the federal appeals courts. In fact it is tied 2–2. (Return.) It also misstated that the D.C. Circuit ruled that the contraception mandate in Obamacare “trammels” the religious freedom of the company Freshway Foods, and conferred personhood on the company. The court found that the contraception mandate violates the Religious Freedom Restoration Act because Freshway Foods is a closely held company, so the mandate violates the rights of its owners. The ruling effectively confers personhood on the company rather than directly doing so.

See? Brown’s opinion, we are told, “effectively” did that which it absolutely did not do. And the “correction” still does not tell readers that Brown rejected the notion of personhood for the company for purposes of the Free Exercise Clause. Readers will have to go to Olson at PowerLine, or (horrors!) the language of the opinion itself, for that.

It is hard to put into words how shoddy this piece was, and how dishonest the “correction” is. This is an utterly embarrassing travesty for Slate, Bazelon, and Lithwick, and they should be reluctant to show their faces in legal blawgland for some time to come. Kudos to Olson and PowerLine for giving them the whacking that they so richly deserved.

9/9/2008

Beldar Takes on Dahlia Lithwick and Gives His Own Advice to Joe Biden

Filed under: 2008 Election — Patterico @ 12:28 am



Beldar tells Joe Biden not to lick his own genitals. Or something like that.

It’s actually pretty good advice, the advice he gives. I hope Biden doesn’t take it.

3/19/2008

Lithwick on the Heller Argument

Filed under: Civil Liberties,Constitutional Law,General — Patterico @ 8:02 pm



Dahlia Lithwick on the Heller argument:

That’s five votes to create a fundamental right to bear arms, only eight minutes into the argument.

Excuse me? How do you “create” something that’s already in the Constitution?

Today we have four liberals rediscovering the beauty of local government and judicial restraint and five conservatives poised to identify a fundamental personal right that will have judges mucking about in gun cases for years to come. After all these years of deep conservative suspicion of turning over policy matters to the courts, the Roberts Court has fallen in love with a new constitutional right.

Excuse me? What is “new” about a right that has been in the Constitution since 1791?

If you can get past this type of Orwelllian bullshit, the piece is a fairly entertaining rundown of the argument — capturing most of the important nuances, all with Dahlia’s inimitable snarky, disingenuous style.

2/10/2008

Rutten and Lithwick Lie, Providing Propaganda for Terrorists

Filed under: Dog Trainer,General,Media Bias,Terrorism — Patterico @ 3:51 pm



Add Dahlia Lithwick to the list of people lying about Dick Cheney’s CPAC speech. Compare:

Lithwick:

How can anything shock the conscience after the vice president, in a parody of himself, crowed this week that “it’s a good thing” top al-Qaida leaders underwent torture in 2002 and 2003—”a good thing we had them in custody” and “a good thing we found out what they knew.”

Cheney:

[Khalid Sheikh Mohammed] and others were questioned at a time when another attack on this country was believed to be imminent. It’s a good thing we had them in custody, and it’s a good thing we found out what they knew. . . . We do not torture — it’s against our laws and against our values.

Tim Rutten has company in his lying. And yes, I’ll say it again: it’s a lie. There’s a difference between saying “Cheney defended actions that have always been considered torture” and “Cheney said torture is a good thing” or “Cheney said he is glad we have tortured people.” By claiming the latter, Lithwick and Rutten are torturing the English language far worse than the CIA ever tortured Khalid Sheikh Mohammed.

As Beldar said:

[S]ome substantial number of Rutten’s readers aren’t “clever” enough to guess that Rutten feels licensed, in an op-ed, to put words into a political foe’s mouth that are quite literally the opposite of the words the foe actually used. Rutten knew, or certainly should have known, that some readers would take him literally. The LAT’s editors knew, or certainly should have known, that some readers would take him literally.

The same observation applies equally to Lithwick and her editors.

What I find especially ironic is that liberals like Rutten and Lithwick always argue that our enemies are emboldened by the actions of our government. Yet they never seem to understand that our enemies are also emboldened by exaggerated and dishonest criticism of our government.

Dahlia. Tim. Do you have any doubt that your dishonest smears of Cheney will be repeated on terrorist message boards? Do you doubt that extremists will point to your words as proof that the Vice President of the United States has explicitly condoned torture by name?

After all, it must be true. The people who said it are Americans.

Are you proud of yourselves?

The thing is, I bet you are. I just bet you are.

1/31/2008

A Test of Dahlia Lithwick’s Honesty

Filed under: General — Patterico @ 6:54 am



Dahlia Lithwick recently published a blog post that reprinted an e-mail from a famous legal figure. That figure has retracted an important part of his e-mail. How she chooses to notify readers about that retraction will be a test of her honesty and integrity.

In a recent Slate blog post, Lithwick published a letter from Walter Dellinger arguing that the Linda Greenhouse conflict of interest was no big deal, because hey, everyone has views, and Greenhouse (he claims) does an amazing job of setting those views aside and getting her facts right. Dellinger ended his letter with a passage that I had read as accusing Ed Whelan of intellectual dishonesty:

So the critics must actually know better. Which is why Emily and Dahlia are so right that it is very wrong to dignify these attacks as if they were honest complaints that deserved an answer.

Dellinger since wrote Whelan and retracted that passage, admitting that 1) he had never read Whelan’s criticisms; 2) he did not mean to call Whelan dishonest; and 3) more people than not agree that Greenhouse’s conflict is substantial. Here are some key passages from Dellinger’s retraction:

Dear Ed — In a posting last week on Slate, I included a sentence that could easily be read to call in question your “honesty.” I had no such intention and I write to you now to recall that defective passage. The issue involves criticism of Linda Greenhouse for “bias” and the New York Times’ (in my view) tepid defense of her work. I concluded that the Times was “wrong to dignify these attacks as if they were honest complaints that deserved an answer.” I regret that last hastily written sentence. Since you have been a central figure in this debate, readers would naturally assume I was referring to you. In fact, I had not even read what you had written on this subject. . . . While I disagree with your position on the relevance of a spouse’s role, your position, I believe, has far more adherents than mine.

(My emphasis.)

Ed says: “I thank Walter for his retraction, and I trust that Dahlia Lithwick, who posted Walter’s original observations, will call his retraction to the attention of Slate’s readers.”

Ed’s trust is touching, but may prove misplaced. I have perused the blog where Dahlia’s entry quoted Dellinger. There is no notification of Dellinger’s retraction yet. Will there be? I don’t know. I think it’s 50/50 — and if one appears, I suspect it will be in the form of an update to the old post, and not as a new post that people might actually read. Even if it’s a new post, it’s overwhelmingly likely that the post will contain snarling sarcasm that undercuts the force of the retraction.

I could be wrong. Dahlia does have flashes of intellectual honesty amongst her usual routine of slanting the facts to support her liberal position. I’ll be watching closely to see how she handles this. It will say a lot about her character.

UPDATE: I e-mailed Dahlia, and she said she hadn’t seen it. She says she’ll post something in the morning. I really hope the post surpasses my admittedly low expectations.

11/28/2006

Dahlia Lithwick Is Exactly Right

Filed under: General,Law — Patterico @ 8:29 pm



You’re not going to see that title here often. But I completely agree with Lithwick’s argument that the Supreme Court should release same-day audio of the oral argument in every case it hears — not just in selected cases involving divisive, hot-button social issues.

10/25/2006

Lithwick: How Dare Scalia Call Legal Reporting Bad, Just Because Mine Is

Filed under: General — Patterico @ 12:05 am



Dahlia Lithwick is upset at Antonin Scalia and company for pointing out that legal reporting is often inaccurate. Whines Lithwick:

[I]f anything, the Supreme Court press corps is hypercautious in its attention to legal detail at the expense of sensationalism . . . [T]he claim that we are too careless to read opinions and too sloppy to report cases is gratuitous and wrong; it describes neither the reality of legal reporting nor the general legal readership.

Sorry, Ms. Lithwick, but that describes you to a “T.” To see why, browse through what I have said about you on this very blog.

Lithwick says:

And if they have specific suggestions for how legal journalists can do a better job, most of us are eager to hear them.

One word, Ms. Lithwick: honesty.

Give it a shot. For once.

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.

9/14/2006

Lithwick Tortures the Definition of Torture

Filed under: General — Patterico @ 12:19 am



Dahlia Lithwick has a highly dishonest piece about torture in the current edition of Slate. She rejects President Bush’s proposal that torture be defined as treatment that “shocks the conscience.” Lithwick appears instead to support the Geneva Convention protections against torture, which go further, and also bar “outrages upon personal dignity, in particular, humiliating and degrading treatment.”

It would shock my conscience to write a piece as dishonest as Lithwick’s — and perhaps my commenter JVW had something like that in mind when he opined: “I think a workable definition of torture is having to endure Dahlia Lithwick’s blatherings in Slate.” I think that the targets of her dishonest attacks would agree, as they have certainly suffered outrages on their personal dignity due to her torturing of the definition of “torture.”

(more…)

10/21/2005

I Usually Have Little Use for Lithwick…

Filed under: Humor,Judiciary — Angry Clam @ 9:59 pm



[Posted by The Angry Clam]

…but her suggestions for a questionnaire that Miers is able to answer is hilarious.

1. Who is the bestest, smartest, coolest president ever?

2. Please provide the names, addresses, and telephone numbers of everyone with whom you have never discussed Roe v. Wade.

3. True or False: Barbara and Jenna totally don’t appreciate how cool their mom and dad are.

4. Is it correct for a comma to appear before a coordinating conjunction linking the parts of a compound predicate?

5. You have named Chief Justice Warren Burger as one of your favorite Supreme Court justices. Is it his devastating intellect, his soaring writing style, or his evenhanded administration of the court that you most admire? Where do Charles Whittaker and James McReynolds rank among your Top 10 Justices?

6. When you wrote “Dates Not Available” next to most of the events at which you gave speeches throughout your career, did you mean that you were unable to recall the dates of the events, or that Justice Nathan Hecht was stepping out with Priscilla Owen that night?

7. Best bowling score ever?

8. If Jesus and President Bush got into a fight, who would win?

9. Please name any state Bar Associations from which you have yet to be suspended.

Ouch. It hurts because it’s true.

— The Angry Clam

UPDATE FROM PATTERICO: Sorry . . . Ms. Lithwick still gets under my skin. But she has a great point about Burger. I’m still just appalled by that answer of Miers’s. Even as an administrator, Burger was God-awful. I dare any Miers defender to claim otherwise. Read The Brethren to see what I mean.

Anyone who admires Warren Burger for any aspect of his tenure on the Supreme Court is utterly clueless about the Supreme Court — period.

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