Sadly, Linda Greenhouse is leaving the NYT. I hope she enjoys her retirement, and I hope the NYT manages to get another legal reporter who’s as good as Greenhouse. And, dare I say it, another high-profile woman on staff.
Go Carl Malamud, freeing the law! The same Carl Malamud that pushed SEC’s EDGAR database to be open has now published 1.8 million United States court opinions. The project was announced in November, and just three months later, it’s online.
Speaking of penumbra yet again (1, 2) , I had previously blogged about a Circuit split on laws banning sex toys — it was Valentine’s Day, and I was feeling a bit whimsical, so I wished for a “penumbra” that would strike down stupid laws.
LawPundit “ha[s] an opinion” on my wish for a penumbra that covers “no stupid laws”; I thought it was pretty amusing & worth checking out.
LawPundit also annotated my use of the word “penumbra” with a link to google:define:penumbra. Unfortunately, I don’t think that quite captures the legal nuance. Legal scholar/lawyer-types know the reference, of course, but for those non-lawyers, “penumbra” is famous in Constitutional law as a reference to Griswold v. Connecticut. In Griswold, the Supreme Court overturned a Connecticut statute that made it a crime to buy contraceptives. Justice William O. Douglas, looking at the Constitutional guarantees of individual liberties as a whole, wrote that the statute violated the individual right to privacy, which could be found looking at the “penumbras” and “emanations” of Constitutional protections. The language is a little funny, but standing alone, or with Eisenstadt (which extended to unmarried people the right to buy contraception), this case, and the words “penumbra” and “emanations”, would provide simply a pleasant diversion to while away the afternoons in contemplation of rarely-used words in legal opinions. The concept of “penumbras” of a set of enumerated rights is not that bizarre, especially in light of the Ninth Amendment (which notes that “the enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people”) and the Tenth Amendment (which states clearly that powers not delegated to the US, nor prohibited to the States, “are reserved to the States respectively, or to the people”). These Amendments practically beg for penumbral analysis, and “privacy” (a concept theoretically defined and refined only in the last 125 years, but whose spirit animates much of the Constitutional protections) and “autonomy” (not considered one of the Constitutional “rights”, per se, but I keep wishing) are ripe concepts for that sort of analysis.
But conservatives have freaked out when the penumbras that protect privacy were extended to abortion in Roe v. Wade and to other matters of sexual privacy since then, and and now excoriate the very notion of penumbras. And emanations. (One could argue that the very essence of conservatism is a certain distaste for emanations.) So, “penumbras” the concept has acquired a certain air of disrepute in many legal circles, because even scholars who find it perfectly reasonable to examine the Constitution as a whole as well as in its discrete little parts, tend to back off a bit from Douglas’ sweeping penumbras and emanations, so successfully have right-wingers trashed those ideas. A damn shame, because the concept is perfectly reasonable, and it’s only the rabid dog opposition to abortion that has cast the shadow over Griswold and its penumbral emanations.
I know other folks have observed this, but, really, isn’t it completely clear that Bush has implemented a religious test for office? Isn’t his pattern of practice completely obvious? Not just in his three Supreme Court nominees, but lower court nominees and executive appointments have all been filled with conservative Christians. Seriously, I challenge anyone to find me an avowed atheist, agnostic, or US minority faith member who has been appointed to any office that might draw the personal attention of the Bush Administration, Karl Rove, et al. Mormons don’t count as “minority faith members” (Buddhists and Hindus in the US will count as will pagans.) I’ll make a bet that every single one is not just Christian but identifiably “conservative”, “fundamentalist”, “evangelical”, or some variant thereof. Any Jews and Muslims will come up in specialty seats: liaisons to the Israel or Muslim countries, or councils on which interfaith dialog is necessary.
The right-wing were fools to knock Harriet Meiers out on the abortion thing. I’m sure some few conservatives really believed that she was not sufficiently pro-life based on her stint with Girls, Inc. and her presentation in a debate of the various positions on abortion in their own terms. But surely most of them understood that she would have been a reliable anti-abortion vote. I personally suspect it would be very difficult to find any successful woman who has not been involved in women’s and girl’s organizations to some extent — women’s bar associations, Girl Scouts, whatever.
My sense of the reactions to Meiers’ nomination was that only Concerned Women for America or similar overtly right-wing women’s organizations would have been acceptable to the right-wingers who were upset with her about the Girls Inc. activity. Which means, as far as I can tell, that they were unhappy with any organization that generally promotes women’s interests — even if it’s nonpolitical. The understated concern with Meiers’ marital status fits with my general sense that professional women are okay with the right, so long as they are very traditional and very overtly conservative in every respect. So I must conclude that sexism played a large role in the rightwing reaction to Meiers’ nomination. What a surprise … No, really, I’m a little surprised.
Knocking Meiers out didn’t hurt the right-wing any, though, because there was no way Bush was going to appoint anybody who wasn’t anti-abortion. So I guess maybe the right-wingers weren’t fools so much as just really cocky. In every sense of the word.
Sexism was also apparent in the over-the-top critiques about Meiers’ qualifications. Can anyone really imagine that a male practitioner would have been similarly disrespectfully critiqued? There would have been at least some praise for Bush thinking “outside the box”, bringing in real world perspectives, whatever. But not with Meiers who was roundly abused — and from both the left and the right, I’ll point out.
Barring a big scandal (he’s gay! or he had an abortion!), Alito is in; he’s manifestly qualified and as I read it, he already has the votes. Democrats grandstanding for future political office, or with secure seats and points to pick up from the left, will vote no. But Republicans will all fall in line and so will the conservative Democrats and the ‘we just like qualified nominees’ Democrats. So he’s in.
I annoyed some of my friends by holding that the left-wing fight against Roberts was a waste of recruiting time and energy and money. I’m not going to say it again with Alito, even though I still sort of think it, because a number of my friends have argued that there’s a lot of merit in fighting even a fight you know you’re going to lose. It’s on the record, it energizes the forces, etc. I grant the ‘on the record’ point. I’m less convinced about ‘energizing the team’. But infighting & criticizing your ideological allies’ tactics has always struck me as particularly unproductive. So if lefties, liberals, civil libertarians, etc. want to go all out and fight Alito, well, go for it. I’ll cheer a win.
What is up with Bush’s nominations?
For Roberts he went with Mr. Intelligentsia, the snarky conservative everyone hates in law school. A good solid pick, obviously made with a lot of advice from the Bush team.
For Meiers he went with — well, someone he knew, and someone who was obviously conservative.
The Meiers nomination showed me something scary: that Bush is actually personally involved in at least some aspects of the Bush Admin. Because who would have thought of her except for Bush himself? For years I haven’t known, and have largely resisted the temptation to ponder, what role George W. Bush plays in the Bush Administration: Is he merely a figurehead? or does he have some sort of actual decisionmaking role? These are the kinds of questions to which we mere subjects would rarely be privileged enough to learn answers, and since I peg him as morally culpable for his Administration’s actions in either case, I didn’t really care that much …. But Harriet Meiers? Qualifications aside, it’s obvious that Bush himself played some role in selecting and nominating his own attorney. This makes it harder for me to resist the speculations. Now I find myself wondering: Is Bush largely a hands-off figurehead who believes in his own authority but rarely puts it to the test because of his “delegation style”? If so, then when he chooses to exercise the authority, is it slightly shocking, and people don’t know what to do? Because he’s The President, and so we have to obey? A little flummoxed, they look around for someone else with authority who can speak up to him and tell him it’s a Very Bad Idea to tell that particular joke, give that official that nickname, or agree to have a press conference ….
Can’t you imagine Cheney & Rice & other advisors in a meeting with Bush on the nomination:
Bush: “Well, what about Harriet?”
Bush: “Harriet! Harriet Meiers, my attorney. She’s smart, she’s a woman, we know she’ll be solid on abortion.”
Cheney, Rice, et al nod circumspectly. “Oh. … That’s an interesting idea, George. Umm … there might be some concern about cronyism, or …” (glancing at one another) “—Inexperience. You know, because she hasn’t got judicial experience.”
Bush: “Well, that’s okay — it’ll liven that bunch up anyhow to have a bit of real-life experience. Heh-heh-heh.”
And so on. Kinda scary, and now I just can’t help but go there.
But Meiers’ nomination is torpedoed, and so Bush in frustration is like:
“Well, what the fuck, we just can’t make anyone happy. Who else is on the list. They’re not happy with the lack of experience, so by god, let’s give them someone with experience. Who’s next on the list with a big judicial record that’s obviously pro-life. Okay, Alito. Is he any good? He’s the one we liked on Roe, right?” Nods. “Let’s get ‘im on the phone & talk to him, check him out.”
And boom, the Admin pops in a new nominee. The new guy is smart and has a long record, obviously conservative.
What do these three nominees have in common? Basically nothing, except their ideology. Since we already knew that Bush was going to nominate ideologically sympatico folks, one might wonder what his other criteria are. And the answer is … nothing. There are no other criteria. The whole process is completely, obviously, driven by political calculations (pleasing the right-wing Christians with more of their kind) and — shudder — Bush’s gut. Not good political calculations, necessarily, because of — shudder — Bush’s gut. But clearly not close reviews of, well, anything, and clearly, no particular standard. (Except for the religious test.)
Doesn’t this obviously slap-dash process put paid to the notion that Bush is a good manager & delegator? That even if he doesn’t know how to do it himself, he’s a good MBA, and he can hire the right people? Especially in combination with the FEMA/Katrina fiasco? And especially if you look at how the attempts in the first administration to put in some qualified non-idealogues — Christie Todd Whitman @ EPA, Colin Powell at State, etc. — ended up with a lot of embarrassment and bad feeling all around? “Better to just have our people in,” you can just see them thinking. “Americans elected us, so, so what if we don’t reach out to every corner of the party? They’ll fall in line.”
In fact if you look at Bush’s Legacy, what will it be? Conservative, without a doubt. Corrupt/Cronies. Incompetent. These are the three threads that run through so much of Bush’s White House management gig.
DRAFT: a work in progress; will be updated as I review more cases (or find typos) …
Well, according to NPR, Judge Sam Alito from the Third Circuit is nominated. I’m sure that everyone will be all over his record on every conceivable issue in no time at all, but I’m looking at his copyright etc. for a few minutes just to see what’s out there.
I haven’t found much in the 3rd Circuit case law that suggests Alito has dealt with a lot of the most pressing copyright questions or the constitutional copyright questions, beyond originality. He has been good on originality, and in general he appears to be careful and thoughtful about copyright. So far, I’ve found:
Four opinions signed or written by Alito relate to originality: Alito wrote one opinion (Southco) and signed two (Southco en banc and R&B v. Needa (unpublished)) finding that part numbers lack sufficient originality for copyright protection. Alito also signed the troll doll opinion (Dam Things) which basically said that a derivative work needed to be carefully parsed for originality.
Two opinions on copyright registration technicalities. Alito signed a per curiam in Gallup v. Kenexa, and dissented in Raquel; the Raquel majority opinion was specifically criticized by the Copyright Office and then reversed by Supreme Court. In both instances Alito was critical of technical readings of registration requirements that stripped registrants of their copyright protections.
Two opinions on copyright preemption in Orson v. Miramax: Alito dissented in Orson I, and then signed the 3rd Cir en banc opinion, reversing Orson I, and holding that the a Pennsylvania film distribution statute was preempted by the Copyright Act.
Alito signed an unpublished copyright licensing opinion in Operating Systems Support v. Wang. I’ll have to read it very closely, but at a quick glance, it looks like a business-to-business software licensing agreement. Looks mostly like a close contractual reading of the terms of the various licensing agreements, without much analysis of the Copyright Act. As Seth Finkelstein pointed out on copyfight, business-to-business licensing cases don’t give a good sense of a judge’s opinion of consumer issues in contracting. But, Ideoblog looked at Alito’s contract cases, and said that
Alito has displayed a marked tendency to enforce contracts as written, specifically including choice of law/forum and arbitration provisions that are intended to mitigate litigation costs.
That could bode ill for any shrinkwrap cases that make it to the Supreme Court, including anti-reverse engineering clauses, anti-resale/First Sale clauses, or other consumer-unfriendly clauses.
copyright cases with brief cites & descriptions:
Alito wrote the first 3d Circuit opinion in Southco v. Kanebridge, 258 F.3d 148 (3rd Cir. 2001) holding that part numbers are not copyrightable. He also signed the en banc opinion that also held part numbers are not copyrightable. [I discussed Southco; William Patry did a detailed analysis; and madisonian.net promises analysis later today]
Gallup v. Kenexa Corp, 2005 WL 2271271 (3rd Cir. 2005) – A very recent per curiam opinion from Sept. 19, 2005. Reversing summary judgment to defendant Kenexa on a copyright infringement claim, because the District Court erred in declaring Gallup’s copyright registration invalid on a technical reading of the registration requirements.
Orson v. Miramax, 189 F.3d 377 (3rd Cir. 1999) – Alito joined the majority en banc holding that a Pennsylvania statute was preempted by Copyright Act. The statute (Pennsylvania Feature Motion Picture Fair Business Practices Law) restricted movie distributors use of exclusive first run licensing contracts. Alito dissented in the reversed 3rd Cir. ruling, 174 F.3d 377 (3rd Cir. 1999), which held that the Pennsylvania statute was not preempted.
Raquel v. Education Management Corp., 196 F.3d 171 (3rd Cir. 1999). Alito dissented in another copyright registration case. Taken with Gallup, Alito really doesn’t like technicalities getting in the way of copyrights (at 182):
I believe that the majority’s decision elevates form over substance and works a forfeiture of a valid copyright because of a misstatement that the trial court had already labeled inadvertent.
This is another instance in which Alito has a good record with the Supremes: Cert. was granted & judgment was vacated by 531 US 952 (2000) which simply said:
Petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Third Circuit for further consideration in light of the position asserted by the Solicitor General in his brief for the United States, as amicus curiae, filed September 20, 2000, and the Copyright Office’s July 5, 2000, Statement of Policy, 65 Fed.Reg. 41,508.
Basically the Copyright Office wrote that the 3rd Cir had gotten it wrong (65 FR 41508-01):
[T]he court appears to have misunderstood the Copyright Office’s longstanding published practices relating to the “nature-of-work” space.
Alito was on a (the?) troll doll court! Dam Things from Denmark a/k/a Troll Company ApSm v. Russ Berrie & Company, Inc., 290 F.3d 548 (3rd Cir. 2002). The troll dolls from the 60s fad had copyright restored by 104A. The court held that the copyright qualified for restoration and was not abandoned, but that the District court had not properly considered the 104A safe harbor for derivative works, or properly done the infringement analysis. After spanking the District Court for its “somewhat conclusory treatment of the issues” and for not carefully distinguishing which troll was which, the 3rd Cir. remanded “for further consideration in light of this opinion.” (at 552) The 3rd Cir. went on to strongly suggest there was infringement, then said that the District Court needed to closely evaluate each work for infringement AND for originality to see if the minor differences noted between the various trolls constituted sufficient originality to qualify for the derivative works exception to 104A.
Operating System Support, Inc. v. Wang Laboratories, Inc., 52 Fed.Appx. 160 (3rd Cir. 2002) (not published). Alito joined an unpublished copyright license opinion. At a quick glance, it looks like a business-to-business software licensing agreement, with some close contractual reading of the terms of the various licensing agreements, and little analysis of the Copyright Act. Business-to-business is not very informative for consumer rights by itself, but see above, where I mentioned Ideoblog’s analysis of Alito’s contract cases that do implicate consumer rights. (Thanks to Seth Finkelstein’s comment on copyfight for making it clear that I needed to be a bit more descriptive about why I was distinguishing the case as a business-to-business contracts.)
R&B, Inc. v. Needa Parts Mfg., Inc., 50 Fed.Appx. 519 (3rd Cir. 2002) (not published). Per curiam. Another parts number copyright case affirming District Court finding that part numbers not copyrightable and plaintiffs not likely to succeed on trademark infringement claim.
The picture that emerges from looking broadly at consumer rights and interests is not a good one. Alito appears to be quite concerned with enforcing the letter of contracts and working through the nuances of textual interpretation. However, consumer interests are protected in contract law through broad policies that inform the interpretation of clauses and doctrines. If Alito is, as he appears to be, very concerned with the trees, he may miss the forests. [The NYT 11/5 had a good review of his business opinions, including antitrust law; also covering arbitration decisions, employee discrimination, environmental law and investor claims.]
Ooh, TCPA. ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513 (1998). Alito dissented from a holding that the TCPA (Telephone Consumer Protection Act) did not create right to bring action in federal court. A close reading of a negative implication case.
- Ethical Esquire pulls together some of the antitrust commentary & suggests that Alito is not a fan of private enforcement of antitrust.
Operating System Support, Inc. v. Wang Laboratories, Inc., 52 Fed.Appx. 160 (3rd Cir. 2002) (not published). Analysis copied from above: Alito joined an unpublished copyright license opinion. At a quick glance, it looks like a business-to-business software licensing agreement, with some close contractual reading of the terms of the various licensing agreements, and little analysis of the Copyright Act. Business-to-business is not very informative for consumer rights by itself, but see above, where I mentioned Ideoblog’s analysis of Alito’s contract cases that do implicate consumer rights. (Thanks to Seth Finkelstein’s comment on copyfight for making it clear that I needed to be a bit more descriptive about why I was distinguishing the case as a business-to-business contracts.)
Alito seems to be involved in a lot of First Amendment caselaw, both speech and establishment/free exercise. I imagine this will be reviewed closely elsewhere but I started going through some of decisions. [New World Man looked at Alito’s First Amendment speech clause jurisprudence, as did the First Amendment Center. The FAC says
A preliminary examination of his First Amendment opinions suggests that Alito is: (1) quite protective of several categories of expression, including religious and commercial expression; (2) far less protective of First Amendment claims raised by prisoners; (3) guardedly protective of First Amendment rights in defamation cases, and (4) generally concerned about prior restraints on expression.
which seems about right to me. Prisoners’ 1A rights are not significantly protected; that fits in with a general conservative law-and-order perspective.
Saxe v. State College Area School District, 240 F.3d 200 (3rd Cir. 2001). First Amendment; struck down school anti-harassment policy.
Tucker v. Fischbein, 237 F.3d 275 (3rd Cir. 2001) – a defamation case. Alito wrote opinion that “held that: (1) statements were capable of a defamatory meaning under Pennsylvania law; (2) fact issue existed as to whether attorney acted with actual malice with respect to statements made after he was served with amended complaint naming him as party in prior action; and (3) fact issue existed as to whether statements made by attorney to reporters, and published in articles, were false; but (4) magazines and reporters did not act with actual malice sufficient to support recovery.”
Pitt News v. Pappert, 379 F.3d 96 (3rd Cir. 2004) – First Amendment
White v. Communication Workers of America, AFL-CIO Local 1300, 370 F.3d 346 (3rd Cir. 2004) – labor / First Amendment
Edwards v. California Univ of Pennsylvania, 156 F.3d 488 (3rd Cir. 1998) – Alito wrote court’s opinion in an academic freedom case. Professor challenged public university’s restrictions on curriculum & teaching material. This one should make the “academic bill of rights” people happy: the professor was teaching instructional methods and included as examples information about religion, censorship, etc. The university restricted his teaching methods, and he claimed retaliation; Alito held that the university “the University can make content-based decisions when shaping its curriculum” (at 492). This is interesting (at 493):
In sum, we conclude: (1) that Professor Edwards does not have a First Amendment right to choose classroom materials and subjects in contravention of the University’s dictates; (2) that Edwards failed to state a procedural due process liberty claim because he did not allege a deprivation of employment; and (3) that the district court properly dismissed Edwards’s equal protection claim after Edwards’s own counsel conceded that the complaint failed to adequately state such a claim. We find Edwards’s remaining arguments on appeal to be without merit. Accordingly, we affirm. We emphasize that we only pass on the narrow legal issues presented to us. Nothing in our opinion should be read to mean that we condone all of the conduct of the University officials that was revealed at trial.
Robert Gordon wrote a good piece for Slate laying out Alito’s conservative jurisprudence with respect to Fourth Amendment search and seizure cases, and individual liberties cases generally. He found:
At least in my research, Lexis/Nexis revealed exactly one case in which Alito protected individual rights more vigorously than colleagues. That wasn’t really an individual-rights case at all; it was the states’ rights case in which Alito would have vacated the conviction for owning a machine gun. So, for example, Alito sat on a dozen panels in which judges disagreed regarding a citizen’s Fourth Amendment rights. … In each of those cases, Alito adopted the view most supportive of the government’s position. Of course, caveats apply. All of the cases are more complicated than short summaries can capture. In any given case, Alito’s position often seems reasonable; it is the accumulation of consistent results that surprises.
US v. Williams, 124 F.3d 411 (3rd Cir. 1997) – Federal Wiretapping Statute, video surveillance
The corker is the Doe v. Groody case in which Alito thought it okay for a 10-year-old and her mother to be strip-searched. That will be well covered elsewhere, I suspect.
- Toys’R’Us, Inc. v. Step Two, S.A., 318 F.3d 446 (3rd Cir. 2003). Alito signed opinion reversing District Court’s refusal to grant limited jurisdictional discovery and granting dismissal for lack of personal jurisdiction. Question was whether Step Two’s websites were cybersquatting, trademark infringement, unfair competition, etc. Step Two is a Spanish company with web presence in the US. the court looked to Zippo‘s purposeful availment test; also cited ALS Scan (4th Cir) and Cybersell (9th Cir). The court noted that the evidence thus far didn’t look like it met the Zippo purposeful availment test but said the District Court had erred in not granting jurisdictional discovery, by focusing solely on the website and ignoring other Internet and non-Internet contacts. The court dismissed the contention that Step Two met New Jersey’s ‘express aiming’ test.
other IP & cyberlaw issues: trademark & unfair competition
Marshak v. Treadwell, 240 F.3d 184 (3rd Cir. 2001). Alito wrote opinion. Trademark & common law mark case.
Times Mirror v. Las Vegas Sports News, 212 F.3d 157 (3rd Cir. 2000)
A&H Sportswear, Inc. v. Victoria’s Secret Stores, Inc., 166 F.3d 197 (3rd Cir. 1999) – en banc trademark.
Iberia Foods Corp. v. Romeo, 150 F.3d 298 (3rd Cir. 1998) – trademark
The individual liberties versus institutional rights (business, government) framework, laid out by Robert Gordon in Slate, appears to be a helpful one in examining Alito’s jurisprudence.
Ideoblog looks at Alito’s contract cases; New World Man provides an Alito primer which sums up and links to a variety of other analyses. New World Man also looked at First Amendment speech clause and religion. ThinkProgress does a press-release style rundown of some of Alito’s hot-button civil liberty cases.
SCOTUSblog has some other notable cases, including a dissent on the abortion husband-consent statute from Casey. We’ll all be verrrry familiar with that one before long. The quick read I gave it said that Pennsylvania legislators could have reasonably thought that forcing a woman to discuss her medical options with her spouse was permissible because she might be mistaken about whether they could afford the baby or not … Paraphrased for heightened sarcasm.
news.com reviews some of the tech decisions & has some commentary from attorneys on copyright and electronic surveillance. On the electronic surveillance, the only discussion seems to support the notion that Alito is a law-and-order kind of guy; no surprise there. My take is that he is law & order, and will support police technologies generally. Purely private surveillance will be more interesting. On employment, I would bet he finds employer surveillance of employees permissible.
IPTA Blog Blawg Review nicely wraps up a lot of coverage of Alito.
Kurt Opsahl @ EFF Deep Links summarizes the cyberlaw / 1st Amendment / 4th Amendment privacy caselaw, and links to other coverage.
- Child Evangelism Fellowship of NJ v. Stafford Tp. School Dist., 386 F.3d 514 (3rd Cir. 2004) – an establishment clause case.
- Blackhawk v. Pennsylvania, 381 F.3d 202 (3rd Cir. 2004) – a free exercise clause
- ACLU-NJ v. Township of Wall, 246 F.3d 258 (3rd Cir. 2001) – establishment (public display) case
- ACLU-NJ ex rel. Lander v. Schundler, 168 F.3d 92 (3rd Cir. 1999) – establishment (public display) case
- FOP Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3rd Cir 1999) – Alito wrote court’s opinion holding that refusal to grant religious exception to no-beard policy violated Sunni Muslim employees’ free exercise rights.
- Reynolds v. Wagner, 128 F.3d 166 (3rd Cir. 1997) – charging inmates for medical care does not violate the 8th Amendment; failure to translate it into Spanish does not violate Spanish-speaking inmates’ rights
Walter Dellinger, “Why Americans Hate Democrats — A Dialogue: Maybe It’s Not As Bad As We Think”, Slate, 2004-11-05:
[T]here seems to be a flaw in how our governing system is working that is turning narrow victories into unearned dominance. By (at best) narrowly prevailing in two elections in which the nation was split down the middle, one party, with the support of barely half the electorate, is in position to control everything—House, Senate, presidency, Supreme Court and lower-court appointments, everything.
The purpose of separation of powers is not being fulfilled. The branches were designed as a check on each other. But the institutional divisions between legislative bodies and the executive, or between the House and Senate, are no longer salient. The ideological purification of our parties—a relatively new and unfortunate development—may have created an identity of partisan interest so strong that separate branches, when controlled by the same party, provide no check at all. Due in part to greatly enhanced partisanship, loyalty to the Senate or House as an institution is being replaced for legislators of the president’s party with loyalty to the president. The Framers thought they had produced a system that would ensure that a faction supported by a bare 51 percent of the people could not make the other party its dog. It’s not working.
Interesting. What do our elected “representatives” with their “constitutional duties” have to say? Let’s hear from Sen. Rick Santorum [freep, 11/04]:
Senate Republicans are committed to approving all of the President’s judicial nominations…
By JOHN HANNA Associated Press Writer
LAWRENCE, Kan. (AP) – U.S. Supreme Court Justice Clarence Thomas said Thursday he would prefer not to face another election-related lawsuit, but defended the high court’s decision to get involved in the contentious dispute over the 2000 presidential vote in Florida.
“What are you supposed to do when somebody brings a lawsuit?” Thomas asked University of Kansas law students. “You hear people say the Supreme Court jumped into the last election. I find it very ironic that the very people saying judges are interfering are bringing lawsuits.”
“What do you think? Donald Duck is going to decide it?”
When asked about the prospect of more litigation over the 2004 vote, Thomas said, “I would prefer not to have to decide it, but that joins a long list of things,” adding: “It’s my job.”
People who say judges are interfering are really trying to say that judges are making illegitimate decisions and stepping beyond their authority. This is a critique that Thomas & his ilk make quite often when talking about decisions they don’t like. But apparently “it’s their job” when it comes to making a decision, like Bush v. Gore, that they like to make.
Too bad folks like Thomas and the Bush administration have politicized this critique to such an extent. It is now basically useless to say that a judge overstepped his (usually) or her authority — that just means you don’t like the decision. Used to be you could use it to say that the judge’s decision was not supported by the law.