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June 28, 2007


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Nice respose to Sunstein's load of hokum posted below.

As I said down there, this term has been a killing field for precedent. Oh, the precedents still "stand," in the way a stripped old El Camino "stands" on cinderblocks in the front yard. But you can't drive it.

Roberts and Alito incrementalists? Balderdash.

Jef Woode

Wow, another blowhard post by Stone that wildly mischaracterizes past and present supreme court precedent. You'd think that a professor would have more intellectual honesty and would actually engage with arguments on their own terms rather than twisting them up in knots and complaining that they don't fit.

In Hein, Souter's claim that it covered executive actions as well as legislative ones ALSO has no basis in logic or precedent (CONGRESS shall make no law... it's the FIRST WORD of the clause, Geoff. That's just embarrassingly bad by both you and Souter the Looter).

You completely drop context again in the school assignment cases, as is your disturbingly partisan habit. The GENERAL rule was not that race-based assignment was ok; it was only permitted as a remedy for past discrimination and segregation, not in the abstract. You also ignore the many areas where race is explicitly allowed, as well as those that are not per se forbidden. I do love the irony of a Kerry supporter being completely un-nuanced.

You also mischaracterize Brown, but that's not surprising. Brown didn't say that racial uses for segregation was bad and racial uses for other areas were good (especially in view of the cases applying it in other arenas), it said that the state could not make race-based distinctions. Forcing a white kid in primary school away from the school across his street and making him take a 90 minute bus ride each way every day for the sake of racial balance just because he's white is fine, but if it's a black kid, it's wrong? That's some logical and robust theory you've got there!

Say Geoff... what's the argument for Brown v. Board of Ed. again? That argument was already decided (and 8-1, no less!) in Plessy. How dare they disobey precedent! Your silence on this issue is deafening, as usual.

Legal history is replete with overturning of precedent, particularly when it's wrong. Stare decisis is not an absolute, merely a pragmatic principle. If this is what you're teaching your students, they should sue you for professorial malpractice and UChicago for fraud because they're not getting the education that they're paying for.

Arthur Owens

"Whereas Brown v. Board of Education had held that government could not constitutionally assign black and white students to different schools in order to segregate them, Roberts had the audacity to cite Brown for the extraordinary proposition that government cannot constitutionally assign black and white students to the same school in order to integrate them."

Why is that an "extraordinary proposition?" The distinction you raise amounts to pure constitutional hairsplitting. Mr. Woode's notion is not only consistent with Brown's holding but is more consistent with the plain meaning of the EPC's text which recognizes no such double standards that would permit racial categorizations in some aspects of life but forbid them in others. Moreover, Sunstein's/leftists understanding results in some social groups receiving greater protection under the constitution and other social gropus receiving lesser. The constitution doesn't permit this; it says "EQUAL."


While I agree that these cases were not decided how they would have been decided had Justice O'Connor remained on the court, are you really surprised at their outcomes Professor Stone?

Both Roberts and Alito are extreme conservatives. Whatever they may have said during their Senate confirmation hearings, I think that everyone knew their distaste for integration and their views on taxpayer standing, and abortion. I would say that the free speech cases were harder to guess, but they wound up voting the way that I would have though they would.

All we can do now is make sure that either Senator Obama or Senator Clinton wins the presidency.


While neither Roberts nor Alito represent my thinking, I'm not sure I'm at all troubled by opinions that purport to distinguish cases that are logically indistinguishable. My Con Law teacher back in the 60's, Phil Kurland, often said the problem with the Warren Court was that they lacked craftsmanship. He felt those Justices had unnecessarily brought criticism upon the Court by openly over ruling cases instead of finding obscure precedents upon which to base their opinions. If the current court is doing a better job of hiding the ideology behind their votes, that's not all bad. The hiding that is. The ideology itself is another matter.


There's an article in Slate that chastens the moderates and liberals who supported John Roberts during his confirmation hearings. It criticizes both George Washington's Jeff Rosen and Professor Sunstein.


"Roberts wouldn't twist precedent, professors like Cass Sunstein of the University of Chicago wagered. He'd carry the torch of judicial modesty: Judges shouldn't reach beyond the facts of a case to settle big questions, they should hesitate to strike down laws passed by Congress, they should know their place as the least-dangerous branch. Praising Roberts for his lack of 'bravado and ambition,' Sunstein wrote in the Wall Street Journal pre-confirmation, 'Opposition to the apparently cautious Judge Roberts seems especially odd at this stage.'"

"Sunstein offered this, 'I'm surprised that Roberts has shown no unpredictability at all; in the big cases, he's been so consistent in his conservatism. I thought that he was too careful a lawyer to be so predictable!' His point, which he expands on here, is that because minimalists take each case as it comes and attend closely to precedent, they sometimes reach conclusions that you wouldn't expect from them. Roberts has done none of that. Take the abortion case: The court in 2000 struck down a state statute banning a form of late-term abortion. The logical next step was to strike down the federal ban. Instead, the opinion Roberts joined unconvincingly sidestepped the earlier decision and upheld the new law."

Michael Martin

I think Sunstein has it closer to the truth. Roberts and Alito are not activists. This post reminds me of an earlier one by Prof. Stone in which he characterized Alito as unwilling to challenge the Executive branch, completely ignoring that part of his testimony to the Senate. I'm pretty sure that a selective reading of the decisions from the past term can support any theory about Roberts's and Alito's jurisprudence. So what?


It seems like liberals like Stone are most pissed off because Roberts/Alito aren't embracing the Scalia/Thomas style of actively turning back the clock and directly overruling precedents that stand in their way of a conservative utopia.

Roberts and Alito seemed to emphasize that they would be "modest," but they never said "moderate." I think the style of this recent round of opinions reflects a Bickelian cautious approach (no surprise coming from Alito, especially) to constitutional change that's in a conservative direction.

Is Stone's biggest problem that Alito and Roberts aren't so extreme that they managed to lure Kennedy to their side to gain a majority on these big cases? If you're reflexively opposed to all things conservative, I can understand why the incremental approach can be maddeningly insidious, but no one doubted that justices nominated by Bush would be conservative. Suggesting that every liberal who endorsed them was wrong seems to imply that their only concern about Roberts/Alito's qualifications was their ideology, which is blatantly revisionist.


They are "actively turning back the clock" and trying to create a "conservative utopia"; they're just not being honest about it. At least with Scalia and Thomas, you know where they want the law to go, and they're sending clear messages to the country and the lower courts. With Roberts and Alito, they're muddying up the law. One of the objectives of good jurisprudence should be clarity; Roberts and Alito are not furthering that goal. I may not agree with Scalia or Thomas, but at least I know where they stand.


I thought that Stone's theory was that Roberts and Alito were guided not by rank ideology, but by the Bishop of Rome.

It's all quite a bit to follow sometimes.


In Stone's world, the Supreme Court was so much more intellectually honest back in Carolene Products when they read property rights out of the Constitution or in Griswald when they invented a right to decide certain laws were bad not because of the text but because of the "penumbras and emanations" of the text. And, more amazingly still, those penumbras and emanations coincided with standard liberal thinking. What a bunch of typical legal realist bulls**t designed to obfuscate the naked power grab they wish were happening in another direction.

Precedent is not that important any way and, as I recall from Roberts' confirmation hearings, he said a lot of hoary and noncommittal stuff. Under the tradition of senate confirmation he never spoke about specific cases on which Stone can now call him out.

I do think it eminently funny, though, that radical liberals like Stone want to use a Burkean conservatism to preserve their radicalism of just one generation ago. Sorry guys, we're done playing with one hand tied behind our backs. Now, onward to Roe, school prayer, incorporation, habeas rights for terrorists, the administrative state, etc. etc. etc.!!!!


One has to be blind to history and reality and read Brown with a most cynical kind of literalism to argue with a straight face that classification of people by race to perpetuate the subjugation of an “inferior” race and classification designed to integrate the races and remedy decades of racial wrongs are the same thing. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”??? How can one cure a problem that is defined by factor X (race) without a solution that directly addresses or at its bottom is fundamentally directed at factor X (race). With the Chief’s logic, it is surprising that he didn’t reinsert “with all deliberate speed” in there. Now that would ensure that EVERYONE’s sensibilities are taken into account before anything is done.

“[D]evising race-conscious measures to address the problem in a general way,” “adopting general policies to encourage a diverse student body,” etc., etc., as the controlling opinion proposes, at a level of abstraction, may sound as a middle ground compromise to accommodate both sides but, at the practical level, all it is going to achieve is to either compel the school districts to abandon the most effective means of achieving racial balance or to find circuitous, tortuous ways of disguising programs that should honestly and directly aim at achieving racial integration under the cloaks of “strategic site selections” and special “attendance zones.” The tragedy of this all is that more generations of pupils will grow up effectively segregated while adults litigate whether they have done a good job of calling A a B in order to please five men in robes who just don’t like how A sounds.


As the Slate article referred to above points out, one had to be into serious wishful thinking (Sunstein?) to have believed these two wouldn't turn out just as they have. See also Professor Balkin's comments on his blog. The real problem here, from a progessive's point of view, was the failure to filibuster the Alito nomination.


Roach writes:

"I do think it eminently funny, though, that radical liberals like Stone want to use a Burkean conservatism to preserve their radicalism of just one generation ago."

Agree with Roach completely. Thanks for the good laugh Prof. Stone.

Nic Cruickshank

segregation ? ha ha ha ha, segregation was institutionalised, if people are alloowed to go to the schools in their district then it lessons unnecessary environmental impact, and improves the quality of the childrens lives. To tell someone they have to go to a school 45 minutes out of the way when a perfectly suitable one is within 10 minutes is foolishness. Forcing children to go to a school further away from the childs local friends and neighbours can also contribute negatively to the childs upbringing. the judges here did the right thing based on what happened. Quite frankly this is a common sense approach I figured Americans would welcome, instead the anger abounds over it. Well if everyone needs to be angry but the kids are still served then so be it. The children matter more.

Kimball Corson

Make no mistake about it, as former Sen. Rick Santorum (PA -Rep) and many other Catholics have quietly or not so quietly made clear, Catholic America has a not so hidden consensual agenda for this country, not unlike the Fabian Socialists in an earlier era and elsewhere, regarding the acquisition and use of political power in America.

Canon law and Catholic perspectives have primacy over civil law and conventional values. Deceit is part and parcel of the aquisition of such power. Some more candid priests even endeavor to withhold Mass and sacraments from Catholic politicians who propose serious deviations from canon law on sins that are mortal to Catholics.

We are being and have been hijacked by true believers. The only real question is how much political power they can and will aquire. The Supreme Court is likely lost for a generation and perhaps more. One more retirement with a conservative Catholic replacement should cinch it for that era. It will take us decades to clean up the current Bush messes.


Many Jews thought Judaism had ethical and political implications for the treatment of poor and dispossessed people as a consequence of the mistreatment of the Jewish minority in many nations throughout history. This led many Jews to pursue liberal politics in America, and specifically to agitate for changing laws and mores in America's Deep South as part of the storied civil rights movement.

Did that mean "[Jewish] America has a not so hidden consensual agenda for this country, not unlike the Fabian Socialists in an earlier era and elsewhere, regarding the acquisition and use of political power in America." This kind of rhetoric now employed against Catholics would not be tolerated against any other religious group, minority or otherwise.

Is it any wonder Arthur Schlesinger called Anti-Catholicism "the deepest-held bias in the history of the American people."


It doesn't take much to get the anti-catholics out of the closet. A generation ago their bigotry was masked as quotas for Italians, Hispanics and Irish. Just think back to what the established churches in the states were and you have your answer. The old ruling class hates losing power.

Nic Cruickshank

Kimball your argument is flawed as exposed by Roaches post. Catholics are held to account in their group in order to belong. they are free to leave at any point in time without fear of reprisal or any actions taken against them. they are free to excercise their will and defy teachings and leave the church. It is a voluntary membership. Your position on the judges is the same the conservatives of most stripes have had with the last group of judges. If you did not denounce the the last group for following their values in their decisions as so far as the law allows, then why denounce this group ? Its just a different ideological perspective being excercised than the one before it. Its called balance and every country needs it.

Nic Cruickshank

Our judges here in Canada are appointed by the Prime Minister without anyone else having a word in the deal. At least your system gives you a chance to know what you are in for before it comes to pass.

Kimball Corson

Two comments on your counter observations. Leaving any religion usually results in painful ostracization and considerable angst leading up to it. It often takes serious determination; hardly an exercise of unfettered free will. Doctrinaires take offense when you disagree with them, no matter how they try initially to mask it. Some of those who have left Opus Dae, for a conservative example, have had to undergo actual deprogramming, thereby getting needed help from other non-Catholics. Second, canon law and Catholic views and perspectives are coming to be imposed on the rest of us by this Court and I find that truly offensive. And this Catholic Court is just getting started.

Kimball Corson

On the point of your last comment, a key point of Geof's post here is that these latest Catholic nominees, now Justices, engaged in what he calls intellectual dishonesty and what I call downright deceit, during their nomination proceedings, for all the good those proceedings did the rest of us.

Kimball Corson

I am not anti or pro Catholic, per se. I just don't want canon law and conservative Catholic perspectives (like those that, via Bush, have so seriously impaired much good science in America recently) imposed on me and the rest of us. I can take Jewish general liberalism, accepting or rejecting pieces of it as I go, but I cannot accept hidden or not so hidden Jewish zionists (e.g., Doug Feith) setting US public and foreign policy. It is when religion dictates to me and to the rest of America that I take offense.


I hope this post was just meant to "rally the troops." Professor Stone's "everyone who disagrees with me is dishonest" posts say more about him than they do about the Supreme Court.

In the spirit of citing Alito's and Roberts's confirmation hearings, I wonder if Professor Stone told the U. Chicago people that he was a dishonest nut when he did his job talk.

Nic Cruickshank

I agree that their bias can be disheartening as the bias of your last group of judges left other individuals in your society feeling as ostracized as you now do. It is history repeating itself albeit in a semi contrary fashion. Personally I might be more worked up if it affected me personally. That said Kimball I know many people who have left the Catholic church here in Toronto without anything you described. Maybe its the pluralistic perspective of Toronto but I neither see nor hear evidence of ex catholics complaining about anything short of their policies. Droves have left without so much as an incident worth reporting. I think the issue at hand with these judges is less their faith be it Catholic or otherwise than their conservative leanings and outlook. They interpret the law differently from liberal judges. The arguments used against them now are similar to conservatvies who complained about liberal bias in the supreme court for over 30 years. I see this as a shift in power balance away from one group and towards another. If everyone were truly balanced then power shifts might not happen as often.

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