Replacing Justice Stevens

The world of punditry is full of opinions about filling the seat of Justice John Paul Stevens upon his long-overdue retirement this summer, so important has become the Supreme Court to our polity.

Doug Masson, perhaps half-jokingly, defended what I’d call a moderately activist judiciary. It’s moderate because the activism Doug advocated involved pulling legislative chestnuts out of the fire more than inventing new constitutional “rights”:

What occurred to me only later is what immense responsibility this would place on legislators if they were actually forced to deal with nothing but strict constructionist judges. They’d have to think through the full implications of what they wrote into law without being able to trust that judges would be, well, judicious in how the law was applied …

I’ve read enough legislation and draft legislation in my time to shudder a bit at the thought of judges applying the language absolutely in all situations unless the text specifically instructs them not to regardless of whether doing so makes sense or seems remotely just. That would really up the pressure on legislators to craft legislation meticulously, being sure to describe every caveat and exception.

I agree completely with Doug that lots of legislation is drafted shoddily, but I think that’s partly a consequence of knowing that the Court’s will bail them out.

I’d love to see our legislatures become something other than the Branch of Grand-and-Voter Pleasing Platitudes. Courts legitimately resolve ambiguities in positive law (i.e., legislative enactments), but a law can be unambiguously stupid. Unless there’s no rational purpose to it, judges should enforce it with perhaps a rebuke thrown in for the legislature (e.g., “What in heaven’s name they were thinking when they wrote this is beyond me, but ….”)

I am particularly appalled at the increasingly common disregard of legislators – at all levels, including County Commissioners – to shrug off their oath to uphold the Constitution by saying, in effect, that “constitutionality is for the courts to decide; I think this law will please my constiuents, so to hell with my oath.” (Okay, I exaggerate, but only a little.)

Adam Liptak at the New York Time is one of many noting that Stevens is, formally, the last Protestant on the Supreme Court:

His retirement, which was announced on Friday, makes possible something that would have been unimaginable a generation or two ago — a court without a single member of the nation’s majority religion.

I cannot recall what Protestant allegiance Stevens ever claimed, but were it not so implausible, I’d suspect he was a soul-competency Baptist. As I wrote quoted soon after his announcement:

[I]n four different places in an opinion barely five paragraphs long, Justice Stevens used the word “indoctrination” as a synonym for religious education. Stevens asserted that the voucher program was being used to pay for “the indoctrination of thousands of grammar school children.” He surmised that an educational emergency might provide a motivation for parents to “accept religious indoctrination [of their children] that they otherwise would have avoided.” He decried the fact that “the vast majority” of voucher recipients chose to receive “religious indoctrination at state expense.” And he depicted the voucher program as a governmental choice “to pay for religious indoctrination.”

This is not an unfair summary of Justice Stevens’ hostility to any religion that actually has doctrinal content that adherents think should be preserved and transmitted.  I infer that his deprecatory use of “indoctrination” reflects the view that everyone should decide all this stuff for himself or herself – a very, very American approach that has led to countless sects, cults and semi-Christian denominations, not to mention multiply-countless unaffiliated Churches (unaffiliated means you get whatever the Pastor feels like today – kind of like following a blog, except that bloggers, taken with the appropriate grain of salt, are less likely to lead you to delusion and damnation).

See also Ann Coulter’s entertaining take on the last Protestant. (Coulter is like a 15 car pileup – I feel guilty for reading her sometimes, but it’s irresistible. She is quite smart about the law, too.)

I agree with George Will that political experience is not a prerequisite, and I always have shuddered when someone like Oren Hatch is mentioned as a potential Supreme Court nominee because his colleagues respect him, he could be confirmed fairly easily, and he once upon a time went to law school.

Lastly, I’d say Timothy Egan is right on the facts about Harvard and Yale being disproportionately represented on the Court, but I’d sure hate to see law school diversity become a criterion for nomination. Yeah: Michigan, Chicago, Stanford (Justices O’Connor and Rehnquist, I believe) are top-tier, and I wouldn’t expect a Justice from the top tier of one of those institutions to be appallingly stupid. But I suspect, especially from his title (“Supreme Club”) that Egan is engaged in a little populist posturing at the highly elitist New York Times.

Tactical shift coming in Supreme Court confirmation fight?

Since Roe v. Wade was imposed on us by the Supremes 37 years ago, there has been a pervasive “abortion distortion factor”:

The “Abortion distortion factor” is that phenomenon whereby when established rules of law encounter the abortion right, the established rule is bent to accomodate the abortion right.

(Bopp, James, in A Passion for Justice – A Pro-life Review of 1987 and a Look ahead to 1988, at page 80) That factor has been huge in most Supreme Court appointment battles since 1980 – generally couched in code words and litmus tests that fooled no observant observer.

The successor for Justice Stevens may face a significantly different constellation of questions, centering on “Obamacare” partly because that issue works to the benefit of the Republicans though so pervasive is the Abortion Distortion Factor that it won’t be entirely out of play:

Another set of questions could prove embarrassing for Democrats who have lauded Griswold v. Connecticut and Roe v. Wade for creating a right to privacy that includes contraception and abortion. “How can the freedom to make such choices with your doctor be protected and not freedom to choose a hip replacement or a Caesarean section?” asks former New York Lt. Gov. Betsy McCaughey in The Wall Street Journal. “Either your body is protected from government interference or it’s not.”

McCaughey also notes that in 2006 the Supreme Court in Gonzales v. Oregon ruled that the federal government couldn’t set standards for doctors to administer lethal drugs to terminally ill patients under Oregon’s death with dignity act. So does the Constitution empower the feds to regulate non-lethal drugs in contravention of other state laws?

Such questions may not persuade an Obama nominee to rule that Obamacare is unconstitutional. But they can raise politically damaging issues in a high-visibility forum at a time when Democrats would like to move beyond health care and talk about jobs and financial regulation. Stevens apparently timed his retirement to secure the confirmation of a congenial successor — but some Democrats probably wish that he had quit a year ago, when they had more Senate votes and fewer unpopular policies.

Miscellany – Pope in the Dock, Justice Stevens retirement, Serin gas and the enduring Flannery O’Connor

Michael Cook notes and ruminates on what I hope is an eccentric call to try Pope Benedict XVI for crimes against humanity in connection with the Catholic Church’s pedophilia scandal, and then segués into other who then should be there:

  • the Secretary-General of the United Nations
  • the executive director of USA Swimming
  • Texas Governor Rick Perry

Tu quoque, the argument that because you did it too, I’m not guilty, must be the worst of all arguments. But anyone with the facts acknowledges that the Catholic Church’s problems are no worse than those of other organisations, and they are probably a good deal better. A reporter for yesterday’s issue of Newsweek had the bright idea of asking insurance companies whether the Catholic Church paid higher premiums because its employees were a greater risk. The answer was No  – and it never had. “We don’t see vast difference in the incidence rate between one denomination and another,” said an insurer. “It’s pretty even across the denominations.”

Cook then notes in moderate detail the secular intellectual defense, in the name of liberating children’s sexuality, of lowering age of consent laws – proposals that make me think “I don’t want this intellectual around any child; there’s more going on here than disinterested philanthropy.”

Putting the Pope in the dock would spark a world-wide debate about paedophilia. Why is it so difficult to police? What is there about our views on sex which encourages it? Should we wind back our hypersexualised culture?

All the indicators are that the sex abuse crisis in the Catholic Church is winding down now as the Pope and bishops get tougher and priests have clearer views on authentic Christian sexuality. But no one is preparing for the coming paedophilia crisis when the oversexed teens of 2010 are 34 and believe they should still have fun with 14-year-olds.

* * *

From the Department of Bombast at the Wall Street Journal, an inflated warning that the retirement of Justice John Paul Stevens “gives President Obama a chance to lay the groundwork for a future liberal Supreme Court majority.”

Not even with this Senate will Obama slide through in an election year anyone to the left of Justice Stevens. He is, after all, “The Supreme Court … liberal standard-bearer,” as the Journal’s own subheadline has it. Others writing about Stevens’ retirement more aptly note the irony that any nominee could easily be to Stevens’ right.

Justice Stevens was particularly infuriating not only on religion cases, larding his opinions with secularist code, but on the disregard for religion in other cases. Robert Nagel summarized some of the case against Stevens in Justice Stevens’ Religion Problem. In a school voucher case:

[I]n four different places in an opinion barely five paragraphs long, Justice Stevens used the word “indoctrination” as a synonym for religious education. Stevens asserted that the voucher program was being used to pay for “the indoctrination of thousands of grammar school children.” He surmised that an educational emergency might provide a motivation for parents to “accept religious indoctrination [of their children] that they otherwise would have avoided.” He decried the fact that “the vast majority” of voucher recipients chose to receive “religious indoctrination at state expense.” And he depicted the voucher program as a governmental choice “to pay for religious indoctrination.”

As striking as it is, this use of the word “indoctrination” does not necessarily indicate hostility to religion. Like the words “sectarian” and “fundamentalist,” which have appeared with disturbing regularity in Supreme Court opinions, “indoctrinate” has a literal meaning that is not pejorative. It can, of course, mean simply to instruct or to teach. But, needless to say, like those other words, it has more sinister connotations. Given the common association of the word “indoctrinate” with totalitarian methods, there might be at least a “slight suspicion” that Justice Stevens did not use the term in its neutral sense, especially since he nowhere refers to public school indoctrination. In any event, the duty to determine whether Justice Stevens’ official positions reflect animosity to religion arose well before the voucher case.

It can be traced back as early as 1990, when the religion clause expert Douglas Laycock noted that under Stevens’ constitutional decisions religion is “subject to all the burdens of government, but entitled to few of the benefits.” Laycock charged that the apparent explanation for this combination of legal positions was hostility to religion. Laycock’s hypothesis ripened into full-blown suspicion by June 2000 when Justice Stevens took the position that the free speech rights of the Boy Scouts were not violated by a state law requiring them to employ an avowed homosexual as an assistant scoutmaster. In the course of his dissent, Stevens offered his opinion about the source of what he termed “prejudices” against homosexuality. He wrote, “Like equally atavistic opinions about certain racial groups, these roots have been nourished by sectarian doctrine.” Whatever he might have meant later by using the word “indoctrination,” there is no question what “prejudices” and “atavistic” mean. The passage is, as Michael Stokes Paulsen of the Minnesota Law School put it, a “slander, disparaging the good faith . . . of any religious worldview—such as those of [some] Christians, Jews, and Muslims—that adheres to traditional views of sexual morality.”

Even decisions that as a formal matter have little to do with religion take on a different coloration when Stevens’ apparent scorn for some religions is factored in. On February 26 of this year, for instance, eight members of the Court ruled that the federal racketeering statute (popularly known as RICO) did not apply to the efforts of the Pro-Life Action Network to shut down various abortion clinics. The rather straightforward reasoning was that, unlike the members of organized crime who are typical objects of RICO prosecutions, the antiabortion protestors did not obtain anyone else’s property for their own use. Since the crime of extortion requires that the offender obtain someone else’s property, the pro-life protests could not be prosecuted under RICO. Even pro-abortion rights advocates like Justice Ruth Bader Ginsburg agreed. Only Justice Stevens dissented. He claimed that “even when an extortionist has not taken possession of the property that the victim has relinquished, she has nonetheless ‘obtained’ that property if she has used violence to force her victim to abandon it.” On the basis of this thin reed Stevens was willing to impose on protestors acting out of profound religious convictions the same draconian punishments that are ordinarily imposed on gangsters.

* * *

Over at TownHall.com and elsewhere in the world of “Movement Conservatism,” Chicken Littles are practicing precision, coordinated vapors over the inference that the U.S. will not commit nuclear genocide in response to chemical, electromagnetic or other non-nuclear attacks. For instance, the mercenary Dick Morris. As Daniel Larison puts it, “quite insane.”

* * *

Thomas Merton wrote that “when I read Flannery O’Connor, I do not think of Hemingway, or Katherine Anne Porter, or Sartre, but rather of someone like Sophocles.” Though O’Connor herself would surely have scoffed at such praise, she is among a bare handful of American writers, modern or otherwise, of whom such a thing might plausibly be said.

But her reputation rests in part on a persistent misunderstanding. Unlike most of the other major American novelists of the 20th century, O’Connor wrote not as a more or less secular humanist but as a believer, a rigorously orthodox Roman Catholic. Her fiction was permeated with religious language and symbolism, and its underlying intent was in many cases specifically spiritual. Yet most of O’Connor’s early critics failed to grasp her intentions, and even now many younger readers are ignorant of the true meaning of her work.

So Terry Teachout concludes his introduction to a lengthy book review of Brad Gootch’s biography of O’Connor.

O’Connor, to her credit, took the homespun beliefs of her fellow Southerners with the utmost seriousness. Even more surprisingly, she regarded them with exceptional imaginative sympathy, seeking to portray in her fiction the sometimes bizarre ways in which spiritual enthusiasm manifested itself in the lives of people who, lacking an orthodoxy to guide them, were forced to re-create the forms of religion from scratch. As she explained in a 1959 letter:

“The religion of the South is a do-it-yourself religion, something which I as a Catholic find painful and touching and grimly comic. It’s full of unconscious pride that lands them in all sorts of ridiculous religious predicaments. They have nothing to correct their practical heresies and so they work them out dramatically.”

Her sympathy, she added, arose from the fact that “I accept the same fundamental doctrines of sin and redemption and judgment that they do.”

(Emphasis added)

Her sympathy for do-it-yourself Christianity may be what makes her work more enduring than things like the Steve Martin movie Leap of Faith, which leavens cynicism with a touch of ambiguous sentimentality. Teachout asks whether O’Connor will endure only by being misunderstood as a satirist rather than a sympathizer writing grotesqueries. I don’t know, but her deep, pervasive Christian faith is well out of the closet for decades now, and her reputation continues to grow.