Scalia opened his talk with a reference to the Holocaust, which happened to occur in a society that was, at the time, “the most advanced country in the world.” One of the many mistakes that Germany made in the 1930s was that judges began to interpret the law in ways that reflected “the spirit of the age.” When judges accept this sort of moral authority, as Scalia claims they’re doing now in the U.S., they get themselves and society into trouble.
Scalia cited numerous issues that have been thrown to the courts — a woman’s right to an abortion, society’s right to execute someone for a crime, whether “homosexual sodomy” ought to be allowed — and claimed that judges are unqualified to answer them. Medical doctors, engineers, ethicists and even “Joe Six Pack” would be just as qualified as a legal professional to settle some issues that have come before the high court.
In other words, if the Supreme Court rules against the wishes of “Joe Six Pack” that executions constitute cruel and unusual punishment or that gays and lesbians have the constitutional right to equal treatment with their heterosexual fellow citizens, we’re obviously well on our way to Nazi Germany.
On the other hand, here’s an actual expert ”on the role of German courts during the period leading up to and during Adolf Hitler’s regime”:
A United States Holocaust Memorial Museum historian told an audience today at the Supreme Court of Ohio that pre-World War II German courts set the stage for Nazi atrocities by falling for promises of restoring order, professionalism and judges’ authority.
Even when the number of political prisoners held by the Ministry of Justice increased from 35,000 to 150,000 in the 1930s, Meinecke said the situation looked normal to jurists. “Jurists had no interest in questioning the legitimacy of the Nazi state, because it saved them from the abyss,” he said. “The court was afraid of being irrelevant.”
In his research, Meinecke said he uncovered one sitting judge who challenged Nazi practices. The judge, who objected to a secret killing program of mentally and physically disabled people, was removed from office. Another judge, who refused to take an oath to Hitler resulting in unlimited power, resigned from office. Neither judge was arrested. Other officials with objections were transferred to distant posts with little meaning and little power.
Slowly, Hitler remade the judiciary step-by-step in his own image. “He used the rules of democracy to destroy democracy,” Meinecke said. Jurists, obviously, couldn’t see where all this was headed and called the changes minor because they didn’t affect nonpartisan jurists, only Jews or those politically active, he said.
To me, this doesn’t sound quite like what Scalia has in mind when he talks about judicial activism on issues that ought to be left to the citizenry. Of course, Josef Sechserpack and the citizenry in Germany voted the Nazis into power in 1933, effectively making Hitler the German Chancellor … an inconvenient fact that Scalia omits from his lecture.
But, hey, whatever, right?
In which Jamelle Bouie posts three sarcastic and spot-on tweets in a row.
Scalia’s Amazing Dissent
Justice Antonin Scalia’s dissent in United States v. Windsor today reads like it was written by someone who didn’t know what the ruling would be in yesterday’s Shelby County, Alabama v. Holder case.
This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this Case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.
The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives.
This is, of course, exactly what the majority opinion in Shelby County decided to do, striking as unconstitutional Section 4 of the Voting Rights Act. Justice Scalia, of course, voted with the majority in Shelby County. So yesterday, it seems, Scalia had no trouble with judges having the “power under the Constitution to invalidate this democratically adopted legislation” but today doing the exact same thing counts as ‘judges’ intrusion into [the people’s] lives.”
For those keeping track, the House of Representatives reauthorized the VRA 390-33 in 2006 and passed DOMA 342-67 in 1996.
Scalia’s hypocrisy would only have been more amazing if the two rulings had come out immediately after one another instead of a whole day apart.
It’s 10:45am now; I checked with my wife; and it seems like we’re still cool.
Paula Deen, Out of Step with the Newly Progressive South
Remember how, just a few days ago, people were saying that of course Paula Deen used disgusting racial epithets because she’s from Georgia and she came of age in the 1950s and 1960s? That anyone who grew up in that time and place would still think that way today?
Well, those people were all wrong.
According to five members of the Supreme Court, Georgia is a far different place than it was when Deen was in her 20s and race really isn’t such an issue there today (at least not to the extent that they’d need to have changes to voting practices precleared by the DOJ).
In other words, people making decisions about voting practices in places like Georgia either aren’t Paula Deen’s age or else they’re the same age as Deen but Deen is totally out of step with the way people in Georgia think about race.
Feeling better now?
Well, so much for civil rights …
But, you know, let’s all be glad we don’t have any problems with race in this country anymore.
Via NBC News:
(Photo: Saul Loeb / AFP – Getty Images file)
Opponents of same-sex marriage prepare for their next chapter as they await highly-anticipated Supreme Court rulings on the Defense of Marriage Act and California’s Proposition 8. If the decisions aren’t in their favor, they say they may pursue an amendment to the U.S. Constitution defining marriage as between a man and a woman.
It’s good to know that there are a whole bunch of people who think same-sex marriage is the most pressing issue facing our country. After they tackle this one, maybe they can get back to work trying to constitutionally ban spirituous liquor again.
Or, I dunno, maybe they can think a bit about the thousands of pressing issues we actually face rather than issues — like other people getting married — that will make no impact on their lives.
(Source: nbcnews.com, via shortformblog)
Benefit of the Doubt
A couple of days ago, I linked to a Mother Jones piece about Virginia’s Attorney General and GOP gubernatorial candidate Ken Cuccinelli on a 4th Circuit case involving a sodomy law that the 4th Circuit Court of Appeals deemed unconstitutional.
One of my former students responded thoughtfully about the particulars of the case, which are at least somewhat elided in the Mother Jones piece and in my own post on the matter.
One might read the piece and get the sense that Cuccinelli is acting in a completely unreasonable manner, defending a law that criminalizes sodomy between consenting adults. In fact, though, the case before the Court involves a 47 year old man and a 17 year old girl.
It’s a bit more confusing than all of that, of course, but the fact remains that Cuccinelli isn’t acting unreasonably at all in seeking to preserve the convinction or registration as a sex offender of someone who has three times been convicted of engaging in or attempting to engage in sex acts with minors.
The trouble is that Cuccinelli is seeking to do it by defending a law that is unconstitutional. At issue is whether or not Virginia’s anti-sodomy law could be preserved in cases involving an adult and a minor (since, based on Lawrence v. Texas we know it cannot be preserved in cases involving consenting adults). The Court ruled that it could not because Virginia’s law makes no distinction between minors and adults; it simply issues a blanket ban on sodomy.
Cuccinelli is appealing that decision, attempting to sever and preserve improper sexual behavior with a minor from the unconstitutional blanket ban on that behavior as written in the law. I think it’s wrong-headed, but it’s not an unreasonable thing for an Attorney General to do. Nor is obviously homophobic or hypocritical or whatever else I might have intimated in my post.
I ought to have given Ken Cuccinelli the benefit of the doubt but my opinion of him, especially on this particular question, was already muddied by other things that I know about him. This long quote from a recent ThinkProgress piece by Josh Israel outlines a bit of the history:
In 2003, the U.S. Supreme Court’s Lawrence v. Texas ruling held that states may not ban private non-commercial sex between consenting adults. Virginia’s Crimes Against Nature statute, which made oral sex (even between consenting married couples) a felony, was clearly the sort of legislation the Court was referencing.
A year later, a bipartisan group in the Virginia Senate backed a bill that would have fixed the state’s Crimes Against Nature law to comply with Lawrence — eliminating provisions dealing with consenting adults in private and leaving in place provisions relating to prostitution, public sex, and those other than consenting adults. Cuccinelli opposed the bill in committee and helped kill it on the Senate floor. In 2009, he told a newspaper that he supported restrictions on the sexual behavior of consenting adults: “My view is that homosexual acts, not homosexuality, but homosexual acts are wrong. They’re intrinsically wrong. And I think in a natural law based country it’s appropriate to have policies that reflect that. … They don’t comport with natural law.” As a result, the law’s text remains unchanged a decade after the Supreme Court’s ruling.
While the state could have brought misdemeanor charges under other statutory rape laws, the prosecution instead utilized the felony provisions of the Crimes Against Nature law. Because its provisions were never updated to comply with the constitutional privacy protections, the appeals court ruling determined that the law itself is unconstitutional. Even if Cuccinelli wins, the cost in time and money to Virginia will be huge — and could have been entirely avoided had he and the Republican majority in the Virginia General Assembly not been so determined to ignore the Supreme Court.
With this knowledge of Cuccinelli’s opinions, I did less of the hard work of explaining as much of the case as I could as well as I could and instead took the easier road of simply jumping right to a conclusion that might not be supported by the particulars of this case (even if I think they are supported by the reason for the way the case has turned out).
In doing so, I surely took readers down a shorter path with fewer details and that’s not what I’m trying to do here on the blog.
Even though I sometimes make fun of some of my Facebook friends, bringing their comments over here to push some broader point of mine about guns or the death penalty or politics more broadly, I’m encouraged today to see all of the status updates and photos in favor of same-sex marriage. My entire Facebook feed has been filled with them all day.
And, certainly more impressive, I haven’t seen a single hateful, angry, or negative comment. I’m sure there’s plenty of it out there, but not from my Facebook friends. Whatever our differences on some matters of public policy, it’s telling that everyone I know seems to have a positive or neutral opinion when it comes to same-sex marriage.
So … now I just need to change everyone’s minds about everything else.
The problem with Peter Singer’s account is not only that a lot of people would consider it to be monstrous but also that it’s based on what I take to be an unsupportable distinction.
At what point, one might justifiably wonder, does a fetus gain a right to life: conception, viability, birth, or some other time? Famously, Peter Singer has argued “that since no fetus is a person no fetus has the same claim to life as a person” (Writings on an Ethical Life, 160). On this point, he and I are in agreement: fetuses are not self-conscious, cannot engage in self-creation, and are not bearers of dignity.
But Singer goes much farther: “Now it must be admitted that these arguments apply to the newborn baby as much as to the fetus. A week-old baby is not a rational and self-conscious being, and there are many nonhuman animals whose rationality, self-consciousness, awareness, capacity to feel, and so on, exceed that of a human baby a week or a month old. If the fetus does not have the same claim to life as a person, it appears that the newborn baby does not either” (Ibid.). The reason, on my reading, that Singer goes too far with his suggestion about the permissibility of infanticide is that he puts too much weight on the psychological aspect of the human mind and not enough on the biological.
It might well be the case that we who are persons do not have strong psychological connections to the infants we were, but – as yet – we aren’t certain. We know, however, that healthy infants’ brains display organized cortical brain activity (OCBA) and, David Boonin argues, we can measure both the beginning and ending of this “electrical activity in the cerebral cortex of the sort that produces recognizable EEG readings” (A Defense of Abortion, 115).Given that, Boonin’s argument for using OCBA as the standard by which to judge whether a fetus is a person makes a good deal of sense. If OCBA is not present, we would be hard pressed to make a case for the self-creative feature of the human mind about which I’ve already said so much. For the cerebral cortex must be working in a organized manner before anyone can claim that the brain has created the sense of self that is the key feature of personhood.
If we are drawing lines – and with questions of birth and death it often appears that we must – then the line should be drawn at the earliest stage possible. With regard to self-consciousness and dignity, it seems to me that Boonin’s line allows much less room for error than Singer’s. Although it might very well be the case that selfhood (as we understand it) begins in infancy – and with it, dignity and personhood – Boonin suggests that we draw the line at the 25th week of pregnancy; the reason is that there is “ample evidence to suggest that [OCBA begins] to occur sometime between the 25th and 32nd week” (Ibid.).
We might push the line back a bit, however, and adopt an even more conservative estimate about OCBA by drawing the line at 20 weeks; as Boonin concedes, “Burgess and Tawia identify 20 weeks of gestation as ‘the most conservative location we could plausibly advocate’ as the beginning of what they call ‘cortical birth,’ because it is at this point that ‘the first “puddle” of cortical electrical activity’ of an ‘extremely rudimentary nature’ begins to appear in brief spurts” (128). Adopting this position – rather than Singer’s – would be to argue for a fetal right to life at the 20th week of pregnancy (the earliest time at which it is possible for OCBA to occur) and, of course, to prohibit things like infanticide.
This is, of course, a somewhat radical position, as it suggests that the ruling in Roe v. Wade – already controversial enough – needs to be reconsidered in favor of limiting some abortions. While many would argue that redrawing this line is wildly problematic, those who would most feel the effect of doing so are those who suggest that fetuses are persons with rights from the moment of conception, for Boonin notes that “even if we push back the gray area from 25 weeks to 20 weeks, it will still turn out that 99 percent of abortions take place before the fetus acquires a right to life” (Ibid.). In the end, tying the permissibility of abortion to the absence of organized cortical brain activity seems to have a limited effect on public policy and squares a difficult issue with the nonreligious understanding of personhood I advance in my book.