Dahlia Lithwick is a very funny writer, but she often leaves behind her normally sharp analytical skils when she writes about conservatives. Her latest Slate article offers a good example.
Lithwick’s piece argues that conservatives criticize Justice Kennedy for every position Kennedy takes, and that the criticisms are internally inconsistent and unprincipled. She uses two primary examples. First, former Alabama Supreme Court Justice Tom Parker based his election campaign on his opposition to Roper v. Simmons, and particularly on the fact that Kennedy’s opinion trumps the will of state legislatures that wanted to allow the death penalty for 16 and 17 year-olds. Second, the Wall Street Journal editorial page recently wrote a piece invoking Justice Kennedy’s opinion in Lawrence v. Texas as a justification the need for a constitutional amendment on same-sex marriages. In particular, the Journal argues that Kennedy’s opinion makes it more likely that courts will trump the will of state legislatures that want to define marriage in a particular way.
According to Lithwick, the fact that these two criticisms are both being made by conservatives against the opinions of Justice Kennedy shows that conservatives are inconsistent and unprincipled:
Just so we’re perfectly clear here: Conservatives are bellowing at Anthony Kennedy because in Roper he ignored the Constitution and attempted to divine the will of the majority of the people. But they also hate him because in Lawrence he ignored the will of the people as he attempted to divine what was constitutional.
Not a whole lot of wiggle room there, really.
The writing here is sharp, and if you don’t look too closely it might even seem kind of witty. But if you actually think about the argument Lithwick is making, it quickly becomes clear that it makes no sense.
Whether you agree or disagree with the criticisms Parker and the WSJ are making — for that matter, even if you think Parker and the WSJ are totally nuts — it’s not hard to see that they are making the same point. They both criticize Justice Kennedy for writing opinions that trump the will of the people as expressed through the legislative process. Both Parker and the WSJ want the law in these areas to be made by state legislatures instead of the U.S. Supreme Court, and they oppose opinions Kennedy wrote that ruled that legislative decisionmaking on the issue was prohibited by the Constitution. Again, you can agree or disagree. But these two criticisms make the same basic point, and seem to follow from a consistent perspective.
Lithwick misses this — or, perhaps, tries to hide this — by comparing apples and oranges. In the snippet above, she compares complaints that Kennedy ignored the will of the people with complaints that Kennedy was trying to divine the will of the people. But as far as I know, no conservative has criticized Justice Kennedy on the ground that Roper “attempted to divine the will of the majority of the people.” Rather, they have criticized Roper on the ground that it ignored the will of the people as expressed in state law, and that its analysis of the emerging national consensus was quite plainly unconvincing. Again, the criticism in the two contexts seems to be pretty much the same.
Thanks to Howard for the link.
Professor Kerr, you’ve patiently pointed out a blatant falsity in Lithwick’s essay. Will it ever be corrected? No. Why? Because it’s deliberate.
I noticed the same error too when I read the piece. It’s just typical propaganda that you’ll find in a million other places too. Sometimes on the left. Sometimes on the right. But always shameful.
Yup, you are totally right on this point. A better argument would have been to point out that the FMA itself will require future judges to frustrate any legislative grants of marital rights to gays (if this isn’t at least part of the motivation for such an ammendment the supporters should be perfectly happy to add language explicitly restricting it to judicial opinions). Thus supporters of the FMA cannot claim to champion the will of the people expressed through the legislature against judicially enforced constitutional provisions.
Still thought the argument isn’t really a good one. A more robust response that a conservative could make is to argue that it is perfectly appropriate to respect the will of past generations as enshrined in the constitution but simply claim that Kennedy’s deciscions are not entailed by the constitutional provisions enacted by earlier generations. I think they are dead wrong on this point, I believe the Founders understood the constitution to be compatible with an evolving interpratation by the judiciary but the argument offered in this article doesn’t prove anything.
Still what can you really expect? It is an article on the law and judicial deciscions written for non-specialists. The arguments on the conservative side blasting Kennedy for his opinions are equally bad (the ones presented to the public not those entertained by conservative lawyers) and since laymen probably wouldn’t be convinced by valid arguments on this point maybe it is necessery to fight bad arguments with bad arguments. I certainly don’t like it but at least you aren’t in the sciences. You should see how the press butchers science journalism.
Ultimately the problem is that in order to make good arguments you really need to invest the time to learn the case law and history. Before I started reading up on the matter I too thought any federal deciscion granting gays the right to marry would be a perversion of legal interpratation in order to achieve an admittedly noble end. However, reading Turner v. Safley and similar deciscions convinced me this simply wasn’t the case.
So what should people do if the real good arguments simply require too much background or are too complicated to convey to the public. You can’t say, ‘trust me their wrong but it’s too complicated to explain.’ So what should columnists in this position do?
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It’s a pity the Curmudgeonly Clerk isn’t still writing. He used to take apart Ms. Lithwick’s pieces with a great deal less patience than you obviously possess.
Indeed, Professor Kerr is far more patient than I am where Ms. Lithwick is concerned. But to write of “her normally sharp analytical skills,” as the professor does, is beyond mere patience; it’s simple charity. Ms. Lithwick’s writing is invariably sharp, but the quality of her analysis is not. There are plenty of places on the Internet where one can find sharp legal analysis these days, but how often do you see one of the web’s esteemed legal commentators praise Lithwick’s columns for their analytical insight?
Curmudgeonly Ex-Clerk: Great to see you’re still alive. Like you, I’m not sure why anyone would consider Lithwick to be analytically sharp. Bloggers do seem to have some weird love affair with her writing, though.
She’s funny, and I enjoy her columns for the same reason I enjoy reading Ann Coulter and People magazine – I want to give my brain a rest, but I don’t want to watch television.
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