Tara Kirsten King
Recently in Slate magazine, Dahlia Lithwick wrote a compelling piece arguing the high demand for a more gender balanced court. I don’t necessarily agree with some of her language–words such as gender are problematic as a result of socially constructed ideologies, but I do agree 100% with the article as a whole .
“Still, beneath all the formal legal reasoning at the Supreme Court, there are the countless stories of casual influence: the female law clerks, the secretaries, and the family members whose experiences, like Marshall’s, slowly taught insulated justices how much they needed to learn. It’s long past time for women to influence the high court in more direct ways. Women who want Obama to push for gender balance at the Supreme Court need to remind him that fighting for gender diversity at the high court isn’t just for show. The real point may be to tell.” (source)
If I were a religious person I would exclaim, Hallelujah… But instead I’m exclaiming are you fucking kidding me?! The critique of Lithwick is so assanine I find it comical. Suddenly some of the “feminists” are deprecative and claim that advocating for a female justice is essentialist…
“This question is critical. All women do not think the same way, share the same opinions, nor agree on what it means to be a woman in America in the early 21st century. It would be folly to treat women like a deck of cards – “pick a woman, any woman” – and hope that the desired result – that being concern for women – will be obtained based on the presence of two X chromosomes. When politically disenfranchised groups are placed in prominent positions, this danger is ever present. Clarence Thomas and Thurgood Marshall are both African American males, but their judicial philosophies are entirely opposite. Sarah Palin and Hillary Clinton share little in common politically despite sharing a race and gender. Thus, in the desire to see a woman on the Court we must be clear on what is desired. I believe what most people are saying when they say “we need a female justice” is that there should be someone on the Court who cares about women’s rights and can effectively articulate those positions. But must this person necessarily be a woman? …However, there are men out there that can understand these concepts. Justice Blackmun – a man – was responsible for Roe and defended that decision, as well as women’s reproductive rights in other ways during his tenure on the Court. Given the choice between a Justice Blackmun and a justice who cares little about the myriad problems women face but who happens to be a woman – most women’s rights advocates would probably take the guy. (source)
Of course men have the potential to be advocates for women as much as women have the potential to be self loathing misogynists. And NO ALL WOMEN DO NOT THINK THE SAME (another thing to be thankful for)…Lithwick is merely suggesting that we need another woman on the Supreme Court—regardless of the way they interpret the world. Herein lies the irony with the critiques–now that we are in the post modern flux of constant gender deviation and deconstruction, patriarchy still trumps through its reproductive and ubiquitous nature and suddenly it appears that equality between men and women is irrelevant. But then again I suppose that is not surprising because life becomes so much easier when we become blind to color, race, sex and gender and stew in our “melting pot.”
The article mentioned above which critiques Lithwick’s “essentialism” ends as follows:“However, it is also true that in any human group, people bring their past and personal philosophies to bear.”
It would then seem to follow that allowing the Supreme Court to go back to a homogenized boys club is sound logic…HA HA HA. I think what I will do is go get my” post-modern stick” of rational thought and start tapping people so they can wake up because saying gender shouldn’t matter in terms of proportionality on the Supreme Court is like saying that marriage rights don’t need to be defined as a measure for achieving “equality” and that Columbus discovered America…
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April 30, 2009 at 6:47 am |
I know that I’m an idealist, but Supreme Court Justices are not supposed to rule based on their own personal politics. That’s just plain wrong. So in an ideal world, the race/gender/religion/etc. of a particular justice should not matter. It should only matter how intelligent they are and how well they know the law. Their only job is interpreting the language of the Constitution, federal statutes that have been passed with constitutional authority, and state statutes that may violate the Constitution. Nothing fires me up more than reading a Ginsburg opinion that clearly demonstrates her personal biases or philosophy. Therefore, I object wholeheartedly to any statement like “[Insert President's Name] needs to appoint a/an [Insert Subclass of Human] Supreme Court Justice.”
April 30, 2009 at 6:51 am |
I agree– however, are you suggesting that Scalia(as much as I love him)inserts his opinions any less than Ginsburg–i.e his vitriolic diatribe in Lawrence…?
April 30, 2009 at 7:30 am |
I absolutely think that there is less personal politics in Scalia’s Lawrence v. Texas dissent than there is in the majority opinion. His vitriolic diatribe has nothing to do with whether he likes gay people and everything to do with majority’s decision to invent a new constitutional standard that applies to them. This is a classic example of the Court overstepping its purview – messing with a state’s right to pass legislation that does not infringe on a fundamental right, and Noni was right to dissent, pointing out the majority’s failure to properly uphold the Constitution.
It’s unfortunate that people read that kind of dissent and assume that it demonstrates some kind of bias, when the real bias is in the majority.
April 30, 2009 at 8:47 am |
Excellent response, fischer. As an idealist I share your ideal world. It seems so simple to me but only when everyone consciously does his part and there are too many egotistical, greedy, stupid, ignorant, agenda driven people in office and the courts.
Being we don’t exist in an ideal world, I find it rather mind-stretching that subjectivity doesn’t play a factor in court decisions no matter how neutral one tries to be. The point is to find the most objective individual possible and I don’t feel a woman is necessarily going to be it. I’m unconcerned about the gender. I’m concerned about the philosophy and political view and the deep empathy and understanding of the female perspective. I’ve been fortuante to have quite a few men in my life who “got it” and would trust them to take the feminist view on my behalf.
And though perhaps inappropriate, the cliche that I don’t know word for word but states that behind every successful man is a woman has truth when interpretting “successful” as a truly feminist/choice minded man here. They exist.
Women influence men in greater ways than presented or sometimes believed and quite frankly, the bedroom has a lot to do with it.
April 30, 2009 at 2:53 pm |
Idealism is admirable, but dangerous.
Saying that the Court’s role is not to decide tough policy questions and only base their decisions on the “law” (whatever that is) and thus the only qualification is how “intelligent they are and how well they know the law” totally misses the history of the court and is naive on what function the Court truly should have.
It’s like saying the only qualifications you’d like to see in a cop is their ability to follow the law and the strength to properly arrest the accused. What about decency? What about the ability to get into a community and know the people? What about the common sense to know that you don’t need to arrest every punk who vandalizes a trash can? Sometimes talking to the kid’s mother does the trick. Sometimes it’s being a role model. These are invaluable traits that are beyond a formulaic qualification scheme.
So too with judges. There is no such thing as “what the law is.” Law is by nature a deeply social device. Judges are advocates, pure and simple. They are not black boxes in which we input facts and expect an output based on this unknowable thing called “the law.” They are advocates for principles and people. The law is not always just. The day the Court mechanically applies “the law” as an algorithm is the day our uniquely American system of politics dies.
“The life of the law has not been logic, but experience. …” – Holmes
April 30, 2009 at 3:26 pm |
I fundamentally disagree with any characterization of the Court that gives nine unelected fuck-tards the power to set policy (i.e., rule based on what they think is socially correct). That is unequivocally the responsibility of the legislative branch.
…and I realize that is not the reality we live in, but that doesn’t make it right.
April 30, 2009 at 6:08 pm |
You understand that under your view 98% of what’s contained in the US reports would then be bad law, right? Would you do away with the common law in general? How is originalism any different from a policy neutral standpoint than interpretivism? I don’t take a position either way on which is better, but to argue that there could be an effective judicial system that doesn’t rely on policy setting is beyond idealism and squarely in fantasy world. Exactly how would this work? Punt everything back to the legislature? If legislative deference is key, exactly what role does the judiciary have?
Like others in the boo-hoo judicial activism crowd you’re probably upset that sometimes courts subvert the will of the people. However, the majority of the country believes the Constitution creates a Christian nation and given the chance would legislate just that.
Here’s my point — Scalia’s views in Lawrence are just as grounded in policy making as Kennedy’s. Both decisions reflect social and political policy judgments by the Justices. I mean, the whole fucking concept of a “fundamental right” is MADE UP.
When people try defend conservative judicial practices (activism, not political conservatism) on the grounds that they’re not setting policy, I can only wonder one thing: where can I get that excellent chiba that they’re smoking?
April 30, 2009 at 7:05 pm |
But we’re not talking about common law, are we. We’re talking about state statutory law. The only way the Supreme Court should be sticking its fingers in that pie is when the state statute runs afoul of the Constitution. Otherwise, there are adequate mechanisms in place to take care of it, without involving an unappealable judiciary.
Under the Tenth Amendment, states are free to pass the laws that they deem necessary, provided they don’t do something impermissible. If the representative government in Texas wants to pass a state law that says butsechs is illegal, that is their business. If you don’t like it, you have three options: 1) don’t live there; 2) if you want to live there, vote for legislators that agree with you; or 3) work on amending the Constitution to make that statute unconstitutional. But for five members of the Court to decide that they “know better” and impose their viewpoint on the rest of the country is nothing short of oligarchy. What happens when you don’t agree with the five? You have zero options.
Personally, I don’t care what people do in the privacy of their bedrooms. I just think this particular opinion is an interesting vehicle for debate. To be completely honest, I think its time for a constitutional amendment that recognizes homosexuality as a protected class. Unfortunately, I’m in the minority.
There is a proper way to do things in this country, as set up by the Framers, and in my opinion, judicial activism does not fit into it.
We could disagree about this all day, and it has nothing to do with how many joints I’ve been smoking.
April 30, 2009 at 8:18 pm |
Just a couple of wrap up points, and I’ll let this one die.
1) The Tenth Amendment is useless.
2) All judicial opinions are viewpoints. Even what you consider “restraint” is still activism. Deciding what is or is not protected under “liberty” (which was at issue in LvT) is still activism, no matter which way you turn out on the issue. I mean, they’re called opinions. That means that they’re subjective by nature.
Why do people behind hide judicial restraint rather than just say what they mean? Is it really so hard for the “restraint” crowd to declare “I don’t believe the constitution protects your private sexual intercourse.”
3) Why should we need a constitutional amendment to protect gays? We, uh, already got one. It’s ah-very-nice. See U.S. CONST. amend. XIV.
4) Your claim that you don’t have enough support of the people to protect homosexuals through a constitutional amendment is exactly why courts need to step in. Tyranny of the majority, dooder.
April 30, 2009 at 8:36 pm |
Who taught your Con. Law course, man? Now I KNOW you have no idea what you’re talking about. Are you just making this up as you go along? The Tenth Amendment is not “useless.” (Try reading the Federalist Papers some time.) The Fourteenth Amendment does not protect sexuality. Tyranny of the majority is exactly what the natural order is SUPPOSED to be – unless it violates the Constitution. Welcome to the republic.
April 30, 2009 at 10:13 pm |
Hey bro, try not to rock your e-peen too hard. I’m super duper solid on my Conlaw, so why not respond to my arguments instead of resorting to ad hominem, eh?
It is true that the Court, to this point, has declined to hold homosexuals to be a protected class, but there is no reason that it shouldn’t or couldn’t. Is it really that hard for you to get the what the “equal protection of laws” means? Certainly you might recall a footnote about discrete and insular minorities. Homosexuals meet every other single characteristic that other traditional protected classes have (except arguably immutable traits). Why can’t you see that protected classes are a construct of the court? Do you really need some ad-hoc ordering scheme in order to give humans the basic rights? You should step outside the hornbook law some time. The black letter can trap you.
The Tenth Amendment is “but a truism” — that’s a fact, Jack. When is the last time the Tenth has been used to invalidate a law, eh? Like 30 years ago. Even in Lopez the Court declines to apply it. It has no absolutely no force whatsoever, no matter how much you pound the table and question my constitutional law knowledge. The Constitution has limited and enumerated powers and the Tenth Amendment does nothing to change that equation. Even in applications where the Court has purportedly used the Tenth Amendment, it could have just as easily defined the constitutional violation as beyond the scope of the Commerce Clause.
Tyranny of the majority is exactly what the constitution was designed to protect against. Do you really think that the majority can run roughshot on the less popular because that’s the natural order? If the will of the republic was paramount, why the constitutional protections for individual liberty? The natural order, brosef, is that all men are created equal. Equal before the law. I’m saddened to know that we are producing lawyers that don’t hold this same view.
April 30, 2009 at 3:42 pm |
jfischer–
Regardless of whether or not Scalia was right on the question of judicial activism,* there’s still bias evident on the face of his opinion, mainly thanks to his use of the phrase “homosexual agenda.”
Scalia is not a dumb guy, and he’s a very precise writer. “Homosexual agenda” is a code phrase with a specific meaning, much like “states’ rights” was in the 50s and 60s (and still is today, in parts of the South). He could have written “overzealous gay rights movement,” or somesuch phrase, but he didn’t. He chose a phrase invented by Christianist conservatives for the purpose of portraying any efforts to change society’s thoughts about homosexuality–be they via the courts, the legislatures, or mere “marketplace of ideas” type pressure–as sinister.
(Of course, it’s trivially true that nearly all gay people would like to see discrimination against homosexuals come to an end, just as it’s trivially true that there are a large number of lobbyists who promote the interests of the state of Israel. But “homosexual agenda” and “Israel lobby” are nonetheless loaded phrases.)
The bias in Scalia’s opinion doesn’t show in the conclusion he reaches, which is indeed in keeping with his overall judicial philosophy.** It’s in the langauge he uses to describe the majority opinion.
*In the interest of disclosing my bias, I think he’s wrong about that. I subscribe to a brand of libertarian judicial activism broadly similar to Randy Barnett’s. I think Justice Field was right in Slaughter-House, Justice Peckham was right in Lochner, and Justice Goldberg was right in Griswold.
**Though, as Michael Klarman’s work on the history of the civil rights movement makes clear, it’s pretty easy to strategically employ neutral legal doctrines to cripple any sort of legal efforts directed at changing the status quo.
April 30, 2009 at 7:36 pm |
It is simply antithetical to constitutional governance to argue that laws mean whatever a group of people think they ought to mean. Originalist theory rejects that notion. Statutory interpretation should start from the standpoint that the law is whatever words are fixed on the page, becoming law through the constitutional procedure mandated for creating new law.
An example of this interpretation in action? See Scheffel v. Krueger, 782 A.2d 410 (NH 2001).* In that case, the Plaintiff implored the state supreme court of New Hampshire to create an “exception to the law” to allow the Plaintiff to tap into a spendthrift trust (the Defendant actually molested the Plaintiff child and was suing in tort). Unfortunately, obtaining damages in tort was not an exception the legislature decided to put in the statute regarding creditors and spendthrift trusts. The court, torn between doing what seemed right and interpreting the plain language of the law, did the proper thing and applied the law as it was and denied the Plaintiffs appeal.
Sometimes the law does not offer the outcome we think it ought to. If that happens, reason with your fellow voter to have that law changed through the legislative process. An activist court might sometimes come up with a conclusion you agree with, but other times it may not. An example of an activist court using policy (and due process, no less) to come up with a desired result? Dred Scott v. Sandford, 60 U.S. 393 (1857).
For those who disagree – why did the founders bother including an amendment process in the Constitution (they even gave it its very own article)?
*I was reviewing this case while preparing for my Wills, Trusts, and Estates final and thought it was a good example of a proper, originalist rationale.
April 30, 2009 at 10:02 pm |
ok din ding–Souter is retiring let the games begin
May 1, 2009 at 4:43 am |
Hey, everyone debate nice!