Scalia: Judicial Activist

If you ever hear a conservative decry judicial activism yet offer praise for Antonin Scalia, please call them out on it.  It is hard to imagine a more egregious example of judicial activism than Scalia’s performance in oral arguments over the Voting Rights Act.  The idea behind judicial activism is that judges insert their views in the place of democratically-elected officials.  Sometimes, this is clearly appropriate (e.g., Brown v. Board of Ed), but there’s something to be said for the idea of deferring to the duly-elected representatives of the people unless you’ve got a very clear and compelling reason not to.  Then again, if you are Scalia, not so much.  The Post editorial sums it up nicely:

“It was clear to 98 senators, including every senator from a covered state, who decided that there was a continuing need for this piece of legislation,” Justice Elena Kagan said, in what might seem a self-evident point.

But not to Justice Scalia. “Or decided that perhaps they’d better not vote against, that there’s . . .none of their interests in voting against it,” he said. Later he elaborated on why he feels free to dismiss this particular congressional action: “I don’t think there is anything to be gained by any senator to vote against continuation of this act. . . . They are going to lose votes if they do not reenact the Voting Rights Act. Even the name of it is wonderful: the Voting Rights Act. Who is going to vote against that in the future?”

This is a stunning line of argumentation. Congress is empowered to write legislation enforcing the Fourteenth and Fifteenth Amendments. But if Justice Scalia doubts the purity of lawmakers’ motives, then apparently this power is limited. We wonder how the justice is able to discern what lay within the hearts of these 98 senators. We also wonder how many challenged acts of Congress would survive if the court saw fit to strike down any that were enacted by lawmakers considering, in part, their reelection prospects.

Indeed.  Also note, how easily the Post eviscerated Scalia’s logic here.  I’ve just never understood this cult of Scalia the brilliant jurist.

Photo of the day

Very cool collection of photos from when the White House was completely gutted during a 1950 renovation (I had no idea).

Window openings provide bursts of light into the cavernous interior of the White House, supported only by a web of temporary steel supports. The exterior walls rest on new concrete underpinnings, which allow earth-moving equipment to dig a new basement. (National Archives)

Hard to believe that’s the White House.

On journalistic position taking

Among most political journalists, there is a strong norm of not taking a side, which all too often results in the knee-jerk centrism, “both sides are wrong” or “both sides do it” approach that so distorts the reality of American politics.  I love the point Tomasky makes here that this approach is absolutely advocating a point of view:

Someone like Fournier probably thinks that he’s not supposed to take positions. But in these three columns, he took a position whether he knows it or not: He took the position that a president who has cut spending three times as much as he has increased revenue, and whose current offer, a mostly even mix of cuts and revenues, is backed by three-quarters of the American people, is being no more reasonable than a minority party that says our way or the highway whose position is supported by 19 percent of the people.

Those positions are not equivalent. To write as if they are equivalent is to perpetrate a lie. [emphasis mine] Or at least two lies: in the immediate case, the lie that the Republicans are engaged in anything resembling good-faith bargaining; and in the broader sense, the lie that the GOP is a normal political party by our historical norms, just a slightly more intense version of the Democrats of the 1980s or the Whigs of the 1840s. They are not that.

As long as journalists keep pretending that this approach is somehow not taking a point of view or “playing it down the middle” they are doing a huge disservice to the American public.


The VRA and Southern Racism

The Supreme Court is hearing arguments about the Voting Rights Act today.  To read while it’s still needed, there’s this.   Anyway, I was intrigued by the comments of John Roberts (via TPM):

A question posed by Chief Justice John Roberts to the Obama administration’s lawyer defending the Voting Rights Act captured the tenor of the proceedings.

“Is it the government’s submission that citizens in the South are more racist than citizens in the North?” Roberts asked.

Roberts thinks that “no” is the obvious answer to this question.  But this is an empirical question, to which we know the answer.  It’s a little dated now, but my friend and colleague Mike Cobb made his name with an innovative approach to more accurately measuring racism.  You can read the whole thing here, but I’ll excerpt from the abstract:

Using a new and relatively unobtrusive measure of racial attitudes designed to overcome possible social desirability effects, our study finds racial prejudice to be still high in the South and markedly higher in the South than the non-South. Preliminary evidence also indicates that this prejudice is concentrated among white southern men.  [emphasis mine]

Well, there you go, Justice Roberts.  Now, this was published in 1997 and Mike tells me he’s not aware of any replication since then, but I think it’s safe to presume that something “markedly higher” has not disappeared completely in 15 years.

Republican politicians and gay marriage

I half-noticed articles about Republicans endorsing gay marriage the other day, but didn’t pay much attention, because most of what I saw featured a head-shot of Jon Huntsman– not exactly in the mainstream of the Republican party (good for him, of course).  The headline of this short Slate piece, confirmed my initial reaction to essentially ignore this as news, “Why Only Two Republicans in Congress Admit to Supporting Gay Marriage.”  So, of these 82 Republicans who signed on to a legal brief supporting gay marriage, a whopping 4 hold political office and only 2 hold federal political office.  I guess it’s a good thing that Republican “politicians” support gay marriage, but it will actually matter when Republican office-holders support gay marriage. 

Photo of the day

Recent National Geographic photo

of the day:

Picture of a barn owl flying over reeds

Barn Owl, United Kingdom

A wild barn owl flying over Norfolk reeds at dusk

Actually, I don’t quite get how this photo works.  The reeds in the foreground are in focus, the owl in the back of the shot is in focus, but the reeds in the background are out of focus.  How is this happening?  How can the owl be in focus while those further back reeds are not?


Alright, I feel a little guilty for writing about this, as celebrity murder trials get way too much attention as actual news.  But, hey, I’m human and have been intrigued by this case.  I love this take from Will Saletan, that even if you entirely buy Pistorious’ own version of events, he’s a dangerous, reckless killer.  Here’s a bit:

On Feb. 14, around 3 a.m., Pistorius was in bed at his house with his girlfriend, Reeva Steenkamp. According to his affidavit,

I woke up, went onto the balcony to bring the fan in and closed the sliding doors, the blinds and the curtains. I heard a noise in the bathroom and realised that someone was in the bathroom. I felt a sense of terror rushing over me. There are no burglar bars across the bathroom window and I knew that contractors who worked at my house had left the ladders outside.

Pause right there. Pistorius lives in a hyper-secure gated community that advertises a “solid, electrified security wall,” laser sensors, and biometric locks. Wealthy South Africans move to such communities precisely so they can go outside without fear. At last week’s bail hearing, a police officer testified that there were two dogs outside the window where Pistorius claimed an intruder might have entered. The prosecutor also asked why, if Pistorius feared burglars, he slept with his balcony doors open. Pistorius’ lawyer, Barry Roux, didn’t address either point.

There’s no record of any burglary-like incident at Pistorius’ home. The two incidents he has acknowledged were false alarms…

To appreciate the perversity of this story, you have to see the floor plan of Pistorius’ home. His bedroom door wasn’t down the hall, where he’d heard the purported burglar noises. It was in the entryway right next to him. All he had to do was wake Steenkamp and slip out with her. His “limited mobility,” which supposedly prevented him from making it 15 feet to the bedroom door, somehow didn’t deter him from maneuvering 20 feet down the hall toward the danger, and around a corner for another 15 feet to where he thought the intruder was. There, a homeowner ostensibly too terrified to turn on a light in his bedroom, or even unlock his bedroom door and flee, had no trouble firing four shots through the locked toilet door, which offered no escape route. If there really was an armed intruder, this was the course of action most likely to escalate the carnage.

Short version: pretty damning.

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