Hal O'Brien

Linda Greenhouse of the New York Times has a blog post reporting a commencement speech to Harvard by former Justice David Souter.

Great stuff all around. I particularly like the echo of my professor Leo Flynn in this passage:

The Supreme Court may serve no higher function than to help society resolve the “conflict between the good and the good,” (Souter) suggested:

A choice may have to be made, not because language is vague, but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well. These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one. The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice.

The full text of Souter's speech is available here.

There's the usual grinding of wheels in the comments about "activism" vs "originalism." Here's what I submitted as a comment:

*^*^*

The existential problem of the originalist position may be put this way:

What if the original intent of the Founders was that the Constitution not be enforced in light of original intent?

Exhibit A in that surmise would be the Ninth Amendment, which reads in full, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

In other words, to the complaint of the literalists that, "Show me where in the Constitution a right to such-and-such exists," the Founders, through the Ninth Amendment, say, "It doesn't matter." So concerned were the Founders about the possibility the literalists might prevail that many states refused to initially consider the Bill of Rights until the Ninth Amendment was added, precisely because they didn't want liberty constrained by black letter text..

That sets up the basic conflict: If you're a literalist, you have to take the Ninth Amendment into account; but the Ninth Amendment repudiates literalism.

This is probably why Robert Bork famously tried to sweep the Ninth Amendment under the rug as a, "Rorschach test." The literalists and originalists find the only way to reconcile their views on the original text of the Constitution is to ignore the original text of the Constitution.

Accordingly, Antonin Scalia is probably the most "activist" voice in the judiciary today. And how ironic is that?

UPDATED TO ADD: It appears the Times axed the comments they already had in hand, and now simply say, "Comments are not being accepted for this post." I've been noticing how whether they accept comments on any given piece has appeared to be random. This is the first time I've noticed them both turning them off and removing the existing ones, though.

Here's a joke from a book on cross-examination I've read (that's somewhere in a box, so I don't have a better cite than that):

Seems there was a Rookie Cop. He ticketed someone for drunk driving. The Defense Lawyer lays into him:

DL: Is it true, officer, that this is your first year of service in the police?

RC: Yes, it is.

DL: Is it true this is among the first citations you've ever issued?

RC: Yes, it is.

{that's where the book suggests the DL should have left it. instead, he went on:}

DL: On what basis, then, did you assess my client's sobriety behind the wheel?

RC: Fifteen years' experience as a professional bartender.

Oops.

In a similar way, Glenn Greenwald has a few things to say about Ms. Sotomayor.

Unlike me, most likely you, and the overwhelming majority of Americans, though, he bases it on a case he argued before Judge Sotomayor.

*^*^*

jaylake pointed to this piece at National Review by one Mark Krikorian where the poor writer complains about peer pressure to pronounce Ms. Sotomayor's name correctly, instead of mangling it the way he'd like. This is what I wrote to him:

---

"This may seem like carping, but it's not."

Wanna bet? If it comforts you to think so, fine. That's probably not true to your readers, though.

First off, you keep making a "natural"/"unnatural" distinction. There is no such thing in language. There is only trading off one set of unnatural rules against another.

Secondly, you appear to be saying that notwithstanding the implicitly assumed conservative commitment to freedom, citizens should only exercise that freedom in a way, "the rest of us can just ignore." If that's really your view, you should stop publishing your thoughts, so those of us who are genuinely conservative can just ignore you. I'm willing to give you the benefit of the doubt and think that's not what you meant.

Then there's the mildly faith-related argument. "(A)ll things whatsoever ye would that men should do to you, do ye even so to them..." I wish others to pronounce my own name correctly. How then can I begrudge the desire of others for the same? (Don't get me started on lazy programmers and having an apostrophe in one's name.)

As for other, previous waves of immigrants not being willing to stick up for the things they believed in, so all subsequent waves should make the same craven concessions... "If Johnny were to jump off the Empire State Building, would you jump off the Empire State Building?"

Yours in freedom,

-- Hal O'Brien

---

He was kind enough to write back. Unfortunately, it didn't reflect well on Mr. Krikorian's judgment. I quote him here in italics:

---

"In a system of ordered liberty, you don't just get to do whatever you want -- you also have obligations to the community."

Indeed. And yet you continue to shirk yours. Your attitude as written continues to be, you personally are made uncomfortable by something, so the community can go hang.

"My point all along has been that there's been a reduction in the degree of social pressure from the community overall to conform to our ways."

Which means what you believe the obligations to the community are, and what the community itself believes those obligations to be, are two different things.

"Such pressure may well have been excessive in the past, but it's inadequate now."

According to yourself. Yet, by your own concession, the community disagrees with you.

This sounds very much like there's no actual sincerity in your writing, but mere posturing to gain attention. Mind you, I have no way to judge your actual sincerity -- I can only relay how your writing comes across.

-- Hal

---

{sigh} Yet another Dead Jackal.

Kottke pointed to this listing of the "50 Most Loathsome People In America 2008".

Clocking in at #30, our old friend, Antonin Scalia. OK, no big surprise that the most intellectually dishonest person in DC should make such a list. But why in this case?

"Exhibit A: “Mere factual innocence is no reason not to carry out a death sentence properly reached.”"

Huh. The spooky thing is, while I can see Nino saying such a thing, I'd think I would've heard of that by now. So you know what I had to do.

A quick Google search yielded 12,200 results. On the first batch of hits, we see a citation: Herrera v. Collins 506 US 390 1993.

Alas... Here's Scalia's concurrence in Herrera v. Collins. No such quote appears. That's the good news.

The bad news? It's not an unfair paraphrase of what he did say. Which means I suspect this internet hoax started as someone being snarky about the opinion (I thought it might be Dahlia Lithwick, but it doesn't seem so), then the vital phrase along the lines of, "It's as if Scalia is saying..." disappeared, and it was just laid at Scalia's feet whole cloth.

Still. 12,000 hits on the misquote. Including at "quotation sites." (!)

So perhaps there's justice after all.

( Scalia's opinion is short enough I'll give the whole thing after the cut. )

News item:

"A divided U.S. Supreme Court upheld on Wednesday California's "three-strikes" law which gives up to life in prison for repeat offenders even if their last crime was minor theft like stealing golf clubs.

By a 5-4 vote, the high court ruled the law does not violate the constitutional ban on "cruel and unusual" punishment.

In one case, the high court said it was constitutional for Gary Ewing to be sentenced to 25 years to life even though his last crime was stealing three golf clubs worth about $1,200.

In the other case, the justices by a 5-4 vote said a U.S. appeals court was wrong in overturning the sentence of two consecutive terms of 25 years to life for Leandro Andrade, who stole nine videotapes worth $153.

Ewing and Andrade had been convicted of a number of prior felonies. They argued the law unconstitutionally resulted in an unduly harsh sentence "grossly disproportionate" to the crime.

Justice Sandra Day O'Connor wrote in the majority opinion that in the Ewing case the three-strikes laws caused a dramatic change in criminal sentencing in the mid-1990s throughout the nation.

State legislatures "made a deliberate policy choice that individuals who have repeatedly engaged in serious or violent criminal behavior and whose conduct has not been deterred by more conventional approaches to punishment must be isolated from society ... to protect public safety," she said.

O'Connor said the Supreme Court has a long-standing tradition of deferring to state legislatures on such policy choices."

Except, of course, when it comes to election laws.

{hal slaps his hand to his mouth}

Did I say that out loud? Oh, so sorry...