The Wal-Mart case was decided unanimously, but it was 5-4 in a very important way.

Permit me to explain what is a bit complicated. Under Federal Rule of Civil Procedure 23, which governs class action, there is a set of preliminary requirements in subsection (a) and then a list of 3 types of class actions in subsection (b). The class must meet all the requirements in (a) and then fit one of the categories in (b).  The Scalia opinion (joined by the Chief Justice and Kennedy, Thomas, and Alito) and the Ginsburg opinion (joined by Breyer, Sotomayor, and Kagan)  agree that the district court erred in putting the class into the second category in subsection (b), but only the Scalia majority also thought a preliminary requirement in 23(a) was not met. Since all class actions — in any of the (b) categories — must meet the requirements in (a), the Scalia opinion has a much more restrictive effect on class actions.

Let's focus on that disagreement. The proposed class included all current and former female employees of Wal-Mart, well over a million women. Rule 23(a) requires that all the members of the class share a common question of law or fact. Wal-Mart had a policy of decentralizing employment decisions to the store level, and the plaintiffs, attempting to satisfy 23(a), said that Wal-Mart has "a strong and uniform 'corporate culture' [that] permits bias against women to infect, perhaps subconsciously, the discretionary decisionmaking of each one of Wal-Mart’s thousands of managers — thereby making every woman at the company the victim of one common discriminatory practice."

Is this policy of decentralizing decisionmaking a common question? Scalia called it "a policy against having uniform employment practices." There have been cases in which an "undisciplined system of subjective decisionmaking" has been held to violate Title VII (the federal statutory law about employment discrimination). But in the case of Wal-Mart, once the decisionmaking was decentralized to the store level, there would be differences from store to store in how that decisionmaking would be done. Even assuming there was an undisciplined system of subjective decisionmaking in every store, each  store would might have its own undisciplined system of subjective decisionmaking. To meet the Rule 23(a) requirement of a common question, Scalia wrote, there would need to be a "specific employment practice" that was applied to all the members of the class, not simply a policy that created the conditions for thousands of stores to devise specific employment practices. 

Ginsburg thought that Wal-Mart's delegation of discretion, "uncontrolled by formal standards, has long been known to have the potential to produce disparate effects."

Managers, like all humankind, may be prey to biases of which they are unaware. The risk of discrimination is heightened when those managers are predominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes."...

Ginsburg tried to portray Scalia as importing a requirement that the common questions predominate over the individual questions. (That actually is a requirement in one of the subsection (b) categories.) But that's not what Scalia did. Scalia said that the decentralization move simply wasn't a question in the case and that the actual questions are specific to the store level and not to the entire class the plaintiffs attempted to define.

ADDED: After reading the case and trying to explain it as clearly as I could, I've been reading some of the press accounts, and... I can't say I'm surprised, but what politicized drivel!

"It appears that at least a few of the justices really, really, really just hate the Phelps family and its manner of protest..."

"... and they might even be willing to whip up a little new First Amendment law to prove it."

Margie J. Phelps represents Westboro Baptist Church, and yes, before you ask, she hates you, she really hates you. She most likely hates the six Catholics and three Jews up there on the bench, too. But she hides it well....

Scalia wonders whether these signs and Web posts could be unprotected words under the fighting words exception to the First Amendment, but Phelps says this protest was never intended to provoke a fight. Channeling Stephen Colbert, she says their message is just this: "Nation. Hear this little church. If you want them to stop dying, stop sinning."...

The headline writers are going to say that the justices "struggled" with this case. That may be so, but what they struggled with has very little to do with the law, which rather clearly protects even the most offensive speech about public matters such as war and morality. They are struggling here with the facts, which they hate. Which we all hate. But looking at the parties through hate-colored glasses has never been the best way to think about the First Amendment. In fact, as I understand it, that's why we needed a First Amendment in the first place.

I absolutely agree with Dahlia Lithwick about this.

It's the first Monday in October, time for people like Barry Friedman and Dahlia Lithwick to tell us "the court has taken the law for a sharp turn to the ideological right..."

"... while at the same time masterfully concealing it." And, annoyingly enough — to them, anyway — ordinary Americans still think the Supreme Court is too liberal.

How to explain the justices shoving the law rightward, while everyone thinks it is dead center or too far left? 

Their metaphor is magic — the article is accompanied by a photoshop of the Chief Justice in magician garb about to pull something out of a hat — and that question fails to acknowledge the difference between absolute and relative position. Obviously you can push — or shove as the exaggerated language of anguished liberals will have it — something to the right and have it still be on the left if the thing started out way the hell to the left. And obviously liberals know this: Tell Friedman/Lithwick that Anthony Kennedy is in the legal/political center because he's at the center of the current array of Supreme Court Justices. It will take them much less than a second to decide to inform you of the distinction between absolute and relative position.

Like TV's "Masked Magician," Friedman and Lithwick want to reveal the secrets behind what they'd like you to think are magic tricks the Court uses to conceal its terrible right-wingitude.

First, they say, there's "stacking the deck": "picking cases with facts so extreme that only one outcome seems possible." One of only 2 examples they give is Gonzales v. Carhart, in which the Supreme Court, in 2005, upheld the federal law banning so-called partial-birth abortion. Friedman and Litwick say:

The law bans late-term abortions in which the fetus is partially delivered before its brains are sucked out and skull collapsed. If you find it hard even to read that, you've caught the point: That's deck-stacking.

But the Court didn't choose that case out of a big pool of abortion cases in order to get something with "gruesome facts" that would keep us from "notic[ing] the major inroads the case makes on women's rights more generally." Congress passed the Partial-Birth Abortion Ban Act in 2003, right after the Supreme Court had stricken down Nebraska's partial-birth abortion law in 2000, in Stenberg v. Carhart. The Court in Stenberg showed legislatures what would be needed to pass a law against these abortions that would avoid the same constitutional flaw and Congress responded with a statute that we knew would have to go through judicial scrutiny and end up in the Supreme Court.

That it came to the Supreme Court in 2005 has nothing to do with the Court "stacking the deck"! Friedman and Lithwick just don't like what the case said about abortion rights, but the truth is that Gonzales v. Carhart was a moderate decision that avoided both extremes and, because of that, produced a separate opinion by Justices Thomas, joined by Justice Scalia (rejecting abortion rights altogether and questioning Congress's use of the Commerce Clause to regulate abortion), as well as a dissenting opinion consisting of the 4 Justices who, with the now-retired Justice O'Connor, had formed the majority in Stenberg.

The second "trick" Friedman and Lithwick identify is "misdirection":

While we are watching the term's "big" cases, it works its magic on the ones we aren't paying attention to, which often matter more. In this enterprise, the court is aided and abetted by the media.

Speaking of tricks, calling this a trick is itself a trick! It lets Friedman and Lithwick discount all the big cases that came out liberal and cherry pick any and every case that came out conservative. Hey! Look what the Court did in here! They proceed to tell you about their least-favorite recent cases.

Iqbal, Twombley, Garrett, Gross, Rapanos, Rent-a-Center. Maybe you haven't heard of most of those. But these are the cases that, read together, are making it harder and harder for everyday litigants to walk into a courthouse and hold unscrupulous employers, manufacturers of defective products, or polluters to account.

And you could pull out an equivalent list of little cases that make it easier. So what?

Friedman and Lithwick have 3 more tricks to reveal/do, so if you're up for their whole show, click through and read.

"[T]wentysomethings just don't care if their Supreme Court justices are black, white, Jewish, Protestant, gay, or straight."

"Every day someone under the age of 30 either sends me an e-mail or tweet or a Facebook post reminding me that those of us making a huge big fat media deal about the nominee's race, religion, sexual preferences or marital status are quickly becoming cultural dinosaurs."

"Hi I'm just like you I worry about getting fat and finding the right man to validate my pointless existence where all I do is worry about getting fat and finding the right man to validate my pointless existence..."

"... but also the difference is that I invariably live in New York (or London if I must) where I am a struggling intern/PR lackey/copywriter/journalist and I live in a small apartment with either a cat or a hilarious gay man or a hilarious gay cat and it's ever so cosmopolitan and fun and just when I think I will always be dating a series of Mr. Wrongs for the rest of my life I meet BRAD/JULIO/LAWRENCE/SEPHIROTH depending on if I am from Oklahoma, Florida, Georgia, or Final Fantasy fanfic and then after that we have some fun misunderstandings and then my bitch of a boss (because female bosses are always bitches) steals my man (never trust a woman in a position of power, you see, is the moral here) and I have to do some CRAZY THINGS to have my revenge and then I level up and I get the boss bitch's job and my man back all at once and THE END i high-five my gay cat and off we go to the sequel where we are sexy ore miners on a distant asteroid (but we still love shoes!!!!!)"

No, that's the joke. Here's the real:

While the kids are fed and then wiped down and diverted with Play-Doh, I load the washing machine with armloads of my new clothes. As I stuff in a size 4 blouse, my iPhone beeps to tell me someone I know has just updated their Facebook status.

Jeffrey Goldberg says "Dahlia Lithwick is a Haiku Genius."

"She's condensed a week of Senate blather about Sotomayor into exquisite little poems."

I'm no poetry expert — maybe you are — but I don't see why these should count as even marginally good haiku. I suppose the whole thing is that it was done at all — making Senators' statements about Sotomayor into haiku.

Here are some teaching materials on haiku, focusing specifically on haiku in English:

The haiku poet cultivates awareness so that s/he may experience some unusually forceful impact coming from ordinary life or from everyday surroundings....

In 'haiku spirit' the poet adopts a self-effacing and faithful attitude towards the object s/he perceives. S/he does not set out to be moralistic or didactic or judgemental. The haiku form has been used successfully to write adages and epigrams, but because the aim of adages and epigrams is to mould opinion they are not haiku in spirit....

[M]any successful haiku result from a long process of draughting and re-writing, during which the poet clings hard to the original perception.

The pain is to give readers the means to feel as the poet her/himself felt at the time, or maybe differently, without any explicit (and so directive) statements about actual feelings. Some typical attitudes are humility, serenity, compassion, acceptance of transience and man's lonely state, joy in resurgence and company, wonder, wistfulness, as well as humour of a whimsical and sometimes paradoxical kind.

Now, those "typical attitudes" are so obviously not what one finds among Senators that the idea of writing bad haiku in the voice of a Senator is a very good one, but if you're doing bad, be really bad — there's a blog, Bad Haiku — and I think — I think — that would have to exclude anything that Jeffrey Goldberg would proclaim as the work of a genius.

***

And I know, I know, I know: How can you take advice about taste from someone who writes "S/he" and "her/himself"?

UPDATE: And curses! What a missed opportunity to keep up what began as an accidental Theme of the Day. Permit me to compensate via this update:

1.
Dead Sea Shells Worship
Lobster Fangs In Hades Door
While I Sleep Dead

2.
Lobster and artichokes
Slather with spirits
Canine hurls protein yak

3.
Snip my buttons off,
With your shearing claw, my sweet
Lobster in my pants

4.
Though warm tasty and
delicious, urine should not
be served with lobster

5.
Such a tasty meat,
Drenched in succulent butter
Lobster dies for me

All right. Enough. I am satisfied.

UPDATE #2: Jeffrey Goldberg is not amused.

"Congress can impose this disparate treatment forever because of the history in the South?"

Chief Justice Roberts in argument in the Voting Rights Act case, which Dahlia Lithwick summarizes — with unusually labored breeziness — here.

[Justice Scalia] insists that the judgment of Congress is not to be trusted because when it came to reauthorizing the Voting Rights Act, "they get elected under this system. Why should they take it away?" Oh. My. God. You mean legislators are self-interested!?! That must mean the court is free to substitute its judgment for that of Congress.

This is a too-cheap laugh for Lithwick. Obviously, this is not a typical case for deferring to Congress. The challenged law structures the election of members of Congress, and it applies to some states and not others.

Debo Adegbile is in the case representing the NAACP Legal Defense Fund. When he reminds the court that "Congress is permitted to use so much of its power as is necessary" to remedy racial discrimination, the Chief Justice clobbers him with: "Is it your position that today Southerners are more likely to discriminate than Northerners?" When Adegbile replies that the covered states tend to be repeat offenders in this area, Roberts comes back with, "So your answer is yes?"

Scalia asks Adegbile what the vote was when Congress reauthorized Section 5 in 2006.

Answer: 390-33 in the House, 98-0 in the Senate. Scalia retorts that "the Israeli Supreme Court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there." (And before you liberals start crowing that Scalia is citing foreign law, let it be noted that he is citing religious law, which is totally cool and different than foreign law.) Today Scalia seems to have fashioned a new constitutional principle: The courts should always defer to Congress unless Congress is unanimous, in which case Congress is a sack of self-interested liars. Fascinating.

Well, think about it. They're all there — from all the states — and they all got elected under the existing system, a system that is not uniform among the states. Doesn't that mean something?

What was my original reaction to other reports that turned out to be hoaxes?

Let me answer a couple questions asked by commenters in the previous post, the post that expresses doubt about the report -- filed by Ashley Todd -- that a large black man, after robbing her, became enraged at the sight of a McCain bumper sticker on her car and viciously, lightly scratched a well-formed, upside-down "B" on her cheek.

Dualdiagnosis said:

The juxtaposition is [disconcerting], Crystal Magnum comes out with a book, and two posts later, this. I seem to remember the campus faculty going bonkers on the Duke rape charges, I wonder how the professors will act this time.

If this is a hoax she should be prosecuted.

How about you Ann? Were your reactions as dismissive last time?

Well, let me look that up for you. As a blogger, I am on record. Here is my first post on the subject. Excerpt:

Do you think you know which side is telling the truth in the Duke lacrosse team rape case? You shouldn't.

I've made a "Duke rape case" tag, so you can see all my old posts on the subject. I did not blog very much on this subject. (I see a post on the subject of Eugene Volokh's saying why he wasn't blogging very much about it.) I did post about the professors' letter that explain an earlier letter that supported the alleged victim. I said:

"The disaster is the atmosphere...." -- we're told. The students' perceptions matter and deserve to be "give[n] voice." But the professors don't like how they were perceived by the world outside the university; that was misreading. But if it is perception -- atmosphere -- that matters -- how can you think that you can contribute things to be perceived and avoid responsibility for the effect that you have?

Peter Hoh says:

There was a Madison kidnapping hoax in the spring of 2004. A quick search shows that Althouse did not blog about it.

I wonder if that was in the back of Ann's mind when she said that this incident seemed like a distraction.

I checked too, and I don't think I blogged about it. It was a local story, and it turned out to be a young woman who needed help. Bandying her name about was not helpful. You know, when you're blogging, you're always reaching out to grab at the latest things, but it's still important to think about not making problems worse. But that Madison case was not what popped to mind. Someone emailed to push me to blog about the story and my response was: 1. An expression of doubt, 2. "Doesn't belong in the spotlight," and 2. "Tawana Brawley. Bleh."

Why Tawana Brawley? It was the case of: 1. A young woman who did things to her own body, and 2. A cross-racial accusation.

UPDATE: As predicted. Fake.

"I mean, last week I was totally crying watching it" (the "Yes We Can" video)...

"Now just thinking about how choked up I got gives me the creeps."

Did McCain say he'd pick judges like John Roberts but he draws the line at Samuel Alito?

Dahlia Lithwick examines the question:

[W]hat McCain reportedly said makes no real sense, given that (1) McCain neither knows nor claims to know much about courts and the Constitution, and (2) Justice Alito was never seriously believed to be more conservative or even more overtly conservative than John Roberts. It's also worth pointing out—as did professor Stephen Bainbridge—that McCain has been solidly pro-Alito from day one.

But Lithwick says it doesn't matter whether McCain cared about some distinction he thought he saw between Roberts and Alito:

[W]hen McCain constructs his legal team, he will have just one institutional framework from which to pick—the same movement conservatives that produced Roberts and Alito. The only thing that really matters now is that McCain has already agreed to fall in line.

I'm sorry, Dahlia, but that doesn't make sense to me. McCain has embraced the generality of a conservative judge, but within that category, there will always be an array of judicial minds. Once he is elected, he'll be choosing from that array, and it remains fair to wonder whether he will pick more flexible pragmatic judges like O'Connor and Kennedy.

In fact, I think that is the line he probably perceived between Roberts and Alito — if he said what he's reputed to have said. I think people at the time did see a distinction like that, and even if McCain doesn't have a deep, lawyerly knowledge of law, he very well may have heard talk that Alito was more of an ideological conservative and Roberts had a instinct toward moderation and consensus.

But this is not a criticism of McCain. It makes me more willing to trust him to pick judges. I think Lithwick, on the other hand, would like moderates and liberals to turn away from McCain. She portrays him as an instrument of a monolithic conservative "institutional structure that has become the only game in town," because — I suspect — she wants us to vote for the Democrat.

This makes me want to look back to one of the conference calls McCain did with bloggers, in which I asked him about Supreme Court appointments:

I got my question in just now, which was to invite him to talk about what sort of person he would put on the Supreme Court, and specifically if he would strengthen a conservative majority or if he would work with liberals and others who care about preserving the balance that we've had on the Court for so long. He said he wanted, above all, a person with "a proven record of strict construction." This is "probably a conservative position, but," he said, "I'm proud of that position." He wants judges who won't "legislate." Then, he added that "this is new" and something we may not have heard: he'd like someone who had not just judicial experience but also "some other life experiences," such as time in the military, in a corporation, or in a small business. He would like to see "not just vast judicial knowledge, but also knowledge of the world."

I wish I'd written more at the time, but if I recall correctly, he kept going back to the idea of "strict constructionism," and I could not get him to break that down into any preference that had to do with outcomes. It's safe but opaque to assert that you want judges who won't legislate. Virtually every judge will insist — and probably even believe — that he or she does not legislate and properly says "what the law is."

Yet this idea of appointing a justice with "knowledge of the world" suggests that he would favor judicial minds that are more flexible and pragmatic and not woodenly ideological. And perceiving a line between Alito and Roberts is about exactly the same thing.

Oral argument in the campaign finance case.

Here's Linda Greenhouse's write up on the Supreme Court argument in the Wisconsin Right to Life case, which is about the provision the McCain-Feingold campaign finance law that prohibits issue ads right before the election if they mention the name of a candidate. The Court rejected a facial challenge in McConnell in 2003, but this is an as-applied challenge, and, moreover, McConnell was decided 5-4 with O'Connor in the majority. Alito has replaced O'Connor and may be expected to vote with Scalia, Thomas, and Kennedy, who dissented in McConnell. The fourth dissenter was Rehnquist, and Roberts, who replaced Rehnquist may be expected to join Scalia, Thomas, and Kennedy as well.

For the first half-hour of the argument, Justice Alito said nothing, leaning forward in his seat at the end of the bench with an intense expression. He finally intervened during the argument by Seth P. Waxman, who was defending the law on behalf of a group of its Congressional supporters including Senator John McCain, the Arizona Republican who is the other lead sponsor.

What would happen, Justice Alito asked Mr. Waxman, if a group had been running an advertisement about an issue, “and let’s say a particular candidate’s position on the issue is very well known to people who pay attention to public affairs.” Suppose the blackout period established by the law was approaching — 30 days before a primary or 60 days before a general election — “and an important vote is coming up in Congress on that very issue.” Could the group be prohibited from continuing to broadcast the ad?

That would depend on the context, Mr. Waxman replied.

Justice Alito did not appear satisfied. “What do you make of the fact that there are so many groups that say this is really impractical?” he asked. His reference was to the impressive array of ideological strange bedfellows that filed briefs in support of Wisconsin Right to Life’s challenge. These range from the American Civil Liberties Union to the National Rifle Association to the United States Chamber of Commerce to the AFL-CIO.

“I love it!” Mr. Waxman replied energetically, as if he had been waiting for just such a question. He said that although these many groups opposed the law, they were living with it and contenting themselves with running advertisements that advocated their positions on issues without mentioning candidates. The only two as-applied challenges, he noted, had both been brought by Wisconsin Right to Life’s lawyer, James Bopp Jr., who also has another case pending before the court.

Chief Justice Roberts was unimpressed by this line of argument. “I think it’s an important part of their exercise of First Amendment rights to petition their senators and congressmen and to urge others to, as in these ads, contact your senators, contact your congressmen,” he said, adding, “Just because the A.C.L.U. doesn’t do that doesn’t seem particularly pertinent to me.”

ADDED: And here's Dahlia Lithwick:

Clement spends his rebuttal time tussling with Scalia, who seems to love nothing more these days. But when we file out of the courtroom, it doesn't look like Clement's snagged his five votes for the proposition that an ad that quacks and has webbed feet is probably a duck, aka an attack ad in disguise. And, much to Breyer's dismay, if that means gutting the electioneering provision of McCain-Feingold, so be it. When it comes to curbing corruption versus curbing political speech, it looks like speech is the winner today. Which means that there will be an awful lot more vicious, snarling, not to mention expensive, ducks coming to your TV screens next election season.

Then bring on the ducks. We will roast them right here to a fine crispy finish.

At the "Writing About the Law" conference.

I'm watching the second panel at the conference now. My panel -- about law review writing -- is over, but you can read about it over here on Larry Solum's blog. The second panel are all people who write about law for the popular reader: Dahlia Lithwick (of Slate), Adam Cohen (NYT), Jamie Heller (WSJ), and Richard Sweren ("Law and Order").

Here's a picture of me -- arranged randomly -- with Dahlia Lithwick:



I think that's Jim Lindgren's thumb. Here is the possibly dangerous and unlawful Lindgren:



And David Lat is here too. Here he is explaining something to conference organizer Cameron Stracher:



Here's David's description of my panel. Hey, he gives me a quote for the banner! And here he is on the second panel.

And here's some idle chatter before the panel starts:

John Roberts and the "constitutional crisis" of an underpaid judiciary.

A subject I considered too boring to write about is the Chief Justice saying -- in his year-end report (PDF) -- that federal judges should be paid more. I think this issue comes up every year.

So I was surprised to see what looked like a hundred messages on the subject on the Conlawrpof email list talking about it. And now Dahlia Lithwick has this piece in Slate, taking John Roberts to task for what she thinks is his overstated language :

In his eight-page report, the chief focuses, with charts and graphs and his trademark folksy good nature, on a single issue: He and his colleagues want a raise. He starts off with a cute anecdote and warms up the crowd with some Rose Bowl references. It all looks pretty promising. Until he goes off the rails completely with some dubious analysis and wraps it all up in claims of a "constitutional crisis."...

The chief may actually be right on the merits, but his tone couldn't be more off-putting.... Nobody wants to hear about the smattering of judges who flee the federal bench because their six-figure salaries are too low....

But Roberts' worst misstep comes with the words constitutional crisis—words known to have a distinct legal meaning....

This total lack of savvy from a man who is usually pitch perfect in his dealings with both the Congress and the American public is surprising. Clearly he's upset and frustrated about the state of judicial pay, and he is attempting to advocate for his colleagues in the strongest, most dramatic terms. But he, more than most, should know that the words constitutional crisis start to lose their meaning when they are deployed in the interest of judicial pay hikes. And that the words independent judiciary—which have been stretched of late to include everything from judicial immunity from popular criticism to freedom from physical attacks—similarly begin to ring hollow when they are used to simply mean "underpaid jurists."

My first thought was: Well, he got everyone's attention for once on this recurrent, tedious issue.

He got me to go read the report. Let's look at the argument. Federal judges used to be paid significantly more than law professors at top schools. Now, it's more like half. Sure, it's still a great job, but the question is who will take it under these circumstances. Here's Roberts:

Our judiciary will not properly serve its constitutional role if it is restricted to (1) persons so wealthy that they can afford to be indifferent to the level of judicial compensation, or (2) people for whom the judicial salary represents a pay increase. Do not get me wrong–there are very good judges in both of those categories. But a judiciary drawn more and more from only those categories would not be the sort of judiciary on which we have historically depended to protect the rule of law in this country.

There is a much more brutal point that he does not make. So I will. The job means different things to different people. A power-loving ideologue would do the job for nothing. Plenty of folks would pay large sums to have the job if it were for sale. The point is, you need normal, well-balanced people to handle the responsibilities of judging, so you need to offer appropriate compensation so that normal, well-balanced people will decide to accept the work.

With the pay this far out of proportion to the comparable job of law professor, the judiciary is undermined. The federal judge's salary is, along with life tenure, one of the two safeguards for judiciary independence provided in the Constitution:

The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

The judges might have aggressively interpreted that provision to require constant adjustments in their salary to deal with inflation, but that has not happened. Still, the principle is clear: the constitutional plan is to protect the judges from political manipulation. Congress can't attack the judges by cutting their pay, but it technically has the power to do something quite similar by constraining their pay over a long period of time. This isn't a direct attack, and it doesn't even seem meant as an attack. But it has an effect, and Roberts is right to raise the alarm about it. "Constitutional crisis" is strong language, but Roberts is defending the independence of what the Constitution designs as a co-equal branch.

"Unremitting, agonizing, thinking-ness."

= the quality Dahlia Lithwick believes Anthony Kennedy's critics criticize him for.

"Why is [Scalia] blogging his concurrence....?"

Read Dahlia Lithwick's write-up of yesterday's death penalty case, Kansas v. Marsh, in which the court upholds a state law that requires the death penalty when the jury weighs the aggravating and mitigating factors and finds them in equipoise. In Lithwick's words "the tie goes to the hangman."

Let's concentrate on what she has to say about Scalia:

[T]he real wackiness today comes with Justice Antonin Scalia's concurrence, which is nominally about the case but is actually a full-bore global assault on any claim ever made anywhere about the execution or exoneration of an innocent defendant. Nobody is immune to Scalia's nail-spitting this morning: He attacks the 1987 study cited by Souter whose "obsolescence began at the moment of publication"; the "exonerees" who are "paraded by various professors" (from whom else could the word professors be a slur?); and the dissent, which merely "parrots articles or reports that support its attack on the American criminal justice system."...

Why is he blogging his concurrence, rather than taking a step back and actually writing it with some reasoned regard for the arguments on the other side?...

[Scalia] ... paint[s] the law as this dispassionate machine, into which you enter the legal facts and then download the correct answers. This is not a "moral" process, they say. This is a coolly rational process that works best when meddlesome supreme court judges leave it alone. But then the force of his argument rests wholly on his increasingly hysterical cataloging of the crimes of the so-called "innocent" exonerees. He isn't dispassionate here; he's hardly even rational at points. How can he assert that death isn't different, when it clearly drives him to the brink of insanity?

I don't agree that the originalist approach to interpretation is inconsistent with forceful, vivid writing. Lithwick disapproves of the interpretive methodology and that motivates her to portray it as mechanical and inhuman -- the judge as a big computer. Then, she demands consistency within her image and criticizes Scalia for inconsistency. He's not allowed to seem human, because he claimed to be a machine!

But I must say that I do love the notion that to show one's human feeling is to sound like a blogger.

Anyway, what's this about "various professors" with their "parade" of "exonorees"? Let's go to the Scaliatext. He's responding to the dissent, which relies at one point on "a handful of studies that bemoan the alleged prevalence of wrongful death sentences."

One study (by Lanier and Acker) is quoted by the dissent as claiming that “ ‘more than 110’ death row prisoners have been released since 1973 upon findings that they were innocent of the crimes charged, and ‘hundreds of additional wrongful convictions in potentially capital cases have been documented over the past century.’ ” Post, at 8 (opinion of Souter, J.). For the first point, Lanier and Acker cite the work of the Death Penalty Information Center (more about that below) and an article in a law review jointly authored by Radelet, Lofquist, and Bedau (two professors of sociology and a professor of philosophy). For the second point, they cite only a 1987 article by Bedau and Radelet. See Miscarriages of Justice in Potentially Capital Cases, 40 Stan. L. Rev. 21. In the very same paragraph which the dissent quotes, Lanier and Acker also refer to that 1987 article as “hav[ing] identified 23 individuals who, in their judgment, were convicted and executed in this country during the 20th century notwithstanding their innocence.” Lanier & Acker, Capital Punishment, the Moratorium Movement, and Empirical Questions, 10 Psychology, Public Policy & Law 577, 593 (2004). This 1987 article has been highly influential in the abolitionist world. Hundreds of academic articles, including those relied on by today’s dissent, have cited it. It also makes its appearance in judicial decisions—cited recently in a six-judge dissent in House v. Bell, 386 F. 3d 668, 708 (CA6 2004) (en banc) (Merritt, J., dissenting), for the proposition that “the system is allowing some innocent defendants to be executed.” The article therefore warrants some further observations.

The 1987 article’s obsolescence began at the moment of publication. The most recent executions it considered were in 1984, 1964, and 1951; the rest predate the Allied victory in World War II. (Two of the supposed innocents are Sacco and Vanzetti.) Bedau & Radelet, supra, at 73. Even if the innocence claims made in this study were true, all except (perhaps) the 1984 example would cast no light upon the functioning of our current system of capital adjudication. The legal community’s general attitude toward criminal defendants, the legal protections States afford, the constitutional guarantees this Court enforces, and the scope of federal habeas review, are all vastly different from what they were in 1961. So are the scientific means of establishing guilt, and hence innocence—which are now so striking in their operation and effect that they are the subject of more than one popular TV series. (One of these new means, of course, is DNA testing—which the dissent seems to think is primarily a way to identify defendants erroneously convicted, rather than a highly effective way to avoid conviction of the innocent.)

But their current relevance aside, this study’s conclusions are unverified. And if the support for its most significant conclusion—the execution of 23 innocents in the 20th century—is any indication of its accuracy, neither it, nor any study so careless as to rely upon it, is worthy of credence. The only execution of an innocent man it alleges to have occurred after the restoration of the death penalty in 1976—the Florida execution of James Adams in 1984—is the easiest case to verify. As evidence of Adams’ innocence, it describes a hair that could not have been his as being “clutched in the victim’s hand,” Bedau & Radelet, supra, at 91. The hair was not in the victim’s hand; “[i]t was a remnant of a sweeping of the ambulance and so could have come from another source.” Markman & Cassell, Protecting the Innocent: A Response to the Bedau-Radelet Study, 41 Stan. L. Rev. 121, 131 (1988). The study also claims that a witness who “heard a voice inside the victim’s home at the time of the crime” testified that the “voice was a woman’s,” Bedau & Radelet, supra, at 91. The witness’s actual testimony was that the voice, which said “ ‘ “In the name of God, don’t do it” ’ ” (and was hence unlikely to have been the voice of anyone but the male victim), “ ‘sounded “kind of like a woman’s voice, kind of like strangling or something U .” ’ ” Markman & Cassell, Protecting the Innocent, at 130. Bedau and Radelet failed to mention that upon arrest on the afternoon of the murder Adams was found with some $200 in his pocket—one bill of which “was stained with type O blood. When Adams was asked about the blood on the money, he said that it came from a cut on his finger. His blood was type AB, however, while the victim’s was type O.” Id., at 132. Among the other unmentioned, incriminating details: that the victim’s eyeglasses were found in Adams’ car, along with jewelry belonging to the victim, and clothing of Adams’ stained with type O blood. Ibid. This is just a sample of the evidence arrayed against this “innocent.” See id., at 128–133, 148–150.

Critics have questioned the study’s findings with regard to all its other cases of execution of alleged innocents for which “appellate opinions U set forth the facts proved at trial in detail sufficient to permit a neutral observer to assess the validity of the authors’ conclusions.” Id., at 134. (For the rest, there was not “a reasonably complete account of the facts U [sic] readily available,” id., at 145.) As to those cases, the only readily verifiable ones, the authors of the 1987 study later acknowledged, “We agree with our critics that we have not ‘proved’ these executed defendants to be innocent; we never claimed that we had.” Bedau & Radelet, The Myth of Infallibility: A Reply to Markman and Cassell, 41 Stan. L. Rev. 161, 164 (1988). One would have hoped that this disclaimer of the study’s most striking conclusion, if not the study’s dubious methodology, would have prevented it from being cited as authority in the pages of the United States Reports. But alas, it is too late for that. Although today’s dissent relies on the study only indirectly, the two dissenters who were on the Court in January 1993 have already embraced it. “One impressive study,” they noted (referring to the 1987 study), “has concluded that 23 innocent people have been executed in the United States in this century, including one as recently as 1984.” Herrera v. Collins, 506 U. S. 390, 430, n. 1 (1993) (Blackmun, J., joined by Stevens and Souter, JJ., dissenting).

Remarkably avoiding any claim of erroneous executions, the dissent focuses on the large numbers of non-executed “exonerees” paraded by various professors. It speaks as though exoneration came about through the operation of some outside force to correct the mistakes of our legal system, rather than as a consequence of the functioning of our legal system. Reversal of an erroneous conviction on appeal or on habeas, or the pardoning of an innocent condemnee through executive clemency, demonstrates not the failure of the system but its success. Those devices are part and parcel of the multiple assurances that are applied before a death sentence is carried out.

Sorry to print such a long passage, but this is what Lithwick decried as his "increasingly hysterical cataloging of the crimes of the so-called 'innocent' exonerees." Remember, she said "He isn't dispassionate here; he's hardly even rational at points" and that the death penalty "clearly drives him to the brink of insanity." Does Scalia deserve that?

I could ask why is Lithwick blogging her criticism, but the question answers itself: She's writing for Slate, and Slate readers are sure to love a "Scalia's ca-ray-zee" rant. Are they going to check the Scaliatext or go about their busy lives feeling one notch more certain that Scalia's a wacko?

What was John Roberts like on his first day?

He's not wearing the Rehnquistian gold stripes on his robe, Dahlia Lithwick reports:

So, how does Roberts look in the chief justice's chair? As though he were born to it, quite frankly. He is clearly prepared for argument. He listens intently to his colleagues' questions and watches them while they speak. His first exchange with Phillips shores up his credentials as a strict constructionist: "So, your approach introduces a third concept … and that's nowhere in the statute." He goes back and forth several times in this first colloquy and is quickly confident enough to retort: "That's my question." He juggles counsels' names, time limits, and a stack of briefs as though he's been doing it all his life. The fact that Roberts' umbilical cord was being cut when most of his colleagues were already practicing law is irrelevant. He is absolutely ready to lead them.

Hyper-competent. That's the way I like my Supreme Court Justices.

Crushing "liberal dreams" of "some heightened feminine compassion."

Dahlia Lithwick has this piece delving into the "mystery" of Justice O'Connor. People expected a female to bring extra "heart," "compassion," and "empathy" -- Litwick uses all three words -- to the Court:

Suffice it to say, Justice O'Connor is a huge mystery to most women of my generation. How could someone who blew open doors for generations of women after her show so little empathy to female victims of violence in the 2000 case of United States v. Morrison, for instance, where she joined with the court's conservatives to invalidate the Violence Against Women Act, or to teenagers facing the death penalty in Roper v. Simmons last fall?

On that last question, let me offer this passage from O'Connor's dissenting opinion:

Christopher Simmons’ murder of Shirley Crook was premeditated, wanton, and cruel in the extreme. Well before he committed this crime, Simmons declared that he wanted to kill someone. On several occasions, he discussed with two friends (ages 15 and 16) his plan to burglarize a house and to murder the victim by tying the victim up and pushing him from a bridge. Simmons said they could "'get away with it'" because they were minors. In accord with this plan, Simmons and his 15-year-old accomplice broke into Mrs. Crook’s home in the middle of the night, forced her from her bed, bound her, and drove her to a state park. There, they walked her to a railroad trestle spanning a river, “hog-tied” her with electrical cable, bound her face completely with duct tape, and pushed her, still alive, from the trestle. She drowned in the water below. One can scarcely imagine the terror that this woman must have suffered throughout the ordeal leading to her death.

I read plenty of empathy there. Simmons was 17 when he did these things, and the jury that condemned him to death was allowed to take his youth into account as one of the factors. It just wasn't enough in his case. [ADDED: And shouldn't this count as "empathy to female victims of violence," even though it's not in the official "Violence Against Women" case?]

But why are we demanding extra empathy from women in the first place? Is this supposed to be a feminist critique of O'Connor? I have a feminist critique for anyone who wants to see a special women's version of the law. Lithwick grudgingly and mushily offers some good words for O'Connor in the end -- even as she identifies Ruth Bader Ginsburg as the better woman. But Lithwick's overall message is clear:

Women are supposed to be liberals.