"The protection accorded under Irish law to the right to life of the unborn was based on profound moral values deeply embedded in the fabric of society in Ireland and the legal position was defined through equally intense debate."

Wrote the European Court of Human Rights in Case of A, B, and C v. Ireland, which Linda Greenhouse discusses in the NYT:

No right under the [European] Convention was violated [where the plaintiffs were able to travel to another country to obtain an abortion], the court said by a vote of 11 to 6. Granted, “the process of traveling abroad for an abortion was psychologically and physically arduous” for these women. And granted also that in their particular circumstances, they could have obtained legal abortions in 35 to 40 other countries covered by the Convention. But because Ireland’s law is based “on the profound moral views of the Irish people as to the nature of life,” the court said, Ireland was entitled to an extra “margin of appreciation.” This phrase expresses a measure of deference toward a country’s right within the framework of international law to chart its own domestic course. With its extra margin, Irish law prevailed.

Greenhouse notes that the European Court accepted a situation similar to what would come into being if the United States Supreme Court withdrew the constitutional right to abortion and the matter were left to state law. She says the case gave her "the eerie feeling that I was peering into a domestic future."

Obviously, not all states would choose to join the anti-abortion bandwagon, even if they had the Supreme Court’s permission. California, New York, the District of Columbia, Connecticut and Massachusetts (once two of the most anti-abortion states, but times change) would remain places of refuge for desperate women, Englands to the Irelands that are Wyoming (which has no abortion provider), the Dakotas, or the Deep South, where a shrinking handful of doctors provide abortions in a hostile regulatory climate. More than a third of all women live in counties without an abortion provider, and that number is growing. Long-distance travel is made more onerous in the half of the states that require 24-hour waiting periods after “counseling,” necessitating two trips or an overnight stay.

The second commenter over there brings up Justice Kennedy's interest in referring to international law:

The right has roundly criticized Justice Kennedy for his interest in international law. Whaddaya bet they won't criticize him for citing the case of A, B & C v. Ireland? Watch the Court chip, chip, chip away at Roe & at Planned Parenthood v. Casey.

Well, what about the left? What about those who approve of the use of the decisions from foreign court in the analysis of American constitutional law? Whaddaya bet they won't want to have to pay any attention to "the right to life of the unborn... based on profound moral values deeply embedded in the fabric of society"?

Linda Greenhouse peers into the psyches of the Supreme Court Justices to predict what they'll say about the constitutionality of the health care bill.

She predicts the decisional path in the brains of the judges will be determined by deep instincts about the states and the federal government:

The architects of the Rehnquist federalism revolution....

Go to the link for some detail on what Greenhouse likes to call the "federalism revolution."

.... were Chief Justice William H. Rehnquist and his fellow Arizonan, Justice Sandra Day O’Connor (Chief Justice Rehnquist was actually from Milwaukee, but he decided during his Army service in North Africa that he liked the air of the desert rather than the cold and damp of the Great Lakes.) They were Westerners to whom the notion of states’ rights came naturally.

But Chief Justice John G. Roberts Jr. is not William Rehnquist, and Justice Samuel A. Alito Jr. is not Sandra Day O’Connor. John Roberts has made his career inside the Beltway ever since coming to Washington to clerk for Rehnquist. As for Sam Alito, I don’t believe that apart from a brief part-time gig as an adjunct law professor, this former federal prosecutor, Justice Department lawyer and federal judge has cashed a paycheck in his adult life that wasn’t issued by the federal government. Nothing in their backgrounds or in their jurisprudence so far indicates that they are about to sign up with either the Sagebrush Rebellion or the Tea Party.

Chief Justice Roberts appears particularly in tune with the exercise of national power. 

Here, Greenhouse notes 2 dissenting opinions —Massachusetts v. Environmental Protection Agency, where Roberts would have saved the EPA from the state's lawsuit to force it to deal with global warming, and Gonzales v. Oregon, where Roberts would have let the United States attorney general keep doctors from prescribing the suicide drugs that were authorized by Oregon law.

Finally, Greenhouse aptly observes that even some of the Justices who favor the states in federalism decisions lose their nerve when they are confronted with "issues that people really care about." Chief Justice Rehnquist balked when he got to the Family and Medical Leave Act (in Nevada Department of Human Resources v. Hibbs) — and that case was only about whether an employee of a state could get back pay when the act was violated, not the more momentous question of whether the act was constitutional or could bind the state.

So now we have a monumental new law. Can we really imagine the Supreme Court thwarting it?

John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own. I find it almost impossible to believe that this careful student of history would place his court in the same position as the court that has been rewarded with history’s negative judgment for thwarting the early New Deal.

But the Supreme Court got cold feet about standing up to the will of the democratic branches of government right after Franklin Roosevelt won a big landslide election in 1936. The health care reform law followed an election that wasn't about health care reform at all. The main thing people were thinking about when they voted for Obama in 2008 was the dramatic economic crisis. There were also the 2 wars and amorphous hopes for a post-racial America.

The 2008 election cannot be read as a mandate for health care reform, especially not for the aspect of it that is challenged in the current lawsuits: the  individual mandate to buy health insurance. That could not possibly have been foremost in the voters' minds. First, during the campaign, Obama spoke emphatically against it. And second, even after a year of talk about the reform, people don't really understand what the individual mandate is going to be.

There isn't a big majority of Americans who are counting on being compelled to buy insurance. There isn't even a majority — even a thin majority — of Americans who favor the health care reform as a whole, and this is even before they need to confront something that is probably going to shock and distress a lot of people who haven't studied the text of the law and have simply trusted that the government is about to give them the good things they need.

Greenhouse tries to patch this hole in her argument:

Midweek polls showed the public already rallying around the new health care law. That trend is likely to accelerate as people realize that the law’s benefits belie the scare stories — just around that time that the state challenges are likely to reach the Supreme Court. It won’t require a summa cum laude in history from Harvard to be able to tell history’s wrong side from its right.

So Chief Justice Roberts and the others are going to want to surf the wave of history... that wave that we're still watching for.

"Am I glad that a hapless 77-year-old man won’t be put to death by the State of Florida? Yes, I am."

"Am I concerned about a Supreme Court that dispenses empathy so selectively? Also yes."

Linda Greenhouse wants more evenly spread empathy.

Is Justice Ginsburg reading dissents from the bench because she's passionate or because she's political?

Linda Greenhouse is highlighting Justice Ginsburg's decision to read two of her dissenting opinions from the bench this year. In both, Ginsburg spoke for herself and the other three liberal Justices (Stephens, Souter, and Breyer), and both dealt with issues of concern to women (Carhart, the "partial-birth" abortion case, and Ledbetter, this week's employment discrimination case).

Greenhouse portrays Ginsburg's actions on the emotional level. Not only were the dissents "forceful" -- aren't they all? -- but Ginsburg herself was "passionate and pointed."

To read a dissent aloud is an act of theater that justices use to convey their view that the majority is not only mistaken, but profoundly wrong. It happens just a handful of times a year. Justice Antonin Scalia has used the technique to powerful effect, as has Justice Stevens, in a decidedly more low-key manner.

The oral dissent has not been, until now, Justice Ginsburg’s style. She has gone years without delivering one, and never before in her 15 years on the court has she delivered two in one term. In her past dissents, both oral and written, she has been reluctant to breach the court’s collegial norms. “What she is saying is that this is not law, it’s politics,” Pamela S. Karlan, a Stanford law professor, said of Justice Ginsburg’s comment linking the outcome in the abortion case to the fact of the court’s changed membership. “She is accusing the other side of making political claims, not legal claims.”

The justice’s acquaintances have watched with great interest what some depict as a late-career transformation. “Her style has always been very ameliorative, very conscious of etiquette,” said Cynthia Fuchs Epstein, the sociologist and a longtime friend. “She has always been regarded as sort of a white-glove person, and she’s achieved a lot that way. Now she is seeing that basic issues she’s fought so hard for are in jeopardy, and she is less bound by what have been the conventions of the court.”

(White glove? Not "kid glove," meaning careful and gentle, but "white glove," which I think is generally used to refer to luxury services provided to the rich. Who wears the white gloves in a "white glove building"? The doorman, not the residents. [ADDED: There's a lot of discussion in the comments about the phrase "white glove."])

Some might say her dissents are an expression of sour grapes over being in the minority more often than not. But there may be strategic judgment, as well as frustration, behind Justice Ginsburg’s new style. She may have concluded that quiet collegiality has proved futile and that her new colleagues, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., are not open to persuasion on the issues that matter most to her.

In other words, it's not an expression of emotion, but a sophisticated political move, intended to get Americans excited and involved in the Court's work -- so they'll see what's at stake. Nothing wrong with that, and I don't mean to say it's not lofty and profound to care about who gets chosen to wield Supreme Court power. It is. Greenhouse's piece subtly conveys the impression that an extremely reserved woman has finally overcome her reticence and spoken up and that this means the majority has erred badly in its understanding of the law. That in itself is a political argument leading the readers to think that Ginsburg must be right and that the fact that she is in the minority on the Court is a problem that needs to be corrected.

ADDED: This post is getting a lot of action in the comments, and I feel as though I ought to spell out something maybe I'm being too subtle about. I think this piece unwittingly demeans Justice Ginsburg as a woman by portraying her as meek and emotional. The idea that she of all people would speak up is supposed to give dramatic weight to her opinion in the cases. The fact that her opinion supports the interests of women may -- for some people -- eclipse this other matter of concern to women, and I want to drag it back into the light.

Justice Ginsburg is a strong, accomplished jurist who is and has always been the equal of the other Justices. She's no purer or less political than the others and no more driven by emotion. If she chooses to read her dissenting opinions about women's issues aloud and provide material for Supreme Court journalists to stir up readers with bathetic pronouncements that she's "found her voice," what I see is a smart political move by an adept legal thinker who knows what the stakes are and wants to affect the game.

Here's Tom Smith who clerked on the D.C. Circuit when she was a judge there:

You had to admire Judge Ginsburg's obvious intelligence, and she seemed like a nice lady. But the idea that she was somehow less political than any other judge is just silly. She was very political. They all were. Some cared more about the law than others, and Ginsburg cared about the law. But there was no question that on a case involving sex discrimination or labor unions, you would be a fool to bet against a liberal outcome if she were the swing vote. She was a nice lady, but she also knew how to rip somebody a new one, if you will.... The idea that she is some kind of elegant, delicate flower who has been forced by the big, bad conservatives to descend into the hurly burly of the political rough and tumble is a complete fantasy of the New York Times and Linda Greenhouse. That is to say, utter rubbish.

Go over there and read the whole thing.

"Current effects alone cannot breathe life into prior, uncharged discrimination."

Writes Justice Alito, in Ledbetter v. Goodyear Tire and Rubber Company, a 5-4 decision that makes it harder for employees to sue within the statutory time limit. Linda Greenhouse reports:

... Justice Ruth Bader Ginsburg said the majority opinion “overlooks common characteristics of pay discrimination.” She said that given the secrecy in most workplaces about salaries, many employees would have no idea within 180 days that they had received a lower raise than others.

An initial disparity, even if known to the employee, might be small, Justice Ginsburg said, leading an employee, particularly a woman or a member of a minority group “trying to succeed in a nontraditional environment” to avoid “making waves.” Justice Ginsburg noted that even a small differential “will expand exponentially over an employee’s working life if raises are set as a percentage of prior pay.”...

As with an abortion ruling last month, this decision showed the impact of Justice Alito’s presence on the court. Justice Sandra Day O’Connor, whom he succeeded, would almost certainly have voted the other way, bringing the opposite outcome.

The impact of the decision on women may be somewhat limited by the availability of another federal law against sex discrimination in the workplace, the Equal Pay Act, which does not contain the 180-day requirement. Ms. Ledbetter initially included an Equal Pay Act complaint, but did not pursue it. That law has additional procedural hurdles and a low damage cap that excludes punitive damages. It does not cover discrimination on the basis of race or Title VII’s other protected categories.

In her opinion, Justice Ginsburg invited Congress to overturn the decision, as it did 15 years ago with a series of Supreme Court rulings on civil rights. “Once again, the ball is in Congress’s court,” she said. Within hours, Senator Hillary Rodham Clinton of New York, who is seeking the Democratic nomination, announced her intention to submit such a bill.

So a key question is whether there is good reason for the various limitations in the Equal Pay Act. From Ginsburg's opinion:

Notably, the EPA provides no relief when the pay discrimination charged is based on race, religion, national origin, age, or disability. Thus,... the Court does not disarm female workers from achieving redress for unequal pay, but it does impede racial and other minorities from gaining similar relief.

Furthermore, the difference between the EPA’s prohibition against paying unequal wages and Title VII’s ban on discrimination with regard to compensation is not as large as the Court’s opinion might suggest. The key distinction is that Title VII requires a showing of intent. In practical effect, “if the trier of fact is in equipoise about whether the wage differential is motivated by gender discrimination,” Title VII compels a verdict for the employer, while the EPA compels a verdict for the plaintiff. 2 C. Sullivan, M. Zimmer, & R. White, Employment Discrimination: Law and Practice §7.08[F][3], p. 532 (3d ed. 2002).

So, go ahead, Hillary. Fix it.

"You're referring to the Notorious Greenhouse Effect."

David Lat has notes on a law firm lunch talk given by Linda Greenhouse.

She discussed various predictors (attributed to various scholars) regarding ideological movement, including whether the justice is new residents to the DC area (those who have prior DC experience are less likely to change their positions in the context of DC culture), whether the justice has prior executive branch experience (those with prior experience are less likely to change their ideology), and any life-changing events that the justices have experienced (e.g. Justice Thomas's confirmation hearings). She indicated that Justice Thomas is unlikely to become more liberal over time because his defenders on the right during his confirmation hearings so firmly anchored him to that ideology. Her conclusion seemed to be that Justices Roberts and Alito are unlikely to change their ideological stances over time based on the first two tests (both have prior DC experience and both worked in the executive branch)....

On the idea that justices become more liberal as they get older because they're tired of being criticized in the media and they want people to write nice things about them: "You're referring to the Notorious Greenhouse Effect." "This is the idea that justices become more liberal as they get older because they want the east coast liberal media, such as the New York Times, to write nice things about them in their obituaries." She was skeptical of this as an explanation for ideological movement.

Maybe it's for the law professors.

A Yale docudrama.

By David Lat. A hilarious and devastating depiction, allegedly "fictionalized" and allegedly "loosely based on what we've heard," of how it came to pass that this year's Yale Law School Award of Merit is not going to Samuel Alito.

UPDATE: Lat has more on Koh and Greenhouse.

"There seemed little prospect that either the Louisville, Ky., or Seattle plans would survive the hostile scrutiny of the court’s new majority."

Writes Linda Greenhouse of the racial balancing cases argued yesterday:

Before the arguments on Monday, the challenge for the school board lawyers defending the plans, along with their allies in the civil rights community, had appeared to be to persuade the justices that the appropriate analogy was not to affirmative action, a freighted subject for the court in which benefits are bestowed on one group and withheld from another, but rather to integration, in which the goal is to educate everyone as equally as possible.

But by the end of the tense two hours of argument, that effort had not so much failed as it had become irrelevant. Lawyers for the school systems found themselves struggling, under the justices’ questioning, to meet the even more basic challenge of explaining why the plans should be seen as something different from the intentional segregation that the court struck down in Brown v. Board of Education.

Is it really so hopeless for the school districts? What did Justice Kennedy say?

While his questions suggested that he would not rule out any and all policies undertaken with a knowledge of the probable racial consequences, Justice Kennedy made clear his distaste for the policies at issue in these cases, Parents Involved in Community Schools v. Seattle School District, No. 05-908, and Meredith v. Jefferson County Board of Education, No. 05-915.

To Mr. Madden, the Seattle district’s lawyer, Justice Kennedy said that unlike magnet schools, special resources, or school location decisions, “you’re characterizing each student by reason of the color of his or her skin.”

He continued: “That is quite a different means. And it seems to me that that should only be, if ever allowed, allowed as a last resort.”

Who can sue to force the EPA to regulate greenhouse gases?

Here's the Linda Greenhouse account of yesterday's oral argument in the global warming case, Massachusetts v. Environmental Protection Agency:

“You have to show the harm is imminent,” Justice Scalia instructed [General James R. Milkey, representing the various states, cities and environmental groups who sued], asking, “I mean, when is the cataclysm?”

Mr. Milkey replied, “It’s not so much a cataclysm as ongoing harm,” arguing that Massachusetts, New York, and other coastal states faced losing “sovereign territory” to rising sea levels. “So the harm is already occurring,” he said. “It is ongoing, and it will happen well into the future.”

Chief Justice Roberts and Justice Alito both suggested that because motor vehicles account for only about 6 percent of carbon dioxide emissions, even aggressive federal regulation would not be great enough to make a difference, another requirement of the standing doctrine.

When Mr. Milkey replied that over time, “even small reductions can be significant,” Chief Justice Roberts responded: “That assumes everything else is going to remain constant, though, right? It assumes there isn’t going to be a greater contribution of greenhouse gases from economic development in China and other places that’s going to displace whatever marginal benefit you get here.” At another point, the chief justice said the plaintiffs’ evidence “strikes me as sort of spitting out conjecture on conjecture.”

In other words, even if you think the injury is enough for standing, there are problems on the "causation" and "redressability" prongs on the standing doctrine. Don't be distracted by Scalia's wondering about the "cataclysm." You can assume for the sake of argument that the plaintiffs face injury and still find no standing, for the sole reason that the relief they are seeking isn't likely enough to change the situation. But, looking at the transcript, I see they did focus more strongly on the injury question. Back to Greenhouse:

On the other side, Justices Stephen G. Breyer, Ruth Bader Ginsburg, John Paul Stevens and David H. Souter appeared strongly inclined to find that the plaintiffs had met the standing test.

They generally do apply standing doctrine less strictly... which means that Justice Kennedy is the swing voter.

[Kennedy's] relatively few comments were ambiguous. Early in the argument he challenged the assertion by Mr. Milkey, the states’ lawyer, that the case “turns on ordinary principles of statutory interpretation and administrative law” and that there was no need for the court “to pass judgment on the science of climate change.”

That was “reassuring,” Justice Kennedy said. But, he added, “Don’t we have to do that in order to decide the standing argument, because there’s no injury if there’s not global warming?”

"Pay is a complicated thing."

Linda Greenhouse elegantly explains a difficult Supreme Court case about the lingering effects of long-ago job discrimination:

Is each new paycheck, reflecting a salary lower than it would have been without the initial discrimination, a recurring violation that sets the [statute of limitations] clock running again? Or does the passage of time, without fresh acts of intentional discrimination, render the initial injury a nonevent in the eyes of the law?...

[T]he E.E.O.C. ... has long applied what is known as the “paycheck accrual rule,” under which each pay period of uncorrected discrimination is seen as a fresh incident of discrimination. So although the 180-day limit applies to discrete actions like a discriminatory refusal to hire or failure to promote, it does not, in the view of the federal agency charged with administering the statute, prevent lawsuits for the continuing effects of past discrimination in pay.

But the Bush administration has disavowed the commission’s position....

When Justice Antonin Scalia asked, “Why should we listen to the solicitor general rather than the E.E.O.C.?”...

Justices Ruth Bader Ginsburg and Stephen G. Breyer appeared most sympathetic to Mr. Russell’s argument. Justice Breyer commented at one point that “there will be probably a significant number of circumstances where a woman is being paid less, and all she does is for the last six months get her paychecks and she doesn’t really know it because pay is a complicated thing.” It could take “even a year for her to find out,” he said.

Chief Justice John G. Roberts Jr. appeared the most skeptical, several times raising the question of how employers could shoulder the burden of defending long-ago pay decisions.

“It could be 40 years, right?” Chief Justice Roberts asked Mr. Russell, adding, “I mean, if it happened once 20 years ago, you have a case that you can bring” under the plaintiff’s analysis.

The case is Ledbetter v. Goodyear Tire and Rubber Company Inc.

When journalists express an opinion.

The NYT's "Public Editor," Byron Calame, writes about the dispute that arose when Linda Greenhouse -- the NYT's Supreme Court reporters -- gave a speech that revealed some of her personal political opinions.

[She opined that the government] “had turned its energy and attention away from upholding the rule of law and toward creating law-free zones at Guantánamo Bay, Abu Ghraib, Haditha, other places around the world, the U.S. Congress, whatever. And let’s not forget the sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism.” She later added, “I feel a growing obligation to reach out across the ridiculous actual barrier that we seem about to build on the Mexican border. ...”

The Times’s ethical guideline states that news staffers appearing on radio or television “should avoid expressing views that go beyond what they would be allowed to say in the paper.” It is obvious, I think, that the guideline also applies to other venues. And Bill Keller, the executive editor, made clear in an e-mail message to me that the standard applies to all Times journalists “when they speak in public.”

It seems clear to me that Ms. Greenhouse stepped across that line during her speech. Times news articles are not supposed to contain opinion. A news article containing the phrase “the hijacking of public policy by religious fundamentalism” would get into the paper only as a direct quote from a source. The same would go for any news article reference to “the ridiculous actual barrier” on the Mexican border.

Calame notes the "muted" reaction from the management of the NYT and says that Greenhouse told him that "she considers her remarks at Harvard to be 'statements of fact' — not opinion — that would be allowed to appear in a Times news article." Statements of fact? With words like "assault" and "hijacking"? The contention that these are "statements of fact" bothers me more than the disclosure of personal opinion.

The Times has its policy constraining the speech of journalists, and as Calame notes, an interest in avoiding "giving the paper’s critics fresh opportunities to snipe at its public policy coverage." If the management of the Times has decided to let the incident pass, he says, it has accepted this risk. Then maybe the question is whether the policy should be reframed, so that it explicitly permits journalists to speak more freely. Calame thinks not.

[J]ournalism [is] a calling ... that requires sacrifices and special obligations. Keeping personal opinions out of the public realm is simply one of the obligations for those who remain committed to the importance of impartial news coverage.

Here's NPR's coverage of the story, which includes links to the audio and the text of the Greenhouse speech. She speaks with fervor and conveys a sense of personal expression, and the audience responds to that. It's an extremely well-done speech, and the problem is only about the Times's specific policy and journalistic ethics more generally. The NPR webpage quotes Daniel Okrent, the first NYT public editor:

He says he is amazed by Greenhouse's remarks.

"It's been a basic tenet of journalism ... that the reporter's ideology [has] to be suppressed and submerged, so the reader has absolute confidence that what he or she is reading is not colored by previous views," Okrent says.

Charges of media bias are routinely thrown at the Times and other media outlets, from both the left and the right. Okrent says he never received a single complaint about bias in Greenhouse's coverage. He wonders whether journalists really need to smother their private beliefs to be fair in their articles.

Greenhouse's speech didn't seem that out of line to me, because I am so used to hearing law professors express all kinds of personal and political opinions about the Supreme Court, and, obviously, I do it all the time myself. I'm trying to imagine a law school where the professors felt they needed to make sacrifices and suppress and submerge their opinions. Actually, it's a scary place! Do you really want us to become more devious? (Recall the discussion here a few months ago about an op-ed by Stanley Fish about whether teachers need to exclude their political opinions from classroom teaching.)

When I read journalistic writing, I always assume the reporter has political opinions, and I try to figure out what they are. Both Okrent and Calame make a point of praising Greenhouse for reaching a high standard of neutrality in her journalistic writing. But that shouldn't make anyone think she doesn't actually have opinions. It just means you'd have to do a very sophisticated analysis to figure out if any of her opinion finds its way into her presentation of the complicated statements of Supreme Court justices (which are themselves carefully written to exclude the appearance of personal opinion).

So I'm not disturbed by what Greenhouse said in her speech, and I think Okrent is right that reporters can have a little more freedom than the official NYT policy seems to require.

IN THE COMMENTS: A reader reminds us of the longstanding term "Greenhouse effect," referring to the tendency of judges to become liberal over time as they frame opinions intended to please the NYT. Here's a recent use of the term:

"The Greenhouse Effect" is the name of a phenomenon popularized by D.C. Appeals Court Judge Laurence Silberman referring to federal judges whose rulings are guided solely by their need for adulation from legal reporters such as Linda Greenhouse of the New York Times. The idea is that once confirmed, justices become desperate to be invited to the right cocktail parties and conform their views to those of the liberal intelligentsia....

The problem with this theory is that it accepts a great conservative fiction: that there is vast, hegemonic liberal control over the media and academia. This may have been somewhat true once, but it's patently untrue today. Jurists desperate for sweet media love can hop into bed with the Limbaugh/Coulter/FOX News crowd. Clarence Thomas has made a career of it. There is a significant and powerful conservative presence in the media, inside the Beltway, and in academia. And my own guess is that Federalist cocktail parties in D.C. are vastly more fun than their no-smoking/vegan/no-topless-dancing counterparts on the left.

That last bit fits with this thing I said yesterday. Most women don't find topless dancing to be vastly fun, though, and the way of thinking about fun that is so thoroughly from the male point of view that it doesn't even notice that it's forgetting about how women feel really doesn't seem likely to produce more fun for women. Or is that the point? Conservative men have more fun at parties because they don't worry so much about what women think.

Some hipness and squareness about John Roberts.

Hey! I spot my name in today's NYT in an article by Linda Greenhouse called "His Hipness, John G. Roberts." Let's see:

WRITING in April for a unanimous Supreme Court, Chief Justice John G. Roberts Jr. found that the police in Brigham City, Utah, acted properly in entering a home without a warrant after they peered through a window and saw a fight in progress that had left one man spitting blood.

"The role of a police officer includes preventing violence and restoring order, not simply rendering first aid to casualties," the chief justice said, rejecting the argument that the police should have waited until the altercation ended more conclusively. "An officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided," he explained.

The chief justice's sports imagery galvanized the legal blogs. Some found his boxing reference inapt. "The whole point of boxing is fighting!" wrote a participant on the Althouse blog, run by Ann Althouse, a law professor at the University of Wisconsin.

Others took issue with the hockey reference. "Given all the padding that hockey players wear, being punched by an opponent hardly is more significant than being hit by a toddler," one said.

Finally, another writer took a step back and observed that "this shows another side of Roberts as a good writer: displaying some wry humor and hipness."

There is a hot link in that passage, but it's for "University of Wisconsin" and it just goes to a page of hits for a search within the NYT site for "University of Wisconsin." How about a link to the post? Come on, Times! You've got to do internet properly. It's not Greenhouse's fault, but really, that approach to links is unbelievably obtuse.

Here's the missing link. I started off the conversation this way:

We're familiar with the way a referee in a boxing can stop a fight if it becomes too one-sided. Why throw in "(or hockey)"? It not only clutters the sentence, it makes the concept harder to grasp. I don't even know about hockey referees stopping one-sided games. Since Roberts is known for the high quality of his writing style, I've got to think that parenthetical really adds something. But what?

Is it that in hockey fights break out, and the refs don't stop them unless they're one-sided, and it's actually more like the police situation because the fighting isn't legitimate in the first place, but some people might think the police should ignore fights unless someone is outmatched? In that case, hockey is a more apt analogy in light of the argument that the search was unreasonable.

The quote "The whole point of boxing is fighting!" is not mine. It's by what Greenhouse called "a participant on the Althouse blog, run by Ann Althouse." In other words, a commenter. Actually, it's Joan H. -- here's her blog .

She wrote:

Fighting is tolerated in the NHL, and referees often let the players involved work out their frustrations as long as neither party is getting beaten to a pulp and the other team members are staying out of the fray. Most fights are just scuffles, and are to be expected in a game in which shoving your opponents out of the way is legitimate.

I think the hockey analogy is better just for that reason, and can't understand why boxing was included at all. The whole point of boxing is the fighting! In hockey, fighting is always penalized, whether or not the refs break it up, just as it should be in life. I think Roberts included the boxing reference because frankly there aren't so many hockey fans around these days.

The second quote -- "Given all the padding that hockey players wear, being punched by an opponent hardly is more significant than being hit by a toddler" -- is by Dave Friedman. The "wry humor and hipness" one is from paulfrommpls. Here's his blog.

Greenhouse ends the opening passage to her article -- the part I've quoted -- with:

It is no surprise that the new chief justice's every vote is being tabulated and scrutinized. But so is his every metaphor.

Well, the attention to the metaphor is partly in the nature of blogging. It was a nice specific, textual thing to talk about. I love when something like that pops out in a Supreme Court case (or somewhere else in the news). It's one of those things that says bloggable to me. Indeed, I'm scrutinizing the writing in the NYT right now because it said bloggable to me... which it would have said even without calling my name (which gets my attention big time).

The NYT piece isn't about blogging phenomena, though. It's about judging John Roberts. The part about our little boxing/hockey conversation is followed by some quotes about Roberts' writing by usual suspect quotemeisters Erwin Chemerinsky (Roberts' "prose style is clear and easy to follow") and Akhil Amar (praising the "elegance and economy" and "occasionally snappy line"). This leads to a discussion about whether Roberts is really a judicial "minimalist." No overarching conclusions there.

The piece rolls toward a conclusion with the observation that Roberts doesn't much like quoting law review articles (a quality shared by most judges, I'd say). Here, the key quote is from Harvard lawprof David Barron: "It's as if the answers to all questions are already there, completely internal to the court, to be teased out of the existing cases."

Relying on precedent as the only source of law is an approach with strengths and weaknesses, Professor Barron said, noting that on the one hand, precedent can be a smokescreen, "a rhetorical device to hide the inevitable policy making," while on the other, "it has its own constraining effects," making a judge less likely to embrace dramatic change in the status quo.

True enough, but it's an observation that you can make about nearly any judge. This rhetoric about rhetorical devices is the stock in trade of the law professor...

...including the lawprof blogger. So bring on the judicial metaphors and rhetoric... I need bloggables.

Oh, but the term is over. No new material! We'll have to go back over the old. In fact, I'm running a series of seminars over the rest of the summer here at the law school in which we hash over one case each Tuesday. I'm taking over the first slot, which I'd previously given to someone else, who has an out-of-town opportunity to pursue. I'm the emergency fill-in. I'll be doing the hallucinogenic tea case, which happens to be the first case Akhil Amar talks about in illustrating Roberts' penchant for the "occasionally snappy line":

[Amar point to] a majority opinion that rejected the government's application of federal narcotics law to stop a Brazil-based religious group from importing a hallucinogenic tea for use in its rituals. "The government's argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions," the chief justice wrote.

Ah, good place to end a rambling blog post about hipness! We've got your hallucinogenic drugs and that hippie irritation with the government and all its rules, man.

The story arc of the Supreme Court term.

It's the day for summing up the Supreme Court's just-ended term, the first with John Roberts as Chief, and Anthony Kennedy in full possession of the swing vote. Linda Greenhouse does the presentation for the NYT. I'm impressed by her ability to perceive a story arc in the train of individual cases:

In the court's most significant nonunanimous cases, Chief Justice Roberts was in dissent almost as often as he was in the majority. His goal of inspiring the court to speak softly and unanimously seemed a distant aspiration as important cases failed to produce majority opinions and members of the court, including occasionally the chief justice himself, gave voice to their frustration and pique with colleagues who did not see things their way....

The term's early period of unanimity, during which cases on such contentious subjects as abortion and federalism were dispatched quickly, with narrowly phrased opinions, reflected agreement not on the underlying legal principles but rather on the desirability of moving on without getting bogged down in a fruitless search for common ground. This was especially so in the term's early months, when Justice Sandra Day O'Connor was still sitting but was counting the days until a new justice could take her place.

Once Justice O'Connor retired in late January, after Justice Alito's confirmation, and as the court moved into the heart of the term, some of the court's early inhibitions seemed to fall away. Yet when its most conservative members reached out aggressively to test the boundaries of consensus in the term's major environmental case, Justice Kennedy unexpectedly pushed back and left them well short of their goal.

How much is this a story of how a group of individuals related to each other? The Court knows it has a termful of cases to resolve, and it is natural to sort through difficult work this way. Eliminate the things you aren't going to work on seriously, get through the things you can resolve simply and by consensus, and take the longest to work through the most difficult problems where there is the most divergent opinion.

But individuals matter, too. We got to see two new individuals on the Court, yet it is the role of Justice Kennedy that seems most prominent as we review the cases. That may seem odd, but it is not surprising. The center position deserves the most attention as we try to understand what happened in the most difficult cases. In the past, Justice O'Connor occupied that position along with Kennedy. Replacing O'Connor was a dramatic event, but once he took her seat, Samuel Alito made it less conspicuous, because he stayed fairly reliably with the conservative Justices. This put the spotlight on Kennedy. We're interested in the two new guys, but we're more interested in how the cases are decided, and that made Kennedy important. Did he, as Greenhouse writes, "push back," or did he simply continue to do what he's always done?

David Savage sums up for the L.A. Times, with the same unsurprising emphasis on Kennedy:

In the most divisive cases before the court in the term that just ended, it was Justice Anthony M. Kennedy who determined the outcome every time. In unpredictable fashion, he sided some of the time with the court's conservative bloc and some of the time with its liberals.

Was his "fashion" "unpredictable" or was his fashion predictably centrist, making outcomes unpredictable? And isn't it entirely appropriate that the outcomes are unpredictable?

The lethal injection case.

Linda Greenhouse writes about yesterday's lethal injection case, Hill v. McDonough:

The case was filed under the Civil Rights Act of 1871 [Section 1983, which] permits suits against government officials for violation of rights guaranteed by the Constitution or federal laws.

The lower federal courts dismissed the suit, however, on the ground that the only way for an inmate to challenge the method by which he is to be executed is through a petition for a writ of habeas corpus....

In his opinion for the Supreme Court on Monday, Justice Kennedy said ... that while a habeas corpus petition was the only way to challenge the constitutionality of a sentence, Mr. Hill was challenging not his "lethal injection sentence as a general matter," but only the way in which the sentence was to be carried out.

As the unanimous opinion indicates, this is the clear right answer (in a troublesome area of jurisdictional doctrine). Left for another day is the underlying question about the substance of the 8th Amendment right against cruel and unusual punishment. There the question is how well the different chemicals work. Do they really block the pain or do they only cause the subject to appear to be feeling nothing? As the article says, the Court recently turned down a case that presented the question directly and has avoided intervening in a number of executions where the issue could have been raised.

IN THE COMMENTS: This painting gets discussed:

Alito is not Scalito.

Linda Greenhouse also writes about Zedner v. United States, a case the Court issued yesterday, dealing with the right to a speedy trial:

Justice Antonin Scalia refused to sign the paragraph of the opinion in which Justice Alito cited the legislative history of the Speedy Trial Act as further evidence for his interpretation of the statute.

"The use of legislative history is illegitimate and ill advised in the interpretation of any statute," Justice Scalia's concurring opinion declared in what has become a familiar theme from him.

Just one more reason not to call him Scalito.

UPDATE: WaPo echo.

Once again, the Supreme Court takes up the question of racial balance in education.

Linda Greenhouse writes:

The Supreme Court agreed on Monday to rule on what measures, if any, public school systems may use to maintain racial balance in individual schools....

The action came three years after the court upheld a racially conscious admissions plan at the University of Michigan Law School. Writing for the majority in that 5-to-4 decision, Grutter v. Bollinger, Justice Sandra Day O'Connor suggested that, at least in higher education, affirmative action might be necessary for another 25 years.

Greenhouse notes that the back in December, before Alito replaced O'Connor, the Court denied cert in a similar case. That is, it seemed as though there were not four Justices who were ready to go back to the issue that so recently roiled the Court in Grutter and now there are.

Briefs are now likely to pour into the court in advance of a November argument; the University of Michigan case drew more than 100 briefs. But one of the more influential analyses may prove to be a brief concurring opinion in the Seattle case by Judge Alex Kozinski, the Ninth Circuit judge whose views carry great weight among legal conservatives.

Describing the Seattle plan as one "that gives the American melting pot a healthy stir without benefiting or burdening any particular group," Judge Kozinski addressed the Supreme Court justices directly, on the assumption that they would soon be reviewing the decision.

"There is much to be said for returning primacy on matters of educational policy to local officials," he said.

Grutter had a similar theme appealing to conservatives: leave university officials alone to shape policy as they think is right, as they look at complex factors. This is not just a matter of deferring to education experts. It's a recognition that courts may not be able to make better decisions and that more litigation will drain resources that can be better spent elsewhere.

There are many differences between universities and early schooling however. Young children are compelled to attend school, and parents care a lot about sending their children to a nearby school. We can easily understand why they feel wronged when their child is turned away from the nearest school explicitly because of race, especially in a city (like Seattle) that never practiced segregation.

But there is local government, and these parents had their chance to participate in it and lost. The question is whether they should be able to enlist courts in the project of changing the policy produced by that democratic process. Can you say that they should without repudiating Grutter?

Does the ADA just enforce existing rights for prisoners?

Linda Greenhouse reports on the oral argument in a key federalism case -- United States v. Georgia -- about whether prisoners can sue the states for damages for violations of the Americans With Disabilities Act. This is another one of those cases where the question is whether Congress has successfully abrogated sovereign immunity. The answer depends on whether the statute fits the Fourteenth Amendment power -- that is, whether the law is a remedy for the violation of Fourteenth Amendment rights (as opposed to the creation of new rights).

The man in the case is a paraplegic confined to a 12 feet by 3 feet cell 23 to 24 hours a day, where he can't turn the wheelchair around and lacks adequate bathroom facilities. He says "that guards leave him sitting in his own waste rather than assist him."

Greenhouse observes that the Justices seemed to think that the ADA in this situation dealt with mistreatment that would also violate constitutional rights, so providing for suits for damages would be properly characterized as an appropriate Fourteenth Amendment remedy.

Chief Justice Roberts posed one of the first questions. "Are you suggesting that the A.D.A. just tracks the Constitution and doesn't add to the burden on state officials?" he asked [Solicitor General Paul] Clement.

There was at most a "narrow band" of actions that the law would require but that the Constitution did not demand, Mr. Clement replied. "The prophylactic gap here is not large," he added....

Samuel R. Bagenstos, a law professor at Washington University in St. Louis and a specialist in disability rights, represented the inmate and shared the government's side of the argument with Mr. Clement. Chief Justice Roberts addressed the same question to him, adding, "I'm just wondering if that's a reasonable reading of the A.D.A., which I had always understood to change the rights of the disabled."

Mr. Bagenstos replied that there was little difference in the specific context of prisons because "this is one of the few areas where the government has an affirmative constitutional duty."

Gregory A. Castanias, a Washington lawyer arguing for Georgia, said the inmate's claims in this case went well beyond constitutional requirements. Several justices then suggested that the law might be interpreted to apply only to constitutional violations. Justice Scalia asked, "To the extent that it includes constitutional violations, why isn't that lawsuit perfectly O.K.?"

This looks like a rather easy case, though Greenhouse portrays it as a big test of where the Roberts Court will go on federalism cases. It's very much like Tennessee v. Lane, the recent ADA case about access to courtrooms. Congress is beefing up remedies for existing rights, permitting lawsuits for damages. The reference to the "prophylactic gap" -- which must mystify laypersons -- is about proscribing behavior that the constitutional alone would permit. To some extent, defining additional violations is not really the creation of new rights, but is genuinely remedial of existing rights.

In the classic case, as characterized in later cases, the Voting Rights Act of 1965 proscribed various practices but did so as a way of controlling race discrimination, which, of course, violates the Fourteenth Amendment. So the rights prisoners have under the ADA may be more extensive than the Constitution alone gives them, but they could still be viewed as a way to enforce constitutional rights. Complicated, but it looks as though the prisoner will win.

A reinvigorated Supreme Court.

Linda Greenhouse describes the Supreme Court "in the midst of a generational shift": an aging Justice tells the new young Chief Justice to call them by their first names ("I'm Nino"); Justice Ruth Bader Ginsburg was seen about town "laughing and kidding" with her husband; Justice Thomas asked two questions at an oral argument the other day (amazing!); Justice Stevens cracked a (very mild) joke on the bench the other day.

As Greenhouse analyzes it, it's not so much the arrival of a vigorous new man as being free of the the sickly old man:

The explanation for the court's mood is no mystery. It is relief. The justices who lived through the long year of Chief Justice Rehnquist's battle with thyroid cancer are survivors of a collective trauma, the dimensions of which are obvious only in retrospect.

After a description of that "trauma," which culminates at Rehnquist's funeral, Greenhouse's article ends with these two paragraphs:

Flash forward barely two months to an ordinary argument day in the courtroom, when a light bulb above the bench suddenly exploded with a jarring bang that brought court police officers to their feet. There was a tense silence before the benign explanation became clear. It was "a trick they play on new chief justices all the time," Chief Justice Roberts commented.

The incident occurred on Halloween, not a day when the chief justice could linger in his chambers. He had to get home, where, disguised as Groucho Marx, this father of two young children greeted the neighborhood trick-or-treaters at his front door.

The NYT, perhaps, found it "unfit to print" a transition that would have connected the trauma of William Rehnquist's death to the Halloween lightbulb burst and the new Chief Justice dressed as a zany comedian. Surely, it must have been tempting to write that it was the ghost of the old Chief that burst the bulb and that the new Chief's costume speaks of lighthearted happiness, while the dying old Chief, traumatizing everyone, by contrast seemed a ghoul.

Assisted suicide and federalism.

Here's the AP report on the physician-assisted suicide case that comes up for oral argument in the Supreme Court today:

In 1997 the court found that the terminally ill have no constitutional right to doctor-assisted suicide. O‘Connor provided a key fifth vote in that decision, which left room for state-by-state experimentation.

The appeal is a turf battle of sorts, not a constitutional showdown. Former Attorney General John Ashcroft , a favorite among the president‘s base of religious conservatives, decided in 2001 to pursue doctors who help people die.

Hastening someone‘s death is an improper use of medication and violates federal drug laws, Ashcroft reasoned, an opposite conclusion than the one reached by Janet Reno, the Clinton administration attorney general.

Frankly, I think this is an easy case (for federal supremacy), but it's a hot-button issue, so it will be interesting to see what is said -- especially by the new Chief -- at the argument.

The NYT has this editorial:

[T]he Court of Appeals was right to resolve it more simply, through a careful interpretation of the Controlled Substances Act. Mr. Ashcroft claimed that the law gave him the power to overrule Oregon's assisted suicide policy. But when Congress passed the act, it clearly intended to prohibit ordinary drug abuse, not to set out a federal policy on assisted suicide....

In his zeal to stop assisted suicide, Mr. Ashcroft, a self-described legal conservative, turned his back on two principles that are sacred to legal conservativism. First, he refused to strictly, or even accurately, construe a Congressional statute. Instead, he inserted meaning in it that did not belong there, giving himself power that he should not have had. Second, he ignored conservative dogma about deference to the states, especially on matters like regulating medical practice, a core state concern.

There is some appeal to the idea that the courts ought to narrowly construe broadly written federal statutes where the states have undertaken specific policy experiments in areas of traditional state concern (such as health). (I have a forthcoming article that sees Justice O'Connor's dissenting opinion in the medical marijuana case as suggesting this new approach to preemption.) This might seem like a good idea, but to be principled, you can't turn it on and off. The NYT likes assisted suicide and reviles Ashcroft's conservatism, but if this is to be the approach to federalism, it would have to apply even when you loathe the state's policy and love the federal law. I can't help thinking that the NYT would be back to wailing over the horrible "federalism revolution" if its policy preferences were the other way around.

UPDATE: Here's a very early report on the oral argument:

"The most natural reading of the (federal) Controlled Substances Act is ... this falls within the authority of the attorney general," said Solicitor General Paul Clement, arguing on behalf of the Bush administration....

Justice Sandra Day O'Connor immediately challenged Clement, asking if federal drug laws also prevented doctors from participating in the execution of murderers.

Justice Anthony Kennedy said he found it "odd" that the attorney general determined physician-assisted suicide to be an abuse of drug laws, when the state of Oregon strictly limited how the drugs could be administered and in what cases.

"I don't think it's odd," Clement replied, noting that federal laws regulating drug use have been in place for more than 90 years.

ANOTHER UPDATE: Here's more on the oral argument:

"The practice of medicine by physicians is an area of traditional regulation by the states, is it not?'' O'Connor asked U.S. Solicitor General Paul D. Clement....

New Chief Justice John G. Roberts Jr. directed most of his questions to Oregon Assistant Attorney General Robert M. Atkinson, who represents the state. Roberts signaled skepticism when Atkinson said the federal government couldn't stop states from authorizing doctors to distribute morphine for medical use or steroids for bodybuilding.

"Doesn't that undermine the uniformity of federal law and make enforcement impossible?'' Roberts asked....

Members of the court's liberal wing joined O'Connor today in expressing skepticism about the federal government's bid to block the state law.

Justice David Souter said Clement's argument would make the attorney general the "sole authority to determine whether any state may or may not authorize assisted suicide and would do so in a way that any other attorney general can flip back and forth.'' Souter called that a "bizarre result.''

Justice Stephen Breyer told Clement that the argument against the government's case is that the Controlled Substances Act "has nothing to do with assisted suicide.''

Breyer later prodded Atkinson, without success, to draw a distinction that would allow the federal government to fight abuse of morphine and other addictive drugs but not to second-guess states that want to let doctors facilitate suicide.

Justice Anthony Kennedy, often a swing vote on social issues, called the dispute "a hard case'' and directed questions to both sides.

Clement said the Controlled Substances Act gave broad enforcement authority to the attorney general, saying ``the abuse Congress was concerned with is not solely addictive abuse.'' He pointed to the ``date-rape drug,'' a sleep medicine that some rapists have used to disable their victims.

Justice Antonin Scalia suggested he agreed with that argument, saying Congress had a broad aim when it passed the law in 1970.

"I think that assisted suicide would have been as unthinkable at the time this was enacted as prescribing cocaine for recreational use,'' Scalia said.

STILL MORE: Here's David Savage's report in the L.A. Times, which portrays Roberts as especially active:

"What's the closest analogue to this?" the chief justice asked Clement, pressing for an example of where the U.S. attorney general overruled the states and their doctors on how legal drugs are used.

Clement paused and then responded that the Food & Drug Administration had objected in the 1970s when several states allowed the use of laetrile as a cancer treatment.

"That's the FDA. What about the attorney general?" Roberts repeated.

Clement could not cite a specific example of where the attorney general had overruled the state medical authorities on the use of prescription drugs. Roberts' question highlighted that Ashcroft was claiming a new power to regulate medical practice.

Oregon state lawyer Robert M. Atkinson picked up on that point, saying that "for the first time in our history ... a single, unelected federal official has decided what is accepted state medical practice."

But Roberts also challenged Atkinson's claim that state authorities could ignore the federal drug laws.

Suppose one state decided that it would permit people to obtain morphine from their doctors because "it makes people feel better," Roberts said. "Doesn't that undermine the effectiveness of the federal law? How is the federal government supposed to enforce its prohibition" on abusing morphine if one state permits it? he asked.

EVEN MORE: The Linda Greenhouse article in the NYT about today's argument doesn't even mention Roberts. [MORE: The longer version of the article at the link now does mention Roberts at the end, but not in connection with the suicide case.]

Free speech and campaign finance.

Here is Linda Greenhouse's article on yesterday's cert grants in two campaign spending cases. She speculates that the Court might be ready to reconsider the key precedent, Buckley v. Valeo -- as it did not do a few years ago when it upheld the McCain-Feingold law, in a 5-4 case. Justice O'Connor contributed that fifth vote -- the others were Stevens, Souter, Ginsburg, and Breyer -- so expect to see the Senate Judiciary Committee to do some probing questions when Bush's next nominee shows up.

Greenhouse describes the key case, challeging state regulation:

The Vermont law was enacted in 1997 as a direct challenge to the Supreme Court's campaign finance precedents, or as Vermont's secretary of state, Deborah L. Markowitz, put it in an official memorandum, with the "express legislative goal of giving the Supreme Court an opportunity to re-evaluate its decision in Buckley v. Valeo."

While the law's strict contribution limits were notable, its main departure was in restricting campaign expenditures. Candidates for governor, for example, are limited to spending $300,000 in a two-year election cycle, regardless of whether the cycle includes a primary election.

In a 2-to-1 ruling last year, the United States Court of Appeals for the Second Circuit, which includes Vermont, endorsed the state's basic approach. It held that the state had correctly concluded that Buckley v. Valeo was not a complete prohibition on spending limits, but that such limits could be justified by rationales beyond the anticorruption rationale that the Supreme Court considered at the time.

These additional rationales included two that the appeals court panel's majority said were now "compelling": addressing the growing public cynicism about the impact of money on politics, and limiting the amount of time that candidates had to devote to raising money.

The appeals court then sent the case back to the federal district court in Vermont for a determination of whether in setting its spending limits, Vermont had chosen a sufficiently "narrowly tailored" means of achieving its valid objectives. In another portion of its ruling, the appeals court upheld the contribution limits.

The full appeals court then debated whether all 11 judges should rehear the case, and decided against rehearing by a vote of 6 to 5. The dissenters argued forcefully that no matter what state officials or lower court judges had to say, only the Supreme Court itself had the authority to cast Buckley v. Valeo in a new light.

This promises to be a very telling test of the new Court! It will be fun to see the defer-to-us routine the Judiciary Committee Democrats used against Roberts redone in the context where it entails minimizing Free Speech rights. That will be a little tricky, since the Democrats also like to project the image that they are the ones who really care about constitutional rights. Of course, Feingold himself will be on the Committee, and no one is better suited to articulating the tricky position than he is.