Meta and Meta

The Counter-Majoritarian "Difficulty"

Larry Solum's "Legal Theory Lexicon" entry updated for today is the Counter-Majoritarian Difficulty. From the introduction:

The counter-majoritarian difficulty states a problem with the legitimacy of the institution of judicial review: when unelected judges use the power of judicial review to nullify the actions of elected executives or legislators, they act contrary to “majority will” as expressed by representative institutions.

However, later, in the middle of the article, Solum acknowledges that "it could also be understood as a difficulty for any constitution that constrains majority will."

Well, not "could be," I think, but rather "is." The counter-majoritarian "difficulty" is the logical result of limited powers and individual and state rights. Even "ideally" formalist or originalist judges* would have to reach counter-majoritarian results (at least sometimes) if such constitutional provisions are to be more than paper oaths.

This point is central, and I'm a little surprised Solum didn't flag it in the introduction. Judicial review by "unelected judges" is frequently and artificially singled out by many conservatives as if it were a peculiar counter-majoritarian force in law. Quite simply, it ain't.

*And the point isn't restricted to judges. Formalist or originalist legislators (if you will) could only "reflect the will of the people" legislatively in cases where the will of the people happens to dovetail with what is constitutionally permissible.

Don't Give Them Any Ideas

I like my representative Henry Waxman's response to the president's contention that Justice will not be allowed to prosecute congressional contempt citations in "executive privilege" cases: "I suppose the next step would be just disbanding the Justice Department."

U.S. attorneys are but "emanations of a president's will," after all...

Teaching Evolution (and Other "Atheistic" Subjects) in Public School

In this Slate interview, scientist and science writer Steve Paulson responds to Richard Dawkins' claim that evolutionary theory is inherently atheistic, arguing that "[i]f evolution is in fact inherently atheistic, we probably shouldn't be teaching it in the schools," because "public schools are supposed to be religiously neutral...."

This thought apparently threatens to become a persistent meme. But as an actual legal matter the argument's a nonstarter: Teaching a subject that entails the truth of atheism (I'll call such subjects "α-subjects") neither establishes religion nor prohibits the free exercise of religion, and so is "religiously neutral" for purposes of constitutional analysis.

In thumbnail sketch, it's not establishment because:

1. Atheism is not a "religion";*
2. The secular purpose of teaching α-subjects is (in the language of Edwards v. Aguillard) "enhancing the effectiveness of science instruction";
3. The primary effect of teaching α-subjects is enhancing students' knowledge of science, not inhibiting or promoting any particular religion; and
4. In teaching α-subjects, there is no "entanglement" between the state and any religion.

And it's not a prohibition of free exercise because:

1. The government has a compelling interest (see point (2) above) in teaching α-subjects; and
2. Teaching α-subjects is part of a general educational policy that does not target any particular religious practice.

And thank goodness for all that--otherwise, we'd have to chuck mathematics, physics, history, archaeology, and all the historical sciences. Not to mention logic.

NOTES
* There is no consensus constitutional definition of the term 'religion,' but it seems pretty clear from Supreme Court cases like Seeger that merely taking a stance on the (non)existence of a deity or deities would not be sufficient.
    Query, incidentally, whether this means public schools could teach atheism as a true matter of fact. (I probably wouldn't want that, as a policy matter; I'm merely pointing out that doing so might be constitutional.)

Religious Reasons and Secular Laws

I stumbled upon a year-old exchange (at the Huffington Post) between Geof Stone and Eugene Volokh debating the legitimacy of using religious reasons as a basis for lawmaking.

Volokh states:

[I]t shouldn't matter whether someone supports [laws banning -- or allowing -- abortion, infanticide, the destruction of embryos or chimpanzees for medical purposes, or the killing of members of endangered species might be sound or unsound] because of his belief that laws should turn on the greatest good for the greatest number, his belief that we are all sons and daughters of Gaea and must thus protect our environment, or his belief in the Bible. For most, quite possibly all, of us, our moral beliefs ultimately rest on unproven and unprovable moral axioms.

But Volokh is eliding a distinguishing feature of religious beliefs. It's not that they are merely unproven and unprovable. It's that they are claimed to emanate from an infallible, totalizing authority. Once you factor that in, it's not hard to see why religious reasons are peculiarly inimical to a secular, pluralist democracy.

Full of Grace

Dahlia Lithwick runs down the reasons Nancy Grace is perhaps the most odious personality on television.

However, Lithwick is oddly quick in discounting the possibility that Grace is (or should be) liable for Melinda Duckett's suicide. (Duckett shot herself after Grace mercilessly and repeatedly suggested in a videotaped interview that Duckett was implicated in the disappearance of her daughter.) Cf. Jenny Jones.

Posner on Douglas, Law and Politics

Richard Posner has a review of Bruce Allen Murphy's new book, Wild Bill: The Legend and Life of William O. Douglas. At one point, Posner makes this interesting claim:

The supreme court is a political court. The discretion that the justices exercise can fairly be described as legislative in character, but the conditions under which this "legislature" operates are different from those of Congress. Lacking electoral legitimacy, yet wielding Zeus's thunderbolt in the form of the power to invalidate actions of the other branches of government as unconstitutional, the justices...are confined, in Holmes's words, from molar to molecular motions. And even at the molecular level the justices have to be able to offer reasoned justifications for departing from their previous decisions, and to accord a decent respect to public opinion, and to allow room for social experimentation, and to formulate doctrines that will provide guidance to lower courts, and to comply with the expectations of the legal profession concerning the judicial craft. They have to be seen to be doing law rather than doing politics.

I wonder, why not just doing law? Why the need to be seen to be doing law? Does Posner mean that the  judgment of the professional legal audience is in some sense performative, or constitutive of part of what it means to "do law"? Or is he just making the merely pragmatic point that to function in the political world the Court has to appear politically legitimate?

And is it just me, or does the portrait on the Wild Bill cover look like Bill Buckley?

(Via Eugene Volokh.)

 

The Right Hand of Justice

[Treoblogging] From the AP:

Former Judge Donald D. Thompson, a veteran of 23 years on the bench, is on trial on charges he used a penis pump on himself in the courtroom while sitting in judgment of others.

Of course other possible titles for this post would include:

• Erection, Your Honor!
• Piercing the Veil
• Can't Wait for Oral Argument
• Construction of Judicial Cannons
• Bench Trial Ends in Hung Judge

And so forth...

If you thought Camp X-Ray Was An Anomaly...

...well, it ain't. A taste (quotations from a 2004 American Bar Association report):

"Indigent clients … remain in pretrial detention for up to five or six months without a single contact from an attorney." One woman "was in jail eleven months before a lawyer was appointed," while another person "spent thirteen months in jail without seeing a lawyer or a judge."

And so forth. Read the whole thing.

Idiots for Lawyers

"Anyone who represents himself at trial has a fool for a client and an idiot for a lawyer." So goes the old saw about pro se litigants, anyway.

Turns out, though, the empirical data might not bear the old saw out.

Shorter Ed Whalen

Shorter Ed Whalen: "Hey, it's not like Scalia actually named the case he was talking about."