Does the Supreme Court understand Orwell's "1984"? No!

Yesterday, I was studying United States v. Alvarez, the case, decided last June, about the Stolen Valor Act (which made a crime about lying about having received a military medal). In the process of explaining why the law violates the right to freedom of speech, Justice Kennedy, speaking for the majority, wrote:

Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth. See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003).... Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.

All right. Fine sentiments about free speech, but what is "1984" doing in there? Did it seem like a good idea to drop in a literary reference to look classy or something? Did nobody notice that the reference is completely wrong? The Ministry of Truth in "1984" wasn't a government institution that enforced truthfulness, which is the way it's used in that paragraph. Such an institution would be bad and inconsistent with American First Amendment principles, but it wouldn't be as bad as the Ministry of Truth in "1984"!

Here's George Orwell's description of The Ministry of Truth:

Winston's greatest pleasure in life was in his work. Most of it was a tedious routine, but included in it there were also jobs so difficult and intricate that you could lose yourself in them as in the depths of a mathematical problem— delicate pieces of forgery in which you had nothing to guide you except your knowledge of the principles of Ingsoc and your estimate of what the Party wanted you to say. Winston was good at this kind of thing. On occasion he had even been entrusted with the rectification of the Times leading articles, which were written entirely in Newspeak. He unrolled the message that he had set aside earlier. It ran:

times 3.12.83 reporting bb dayorder doubleplusungood refs unpersons rewrite fullwise upsub antefiling   

In Oldspeak (or Standard English) this might be rendered:

The reporting of Big Brother's Order for the Day in the Times of December 3rd 1983 is extremely unsatisfactory and makes references to non-existent persons. Re-write it in full and submit your draft to higher authority before filing.   

Winston read through the offending article. Big Brother's Order for the Day, it seemed, had been chiefly devoted to praising the work of an organisation known as FFCC, which supplied cigarettes and other comforts to the sailors in the Floating Fortresses. A certain Comrade Withers, a prominent member of the Inner Party, had been singled out for special mention and awarded a decoration, the Order of Conspicuous Merit, Second Class.

Three months later FFCC had suddenly been dissolved with no reasons given. One could assume that Withers and his associates were now in disgrace, but there had been no report of the matter in the press or on the telescreen. That was to be expected, since it was unusual for political offenders to be put on trial or even publicly denounced. The great purges involving thousands of people, with public trials of traitors and thought-criminals who made abject confession of their crimes and were afterwards executed, were special show-pieces not occurring oftener than once in a couple of years. More commonly, people who had incurred the displeasure of the Party simply disappeared and were never heard of again. One never had the smallest clue as to what had happened to them. In some cases they might not even be dead. Perhaps thirty people personally known to Winston, not counting his parents, had disappeared at one time or another.

Winston stroked his nose gently with a paper-clip. In the cubicle across the way Comrade Tillotson was still crouching secretively over his speakwrite. He raised his head for a moment: again the hostile spectacle-flash. Winston wondered whether Comrade Tillotson was engaged on the same job as himself. It was perfectly possible. So tricky a piece of work would never be entrusted to a single person: on the other hand, to turn it over to a committee would be to admit openly that an act of fabrication was taking place. Very likely as many as a dozen people were now working away on rival versions of what Big Brother had actually said. And presently some master brain in the Inner Party would select this version or that, would re-edit it and set in motion the complex processes of cross-referencing that would be required, and then the chosen lie would pass into the permanent records and become truth.

Am I the first person to point out this blunder? I see the Washington Post editors called it "a deft allusion to George Orwell’s '1984.'" Is "deft" Newspeak for clumsy?!

"So what you're saying is that what counts is race above all.... You want underprivileged of a certain race and privileged of a certain race. So that's race."

Said Justice Anthony Kennedy at during the oral argument over the the University of Texas affirmative action policy. UT, following state law, automatically admits everyone who graduates from a Texas high school in the top 10%, a colorblind policy that produces a certain amount of racial diversity, especially since there are many high schools in Texas that have a very high proportion of black or Hispanic students.

So why does UT do any additional affirmative action as it fills up the portion of the entering class not admitted through the 10% program? You've already got a lot of diversity, so why do you need more? The additional affirmative action is precisely to bring in privileged black and Hispanic students, that is, the black and Hispanic students who did not attend racially isolated schools. If white students get too many of the top 10% spots at those schools, then the 10% program does not bring enough of these minority students into UT.

The university says... that the highest-ranked students at a disadvantaged school have lower SAT scores than some in the middle of the pack at a more competitive suburban high school. UT's affirmative-action program aims to open doors for minority applicants from middle-class or professional families. Such students can "help dispel stereotypical assumptions…which actually may be reinforced" by minorities admitted only because of the top-10% plan, UT said in its brief.

Justice Samuel Alito seized on that point. "I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don't think I've ever seen before," he said.

Actually, under the Court's case law, the diversity that is considered a compelling interest (which is what the state needs to defend race discrimination) is not about boosting the underprivileged. In Grutter v. Bollinger, the majority approved of the idea of  assembling a class that includes "a 'critical mass' of minority students," which does not mean "racial balancing, which is patently unconstitutional" but is "defined by reference to the educational benefits that diversity is designed to produce."

These benefits are substantial. As the District Court emphasized, the Law School’s admissions policy promotes “cross-racial understanding,” helps to break down racial stereotypes, and “enables [students] to better understand persons of different races.”...These benefits are “important and laudable,” because “classroom discussion is livelier, more spirited, and simply more enlightening and interesting” when the students have “the greatest possible variety of backgrounds.” ...

The Law School does not premise its need for critical mass on “any belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.”... To the contrary, diminishing the force of such stereotypes is both a crucial part of the Law School’s mission, and one that it cannot accomplish with only token numbers of minority students. Just as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters.

If it's about breaking down stereotypes, the 10% approach creates a problem: The minority students in the classroom tend to come from the racially isolated schools, the less privileged Texans. So, it seems, the additional affirmative action is needed to get a more varied group of minority students, in which case, the point is to bring in privileged minority students, because these are the students who — in Grutter terms — might provide the classroom benefit of teaching all the students that minority students don't have "some characteristic minority viewpoint."

Obviously, there were dissenting opinions in Grutter. For example, Justice Scalia scoffed at that idea of the compelling interest: The lesson taught by classroom diversity is "essentially the same lesson taught to (or rather learned by, for it cannot be 'taught' in the usual sense) people three feet shorter and twenty years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens."

I'm not taking a position on whether UT's admissions policy is good or whether it's constitutional. (Do not assume you know what I think. You don't.) All I am saying is that if Grutter is to be applied (and not limited or overruled), an affirmative action program that's all about boosting the most privileged minority students actually makes sense.

Did Justice Alito not see that (or was he mainly expressing disapproval)? Here's his quote (along with Justice Kennedy's), put in context, beginning at page 43 of the PDF transcript:

JUSTICE ALITO: Well, I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don't think I've ever seen before. The top 10 percent plan admits lots of African Americans -- lots of Hispanics and a fair number of African Americans. But you say, well, it's -- it's faulty, because it doesn't admit enough African Americans and Hispanics who come from privileged backgrounds. And you specifically have the example of the child of successful professionals in Dallas. Now, that's your argument? If you have -­ you have an applicant whose parents are -- let's say they're -- one of them is a partner in your law firm in Texas, another one is a part -- is another corporate lawyer. They have income that puts them in the top 1 percent of earners in the country, and they have -­ parents both have graduate degrees. They deserve a leg-up against, let's say, an Asian or a white applicant whose parents are absolutely average in terms of education and income?

[GREGORY G. GARRE, counsel for the University of Texas]: No, Your Honor. And let me -­ let me answer the question. First of all, the example comes almost word for word from the Harvard plan that this Court approved in Grutter and that Justice Powell held out in Bakke.

JUSTICE ALITO: Well, how that question be no, because being an African American or being a Hispanic is a plus factor.

MR. GARRE: Because, Your Honor, our point is, is that we want minorities from different backgrounds. We go out of our way to recruit minorities from disadvantaged backgrounds.

JUSTICE KENNEDY: So what you're saying is that what counts is race above all.

MR. GARRE: No, Your Honor, what counts is different experiences -­

JUSTICE KENNEDY: Well, that's the necessary -- that's the necessary response to Justice Alito's question.

MR. GARRE: Well, Your Honor, what we want is different experiences that are going to -- that are going to come on campus -­

JUSTICE KENNEDY: You want underprivileged of a certain race and privileged of a certain race. So that's race.

MR. GARRE: No, Your Honors, it's -- it's not race. It's just the opposite. I mean, in the LUAC decision, for example, this Court said that failing to take into account differences among members of the same race does a disservice -­

JUSTICE KENNEDY: But the reason you're reaching for the privileged is so that members of that race who are privileged can be representative, and that's race. I just -­

MR. GARRE: It's -- it's members racial group, Your Honor, bringing different experiences. And to say that -- if you took group, if you had an admissions process that to admit from a -- people from a particular background or perspective, you would want people from different perspectives.

CHIEF JUSTICE ROBERTS: Counsel -­

MR. GARRE: And that's -- that's the interests that we're discussing here. It's the interests that the Harvard plan specifically adopts and lays out -­

"A second Obama term could kill the Second Amendment."

Says James Taranto, inviting Obamans to make gun control a big campaign issue. The Supreme Court's recent cases finding an individual right to bear arms were decided by a 5-man majority, 2 of whom (Antonin Scalia and Anthony Kennedy) are in their late 70s. Ruth Bader Ginsburg (who's 79) and Stephen Breyer (who's 73) dissented. We don't know whether any (or all!) of them will leave the Court in the next 4 years or whether the Court will revisit its Second Amendment jurisprudence, but the point is, if gun control becomes an issue, those who care about gun rights might be induced to get quite excited over Supreme Court appointments.

Now, it's my perception that the gun control issue has already played out. There had to be that clamor that we heard over the weekend, but it was a clamor without legs.

Their coats were brushed, their faces washed,

Their shoes were clean and neat —

And this was odd, because, you know,

They hadn't any feet.

A second look at Jan Crawford's "Roberts switched views to uphold health care law."

Reading this article last night, I guessed that one of Crawford's sources was Justice Kennedy and that Chief Justice Roberts shifted his position in the process of writing about the question of severability (that is, whether to strike down the whole law if the individual mandate is unconstitutional). I reread the article today, and I want to highlight and stress 4 points.

1. Crawford never says that Roberts committed to a decision on severability. At the conference after the oral arguments, she says, Roberts voted with the conservative group that the commerce power did not support the mandate, but Roberts was "less clear" on severability. He assigned himself the opinion, and he followed through on the commerce power.

2. One of the sources describes Roberts as becoming "wobbly" by May and failing to adequately explain what he was doing. Once it emerged that Roberts would rely on the taxing power, there was "fair amount of give-and-take with Kennedy and other justices," that one justice described as "arm-twisting." (At least they weren't neck-wringing! (A Wisconsin joke.))

3. I see vanity as a motivation to talk to Crawford:

The two sources say suggestions that parts of the dissent were originally Roberts' actual majority decision for the court are inaccurate, and that the dissent was a true joint effort.

The fact that the joint dissent doesn't mention Roberts' majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.

They didn't like Roberts getting credit for their work, and they didn't like getting called sloppy. It was a strange situation: Court observers were airing suspicions that Roberts had turned, which was (apparently, at least partly) true, but they were using evidence that was (apparently) not true, and that wounded the pride of the dissenting Justices who wanted it to be known that they really did write their own opinion and that they hadn't made careless mistakes. They want respect, it seems. And they don't like Roberts getting all the credit... or perhaps any of the credit.

4. The source(s) want it known that Kennedy, more generally, deserves a great deal of credit for his work over the years on the Court. Here, again, I see vanity, as Crawford — seeming like a mouthpiece — says:

Kennedy has long frustrated conservatives, because he occasionally joins with liberals to provide the key swing vote in cases involving social issues. They openly mock his writing style as grandiose and his jurisprudence as squishy - in other words, changeable and too moderate.

That's not entirely fair to Kennedy....

Kennedy mocked as squishy? But Roberts went wobbly! I'm seeing a pattern to these protestations. I'm seeing a psychodrama here, with Kennedy feeling rivalry toward the Chief, who structured the decision in a way that would tend to draw admiration from many of the media folk who shower affection on Kennedy when he does the things they like. Kennedy — or somebody — seems to have wanted it to be known that it's Roberts' judicial demeanor and craftsmanship that deserves mockery.

Sources tell Jan Crawford that Chief Justice Roberts really did switch sides.

The CBS reporter heard from "two sources with specific knowledge of the deliberations."

Chief Justice John Roberts initially sided with the Supreme Court's four conservative justices to strike down the heart of President Obama's health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law...

Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy - believed by many conservatives to be the justice most likely to defect and vote for the law - led the effort to try to bring Roberts back to the fold....
The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress' power under the Commerce Clause, the sources said.

Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts' decision, the sources said, as if they were no longer even willing to engage with him in debate.

Amazing to learn all this so quickly. Who are the sources? The phrase "specific knowledge of the deliberations" seems to imply that Crawford heard from 2 of the Justices (presumably 2 of the 4 conservatives).

Crawford tells us that Roberts initially agreed that the mandate was unconstitutional but she's a little cagey on the question of severability — that is, whether the whole legislation should fall along with that one provision, which is what the rest of the conservatives wanted. But Roberts assigned the opinion to himself and in the process of working on the opinion would have been aware of the pressure on the Court. As Crawford puts it "Roberts pays attention to media coverage" and he's "sensitive to how the Court is perceived by the public."

[By May] it also became clear to the conservative justices that Roberts was, as one put it, "wobbly," the sources said.

It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.

I'm guessing this source is Kennedy. I'm also guessing that what gnawed at Roberts in the process of writing was the momentousness of striking down the entire statute, especially along what would be perceived a conservative-liberal 5-4 split.

Roberts developed his taxing power argument and tried to get "at least Justice Kennedy" to join the opinion to give it a greater solidity.

There was a fair amount of give-and-take with Kennedy and other justices, the sources said. One justice, a source said, described it as "arm-twisting."

Even in Roberts' opinion, which was circulated among the justices in early June, there are phrases that appear tailored to get Kennedy's vote. Roberts even used some of the same language that Kennedy used during oral arguments.

Crawford includes a lot of material here about Kennedy's approach to judging and how he's misunderstood:

Kennedy has long frustrated conservatives, because he occasionally joins with liberals to provide the key swing vote in cases involving social issues. They openly mock his writing style as grandiose and his jurisprudence as squishy - in other words, changeable and too moderate.

Why is this analysis in the article? I'm guessing it's because Kennedy expressed himself. They openly mock me.... Openly!

That's not entirely fair to Kennedy. In fact, there are underlying and consistent themes in his jurisprudence, much more so than in the jurisprudence of O'Connor....

At this point the article reads like PR for Kennedy. Why?

Kennedy...  is strong on issues of federalism - and is remarkably consistent. His opinion in a 1999 case, Alden v. Maine, is considered one of the Court's finest in that area. 

Oh, come on! Now she's just fawning. Considered one of the finest... by whom? There are things you can say about Alden — a case that certainly does outrage liberals — but "finest"? It is true though — and I would agree — that Kennedy has stamped his mark on the federalism cases. 

Crawford's piece ends this way:

The fact that the joint dissent doesn't mention Roberts' majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.

The language in the dissent was sweeping, arguing the Court was overreaching in the name of restraint and ignoring key structural protections in the Constitution. There are clear elements of Scalia —  and then, there is Justice Kennedy.

"The fragmentation of power produced by the structure of our government is central to liberty, and when we destroy it, we place liberty in peril," the dissent said. "Today's decision should have vindicated, should have taught, this truth; instead our judgment today has disregarded it."

Strong admiration for Kennedy — who really has distinguished himself over the years by connecting the structure of federalism to the protection of the liberty of the individual.

ADDED: Back on March 30, right after the oral argument, we were talking about "the way the Solicitor General, Donald B. Verrilli Jr., ended his argument by connecting the health care law to liberty," was intended to appeal to Anthony Kennedy, with his longstanding interest in federalism as a mechanism for protecting individual liberty. But it was a very lame appeal, the notion being only that if people get the health care they need, then they'll be able to "enjoy the blessings of liberty."

ALSO: 5 years ago, when O'Connor was leaving the Court, Jan Crawford wrote — with admiration, I think — about Justice Kennedy, and we discussed it here.

AND: Math fix on the "also."

UPDATE: I take a closer look at the Crawford article and speculate about possible Kennedy motivations.

Prof. Stone says it's "depressing" that the Court's "fleeting expletives" opinion repeatedly used "f***" and "s***"...

This summary is not available. Please click here to view the post.

It's nerve-wracking waiting for the Supreme Court this morning.

We don't know if the health-care case will come out in a few minutes, but it might. Here are descriptions of the cases that might be announced today.

And here's where to read about the announcements as close as you can get to real time, with SCOTUSblog.

UPDATE 1: Alito has the opinion in Knox v. SEIU, which is about requiring state workers to pay for the union's political speech. The union lost in a 6-3 decision. There is a free-speech right to opt out. [Here's the PDF.]

UPDATE 2: There's a decision in the case about the new lower sentences for crack cocaine — applying it to sentences imposed after the Act was passed or crimes committed before the Act. This is a Breyer opinion, with 4 dissenting votes.

UPDATE 3: FCC v. Fox opinion written by Justice Kennedy. This is the case about the FCC's rules on "fleeting expletives," which were challenged as vague. "The decision is very narrow. The analysis section of the opinion is only 5 pages long. It says simply that the FCC didn't give advance notice. It doesn't decide the big questions of the constitutionality of the current policy." So it's not a decision on the free speech issue.

UPDATE 4: The excitement is over. The cases we are so nervous about will wait until next week. Relax!

"If only [racial] change were as swift and simple as a child’s dance recital."

Here's a second article about race giving central, front-page attention on the NYT website this morning. (The previous post discusses the first.)

Reaching out longingly to female readers, this article features a picture of adorable kindergarten girls in pink tutus and white tutus... and — mostly — nonwhite skin. It's a performing arts magnet school, and the serious topic of the article is the federal grant program, dating back to the 1980s, that supposedly helps with racial integration.

The idea was to create a themed curriculum that attracted children from outside a school’s immediate neighborhood to reduce the isolation of one minority group....

About 58 percent of the students in District 14 public schools are Hispanic, 26 percent are black, 12 percent are white and 3 percent are Asian, according to the Education Department. At each of these four elementary magnet schools, Hispanic students represent more than 70 percent of the population.

These are the wrong percentages, for some reason that is supposed to be obvious to you, and the promise of putting their little girls in tutus is intended to lure white parents into doing what the government deems valuable, diluting the minority population. We are assured that "decades of research studies show that children perform better in integrated schools," and then there's much talk about the magnet schools hitting academic targets. But the tutu school in the photo is under investigation for cheating
(because kids did so well on the tests at the school, but badly when they moved on to middle school).

Complicating desegregation even further: a 2007 United States Supreme Court ruling that restricted schools in selecting students. The court, in Parents Involved in Community Schools v. Seattle School District No. 1, ruled 5 to 4 that schools could not explicitly take race into account when selecting students.

Justice Anthony M. Kennedy, who voted with the majority, nevertheless kept alive the importance of school integration: in a separate opinion, he wrote that school districts could be creative, perhaps reconfiguring attendance zones to spur socioeconomic diversity....

Historically for magnet schools, white middle-class students have been the prize. Despite the odds, one of the Williamsburg schools has been able to attract them in droves.....

Education officials placed Brooklyn Arbor [Public School 414] in a prime location to draw families from the Northside neighborhood: just south of the Brooklyn Queens Expressway, near the trendier parts of Williamsburg. The new principal, Eva Irizarry, did the rest. Her aggressive recruiting and her commitment to progressive, hands-on learning helped persuade white middle-class families to try the new school.... [The school's theme is] global and ethical studies. Ms. Irizarry plans to build eco-friendly classrooms and a greenhouse on the roof...

When it came to recruiting, Ms. Irizarry said, she got no response when she went to Head Start nursery schools in the surrounding Dominican neighborhoods.

She had more success pitching a new concept to Northside parents. At Mommy and Me yoga classes, she left brochures that featured the school’s carefully designed green tree logo and 13 children of all ethnicities photographed in green T-shirts....

Ms. Irizarry... was concerned that Hispanic parents might feel they were being pushed out of the school.

White middle-class students have been the prize.... the trendier parts of Williamsburg... commitment to progressive... learning.... So the success of the project is measured in terms of how many white kids enroll, and the theme is designed to appeal to white people... But it's the presence of white people that "decades of research studies show" is what's really best for the nonwhite kids.

Here's the Parents Involved case, in the event that you'd like to brush up on the constitutional law. The Supreme Court has been clear that racial balancing is not an acceptable basis for classifying individuals by race. Diversity — which is — has a different meaning, and, to keep this post from getting much longer, I'll just say the Court has struggled to define diversity and what may be done to achieve it.

Whatever the law says, there are still policy decisions to be made, and here, I'm puzzling over the paradoxical high valuation of white children and their use for dilution purposes.

"Supreme Court’s Ratings Jump Following Health Care Hearings."

A new Rasmussen poll:

Just before the highly publicized hearing on the constitutionality of President Obama’s health care law, ratings for the U.S. Supreme Court had fallen to the lowest level ever measured by Rasmussen Reports. Now, following the hearings, approval of the court is way up.

Forty-one percent (41%) of Likely U.S. Voters now rate the Supreme Court’s performance as good or excellent, according to a new Rasmussen Reports national telephone survey. That’s up 13 points from 28% in mid-March and is the court’s highest ratings in two-and-a-half years.

Ha ha ha ha ha.

It is impossible to know if the improved perceptions of the court came from the hearings themselves, President Obama’s comments cautioning the court about overturning a law passed by Congress, or from other factors. Approval of the court had fallen in three consecutive quarterly surveys prior to the health care hearings.

But pay no attention to the polls, Supreme Court Justices. You shouldn't think about your own popularity. And also, the way to be popular is not to think about it.

Should President Obama be kicking himself over this? Maybe not. The jump in popularity is all coming from Republicans, though it's worth noting that Democrats have stayed in the same position and have not lowered their opinion of the Court. And Obama's disparaging of the Court wasn't for the purpose of turning people against the Court. It was more about: 1. prodding Anthony Kennedy his way, 2. laying a basis for defending his law if the Court happens to call it unconstitutional, and 3. setting up the argument that we really need him to appoint the next couple Supreme Court Justices.

Laurence Tribe says Obama "didn't say what he meant" about the Supreme Court and needs to "clarify."

"I don’t think anything was gained by his making these comments and I don’t think any harm was done... except by public confusion."

ADDED: Remember when Larry Tribe pushed Obama (his former student) to nominate Elena Kagan to the Supreme Court because "Neither Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy's mind"?

Kagan, Tribe said, had a way of "gently but firmly persuading a bunch of prima donnas to see things her way in case after case." Of course, he was referring to the prima donna professors at Harvard Law School, and mainly talking about new faculty appointments, which is quite different from persuading Supreme Court Justices about interpretations of law. It's one thing to build a law school community where professors can spout diverse ideologies and still feel like it's a happy, functioning institution. It's quite another to amass votes for a legal proposition that produces an outcome in a case and binds all the courts in the United States.

I wonder how well Kagan is doing scaling the convolutions of Kennedy's brain these days. As I said at the time: "if the target of a light touch knows that the most powerful man in the world has selected that approach to prying his brain into a particular political direction, that target ought to become highly vigilant and not get played."

Adam Liptak — at the NYT — says the SG tried to appeal to Justice Kennedy's idea of liberty.

Liptak refers to the way the Solicitor General, Donald B. Verrilli Jr., ended his argument by connecting the health care law to liberty:

“There will be millions of people with chronic conditions like diabetes and heart disease... and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty.”

"Liberty" is a high abstraction. What is it about the liberty of compulsion to buy an expensive health insurance policy that Justice Kennedy is supposed to find appealing? Just because someone loves liberty doesn't mean they're going to love everything you slap a "liberty" label on!

Liptak points to the oral argument transcript where Justice Kennedy asked the SG to "identify for us some limits on the commerce clause?"

Those questions fit neatly within one strain of Justice Kennedy’s understanding of liberty, one he discussed at length last year in an opinion for a unanimous court.

Limiting federal power, he wrote, “protects the liberty of all persons within a state by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”

Obviously, that's exactly not the kind of liberty the SG was talking about.

But there is another strain to Justice Kennedy’s conception of liberty, one that may help Mr. Verrilli. “When you think about liberty relative to Kennedy,” Professor [Helen J.] Knowles said, “the element most important to him will be the idea of individual responsibility. He thinks the government has the power to ensure that the responsible exercise of liberty be done in an educated manner."...

As Ilya Shapiro wrote in The Harvard Journal of Law and Public Policy in 2010, “Justice Kennedy’s jurisprudence is a constant struggle to find the right balance between liberty and responsibility.”...

In 1992, joining with Justices Sandra Day O’Connor and David H. Souter to uphold the core of the constitutional right to abortion identified in Roe v. Wade, Justice Kennedy wrote by way of explanation that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life."

Interesting and important quotes, but I don't see how they get us anywhere near connecting Kennedy's ideas about liberty to the policy of compelling the individual to take responsibility by requiring him to do one particular thing that the government has decided is the one thing that should be done.

As long as Liptak brought up abortion. Imagine if the government claimed it was furthering liberty by requiring every pregnant woman to go forward and bear her child. Here's freedom for you: Take responsibility by doing what the majority has decided is responsible.

Or reverse that: Imagine the government deciding who was ready to bear a child and imposing a penalty on those who failed to have abortions... and imagine the government proclaiming that it was all in the name of liberty.

To say that no choice is choice. That compulsion is liberty. Freedom is slavery.

There's a human rights complaint against Earls Albino Rhino beer.

"Ikponwosa (I.K.) Ero of Vancouver has alleged to the B.C. Human Rights Tribunal that the name singles out people like her who suffer from albinism, the absence of pigment from the skin, hair and eyes."

It's a medical condition, not a taste treat, Ero argues.

"You go into a restaurant and someone says, 'Can I get a palsy? Give me a palsy,'" she said. "And what it stands for is a cerebral palsy cocktail. I don't think that would fly well at all with anybody with cerebral palsy, or their families, who have to live with the condition.

"So how does it work, in [the case of albinism] that you can market food with a medical condition?"

And how does it work, that you go from believing a product is poorly named to believing human rights are violated

Ero, who was born in Nigeria, said in her complaint that in Africa ablinos [sic] are often targeted for ritualistic murder.... The threat of persecution was one of the reasons she and her family fled to Canada when she was a teenager.

You came to Canada for liberty and you became an agent of repression. But that's your idea of liberty, controlling others.

That reminds me, at the Supreme Court oral argument yesterday, the Solicitor General ended his woeful week by talking about freedom: With all the new compulsions and coercions of Obamacare, "millions of people with chronic conditions like diabetes and heart disease... will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty."

In the words of Bob Zimmerman:

Ah, my friends from the prison, they ask unto me
“How good, how good does it feel to be free?”
And I answer them most mysteriously
“Are birds free from the chains of the skyway?”

In the words of the U.S. Supreme Court Justice Kennedy — who will decide the Obamacare case singlehandedly, as the pundits tell it, but who wrote this along with Justices O'Connor and Souter:

At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.

Raise a glass of Earls Albino Rhino to liberty!

Time-shifted live-blogging of this morning's Obamacare oral argument in the U.S. Supreme Court.

I've finally got time to curl up with a nice MP3 and transcript. I'm going to treat this like a live-blog, with frequent updates until I get to the end.

UPDATE 1: Paul Clement will attack the expansion of Medicaid. He's talking about whether it's "coercive," because if it is, it won't fit the Spending Power. Justice Kagan wants to know why a "big gift from the Federal Government" is coercion. "The Federal Government is here saying, we are giving you a boatload of money." Page 3. Just a big old boatload of money is coercive, Clement says confidently. But the actual bill has a "very big condition." Kagan interrupts, trying to make her point that a big boatload of money is not coercive. What if someone offered you a job and would pay you $10 million a year. Of course, you say yes, but you're not coerced are you? Clement lays down one of the cleverest teasers I have ever heard: "Well, I guess I would want to know where the money came from."

"Wow. Wow." says Kagan. Has a Supreme Court ever said "Wow. Wow" before? She can't believe you'd do anything other than snap up that money. "I'm offering you $10 million a year to come work for me, and you are saying that this is anything but a great choice?"

Clement springs his trap: "Sure, if I told you, actually, it came from my own bank account."

Kagan resists. Yes, it's tax money, but the tax money the federal government rakes in is from the taxpayers "acting as" U.S. citizens. It's not the state's money. Their money is the money that's collected from citizens "acting as" citizens of a particular state. Clement re-grounds us "in the real world." People only have so much money, and the more the feds drain out of the people, the less there is for the states to tap into. The point is this "boatload of money" isn't free money. It's money that was taken from the people of the state and then offered back to the state governments, who might have liked to take money directly from their citizens, available to be used for whatever purposes the states have in mind, and not the things the federal government tells them to do.

UPDATE 2: Clement argues that there must be some limit on the Spending Power, on how extreme the "big gifts" — with conditions attached — can be, because "this Court's entire spending power jurisprudence is premised on the notion that spending power is different, and that Congress can do things pursuant to the spending power that it can't do pursuant to its other enumerated powers precisely because the programs are voluntary." Clement has a very difficult argument to make. The states have been taking this money for a long time, and there have been periodic expansions, and the states are told "take it or leave it" (as Ginsburg puts it). He needs to argue that somehow this new expansion is creating something separate and inappropriately connecting it to old money streams from the federal government to the state, which makes it very hard for the state to say no. But it's the fed's money, and they're setting the terms the states have to meet to keep the old income streams flowing.

UPDATE 3: Justice Breyer takes great pains to show that the government might not exercise its option to close up all those old income streams, because it is always under the obligation to act "reasonably." Finally, Justice Scalia breaks in: "Mr. Clement... do you agree -- do you agree that the government has to act reasonably? Do we strike down unreasonable statutes? My God!" With that prompting, I see that it sounds like Justice Breyer was assuring us that we are living in the Lochner Era, when courts assessed the reasonableness of legislation. There's an intense disagreement here, with Breyer talking about the executive branch implementing statutes, which must be reasonable, and Clement and Scalia talking about what is in the statute, which will not be tested for reasonableness.

UPDATE 4: We finally hear from Justice Kennedy, at page 35: "If the inevitable consequence of your position was that the Federal Government could just do this on its own, the Federal Government could have Medicaid, Medicare, and these insurance regulations, assume that's true, then how are the interests of federalism concerned? How are the interests of federalism concerned if, in Florida or Texas or some of the other objecting States, there are huge Federal bureaucracies doing what this bill allows the State bureaucracies to do?"

Clement hits Kennedy with a word Kennedy has used himself in federalism cases. (For example, United States v. Lopez.) The word is "accountability." Clement says: "If the Federal Government decides to spend money through Federal instrumentalities, and the citizen is hacked off about it, they can bring a Federal complaint to a Federal official working in a Federal agency."

(Here's Kennedy in Lopez: "The theory that two governments accord more liberty than one requires for its realization two distinct and discernable lines of political accountability: one between the citizens and the Federal Government; the second between the citizens and the States. If, as Madison expected, the federal and state governments are to control each other, see The Federalist No. 51, and hold each other in check by competing for the affections of the people, see The Federalist No. 46, those citizens must have some means of knowing which of the two governments to hold accountable for the failure to perform a given function. 'Federalism serves to assign political responsibility, not to obscure it.'... Were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory.... The resultant inability to hold either branch of the government answerable to the citizens is more dangerous even than devolving too much authority to the remote central power.")

UPDATE 5: The SG says that Congress, setting up this conditional spending program, jumped through all the doctrinal hoops set up in South Dakota v. Dole, but I note that South Dakota v. Dole did say that at some point federal spending amounts to coercion. (It said: "Our decisions have recognized that in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which 'pressure turns into compulsion.' Steward Machine Co. v. Davis...") And Justice Scalia, alluding to that language, asks what it means. What is this "coercion" limitation?

The SG says that "it's possible to envision a situation in which there's coercion." Hmm. Yeah. But tell us what that situation is?! This is like yesterday, when the SG was asked to state the limit on the Commerce Power, and he just couldn't do it. Now, the SG refers to a condition that fundamentally transforms the structure of the state government, but that refers to a kind of condition, not what would entice/coerce the state into accepting the condition. The Chief Justice points that out: You're not talking about the coercion question. What if the federal government had a condition that you could take or leave, but you'd lose all your federal funding? The SG says "that would raise a germaneness issue," which is a reference to one of the doctrinal hoops in Dole (the condition must relate to the spending program), but the coercion idea is separate  — and surely the SG knows that. Getting the doctrinal points of Dole straight is first year law school stuff. It's like he's playing dumb. It's really annoying, and the Chief Justice is annoyed.

UPDATE 6: The SG persists in saying that it's hard to imagine a situation in which the condition would not violate the germaneness requirement by the time it got coercive. Roberts and Scalia scuffle with him and suddenly Alito comes to the rescue with a great hypothetical:

Let's say Congress says this to the States: We have got great news for you. We know that your expenditures on education are a huge financial burden, so we are going to take that completely off your shoulders. We are going to impose a special Federal education tax which will raise exactly the same amount of money all of the states now spend on education, and then we are going to give you a grant that is equal to what you spent on education last year.

Now, this is a great offer and we think you will take it, but, of course, if you take it, it's going to have some conditions because we're going to set rules on teacher tenure, on collective bargaining, on
curriculum, on textbooks, class size, school calendar, and many other things. So, take it or leave it.

If you take it, you have to follow our rules on all of these things. If you leave it, well, then you're going to have... to tax your citizens, they're going to have to pay the Federal education tax; but on top of that, you're going to have to tax them for all of the money that you're now spending on education, plus all of the Federal funds that you were previously given.

Would that be -- would that reach the point -- would that be the point where financial inducement turns into coercion?

The SG says no! The states have a choice, he says, to which Alito responds: "But if that's the case, then there's nothing left of federalism."

That's a dramatic statement, and the SG only natters away about how there are political constraints on Congress. That is, there's nothing left of judicially enforceable federalism, but we've still got the supposed political safeguards of federalism (i.e., the way Congress will, on its own, restrain itself from too much imposition on the states). This is the SG's theme throughout the arguments this week: It is sufficient to let Congress do whatever it wants.

UPDATE 7: There's a long section of debate about whether the Secretary will use her discretion to cut the states off from all their funds (and whether there's a judicially enforceable limit on that discretion). Suddenly, Justice Kennedy breaks in, and he's using his buzzword again: accountability!

I suppose one test could be -- I just don't see that it would be very workable -­ is whether or not [the loss of funding is] so big that accountability is lost, that it is not clear to the citizens that the State or the Federal Government is administering the program, even though it's a State administrator.

See how that is the same idea he was using back in 1995 in Lopez? The SG blabbers in response (as if he's not too well versed in what moves Justice Kennedy, which you would think would be his primary concern). Kennedy comes back:

In your view -- in your view, does federalism require that there be a relatively clear line of accountability for political acts?

That, my friends, is Essence of Kennedy! But the SG doesn't notice. He doesn't see how exquisitely special that question is. Kennedy puzzles on: "Is that subsumed in the coercion test, or is that an independent one?" Come on, SG! If you're good for anything, tell him it's special! Again, the SG natters, but the nattering contains nothing about political accountability. Kennedy pleads again for attention to his dearest concern:

But do you agree that there still is inherent and implicit in the idea of federalism, necessary to the idea of federalism, that there be a clear line of accountability so the citizen knows that it's the Federal or state government who should be held responsible for their program?... And does coercion relate to that, or is that a separate doctrine?

Finally, the SG addresses accountability: It's the other side who are arguing that they take "unpalatable choices" because they are subjected to "a high degree of political accountability," which they're trying to call "coercion." That misses Kennedy's point. Kennedy wants the doctrine to work to make the different governments accountable to the people. He says: "Well, but I think the answer would be that the State wants to preserve its integrity, its identity, its responsibility in the Federal system."

UPDATE 8: Quite a bit later, Justice Sotomayor endeavors to bring the SG back to Justice Kennedy's accountability theme, but not in a particularly coherent way: "Justice Kennedy asked you whether... it's coercion if no one can be politically accountable. I'm not sure how that could be practically politically accountable because almost every gift -- if the terms are attractive, it would be an un -- unattractive political alternative to turn it down." I think she means political accountability must necessarily be a separate question from coercion. The point is these tremendously enticing offers destroy the state's will to say no. They're not coerced, but they lose their independent political identity, and that is destructive to federalism.

UPDATE 9: The SG talks about liberty: "millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care... they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty." There's freedom inside all this compulsion and coercion, because when the government supplies your needs, then you can enjoy life. That's the argument!

UPDATE 10: Clement, back in rebuttal, riffs on the SG's liberty remarks: "[I]t's a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not. And it's a very strange conception of federalism that says that we can simply give the States an offer that they can't refuse, and through the spending power which is premised on the notion that Congress can do more because it's voluntary, we can force the States to do whatever we tell them to."

UPDATE 11: There's still another hour! This is the severability part. Clement is up first, arguing that if the individual mandate is stricken down, but the guaranteed-issue and community-rating don't fall along with it, then insurance premiums will "skyrocket."

UPDATE 12: Is the test what Congress would have wanted (whether it would want the whole act to fall if one provision falls)? Scalia suggests that's the wrong approach. The severability question is difficult, as the Court struggles with the sprawling legislation. Clement says there's a "heart" to it, which includes the individual mandate, and the provisions interrelated with it, which will not work the same way without it, and these must fall. Then there's all that peripheral stuff, which could work independently, but Clement calls these things the "hollow shell" of the act, which should fall because they wouldn't have been passed without the rest of the bill. It could also be left standing, he concedes. Everyone seems agitated by the prospect of tearing it all down. 

[THERE'S MORE TO COME, but I can't get to it tonight. It's just too onerous for now. ]

The NYT fails to engage with any of the most compelling arguments made against the healthcare mandate.

Here's the embarrassing editorial they printed, apparently trusting that readers would accept their characterization of what went on at the oral arguments yesterday, pack up a neat opinion that only activist judges would strike down this law, and move on to other articles... ooh, look! over there on the "most e-mailed" list! It's "The Chocolate Diet?" and "Forging Social Connections for Longer Life" and something about private schools and "The Brain on Love"... la la la... it's so nice to be a good person who cares about the right things and believes what the good people believe...

But who is the New York Times really talking to? I think it's Justice Kennedy, who, everybody who know anything knows, is the vote which, if you have it, you will be on the side that gets the majority in this case. So... Hey, Anthony Kennedy! Don't you see what all the good people whom you need to keep loving you are all going to believe? All those pesky arguments that you publicly puzzled over yesterday are as nothing to the elite class of Americans who internalize New York Times editorial opinion as if it were yummy chocolate that somehow also makes you lose weight.

Reports from this morning's oral argument in the Obamacare case.

Tom Goldstein, mid-argument:

It is essentially clear that the four more liberal members of the Court will vote in favor of the mandate. But there is no fifth vote yet. The conservatives all express skepticism, some significant....

When the Solicitor General argued that the mandate does not require people to purchase health care, but instead merely regulates when and how they will pay for that care, Justice Kennedy seemed skeptical, asking whether Congress’s power to regulate commerce allows it to create commerce to then regulate. 

And at the end of the argument, Kennedy asked "the most important question," whether "the mandate was a unique effort to force people into commerce to subsidize health insurance but the insurance market may be unique enough to justify that unusual treatment." Goldstein added: "But he didn’t overtly embrace that. It will be close. Very close."

AND: Lyle Denniston says:

If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive.  If he does, he may take Chief Justice John G. Roberts, Jr., along with him.  But if he does not, the mandate is gone.  That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.

Denniston thinks the SG failed to convince Kennedy, but the then the lawyers for the challengers somehow undercut their own case in Kennedy's eyes. I need to listen to the recording and read the transcript. I think someone who genuinely hadn't decided might come at the lawyers on both sides with questions containing the doubt that he had about going their way so they could come forward with their strongest arguments.

ALSO: Adam Liptak writes:

“Can you create commerce in order to regulate it?” Justice Anthony M. Kennedy asked the lawyer, Solicitor General Donald B. Verilli Jr., only minutes into the argument.

Justice Antonin Scalia soon joined in. “May failure to purchase something subject me to regulation?” he asked.

Chief Justice John G. Roberts Jr. asked if the government could compel the purchase of cell phones. And Justice Samuel A. Alito Jr. asked about forcing people to buy burial insurance.

The conventional view is that the administration will need one of those four votes to win, and it was not clear that it had captured one....

Liptak characterizes the argument as "unusually intense and pointed" — and 2 hours long.

"For justices in the center, I don't think they want to be on the wrong side of history" on same-sex marriage.

Says Stanford lawprof Pamela Karlan.

"Unless we see a massive about-face (in public attitudes), 25 years from now people will look back at this and wonder why (equal marriage rights) took so long.

Chapman University lawprof John Eastman says:

"I hope [Justice Kennedy] won't be swayed by shifting public opinion, assuming there is a shift".... If the law is supposed to change along with public attitudes, he said, "the political process is adequate to the task. We don't need the courts."

Speaking of law that is/isn't changing with shifting public attitudes, I can't help changing the subject to the Constitution's Free Exercise Clause and the current flap over contraception and insurance coverage. An awful lot of conservatives — with Rush Limbaugh leading the pack — are endeavoring to shape public opinion about the meaning of these rights. Either they are genuinely ignorant about the case law interpreting the Free Exercise Clause or they are doing the very thing they normally rail against: trying to make the Constitution "evolve" so it says what they'd like it to say. Here's Rush:

The right to religious liberty in this context is unequivocal in our country and in the Constitution. It's right there in the Bill of Rights. Since when does a president have the power to threaten to issue a rule gutting religious liberty?

It's absurd to declare there's no right to gay marriage in the Constitution and turn around and say the President's rule about contraception and insurance coverage violates some obvious "unequivocal" right in the Constitution. Have one theory of the Constitution and stick to it, clowns.

The First Amendment -- the Bill of Rights of the Constitution -- explicitly says that government shall have nothing to do with religion. You hear, do you not, the left constantly caterwauling, whining and moaning about "separation of church and state"? 

Now, he's reached the Establishment Clause, and suddenly he's an arch-separation-of-church-and-state guy.  Nice to trash "the left" for inconsistency, but what's more hypocritical than being inconsistent in order to trash the other guy for inconsistency?

I've been a law professor for a long time, so it's not as though this sort of thing shocks me. But I would like to help you see how much dishonesty/ignorance is on display here. What would Rush and the other conservatives who are riding this religious freedom issue say about religiously motivated pacifists who don't want to pay taxes that fund the military?

More Rush:

Whenever a religious Republican or conservative seeks political office [the left worries] about "the imposition of religious moral values on people," and say, "This is intolerable! This is intolerable. It's not permitted! It's a violation of the Constitution." So the left hates the Constitution when it's an impediment to what they want to do. When it supports what they want to do, they're the biggest constitutionalists in the world. 

And the right? They do the same damned thing.

"State sovereignty is not just an end in itself: 'Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.'"

That quote has long been on my list of best quotes about federalism in the history of the Supreme Court, so I was pleased to see it quoted in a Supreme Court case that came out today, Bond v. United States. It's a quote within a quote, and now it's a quote within a quote within a quote.

One thing I like about it, aside from the sound principle — that the constitutional structures of government were devised to protect the people — is that Justice O'Connor, in New York v. United States, was quoting a Justice Blackmun opinion that was a dissent from an opinion she wrote one year earlier. In that earlier case, Coleman v. Thompson, Blackmun had chided her for relying on federalism as if it existed for the sake of the states rather than for the people. It seemed as though Justice O'Connor felt a need to get on the right side of that principle.

In today's case, Bond, the Blackmun/O'Connor idea about federalism was used to explain why a criminal defendant had standing to challenge the constitutionality of the federal crime she was charged with (the Chemical Weapons Convention Implementation Act of 1998). (Carol Anne Bond had put caustic chemicals on a doorknob, door handle, and mailbox likely to be touched by a woman who had gotten pregnant via Bond's husband.)

Bond made a federalism-based constitutional challenge, and the Court of Appeals said that she lacked standing because she wasn't asserting her own legal rights or interests — as required by standing doctrine. In this view, only the states have standing to raise the issue that Congress has exceeded its enumerated powers and made a crime in an area that is reserved to the states under the 10th Amendment.

Intuitively, you should sense that the Court of Appeals was wrong. Here's this woman, charged with a crime that is — if she's right about the scope of Congress's power — a nullity. She's supposed to endure conviction and punishment on the theory that only the state is allowed to say that Congress overstepped its power? That's crazy.

Do you see how eloquently the old Blackmun/O'Connor quote explained why it's crazy?

Because the limitations of federalism exist to protect citizens from the excesses of power, when Bond argues that there is a federalism limit on congressional power, she is asserting her own legal interests.

"Today the Court affirms what is perhaps the most radical injunction issued by a court in our Nation’s history..."

"... an order requiring California to release the staggering number of 46,000 convicted criminals."

Writes Justice Scalia, dissenting today in Brown v. Plata:

...  My general concerns associated with judges’ running social institutions are magnified when they run prison systems, and doubly magnified when they force prison officials to release convicted criminals....

The majority opinion in this 5-4 case is written by Justice Kennedy:

This case arises from serious constitutional violations in California’s prison system. The violations have persisted for years. They remain uncorrected....

After years of litigation, it became apparent that a remedy for the constitutional violations would not be effective absent a reduction in the prison system population....

The central dispute was about the requirements of the Prison Litigation Reform Act of 1995 (PLRA), which was designed to reduce the role of federal courts in supervising state prisons.

"Justice Anthony M. Kennedy... said he aspired to Ernest Hemingway’s stripped-down language..."

Talk about falling short of your aspirations! Of all the Justices on the Court today, I find that Justice Kennedy writes in the least straightforward style. Ah, well. At least he means well. Or is he conning us with this Hemingway talk?

The linked article — by Adam Liptak, in the NYT — links to this set of long recorded interviews with Supreme Court Justices about how they write and how they want lawyers to write.

Justice Ginsburg said she had learned much from a course Nabokov taught at Cornell on European literature.

“He was a man in love with the sound of words,” she said of her former professor. “He changed the way I read, the way I write.”

Justice Thomas, on the other hand, cited only a single author, and then only by way of contrast. “It’s not a mystery novel,” he said of a good brief. “People can’t think, ‘I’m Agatha Christie,’ or something like that.”

Ginsburg and Nabokov. Thomas and Christie. What do you think of Liptak's juxtaposition? It's a literary device. Would you put it at the Nabokov level? The Christie level? Somewhere lower?

ADDED: Both Nabokov and Agatha Christie are discussed in the Wikipedia article "Unreliable Narrator":

A controversial example of an unreliable narrator occurs in Agatha Christie's novel The Murder of Roger Ackroyd, where the narrator hides essential truths in the text (mainly through evasion, omission, and obfuscation) without ever overtly lying. Many readers at the time felt that the plot twist at the climax of the novel was nevertheless unfair....

Humbert Humbert, the main character and narrator of Vladimir Nabokov's Lolita, often tells the story in such a way as to justify his pedophilic fixation on young girls, in particular his sexual relationship with his 12-year-old stepdaughter....

Now, you want your judges and lawyers to be reliable narrators when they tell you about the facts of the case and interpret and apply the law. Thomas said don't be like Agatha Christie. You need to tell it straight. But Ginsburg said she learned from Nabokov, learned to love the sound of the words. Liptak — I think — intended to make Ginsburg look good and Thomas bad, but it didn't quite work out that way.

"It's always been dream of mine to interrupt a Supreme Court justice."

Rep. Kevin Yoder (R-Kan.) to Justice Anthony Kennedy. 

At oral argument, the Justices interrupt the lawyers all the time, and what all the lawyers do is instantly stop talking when the Justice begins to speak. Now, members of Congress get the same thing at hearings. The person testifying shuts up as soon as the member speaks, even to say something entirely inane (like "It's always been  dream of mine to interrupt a Supreme Court justice").