A New Yorker article about Supreme Court history makes a big error.

Says lawprof David Bernstein — who's written a great book that covers the era of history in question:

[Jill] Lepore writes, “In 1910, Taft appointed Hughes to the Supreme Court, where, as a champion of civil liberties, he often joined with Holmes in dissent.”...

For decades Holmes’s liberal acolytes and fans argued to the contrary, but it’s well-established at this point that he was no champion of civil liberties. Holmes did eventually become a defender of freedom of speech, but that didn’t occur until after Hughes quit the Court to run for president in 1916.

Much more detail at the link.

And here's the New Yorker article. For all the history, it's really another one of those articles — like the Jeffrey Rosen TNR essay we talked about yesterday — trying to shape public opinion around the potential Supreme Court opinion that strikes down the Affordable Care Act. Like Rosen, she says:

What people think about judicial review usually depends on what they think about the composition of the Court. When the Court is liberal, liberals think judicial review is good, and conservatives think it’s bad. This is also true the other way around....

And like Rosen, she ends with an embrace of the value that law and politics should be separate — even as, like Rosen, she nudges us to think that it's the conservatives on the Court who pose the threat:

The separation of law from politics... has proved elusive. That’s not surprising—no such separation being wholly possible—but some years have been better than others. One of the worst was 2000, when the Court determined the outcome of a disputed Presidential election. The real loser in that election, Justice John Paul Stevens said in his dissent in Bush v. Gore, “is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”...

Federally, few rulings have wreaked such havoc on the political process as the 2010 case Citizens United v. Federal Election Commission, whereby the Roberts Court struck down much of the McCain-Feingold Act, which placed restrictions on corporate and union funding of political campaigns. Stevens, in his dissent, warned that “a democracy cannot function effectively when its constituent members believe laws are being bought and sold.”

That, in the end, is the traffic to worry about. If not only legislators but judges serve at the pleasure of lobbyists, the people will have ceased to be their own rulers. Law will be commerce. And money will be king.

That's a strange way to end it, since federal judges are appointed and don't have to run for election. The independence of the federal judiciary isn't threatened by Citizens United. The independence of the federal judiciary, if anything, produced Citizens United — in which the Supreme Court, stocked with election-free judges, struck down a federal statute that was an effort by elected officials to control who gets to speak during elections.

And since we're talking about New Yorker fact-checking, I don't like: "the McCain-Feingold Act, which placed restrictions on corporate and union funding of political campaigns." Citizens United struck down a restriction on spending on one's own speech. It wasn't about contributions to political campaigns, i.e., funding.

"No, the Supreme Court is Not Poised to Adopt a Radical Libertarian Agenda..."

"... and Certain Commentators Should be Embarrassed for Suggesting Otherwise."

And from Randy Barnett:

President Obama’s two statements urging the Supreme Court to uphold the Affordable Care Act came the week after the vote was presumably taken by the justices in conference.  Since then we have been subjected to a seemingly endless stream of pundits, professors, and politicians urging the Court for “nonlegal” reasons... to uphold the Act.  All of these statements presuppose that the conference vote was to invalidate the mandate, or there would have been no reason to speak now.  Hence, the specific pressure on Chief Justice Roberts by Senataor Leahy and Jeff Rosen is implicitly urging him to change his vote from that which he cast in the conference.

I think Randy is implying that the news of the vote leaked from the conference.

"So, we know one thing with almost 100% certainty: Elizabeth Warren identified herself as a minority law professor."

David Bernstein affirms:

We know something else with 90%+ certainty: (at least some) folks at Harvard were almost certainly aware that she identified as a minority law professor, though they may not have known which ethnic group she claimed to be belong to, and it may not have played any role in her hiring. 

But it gets even more interesting: once Warren joined the Harvard faculty, she dropped off the list of minority law faculty. Now that’s passing strange. When the AALS directory form came around before Warren arrived at Harvard, she was proud enough of her Native American ancestry to ask that she be listed among the minority law professors.... Once she arrived at Harvard, however, she no longer chose to be listed as a minority law professor.

If those are the facts, what should we infer? Being on the list of minority law professors served her interest in advancement, but the claim was weak and potentially embarrassing, so it was deleted... after she achieved what was the ultimate advancement (to Harvard Law School)? I'm just guessing. Do you have a more apt inference? In any event, it's a question that goes to honesty.

What was really going on in Lochner, that Supreme Court case the conventional wisdom tells us to revile?

Glenn Reynolds reviews David Bernstein's book "Rehabilitating Lochner: Defending Individual Rights against Progressive Reform ":

As is often the case with regulation, large bakeries didn’t mind the law governing maximum hours because they could hire multiple shifts. Small bakeries, with their smaller workforces, found compliance far more difficult. The statute also set limits on ceiling heights designed to put cellar bakeries out of business....

New York’s law, the Court held, wasn’t about health at all. Numerous exceptions and loopholes in the statute undercut that rationale, as did the absence of any evidence that baking was a particularly hazardous profession or that limiting the hours bakers worked had anything to do with the wholesomeness of bread. The majority weighed the state’s claims against scientific evidence, found them wanting, and concluded that the statute lacked sufficient justification when weighed against the freedom of contract protected by the Fourteenth Amendment’s due process clause. It was, said Justice Peckham, “a mere meddlesome interference with the rights of the individual.”

That was back when legislation had to meet the test of science — as assessed by courts. Do you want that back? Whether you do or not, it's certainly important to know what was really going on with the regulation that the Court struck down and how the understanding of a judicial opinion takes on a life of its own:

[A]n opinion that stopped a joint effort by large corporate interests and big unions to squash small businesses was somehow turned into the centerpiece of a narrative about the Supreme Court upholding big business at the expense of the little guy....

Judicial opinions are spun by interested parties. If you think you know which ones you're supposed to love/loathe, be suspicious!

“Whatever Israel does, Amnesty is still going to say it was acting illegally/violating human rights.”

David Bernstein paraphrases.

"Man, talking about 'literally' to mean 'figuratively' is sooo 2005."

A commenter scoffs at David Bernstein (linking here.

And someone else links to this:



So Bernstein didn't get the fun he'd hoped for out of quoting Jeremiah Wright's "When Obama threw me under the bus, he threw me under the bus literally!" and quipping "Obama Accused of Attempted Murder?"

And I'm glad I didn't bother with the usage humor yesterday when I quoted "I was literally transformed back to that little snot nosed kid who you met and inspired 31 years earlier..." Even though that's a much funnier image than a man crushed by bus wheels.