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.

Jeffery Rosen's complicated idea about why the Supreme Court really should uphold Obamacare.

Generally, I'm tired of these MSM articles that seem to be trying to push the Court to uphold the Affordable Care Act — as if the Justices are reading these articles and vulnerable to efforts — by writers who obviously politically support the law — to scare them into thinking people will lose respect for the Court. I say "seem to be" because I think these articles are really about shaping public opinion. They're not telling the Justices that people will disrespect them. They are stoking the people's disrespect in advance of an opinion that strikes down the law (in case that's what happens), and they are laying the groundwork for arguments about why Obama should be reelected (and Democrats need to keep control of the Senate).

But I'm going to link to this new Jeffrey Rosen piece in The New Republic. Why? It's just so amusingly complicated. I'll paraphrase the points he makes, in order:



1. A new poll (which we talked about on the blog here) shows declining approval for the Supreme Court and a belief that the Justices are sometimes influenced by their personal/political beliefs.

2. Some people — including Chief Justice John Roberts — think that public opinion is affected by all the 5-4 decisions that reveal that there is a set of conservative Justices and a set of liberal Justices.

3. There's a new study (by Nathaniel Persily and Stephen Ansolabehere) that says people decide whether they approve of the Court based on whether they like the outcomes of the cases, which suggests that an effective way for the Court to get respect would be simply to provide the outcomes people want.

4. A survey shows that people do like the outcomes of most of the big Roberts Court cases, and that's out of line with the declining approval of the Court, but it might be that people are giving extra weight to some of the big cases, the ones they don't like — maybe Kelo (for Republicans) and Bush v. Gore (for Democrats).

5. Maybe people support or reject the Court based on whether they are conservative/liberal and whether they believe that the Court is what they are — conservative/liberal.

6. A lot of people don't know which Justices were appointed by Republican Presidents and which were appointed by Democratic Presidents. (Rosen assumes the conservative/liberal split among Justices tracks whether they were appointed by Democrats/Republicans, which happens to be true of the current Court, though it was untrue before the Obama appointments were made.) But a study found that in the set of people who know that Republican Presidents have appointed a majority of the Justices, Republicans tend to support the Court, and Democrats are less supportive.

7. Even though a large majority of Americans say they want to see the health care law stricken down, and despite the Persily/Ansolabehere finding that people like the Court when they like the outcome, it's a mistake to think that the Court's approval rating will climb if it strikes down the law by a 5-4 vote. This is because, over time, 5-4 decisions remind people that the Court has a partisan split, and while this will make Republicans like the Court more, Democrats will like it less. Rosen doesn't specify this point, but it needs to be understood here: Only 24% of Americans surveyed by the NYT/CBS want the Court to uphold the law, so it would seem that many, perhaps even a majority of Democrats will approve of the outcome. But Rosen is saying that somehow it will still hurt the Court's approval among Democrats because they will see the Court as partisan and conservative — especially with "elites, including the President" pestering them to think about the Court that way. 

8. Rosen concedes that even if everything in point #7 is right, the Court might move up in the approval rankings because of the increased approval coming from Republicans who like the Court for being so partisan and conservative.

9. John Roberts should eschew that method of moving up in the approval ratings, because he'd be a better leader if he avoided the appearance of partisanship.

ADDED: Here's my analysis:

1. Rosen had material that added up to the conclusion that the Court would improve its stature among Americans if it struck down the health care law.

2. Rosen doesn't want the Court to strike down the health care law.

3. Rosen wrote some complicated paragraphs and then declared that he'd shown why the Court shouldn't strike down the health care law.

"[I]f the court overturns Obamacare 5 to 4, Roberts’s 'stated goal of presiding over a less divisive court will be viewed as an irredeemable failure.'"

"Oh? Viewed by whom?"

George Will, pushing back Jeffrey Rosen (the source of the internal quote).

In case you're wondering why I never blogged about that Jeffrey Rosen article (which got a lot of attention), I thought it was the usual propaganda, quite boring to someone who's very familiar with all the law.

Did I fail you? Did you want me to pick it apart... explain everything... because it's being talked about... because it was in The New Yorker?

I have an interestingness standard, not an it-was-in-The-New-Yorker standard.

Oh, wait! I'm mixing up my Jeffreys. Jeffrey Toobin wrote the article in The New Yorker that I thought was the usual propaganda. Jeffrey Rosen's usual propaganda was in The New Republic.

Seriously, tell me if you want me to do more dissecting of the Jeffreys. They talk about law to the general public and thus have a lot of influence. Should I be more vigilant? Please advise.

Bush v. Gore is "the case of the century" because it "truly altered history," even though it "didn’t change constitutional doctrine."

Writes TNR's Jonathan Cohn setting up a discussion of whether this year's big Obamacare decision will be the new case of the century. Well, the century is pretty young, and admittedly Bush v. Gore felt like a huge deal at the time. But "truly altered history"?

Just think how the years after 2001 would have unfolded if Al Gore had been president.

Ridiculous! I can't believe Cohn doesn't know that if the case had gone the other way Gore would still have lost in the end!

George W. Bush would have won a hand count of Florida's disputed ballots if the standard advocated by Al Gore had been used, the first full study of the ballots reveals. Bush would have won by 1,665 votes — more than triple his official 537-vote margin — if every dimple, hanging chad and mark on the ballots had been counted as votes, a USA TODAY/Miami Herald/Knight Ridder study shows. The study is the first comprehensive review of the 61,195 "undervote" ballots that were at the center of Florida's disputed presidential election.

That's the news from 2001. And speaking of 2001, does Cohn actually think that Gore would not have responded vigorously to the 9/11 attacks? 

Anyway, I have close to zero interest in reading what Cohn has to say about this year's big case.

I generally leave the sophisticated constitutional analysis to Jeff Rosen, my (much) more informed colleague. But you don't have to be a legal expert to....

Fortunately, I can do my own legal analysis. I'm certainly not interested in Cohn's. As for Rosen's... I don't need to read that either. I know what he'll say. 

The right to be forgotten.

A new privacy right. From Europe.

The word "law" only appears once on the NYT list of "100 Notable Books of 2011."

Maybe the New York Times is missing some great law books, but this is some kind of read on something that ought to matter to legal academics and other law folk.

What's the one book? It's "Rights Gone Wrong/How Law Corrupts the Struggle for Equality," by Richard Thompson Ford. Here's the NYT review of it by Jeffrey Rosen:

In “Rights Gone Wrong,” Richard Thompson Ford, a law professor at Stanford, argues that both the progressive left and the colorblind right are guilty of the same error: defining discrimination too abstractly and condemning it too categorically, with similarly perverse results....

Ford does not offer an equivocal, cautious, middle-of-the-road critique of civil rights law....

Ford ends his stimulating polemic by arguing for a more “nuanced” approach to civil rights. He calls for the return of thoughtful, pragmatic judges who will take the time to distinguish justified from unjustified acts of discrimination, rejecting selfish or perverse claims of “rights gone wrong” while protecting people from truly invidious indignities.

Noted.

Why should Obama think in terms of what the Supreme Court might say about his power to single-handedly raise the debt ceiling?

Jeffrey Rosen wonders, noting that the Supreme Court would probably not hear the case.

And even if the justices did agree to hear it, the conservative justices would be torn between their dislike of Obama and their commitment to expanding executive power at all costs. If all the justices are true to their constitutional philosophies, the Court would rule for Obama by a lopsided margin.

In fact, it makes plenty of sense for Obama to refer to what the Court would say even if he doesn't believe the question will end up in court. Why shouldn't he act deferential to judicial interpretation when it's not obstructing anything he presently wants to do? It's exactly the right time to strike that pose if he thinks it's flattering.

Anyway, Obama left himself plenty of room to shake off the deference if and when he wants. All he said was: "I’ve talked to my lawyers... They are not persuaded that that is a winning argument." Not only could the lawyers later become persuaded, Obama could make his own decision disagreeing with his lawyers, and he could decide to rely on a reading of the Constitution that he believes is correct even if he's not persuaded it's a "winning argument."

Now, is it true that the Supreme Court would say the President can, on his own raise the debt ceiling? The constitutional hook for this power is "The validity of the public debt of the United States, authorized by law … shall not be questioned." Rosen says:

All four liberal Justices are committed to a vision of “living constitutionalism” that interprets the historical evidence broadly...

He says a bit more than that, but not much to find 4 votes for presidential power. Only one more needed.

What about the conservative justices? Here the divisions in the conservative ranks might become relevant. There are three distinct strains of legal conservatives on the Court: the tea party conservative, Clarence Thomas, the libertarian conservative, Anthony Kennedy, and the pro-executive power conservatives, John Roberts, Samuel Alito, and Antonin Scalia.

The tea party conservative, eh?

Of these five justices, Thomas is the only one whose judicial philosophy might lead him to side with Congress over Obama. As someone who believes that Congressional power over the purse should be construed strictly, Thomas might conclude that Article I gives Congress, and not the president, the power “to borrow money on the credit of the United States”—a power that it has exercised by establishing a debt ceiling. The debt ceiling doesn’t repudiate the debt or question its validity, Thomas might hold; it simply threatens default by prohibiting the president from assuming extra debt beyond what Congress has authorized. According to this argument, Obama’s unilateral decision to take on additional debt to avoid a government default would not represent debt “authorized by law,” as the Fourteenth Amendment requires, and therefore wouldn’t be justified by the Amendment.

Isn't it funny how this "tea party" philosophy just sounds like a fair reading of the text? But only Clarence Thomas is crackpot enough to do that! I added the boldface to highlight what to me seems like the obvious interpretation: No one is talking about questioning the validity of the debt! When you fail to pay debts, you're not claiming they aren't valid. Why wouldn't all the Justices say that? Why would that inapt clause take precedence over the specific and clear clause in Article I, listing among Congress's powers the power "To borrow Money on the credit of the United States"?

"The hope that the next justice will be a check on the power of corporations is entirely appropriate."

Writes Jeffrey Rosen:

After all, Stevens holds the seat that was previously occupied by William O. Douglas and Louis Brandeis, two of the leading anti-corporate crusaders of the twentieth century....

Anti-corporate crusaders? Sure, pick an anti-corporate crusader, Obama, and let's see how the back-and-forth in the Senate Judiciary Committee plays out. I mean, the nominee will still be confirmed, but in the rest of the political arena, leading up to the November elections? That would be brutal for the Democrats.

Yet none of the leading candidates for the Court appears to be an economic populist....

Why the absence of liberal economic populists from the shortlist?...

Since the 1960s, grassroots progressives have focused on non-economic issues: reproductive choice, for example, or civil liberties in an age of terrorism. That means that the current Supreme Court candidates had their legal sensibilities shaped in a political environment that was less preoccupied with questions of economic justice....

The Supreme Court itself stopped its own progressive forward glide when the opportunities for expanding constitutional rights arose in the context of redistribution of wealth (which is what Rosen and his ilk spin as "economic justice").

That’s a shame, because the most important issues the Roberts Court will confront over the next decade involve the constitutionality of environmental measures and economic regulations passed in the wake of the crash of 2008.... [I]t will not be enough for liberals simply to champion judicial deference for its own sake. The next justice will, like Brandeis and Douglas, need to make a substantive case for why these regulations are indispensable to protecting American democracy from the narrow interests of a corporate oligarchy....

If "environmental measures and economic regulations" are going to be passed, then why is anything more than deference to legislatures needed? Why should a Supreme Court Justice think he could bolster arguments for deference to democracy by expressing enthusiasm for the substance of the choices that legislatures have made?

The judicial role is strengthened by the appearance of neutrality and fidelity to law. Conversely, judges undercut their own power when they make it sound as though they are reaching their decisions because of their support for legislation that is challenged as a violation of constitutional rights. When arguments for constitutional rights fail, it should be (or at least appear to be) because the claimed rights don't exist, not because the rights claimants' interests are "narrow" and run counter to what the majority wants. Rights are supposed to work against the preference of the majority, so we should be wary of someone who says courts must "protect[] American democracy from... narrow interests." He is saying rights are not rights.

Although the next justice may not be an economic populist, the confirmation hearings ahead are an opportunity to cast the spotlight on the intersection between economic populism and the law. Leahy and other Senate Democrats should use the hearings to ask the nominee to discuss these questions in depth. 

Great! A bloodbath. Sounds exciting. I'll watch.

Jeffrey Rosen asks whether the Supreme Court might find the Stupak Amendment unconstitutional.

But first: Caption contest. This is the picture TNR uses to illustrate Rosen's article. May I draw special attention to Scalia's left-hand gesture?

Now, here's the serious part:

Let’s imagine that it’s impossible to pass a health care bill without a version of the Stupak amendment. Might the Supreme Court strike the amendment down? In upholding the Hyde amendment in 1980, the Court stressed that Congress could refuse to subsidize medically necessary abortions because it left “an indigent woman with at least the same range of choice … as she would have had if Congress had chosen to subsidize no health care costs at all.” By contrast, the Stupak amendment doesn’t leave self-employed women who receive federal subsidies with the same range of choice: It makes it much harder for them to find alternative coverage for abortion and therefore, in practice, leaves the federal government less neutral toward abortion than even the Hyde amendment. For this reason, it’s possible that some liberal Supreme Court justices might conclude that the Stupak amendment violates the Constitution. But this argument is unlikely to convince a majority of the Roberts Court, which means that pro-choice Democrats shouldn’t count on the Court to bail them out.

I think Rosen is right. The answer depends largely on who's on the Supreme Court. "[S]ome liberal Supreme Court justices might conclude that the Stupak amendment violates the Constitution," and the question, then is: How many liberal Justices will be on the Court when the question comes up? We'll call it "the Roberts Court" as long as John Roberts is Chief Justice, but the current balance of liberals and conservatives, plainly, is open to...

... change.

"I basically thought of it as a blog entry."

Blaming blogging for what wasn't even blogging.

4 reasons I'm glad Obama nominated Sonia Sotomayor.

1. Finally, a Supreme Court Justice with a [last] name longer than 3 syllables. (Thanks to downtownlad for noting the possible distinction and my son John Althouse Cohen for confirming it.)

2. Finally, a Hispanic Supreme Court Justice... and we won't have to keep talking about how some day there ought to be a Hispanic Supreme Court Justice.

3. We'll get back to the historical high water mark of women on the Court. Wow! To hit 2 again!

4. Jeffrey Rosen gets his comeuppance.

CORRECTION: James Taranto on #1:

Blogress Ann Althouse claims that Sotomayor will be the first justice with a four-syllable last name and credits her son for confirming this. But it isn't true. John Althouse Cohen apparently is too young to remember Justice Willis Van Devanter.

I'll bet John thought his middle name was Van.

Jeffrey Rosen loves Diane Wood.

After what he said about Sotomayer, this is ardent admiration:

After nearly 14 years on the appellate court, she has proved to be such an impressive match for her conservative colleagues that it appears that, of all the current Supreme Court candidates, her temperament and moderate, incremental liberalism most resemble Ginsburg's. "She is very careful, she is respectful of precedent, she is a craftsperson, and she is fairly incremental in her approach," says Geoffrey Stone of the University of Chicago and the author of a book on the suppression of speech during war. "I think she does believe that the role of judges, in part, is to ensure that the oppressed and the disenfranchised and dissenters get a fair shake in the political system, which would be a significant part of the moderate liberal element of Diane. But she's certainly not in any way result-oriented."

Don't worry, conservatives!

Jeffrey Rosen defends his attack on Sonia Sotomayor.

As you may recall, on Monday, Rosen quoted unnamed former clerks to make what the headline called "The Case Against Sotomayor." The "case" seemed to be mainly that she wasn't smart enough. Rosen got slammed. Finally, today, he responds:

I've just returned from London to find that my piece on Sonia Sotomayor has provoked an energetic response in the blogosphere.

Everyone knows there's no way you can check the internet in London, and anyway, why would you even think to look when, after all, you only just threw a huge stinkbomb?

Many people have mischaracterized my argument, and I can understand why. The headline--"The Case Against Sotomayor"--promised something much stronger than I intended to deliver...

Blame the headline writers. Yes, they do have a tendency to state bluntly the things you swathed in verbiage.

Readers have asked for more information about my sources....

Rosen assures us his sources are trustworthy and must remain anonymous.

I was satisfied that my sources's concerns were widely shared when I read Sotomayor's entry in the Almanac of the Federal Judiciary, which includes the rating of judges based on the collective opinions of the lawyers who work with them....

Yeah, the evaluations are bad — not on the point that she's not smart enough, but that she lacks "judicial temperament."

Some readers have also questioned my confession at the end of the piece that I hadn't read enough of her opinions to make a fully confident judgment.

Now, he's read some more opinions. He stands by his original opinion, which, he notes, accords with that Almanac of the Federal Judiciary.

Rosen concludes:

[I wanted] to encourage the White House to weigh considerations of temperament against the many other factors they'll be considering.

Ah, he's shifted to the temperament argument. He really didn't defend the "not smart enough" position.

For the next Supreme Court seat, the president needs to be sure that the nominee's temperament and abilities are not merely impressive but absolutely stellar. She--and the next justice should indeed be a she--must be ready to challenge the conservatives and persuade her fellow liberals from the very beginning.

Must be a woman. (I agree.) Must be a woman who can interact well with the Justices already on the Court. Fine... boilerplate. But read as a whole, this new Rosen piece — put bluntly, in the manner of a headline writer — is saying that Sonia Sotomayor would be a terrible choice for the Supreme Court.

Is Letterman mocking Sonia Sotomayor or mocking the mocking of Sotomayor?

If he's not mocking the mocking, he looks anti-Hispanic, and I'm pretty sure his show is careful about avoiding the appearance of bigotry.

Brian Beutler opines:

The campaign against Second-Circuit Court of Appeals Judge (and potential SCOTUS nominee) Sonia Sotomayor began in earnest when nameless former clerks on that court told The New Republic's legal correspondent Jeffrey Rosen that the Hispanic judge (and one-time George H.W Bush appointee) is too temperamental--and not intelligent enough--to serve on the Court....

The charges have been challenged loudly--almost immediately after the article came out, other people familiar with her work came forward to call the piece baseless. But once the cat was out of the bag, there was no stuffing it back in....

[T]he coup de grâce may have come last night when Sotomayor bashing traveled outside the beltway, and on to the Late Show...

Beutler notes the speculation that Rosen was trying to help his brother-in-law — go to the link for the details — and procures a denial from Rosen.

Here I am on May 4th wondering whether Rosen had ulterior motives:



I anticipate a careful response from Rosen (whose reputation is now on the line).

Meantime, while it counts, Sotomayor's been wounded. Her stock on Intrade has spiked and plunged.

Is the f-word indecent or just coarse and unmannerly?

It makes a difference, according to Jeffrey Rosen, talking about the Supreme Court's pending "fleeting expletives" case. (The question is what can the FCC do to broadcasters if Cher suddenly says "People have been telling me I'm on the way out every year, right? So fuck 'em" and so forth.)

At the Supreme Court argument, Justice Antonin Scalia lamented the "coarsening of manners," adding, "I am not persuaded by the argument that people are more accustomed to hearing these words than they were in the past." I share Scalia's concerns about the coarsening of public manners on television, but he is willfully denying the evidence that most Americans no longer view fleeting expletives as indecent. The Supreme Court has said that the FCC can only ban epithets that are considered genuinely offensive by contemporary community standards. For that reason, the justices should strike down the Bush FCC's fleeting expletive policy, and, if they don't, the Obama FCC should repeal it. But this suggests a real problem--the vulgarization of culture--without a clear legal, political, or even technological solution.

I originally wrote out "fuck" in the post title, but then I changed it.... if that means anything. I doubt if my sensibilities here are much more probative of what "people" are accustomed to hearing these days than Scalia's.

Why Jeffrey Rosen thinks the issue of gay marriage should be relegated to democratic decisionmaking.

Jeffrey Rosen writes:

[W]hen the constitutional arguments for judicial intervention are ambiguous, uncertain, and intensely contested, judges should defer to the political branches.

In my view, gay marriage, like abortion, is one of those areas. The Supreme Court was right to strike down bans on interracial marriage in 1967 because the only plausible social meaning of those bans was to degrade black people and to promote white supremacy. By contrast, the arguments on behalf of gay marriage are less clear. Although bans on gay marriage are (literally) a kind of sex discrimination, it's not intuitively obvious to most people that the bans should be viewed as an effort to promote male supremacy.

Rosen is talking about male supremacy because the primary constitutional argument for recognizing a right to same-sex marriage is that to ban it classifies individuals by whether they are male or female. Obviously, the bans involve heterosexual supremacy. But, here, Rosen asserts that classification by sexual orientation is not entitled to heightened judicial scrutiny. That's a point of legal doctrine, but why is it correct? As far as I can tell, Rosen thinks it's correct because he already believes that this is a matter best left to political decisionmaking.

Then the question is how to win majority support:

[A]s the social conservatism of blacks and Hispanic voters suggests, it wasn't enough for California voters to see the reality of gay couples in meaningful marriages. This suggests the challenge, in the short term, is greater that many gay marriage supporters hoped. At a Yale Law School conference on the future of reproductive rights in October, Pam Karlan of Stanford predicted optimistically that the gay rights movement was doing better than the pro-choice movement because "gays have come out of the closet" while "women who've had abortions have gone back in the closet." The third of American women who have had abortions, she suggested, should consider discussing their experiences for the good of the movement as a whole.

How did that follow? Women have their abortion rights. Why should they act more like people who don't have recognized rights? There is concern that abortion rights could be lost, so there is a continuing political issue and potential for a new all-out political battle.

But the question was what more could gay people do to win favor in the political arena? Rosen doesn't really have an answer. He concedes that many people have strong moral views that are not going to change and asserts "the future of gay marriage will be determined not by judicial activism but by demography." But why? Because he thinks it should?

Why should a minority group that perceives itself as oppressed accept the will of the majority? Why should the intransigency of the political majority convince them that they should refrain from using the courts?

Jeffrey Rosen made quite a few errors in his NYT Magazine article about John Paul Stevens.

Justice Stevens had to write a letter to the magazine to say that:

1. He did not help break the Japanese naval code in WWII.

2. He did not —after his clerkship — have an offer to teach at Yale Law School.

3. Contrary to Rosen's assertion that when he returned to Chicago, he joined with "moderate and good-government Democrats, who were opposed to the corruption of the Daley machine," he was "never active in politics," Daley wasn't yet mayor, and he's "never suggested that the Daley machine was corrupt.

But I could not find this letter, which appears on page 12 of the paper magazine, through a search on the NYT website. I did find the original article — to which is appended a correction:

An article on Page 50 of The Times Magazine this weekend about Justice John Paul Stevens misstates the university from which he received his undergraduate degree. It was the University of Chicago, not Northwestern.

These are only the outright mistakes of fact. If there is any slanting and skewing, you're on your own.

UPDATE: Eventually, the letter appeared on the website: here.

What I really think about the Clarence Thomas book.

I've now finished the Clarence Thomas memoir "My Grandfather's Son," which I've been sort of live-blogging. You can live-blog a book! I've picked out some things that struck me as interesting as I went along. Doing this, I've been accused both of fawning over him and of obsessively hating him, because, after all, that's what you're supposed to do with Clarence Thomas. One or the other must be true.

But, no, you're wrong. I neither love nor hate Clarence Thomas. I have some strong ideas about writing, especially memoir writing, and if I'm going to read a book, I'm going to impose my standards on the writing. I'm not about promoting or indicting the writer. I'm genuinely interested in writing as writing.

Here's a post I wrote back in January 2006 about the forthcoming Justice Thomas memoir:

Jeffrey Rosen writes about judicial memoirs, which are difficult to write, because they're either going to be bland -- like Justice O'Connor's, in his view, despite the incident with the testicles -- or embarrassingly revealing -- like Justice Douglas's....

And now Justice Thomas is working on a memoir. The man has fabulous material -- he grew up in poverty and his confirmation battle was a political and cultural event unlike any other. Does he dare to really use this material, to risk his slowly accumulating somber reputation by writing a real book for us to read? Rosen cautions him not to:

[L]ike Douglas, Thomas may inadvertently harm his judicial reputation among moderates (which is, at the moment, unfairly underrated) by revealing more than he intends.

"Judges wear black robes because it doesn't matter who they are as individuals," John Roberts said during his confirmation hearings. "That's not going to shape their decision." Few people today, of course, believe that judges' personal experiences have no influence on their judicial decisions. But taken as a warning, Roberts's statement was prudent and wise. Too much revelation may undermine the public's respect for judges as apolitical authorities. And judicial celebrity can backfire: as any celebrity knows, those who live by publicity have to avoid overexposure, which can lead to the worst fate of all - oblivion.

I say: either write a book or don't write a book, but don't write a fake book. Don't put your name on a book-shaped object just because you're a celebrity and you can get publishers to publish it and publicists to get you on talk shows and lure readers to give up their money and time. If you're going to write a book, you owe your allegiance to the reader above all. If you've got a conflict of interest, recuse yourself!

(Please read David Foster Wallace's essay on Tracy Austin's memoir in "Consider the Lobster." He faults her for her allegiance to friends, family, and everyone else, and lays down the rule that the writer's duty is to the reader.)

It's one thing to embarrass yourself by making things up, like Justice Douglas and James Frey, quite another to put yourself out there and let readers see who you really are. I think the memoirist who fails to do that is the one who has embarrassed himself.

I said something similar back when Bill Clinton's book came out:

I see Clinton is getting a lot of grief for writing a boring book. But what did people expect? If you want to read a great memoir, read a memoir by someone who is in a position to follow the number one rule for writing a great memoir: tell your story without a trace of personal vanity. You have to be willing to make the character that is you look foolish, mean-spirited, selfish, petty, and everything else. There is simply no way that Clinton or any other political figure can follow this rule. So if you want to read a good memoir, read Augusten Burroughs' "Running With Scissors" or Mary Carr's "Liars' Club." If you want to read about grand historical events, don't read the story told by one of the key figures. How could that possibly be good? It would make more sense to read this as a memoir of the Lewinsky-impeachment events.

I guess, according to that, I don't really think there's much chance at all that Clarence Thomas will meet my standard. But wouldn't it be incredibly cool if he did?

So did he? He revealed plenty of negative things — rage and gloom and a serious drinking problem. But these revelations do tend to work in favor of his credibility, when he gets to the part that really matters: whether he or Anita Hill told the truth at his Supreme Court confirmation hearings. And the negative material could be seen as self-indulgence: He wants — he demands — your sympathy. He has suffered terribly and his anger is righteous.

But to answer my question: Yes. It's a real memoir.

But what you really want to know isn't what I think of the book as a work of literature, right? You want to know if I think he lied — or Anita Hill lied — at his confirmation hearings. I really don't know. I want to believe him. It's hard for me to understand how Anita Hill could have manufactured the details of her story out of nothing and lied outright and under oath to the Senators and to the whole country. Thomas found himself in the middle of things, confronted with the accusations, and he determined not to give up. His memoir shows why he was the kind of person who would not give up under those circumstances.

But Anita Hill came forward and caused all the anguish. Thomas depicts her as a left-wing ideologue who was in league with other left-wing ideologues who would do anything to destroy him — as he puts it more than once: to kill him. Could individuals with that much professional status be that evil? Clarence Thomas knows the answer to that question. His book blazes with his righteous indignation. Could he be evil enough to write this if he knew he was lying?

I'm entertaining the notion that it is possible that neither one was lying — that is, neither blatantly said what he or she knew was not true. Maybe Thomas said a few little things that Hill remembered and inflated through a process of solitary brooding followed by vigorous prompting from anti-Thomas zealots. And maybe he forgot those little things. On page 221, he says that he couldn't remember whether he'd ever used illegal drugs. How can you not remember that? "I'd been a heavy drinker in college and had often been around people who smoked marijuana and hashish... I might possibly have tried them once or twice when I was drunk..." He was also drinking heavily in the period when Anita Hill worked for him. Maybe he had some alcoholic amnesia.

But he's Clarence Thomas. You've got to love him or hate him, don't you?

Supreme Court cartoon robots with flashing eyes.

Beldar slams the big NYT Magazine piece about Justice Stevens, written by Jeffrey Rosen. (All the Supreme Court psychodramatists are named Jeffrey.)

Yellow journalists masquerading as legal scholars like The Jeffrey Rosen do their very best to persuade us that the Justices view each other in terms like "back-stabbers." In truth, you'll find, for example, Justice Scalia and his wife joining Justice Ginsberg and her husband at the opera several times a year because they like and respect each other despite their very different judicial viewpoints.

As Beldar notes, the kind of people who make it all the way to the Supreme Court are -- of necessity -- extraordinarily mature and highly self-regulated. So why do they come across as such hyper-dramatic characters in popular journalism?

Read Rosen's whole interview with Stevens. Look hard for personal insults toward other Justices that come from Stevens' lips. There aren't any. Instead, you get things like Rosen reporting that Stevens' "eyes [were] flashing" as he talked about Bush v. Gore.

Wow, really? His eyes were flashing? Way cool: John Paul Stevens as Optimus Prime! Pew-pew-pew! That, plus gossip and innuendo, is what Rosen has to peddle.

Yeah, eyes don't actually flash... and it would be spooky as hell if they did. Nor do eyebrows dance (as Jeffrey Toobin perceives looking at Justice Scalia).

And even if eyes flashed and eyebrows danced, it wouldn't necessarily signify what the Jeffreys tell you it signifies.

"I asked Breyer why Roberts had failed in his efforts to achieve consensus and whether he might ever come closer to achieving these goals."

Writes Jeffrey Rosen in a New Republic article (with subscribers-only access):

"Will he do better in the future? He can join my dissents!" Breyer replied with a chuckle.....

Breyer self-consciously embraced the mantle of restraint. "To a very large measure, judges have to be careful about intruding in the legislative process," he said. "[R]uth and I have been among the ones less likely to strike down laws passed by the legislature, and, by that measure, we're not very activist." Far from being a cautious or defensive posture, bipartisan restraint has always been rooted in liberal self-confidence--confidence that, given a fair opportunity, liberals can fight and win in the political arena. The fact that conservatives now rely on the Court to win their battles for them--striking down democratically adopted campaign finance laws and integration programs--is a sign of their weakness.

Breyer and his liberal colleagues were not unwavering in their restraint this term: They dissented from the partial-birth abortion decision, despite the fact that bans on the procedure are supported by bipartisan majorities in Congress and in most states. When I asked Breyer how he reconciled this dissent with his commitment to judicial deference, he demurred. "The only question for me was, am I suddenly going to overrule a whole lot of precedent? No. That's a strong basis." Liberals, in fact, could have reconciled their commitment to precedent and judicial restraint by upholding the partial-birth law while insisting it include a health exception. But no one is consistent in every case; and the activism of liberals here was an exception, not the rule.

Judged by their willingness to defer to legislatures, liberals are now the party of judicial restraint. Conservatives have responded to this embarrassing turnabout by trying to rob the term of any neutral meaning. In a series of unintentionally hilarious editorials, The Wall Street Journal praised the Roberts Court for "restoring business confidence in the rule of law and setting limits on the tort bar and activist judges." Spare us the twistifications. For more than 50 years, conservatives have insisted that judges should defer to legislatures and let citizens resolve their disputes politically. But, at the very moment they consolidated their Supreme Court majority, they have abandoned this principle and embraced the activism they once deplored. I hope that Chief Justice Roberts, over time, will achieve his welcome goal of transcending the Court's divisions and helping conservatives rediscover the virtues of modesty and deference. But, for now, the party of judicial restraint has a convincing spokesman in Justice Breyer.

I like judicial restraint myself, and I think Breyer actually does deserve the mantle of restraint as much as any of them. Of course, he doesn't keep it on all the time. Rosen conveniently -- and unintentionally hilariously -- declines to mention abortion rights and all sorts of other cases where Breyer votes on the side of individual and minorities and against the choice of the majoritarian political process. It wouldn't be much of a Constitution if the political choice always won. But it's good to have someone on the Court who will openly express the philosophy of restraint.

ADDED: Wait! Rosen does mention the abortion case in the middle paragraph there. Well, then he contradicts himself in his final paragraph. So Rosen conveniently -- and unintentionally hilariously - forgets his previous paragraph.