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William C. Altreuter
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Thursday, June 25, 2009

Slate has been featuring a week-long discussion among Walter Dellinger, Linda Greenhouse, and Dahlia Lithwick about the Supreme Court term just past, and the Sotomayor nomination. I like Professor Dellinger's observation: "There is no better example of the false triumph of logic over experience than the 1896 decision in Plessey v. Ferguson, where the Supreme Court upheld Louisiana's law mandating separate railroad cars for white and black passengers in an opinion making the logically correct observation that the law treated the two races exactly alike." He is referencing Justice Holmes' remark from "The Common Law"-- ""The life of the law has not been logic; it has been experience."What both Holmes' observation and Dellinger's reference are driving at is that jurisprudence that is outcome-determinative can be dressed up to appear as though the result is the inevitable product of objective reasoning and nevertheless be unjust and wrong. Dellinger again: "Assuming that judging should be like calling balls and strikes leads to the conflation of very different experiences—and to bad law." (In a comment made in response to a post about the Robert's confirmation hearings C.J. Colucci summed up Roberts' nicely: "Is Roberts going to be the type of umpire who calls 'em as he sees 'em, the kind who calls 'em as they are, or the Bill Klem-Legal Realist style umpire who says "they ain't nothin' 'til I call 'em"?".)

The point is, I think, that the way law gets talked about in the press and in Senate confirmation hearings, and by other people who don't know anything about law, is just ridiculous. It is impossible to look at the way the Roberts Court sets about its business and believe that it has not embarked upon a radical re-writing of existing law. For example, Linda Greenhouse, one of the other participants in Slate's Supreme Court Breakfast Table notes, Gross v. FBL Financial Services completely rewrites the rules for litigating an age discrimination case. "The court took this big step without notice to the parties that it was even under consideration. Once it decided to go that route, the court should have invited supplemental briefing or—as would have happened in earlier years—scheduled a reargument so that all parties could have addressed the implications of a potential ruling that will, predictably, make it much harder for victims of age discrimination to survive summary judgment, let alone prevail on the merits. This was a nasty/lazy/shoddy way to proceed. Justice Stevens said it better: "[a]n unabashed display of judicial lawmaking."

Assuming that the Senate Republican caucus can round up enough members who have not committed a recent marital indiscretion in the coming weeks we are going to be treated to a round of speeches and sound bites about original intent, and following the law, and all the rest of it that has nothing to do with any sort of reality. I imagine George Will has a column all ready to roll, too. The real pity is that Judge Sotomayor is, from what I can tell, actually a somewhat conservative jurist, in the sense that "conservative" used to mean. What we could use is someone who is willing to engage the right wing of the Court on their own terms.

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