Supreme Court Porn

The Supreme Court heard oral arguments yesterday in the case Redding v. Safford, which considers the constitutionality of public school officials strip-searching then-13-year-old Savana Redding on suspicions that she was distributing Ibuprofen to her classmates. Redding, an honors student, was doing no such thing -- and the female classmate who fingered her as a suspect had been nabbed herself for possessing drugs. The strip search yielded no Ibuprofen, and because school officials thought Redding was just good at concealing the drug, they had her turn her bra and underwear inside out in front of two female supervisors. The intense humiliation and shame of the episode compelled Redding to drop out of school.

The 9th Circuit Court of Appeals deemed the school's actions unconstitutional, but according to various news sources, the U.S. Supreme Court is likely to overturn that decision, citing that the harm suffered by Redding isn't compelling enough to render illegal at least this outrageous, police-like action taken by the school.

Since 1985, at the height of the Reagan administration's War on Drugs, the U.S. Supreme Court has been bullish on defending state officials' ability to do whatever it takes to weed out drugs from America's schools. Joan Biskupic of USA Today provides this helpful breakdown of key cases on drugs in school:

• New Jersey v. T.L.O. (1985): The justices uphold school officials' search of a high school freshman's purse after she was found smoking in a restroom, and they establish that public-school searches are covered by the Fourth Amendment guarantee against unreasonable searches and seizures.

• Vernonia Independent School District 47J v. Acton (1995): The court rejects a Fourth Amendment challenge in an Oregon case and lets public schools require students to take drug tests as a condition of playing sports.

• Board of Education of Independent School District No. 92 v. Earls (2002): The court allows public schools in an Oklahoma case to impose random drug tests on students who participate in any extracurricular school activity.

• Morse v. Frederick (2007): The justices reject a First Amendment free-speech challenge and allow a school district to suspend a student who unfurled a "Bong Hits 4 Jesus" banner on a parade route in Alaska.

Authorities argued that the message referred to marijuana and conflicted with their anti-drug policy. Lawyers for the school district in the new case from Safford, Ariz., point to the Morse ruling to support arguments about the need to deter drug use.

Based on these precedents, Supreme Court followers expect Redding to lose her case against the school district. The Supreme Court in 1985 was more likely to defend privacy rights than it is today; with the current majority-conservative composition of the Court, it seems most anything will be justified in the name of searching for drugs in public schools.

Dahlia Lithwick of Slate provides some insight into the Court's tone-deafness to Redding's privacy rights, given the Justices' line of questioning yesterday. Ruth Bader Ginsburg seemed to be the only Justice who was concerned about what happened to Redding, casting a skeptical eye on the school's extreme actions to follow up on a dubious tip from a classmate. Ginsburg's male colleagues, however, were less understanding -- worse, they played fast and loose with Redding's shame in order to make perverse, even pornographic, claims about 1) the necessity for school officials to strip-search students for drugs, and 2) the relative harmlessness of being naked in front of others in a school setting.

First, Justice Antonin Scalia educates himself on the new ways in which kids are getting high these days:

Today's argument features an astounding colloquy between Matthew Wright, the school district's lawyer, and Justice Antonin Scalia, who cannot understand why "black marker pencils" are also considered contraband. "Well, for sniffing!" answers Wright. "They sniff them?" asks Scalia, delightedly. "Really?"

Scalia's "delight" is of course premised on his assumption that along with more ways of getting high comes more ways for him to permit the state to intrude on students' privacy rights. In this scheme, a teacher or school official can accuse a student of being a druggie just for carrying around a pencil.

After these pleasantries are exchanged, Scalia gets down and dirty, and his devout Catholicism would seem to be bracketed as he imagines a school official looking into a 13-year-old girl's underwear for drugs:

David O'Neill from the Solicitor General's office tries to thread the needle between allowing schools to conduct daily strip searches for black sniffy markers and chilling the school district's broad power to search for dangerous contraband. He wants the court to impose a higher standard before schools may conduct a strip search but gets into trouble with Scalia, who wonders what happens after "you search the student's outer garments, and you have a reasonable suspicion that the student has drugs." Scalia's almost chortling when he exclaims, "You've searched everywhere else. By God, the drugs must be in her underpants!"

For most people, when we're talking about a 13-year-old girl, the statement "By God, the drugs must be in her underpants!" would be uttered ironically, skewering the fear-mongering logic of the school official doing the searching. For Scalia, on the other hand, the statement is a jokey way of justifying that kind of strip-searching to occur.

As if Scalia's puerile antics weren't bad enough, Lithwick talks about Justice Stephen Breyer's efforts to write off the harm Redding suffered in her experience:

"In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, OK? And in my experience, too, people did sometimes stick things in my underwear."

Shocked silence, followed by explosive laughter. In fact, I have never seen Justice Clarence Thomas laugh harder. Breyer tries to recover: "Or not my underwear. Whatever. Whatever. I was the one who did it? I don't know. I mean, I don't think it's beyond human experience."

What starts off as an "innocent's" defense of taking one's clothes off in gym class (ignoring the fact that Redding's experience is hardly comparable to gym class, or that gym class doesn't have its own politics of policing teenage bodies) ends up being a queer fantasia of schoolboys' "harmless" pranks. That Breyer's standard for judging this case is his own childhood memories of being the butt of boys' pranks (he may have been a pranker as well -- "I was the one who did it? I don't know.") is truly unfortunate. I mean, I can stand to appreciate Breyer's queer admission (although he would never acknowledge it as such), but let's be clear: Redding being stripped down by school officials who are on a hysterical and ultimately fruitless search for Ibuprofen is decidedly not the same thing as boys (or girls) horsing around in the locker room.

Lithwick details more boys' club behavior at the hearing yesterday in her article. For all of what the oral arguments revealed about the male Justices' own pornographic imaginations (and I should note that I am a pro-pornography feminist), it's a travesty that their discursive pleasure -- imagining girls being strip-searched, fondly remembering boys sticking things down your underwear, etc. -- is being employed to justify the state's incursion on Redding's privacy, indeed, its invasion of her body. I daresay Redding suffered a second kind of indignity by having to hear the male Justices alternately mock and brush away her claims to being harmed.

Obama's on Their Side

Compromise, negotiation, tact... or is it pandering? The contest for President of the United States has begun in earnest. One sure sign of this is Barack Obama's values-laden politicking in recent weeks. Exhibit A is the following national campaign ad, which, as John Dickerson points out, is desperately intent on portraying Obama as being "just like one of us."



It's unfair of me to take Sen. Obama to task for trying to appeal to white Americans, and particularly to those who self-identify as reasonable, average folk. Clearly he's got to reach out to as many people as possible if he's to have a chance of winning the November election. But maybe it's too bitter a pill for me to swallow to see that 1) the aforementioned ad needs to be whitewashed (including mention of Obama's African father) in order to appeal to these demographics, and 2) Obama has to deploy an all-American, up-by-the-bootstraps life narrative in order to appear as an upstanding (black) candidate.

We can talk about this being merely a strategic effort to win votes, a pragmatic acknowledgment that a black liberal from Chicago needs to downplay his blackness and political beliefs in order to have a real shot at the Presidency. My question, though, is whether there's a point at which this effort at reaching out actually begins to chip away at the principled political vision that Obama has placed at the center of his campaign. In other words, how far are Obama and his supporters willing to go in order to convince folks that he's their candidate? Does Obama continue to try to sound as though "he's on their side," in complete alignment with their core values, or does he ask the tougher questions of what those values mean in everyday life, why people hold them dear, and what the best policies to nourish those values might be.

Perhaps Obama's perceived misstep of referring to white working-class Pennsylvanians as "bitter" came closest to asking the sorts of questions I outline here. Of course we all know how that turned out -- it almost cost him the Democratic nomination. So maybe the practical, give-and-take approach is the best route to take.

But then consider Exhibit B: Obama's reaction to the Supreme Court's bare-majority decision yesterday which says that the death penalty is a form of punishment that is incommensurate with the act of raping a child. The case, Kennedy v. Louisiana, featured a 43-year-old man who was sentenced to death in Louisiana in 2003 for raping his 8-year-old stepdaughter. Writing for the majority (which included Justices Stevens, Souter, Ginsburg, and Breyer) was Justice Anthony Kennedy, again the crucial swing vote between the liberal and conservative blocs on the Court.

Unsurprisingly, the dissenting Justices accused the Court's opinion of being too "sweeping," effectively outlawing the death penalty in cases which don't involve the murder of the victim(s). Justice Samuel Alito wrote that the decision prevented states from applying the full force of their capital punishment measures "no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be." Adding a questionable sense of morality to this litany of legal oversights, Republican Presidential candidate John McCain bemoaned the decision, saying, "That there is a judge anywhere in America who does not believe that the rape of a child represents the most heinous of crimes, which is deserving of the most serious of punishments, is profoundly disturbing.”

I've come to accept such reactions as the Supreme Court rounds out its docket for the year and announces its major decisions. But Barack Obama's response to the case surprised me. In a move that has got some people saying Obama wanted to avoid a Michael Dukakis-type gaffe on the issue of capital punishment, Obama said, "I disagree with the decision. I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes. I think that the rape of a small child, 6 or 8 years old, is a heinous crime." Obama concluded by suggesting that if a state passes a law which levels the death penalty against such a crime, then that state should be allowed to impose it. This strong-armed states' rights position is unusual territory for Obama, and as enough commentators have pointed out, it locates his position squarely in the same camp as the conservative Justices.

Perhaps Obama achieved his goal in "disagreeing" with the Court's opinion in Kennedy v. Louisiana. Surveying readers' comments on several news websites, I've seen a smattering of, "This is the best thing I've heard come out of Obama's mouth," and, "Up to now I wasn't convinced, but Obama's got my vote after this." There have also been responses like my own, which basically say that Obama has been giving up too much by currying favor with the "values" demographic -- social conservatives, people of faith, law-and-order types. Unlike the folks "on the fence," though, those of us who object to Obama's stance on the case are unlikely to cancel our votes for him because of it. The issue is one among many, sure, but we also realize, to some degree, that Obama isn't addressing his reliable base in making such reactionary comments; he's talking to people "on the other side."

Like Justice Kennedy and yesterday's majority, I believe that the administration of capital punishment in this country is already fraught with arbitrary decision-making and line-drawing. But unlike the dissenters, John McCain, and Barack Obama, I would argue that allowing states to pursue the death penalty in non-murder cases extends, rather than narrowly limits, the reach of these arbitrary decrees. Who, after all, determines the degree of a crime's "heinousness," its relative "sadism," its offense to what's good and pure? If you ask me, any form of rape is "heinous," regardless of the age of the victim. In fact, we actually lose a great deal of footing in our fight against sexual abuse and gendered violence by conceding that the rape of an 8-year-old child is somehow more dastardly than the rape of an adult woman. Rape is always, under every circumstance, a heinous crime.

Acknowledging this does not compromise the Court's stance on capital punishment. It brackets the moralizing fetish of the sanctity of the American child, articulates the broad political goal of fighting against sexual violence in all forms, and recognizes the Court's decision as a pragmatic solution to the problem of capital punishment -- because it's such an arbitrary and imperfect punitive measure, the most our nation is willing to grant certain states is the ability to execute convicted murderers. In contrast, McCain's and Obama's responses effectively legitimate the death penalty in this Louisiana case on the grounds of a moral judgment -- we know a crime that merits capital punishment when we see one. (The dissenting Justices' opinion avoids such bald moralism and sticks to calling the majority opinion "sweeping," which is in effect a legal, not a moral, critique.)

Barack Obama's few weeks of being the presumptive Democratic nominee for President has energized this country's electorate in a way that we haven't seen for close to fifty years. His candidacy still holds forth a lot of promise. But I'd be lying if I said that his campaign ad and his response to Kennedy v. Louisiana didn't disappoint me. The greatest political orator of our generation no longer seems to be speaking to me.

Habeas Lives

Last week the U.S. Supreme Court split 5-4 and declared unconstitutional the Bush Administration's refusal to grant detainees at Guantanamo Bay the right to go to federal court to challenge their continued detention. The decision has been seen as a crucial victory in the piecemeal process of reestablishing of the rule of law in this country, where George W. Bush and a Republican-controlled Congress has made a mockery of the Judiciary branch of government to fight the so-called "War on Terror."

The Court's decision, Boumediene v. Bush, split along familiar lines, with the staunch conservatives, Justices Roberts, Scalia, Thomas, and Alito, making up the dissenting four. Anthony Kennedy, as is usually the case in the composition of the current Court, was the crucial swing vote who sided with Justices Stevens, Souter, Ginsburg, and Breyer. In a move seen as fortifying their position over and against the dissenters, the ranking majority opinion Justice, John Paul Stevens, assigned the writing of the Court's opinion to Kennedy himself.

The only points I'd like to stress about this victory are that 1) the decision upholds habeas corpus as an uncompromisable constitutional right, which means that 2) no amount of fear-mongering and threat-issuing on the part of our government can extinguish a person's ability to question the government's policies and actions, which brings us back to the fact that 3) the preservation of that kernel of freedom which is preserved in habeas corpus is one of the touchstones not only of American law but also of American civil society. Between preserving that right and denying it in the first instance is the thin line between nominal democracy and actually existing fascism.

Anyone who reads this important decision cannot help but notice that while the majority speaks mostly of the rule of law, the preservation of our rights, and what the Constitution means in these exceptional times, the dissenting opinions of Justices Scalia and Roberts ring of partisanship, politicking, and the very fear-mongering that the Bush Administration has been guilty of since 9/11. Roberts says that the Court's opinion will open it up to "charges of judicial activism." As his extreme deference to the Executive branch of government (and, when conveniently in place, a Republican-controlled Legislative branch) has consistently shown, it's utterly impossible for this Chief Justice to conceive that the President himself has been the activist here, brushing aside the law in a fearsome consolidation of statist power.

In the same vein but in a tone befitting his hysteria, Antonin Scalia pipes in with, “[The decision] will almost certainly cause more Americans to be killed... The nation will live to regret what the court has done today." The Justice's emphasis in his dissent isn't so much on the law but on the Executive's claims that detainees are terrorists or terrorists-in-waiting, and thus have no right to habeas whatsoever. Scalia's ludicrous scenarios play out in the blighted field of his imagination, as they have done with so many people in this country since 9/11.

The Supreme Court is barely hanging on to a conscientious, pragmatic majority these days, and if the likes of Roberts and Scalia had their way -- if, that is, a President McCain would be able to replace Justices Stevens, Ginsburg, and possibly Souter with three candidates of his choosing -- then we can look forward to a government that pays lip service to checks and balances, a civil society that legitimates its Orwellian measures of control through its own terroristic (psychological or otherwise) devices.

An Insightful "Conservative"

Jon Swift is the alias of a blogosphere humorist who describes himself as a "reasonable conservative who likes to write about politics and culture." Of course, like the "real" Jonathan Swift (1667-1745), the Englishman of letters known especially for his biting satirical wit, this self-description is but a ruse. Jon Swift skewers conservative ideology and media talk by pretending to be their staunchest defender. Swift takes his cue from The Colbert Report -- addressing contemporary politics and news events -- but his writing is smarter, and more subtle, not unlike the work of the real Swift.

Jon Swift's tagline motto is: "Since the media is biased I get all my news from Fox News, Rush Limbaugh and Jay Leno monologues." And indeed most of his writing is devoted to pointing out the illogic of much conservative mass media. (His tagline itself is illogical -- the mass media is biased, but in his favor, and Fox News, Rush Limbaugh, and Jay Leno [whom I agree is both desperately unfunny and the biggest, dumbest misogynist on television] lie not at the margins of the public sphere but precisely in its center.) A recent post retains Swift's satirical tone while making fun of the mass media's lionization of Tim Russert, who, it should be said, did much to actually lower journalistic standards for public-interest inquiry of politicians and political institutions.

These observations aside, I was introduced to Jon Swift's world by virtue of his celebrated Amazon.com reviews. Back in 2006 Jon Swift posted reviews of books by the likes of Ann Coulter, Sean Hannity, and David Horowitz. These books -- hardly worth the paper they're printed on -- spewed far right-wing ideology like it was gospel and participated in the Republicans' drumming up support among its base in preparation for the 2006 mid-term elections. Well, Jon Swift took these folks to task not by dismissing them out of hand but by approaching them from a ridiculously literal, arch-conservative perspective. It was a performance befitting Jonathan Swift's classic essay "A Modest Proposal" (1729), which suggested that the Irish might alleviate their economic woes by selling children born into poverty as food for the rich.

Unsurprisingly, Amazon removed all of Jon Swift's reviews. Thankfully, he kept back-ups, and his complete archive of reviews can be found here. Notice that he begins each review with, "I have not actually read this book but..." Which, at least for me, captures the essence of so much that's wrong with the arch-conservative mindset (or, for that matter, any extremist political ideology which is less attuned to actually existing socioeconomic conditions and more interested in defending its theoretical coherence).

Jon Swift gets the tone right here, and that's what makes his voice so effective, and at times so laugh-out-loud funny. My favorite review has got to be his take on Mark R. Levin's Men in Black: How the Supreme Court Is Destroying America. Levin is one of those conservative legal commentators who willfully ignores the Court's demonstrable conservative bent, as well as the fact that Republican-appointed judges make up the vast majority of federal court appointees, to lambaste the few (remaining) "liberal" social measures that the Court has protected. Levin has to blind himself to all of this as he puts the Republican machinery of fantasizing that liberals control everything (the media, the courts, etc.) into full gear. Levin's book is the definition of spin in legal circles.

Jon Swift's review doesn't explain these things to us, nor does it seek to. In fact, the review doesn't say much about anything... except for the movie Men in Black. Titled "I love Will Smith and Tommy Lee Jones," it reads:

I have not actually read this book but I love the movie with Will Smith and Tommy Lee Jones. I thought it was very funny and very imaginative with all of the alien creatures. I don't remember the movie saying anything about the Supreme Court but I know they often change books when they adapt them into movies. Even though I agree with everything Justice Scalia says he does sometimes seem like an alien from another planet, which I mean in a good way.

That barb against Scalia is even funnier upon realizing that, for the arch-conservative, reading Levin's book is precisely akin to watching Men in Black -- neither says "anything about the Supreme Court." They do, however, put on a good show.

The Discreet Charm of David Souter

I'm currently reading Jeffrey Toobin's excellent book on the U.S. Supreme Court, The Nine: Inside the Secret World of the Supreme Court. In addition to providing keen analysis of all the major Supreme Court decisions that have been decided over the past twenty years, Toobin recounts some truly entertaining yarns about each justice. To be sure, there were some real characters on the Rehnquist Court -- from the regal Sun Belt grande dame Sandra Day O'Connor to the pugnacious Italian bulldog Antonin Scalia. But I was surprised to find mirthful hilarity in the stories Toobin recounts about the Supreme Court's most reclusive Justice, David Souter.

Nominated to the Court by President George H.W. Bush on July 25, 1990, Souter was replacing the seat vacated by liberal Warren Court icon William J. Brennan. The former New Hampshire Supreme Court justice was confirmed by the Senate 90 to 9, despite the fact that many Republicans had reservations about Souter's conservative credentials. Souter left little in terms of a paper trail to give conservatives a solid idea of how he would vote on the most important issues for their base.

Souter ended up being a massive disappointment for the Republicans, and he will be perhaps the last justice to make it onto the Court without being subjected to an ideological litmus test (which effectively guarantees that a nominee will vote according to the party -- Republican or Democratic -- line). On all the major social issues, including abortion but also affirmative action and gay rights, Souter has consistently voted with the meager "liberal" bloc on the Court (consisting of Justices Stevens, Ginsburg, and Breyer). Although many Republicans cast Souter's jurisprudence as a "betrayal" of their party, in fact his tenure on the Court can be seen as fitting into the classic New England Republican mold: supporting a robust federal government, keeping church and state issues distinctly separate, and defending individual civil liberties against repressive state measures.

That Souter should remain true to an "older" ideal of Republican politics (before the South- and Sun Belt-led hijacking of the party to serve evangelical, power-hungry interests) is perhaps unsurprising. For Souter leads a simple, almost ascetic life as a 68-year-old bachelor. Unconcerned with the trappings of modern technology, Souter has written only with a fountain pen in his professional work and was once given a television set but never plugged it in. Toobin rightly characterizes Souter's manners as reflecting the "habits of a gentleman from another century" -- namely, the eighteenth century inhabited by the likes of John Adams and Benjamin Franklin. At the Supreme Court, Souter usually leaves the lights off in his office and reads briefs by sunlight. And he eats the same thing for lunch every day: an apple, including the core and seeds, with a cup of yogurt.

Toobin relates two stories about Souter that I'm compelled to share with you here. They reveal a dry wit and measured personality that seem out of step with his own party's current ideological partisanship and Manichean "good versus evil" worldview. They reveal what I'm calling the discreet charm of David Souter.

On bachelorhood

[Sandra Day O'Connor] had a...direct agenda with Souter. She wanted to get him married off. According to her biographer Joan Biskupic, O'Connor boasted about her matchmaking skills, claiming she had once been known as the "Yenta of Paradise Valley," her posh neighborhood in Phoenix. She invited Souter to many of her parties, including one, early in Souter's tenure, that featured "Fajitas and frivolity...Dress: Country Western or Effete Eastern." Over the years, practically everyone Souter knew in Washington, including First Lady Barbara Bush, tried to fix him up. None succeeded. One of his fellow justices once prevailed on Souter to take a woman out to dinner, and she reported back that she thought the evening had gone very well -- until the end. Souter took her home, told her what a good time he had, then added: "Let's do this again next year."

On being mistaken for Stephen Breyer

It was...a running joke at the Court that outsiders frequently mistook Souter and Breyer for each other. No one could really understand why this happened, because the two bore little resemblance. One day when Souter was making his usual solo drive from Washington to New Hampshire, he stopped for lunch in Massachusetts. A stranger and his wife came up to him and asked, "Aren't you on the Supreme Court?"

Souter said he was.

"You're Justice Breyer, right?" said the man.

Rather than embarrass the fellow, Souter simply nodded and exchanged pleasantries, until he was asked an unexpected question.

"Justice Breyer, what's the best thing about being on the Supreme Court?"

The justice thought for a while, then said, "Well, I'd have to say it's the privilege of serving with David Souter."

Scalia Q&A: Idiots, Hecklers, and Bad Jokes

I found this clip of Associate Justice Antonin Scalia responding to audience questions at an event in which he was talking about the role of international law in U.S. courts. As a practitioner of interpretive originalism, Scalia is vehemently against either the direct quotation or even the faintest consultation of international law to help decide U.S. cases.

The clip doesn't include Scalia's talk, but it picks up with Q&A and highlights Scalia's skirmishes with a handful of foolish, tasteless, and otherwise dim audience members. I'm a self-identified progressive, and goodness knows Scalia is in desperate need of public intellectual skewering. But this? These "critics" -- all of them college-aged, it seems -- crack terrible jokes (about Dick Cheney's hunting incident), speak as though they were forcing their words through a meat grinder, and are clearly uninterested in engaging in civil, public debate.

The worst of the lot, the first questioner, prefaces his question -- "Do you support Carl Schmitt's dogma of the unitary executive?" -- with a rambling and pompous "introduction," in which he mistakenly refers to the Justice as "Anton Scalia." When the Justice asks him if he has a question to pose, the guy says, "Plato has a question for you." This bespectacled dodo is later escorted out of the room after heckling Scalia one too many times.

He Lives

Regarding the Morse v. Frederick student free-speech case I commented on the previous post, I thought it'd be relevant to post a picture of the actual "speech" in question. Here's Joseph Frederick's inimitable "BONG HiTS 4 JESUS":



Although both the opinion of the Court, penned by Chief Justice John Roberts, and the dissent, written by Associate Justice John Paul Stevens (and joined by Justices Souter and Ginsburg), were dismissive of the banner's "seriousness," I consider Frederick's banner no more or less "serious" than the 1980s "This is your brain on drugs" ad campaign or evangelical church signs that announce, "Jesus: Coming Soon" (and other such soundbyte-secularizations of the Second Coming). Drug (or "war on drugs") and religious discourses in this country have always mixed the high-falutin' with the (unintentionally) ridiculous, promoting "noble" causes through the basest of rhetorical methods.

The only thing Frederick was guilty of was making fun of the faux seriousness with which we approach drug and religious discourses in this country. His banner was pure parody and intentional spoof, and in that sense was smarter than what the Justices were willing to grant it.

Originalism's Dead Letter

An article on Slate.com by Doug Kendall and Jim Ryan scrutinizes recent opinions written by Associate Justice Clarence Thomas and finds that the self-proclaimed originalist is not as principled as his judicial philosophy would seem to demand. In Kendall and Ryan's analysis, Justice Thomas applies the doctrine of originalism neither coherently nor consistently but partially and selectively.

In two important cases from last term, Morse v. Frederick and Federal Election Commission v. Wisconsin Right to Life, Inc., Thomas at once denied a student's freedom of speech in a public high school and asserted a corporation's freedom of speech in sponsoring ads (past a deadline established by the McCain-Feingold Bipartisan Campaign Reform Act) during a public election. The problem is that in one case, Morse, Thomas invoked the "Founders" to declare that "they" never thought of granting students First Amendment rights in public schools, while in the other, FEC, Thomas concluded that corporations held the same free-speech right as individuals (though not students in public schools), despite the fact that the Founders' generation was more inclined to believe that corporations are, in Chief Justice John Marshall's words, "an artificial being, invisible, intangible, and existing only in contemplation of the law."

Kendall and Ryan do a masterful job of deconstructing Thomas's "logic" here. By originalist standards, the second opinion, FEC, is downright unsupportable. The texts of the earliest constitutional law in the United States nowhere grant corporations -- which did exist at the time -- the same rights as individuals. A corporation was considered a legal fiction, not a living, breathing citizen like you or me. And yet the professed originalist, Thomas, somehow managed to overlook that body of textual evidence in supporting the majority decision penned by Chief Justice John Roberts and joined by Associate Justices Scalia, Kennedy, and Alito.

Even in Morse, where Thomas applied schoolboy historicism to say that the Founders never granted students free-speech rights (public schools didn't exist at the time), Kendall and Ryan point out that a bonafide originalist reading might have yielded a different result. Originalism, they argue, doesn't simply ask, "Did the Founders knowingly and intentionally formulate this or that right?" Rather, originalism inheres in a fidelity to textual meaning -- a way of reading the Constitution in its most robust and principled form. A true originalist, Kendall and Ryan posit, would argue that "the meaning of the text... must be paramount over the subjective expectations of any individual, whether alive or dead."

Originalists say they are merely reading the Constitution to the letter. Kendall and Ryan suggest they aren't: those like Thomas are intentionalists (my term), not originalists -- they don't actually read, or interpret, the Constitution but rely on the dubious assertion that because certain things didn't exist in the eighteenth century (like public schools), the Founders couldn't possibly have legitimated any constitutional "right" relating to them. This "argument" is so facile it's insulting to anyone forced to listen to it. "Didn't exist, so couldn't have been" -- like a kid sticking his pointer fingers in his ears and singing, "La la la la la," to drown out his interlocutor's more persuasive claim.

By now it should be clear that originalism doesn't read the Constitution to the letter -- it renders the Constitution a dead letter, a document that, in itself, is utterly meaningless, because, remember, it's not what the text says or means but whether or not this or that existed when the Founders actually lived. Thus, with the passing of the Founders, so went all of our rights.

All of which is to say that Clarence Thomas is neither an originalist nor a particularly good jurist. For between his intentionalism in Morse and his outright business-friendly partisanship in FEC, it's clear that Thomas is nothing but a results-minded arch-conservative who hands down incoherent but consequential decisions on the U.S. Supreme Court. His supporters will congratulate Thomas on his courage and consistency, but if one were to take the time to read and compare his cases alongside each other (as Kendall and Ryan do), one would be hard pressed to find a shred of recognizable constitutional insight in them.

Shock & Awe

The U.S. Supreme Court recently ruled on a case that concerns the right of suspects who led police on car chases to pursue lawsuits against the police. The case, Scott v. Harris, involved a Georgia teenager, Victor Harris, who led police on a high-speed chase after he was asked to pull over for speeding. When Harris was deemed to be posing a threat to other motorists and law enforcement officers, Deputy Timothy Scott used the so-called "PIT" maneuver -- precision intervention technique -- to spin Harris's car out of control. Because Harris was going at such a high speed (in excess of 100 mph), his car went airborne, flew down an embankment, and crashed. The accident left Harris a quadriplegic.

As it passed through the lower courts, the case simply asked whether it was valid for Harris to pursue legal action against Scott for the specific action he undertook to terminate the high-speed chase. The 11th Circuit of the U.S. Court of Appeals ruled that Harris could, in fact, take legal action against Scott. But by a vote of 8-1 the U.S. Supreme Court ruled that Scott did not violate Harris's Fourth Amendment right to resist unreasonable seizure, and thus had no grounds to file a lawsuit against Scott. Justice Antonin Scalia wrote the opinion of the Court, and Justice John Paul Stevens filed the lone dissent.

Although the outcome of this case didn't come as a surprise to many, considering the today's Court's conservative bent, what did strike a chord was the great degree to which the majority relied on the police videotape of the chase to frame/ground its decision. Indeed Justice Scalia writes, "Far from being the cautious and controlled driver the lower court depicts, what we see on the video more closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at greater risk of serious injury." The videotaped evidence was so transparent to the majority that Scalia went so far as to say, "[Harris'] version of events is so utterly discredited by the record that no reasonable jury could have believed him... The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape."

According to Scalia's logic, Harris was so clearly running amok that he effectively forfeited his Fourth Amendment right and in a sense "forced" Scott to undertake the PIT maneuver. Had Scott not engaged the tactic, who knows what kind of ball-of-flame Hollywood pyrotechnics might have occurred? The opinion is clear: "Respondent intentionally placed himself and the public in danger by unlawfully engaging in reckless, high-speed flight; those who might have been harmed had Scott not forced respondent off the road were entirely innocent. The Court concludes that it was reasonable for Scott to take the action he did. It rejects respondent’s argument that safety could have been assured if the police simply ceased their pursuit. The Court rules that a police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death."

Stevens, in a dissent he read out loud at the announcement of the decision (which is a rare tactic employed by dissenting Justices, reserved only for their most serious grievances with the majority opinion), rued how his colleagues had been taken in by the shock and awe of the videotaped evidence. Without in the least bit condoning Harris's action, Stevens focused more narrowly on the (Fourth Amendment-specific) question of whether the police actually took stock of their options in this pursuit, which the lower courts had suggested wasn't as "life-threatening" as the majority made it out to be. "I can only conclude that my colleagues were unduly frightened by two or three images on the tape," Stevens writes.

Acknowledging the novelty of the Court's consideration of videotaped evidence in this case, it's important to point out that Stevens, the oldest and most senior Justice (he was President Gerald Ford's appointee and, unfortunately for conservatives, has proven to be one of the Court's most liberal jurists for three decades and counting), actually provides the most reasonable view on how to "read" such material: not taken in by "two or three images on the tape," Stevens urges viewing the entire six-minute "chase," in context, because it shows that Harris may not have been driving in a manner so reckless that it merited the use of deadly force by the police. Stevens's direct and passionate dissent moves away from Scalia's "shock and awe" approach to the videotape to point out that what few cars were on the road at the time of the chase (late at night) might have pulled off to the side not because of Harris's recklessness but because of the flashing police lights and blaring police sirens that followed closely behind Harris's car. Stevens also points out that the prosecution's attempt to theorize what Harris might have done had Scott not ended the chase is pure speculation and not necessarily supported by the evidence of the tape.

Stevens thus summarizes his dissent in these forceful terms: "Relying on a de novo review of a videotape of a portion of a nighttime chase on a lightly traveled road in Georgia where no pedestrians or other “bystanders” were present, buttressed by uninformed speculation about the possible consequences of discontinuing the chase, eight of the jurors on this Court reach a verdict that differs from the views of the judges on both the District Court and the Court of Appeals who are surely more familiar with the hazards of driving on Georgia roads than we are." Stevens, we might paraphrase, wanted to defer to the lower courts for assessment of the "facts" of this case, which would include assessment of the relative merits of the police's decision to use deadly force to end the chase. Stevens's fellow jurists, on the other hand, abstracted the car-chase images from their context, much as the shock-and-awe TV program World's Wildest Police Videos does with its car-chase sequences (heavily edited, of course, to maximize the sense of danger these motorists pose to the public).

The Court's decision in Scott v. Harris is thus a significant blow to local, context-specific determinations of Fourth Amendment rights. It replaces conditional approval of the police's use of deadly force with an abstract defense of deadly force in all situations where the police themselves determine when a suspect poses a threat to society. The circuitousness of that logic -- where the police act on a determination that the police make -- refuses to grant any suspect the leverage to defend himself against accusation that he posed a deadly threat to society. Stevens's view wanted to do nothing more than grant Harris the chance to contest that serious, enormously consequential claim. That this claim was apparently self-evident to the eight other Justices after watching this Cops-style video is troubling.