We Are Rome Part XXVII

Much as I’m irritated at the New York Times’ paywall* a throwaway line in this recent article about the same-sex marriage cases pending before the Supreme Court caught my interest so I spent one of my ten free articles a month on it. It seems that a rather large group of Republicans who once held prominent political offices have signed on to an amicus brief advocating the finding of a Constitutional right for same-sex couples to marry.

These include former governors like John Huntsman, Christine Todd Whitman, William Weld, and Jane Swift, former Cabinet level or near-Cabinet level executive officers like David Stockman and Carlos Gutierrez, former RNC chair Ken Mehlman, former legislators, and so on. So you might think the throwaway line that caught my interest was “the presence of so many well-known former officials … suggests that once Republicans are out of public life they feel freer to speak out against the party’s official platform.” But no.

This is the line that raised my eyebrows:

Legal analysts said the brief had the potential to sway conservative justices as much for the prominent names attached to it as for its legal arguments. The list of signers includes a string of Republican officials and influential thinkers — 75 as of Monday evening — who are not ordinarily associated with gay rights advocacy, including some who are speaking out for the first time and others who have changed their previous positions.

Way back at the very roots of our legal traditions were the law courts of the ancient republican Romans. And when one studies ancient Roman culture and law, one finds that cases in the law courts were very often simply extensions of politics, ways for members of factions who had been on the losing end of legislation to exact revenge on the now out-of-office lawmakers who had crafted the laws. The laws were created to address ostensibly public problems but the law courts redressed private grievances.

Immunity from lawsuits like these was granted only to those who were currently holding office, and the general consensus was vulnerability to suit after leaving office was a check against an officeholder’s taking too egregious an action while invested with political power. The criteria against which a public official’s actions were judged were at least as much the subject of cultural consensus as positive law, in a manner not unlike the constitution of the United Kingdom today. There was no substantial distinction between civil and criminal law, and there was no limitation period on the actions brought.

So, let’s say a guy named Biggus Diccus got himself elected consul and he promoted and passed a law encouraging the creation of ceramic pottery, by way of imposing a tax on baskets woven from straw and similar materials. While he’s consul, Biggus Diccus is immune from suit. Typically after his consulship, he’d be appointed the proconsular governor of a province, where he’d go to primarily administer the collection of taxes and oversee the province’s military presence for three to five years. So maybe six years after his consulship, his pockets nicely lined with bribes and graft, Biggus Diccus comes home to Rome and there just inside the gates of the city is a process server who slaps him with a suit by Marcus Hempicus, the owner of the biggest basket-weaving consortium in the city, complaining that the tax law Biggus Diccus had implemented during his consulship had cost Marcus Hempicus ten thousand denarii a year in lost profits.

The equivalent sort of thing today would be greeted with massive indifference by our courts. We’d tell the basketmaker, “Tough noogies for you.” The lawmaker who had pushed the pro-ceramics tax had been discharging his office at the time he did it, so the action which is the subject matter of the suit is what enjoys immunity, not the person. And if the public lawmaking entities had determined to extend governmental protection to potters at the expense of basket-weavers, the basket-weavers’ options were to participate in the political process, which has winner and losers and in this case the basket-weavers just plain lost and we all have to live with that. Better luck next time, basket-weavers.

So that’s how we’d deal with a suit like that on the merits. But that wasn’t how the Romans did it. As far as the Romans were concerned, Marcus Hempicus v. Biggus Diccus would have been a righteous enough suit to proceed to trial. Which is where today’s Gray Lady article gets interesting. You’d think, or at least hope, that an impartial judge would be appointed and the attorneys arguing the case would address their questioning of witnesses and legal arguments to the merits of whether Biggus Diccus had violated some important principle of Roman law when he pushed the basket tax through the Senate.** But again, that would be how we moderns look at law, not how the Romans did it.

Most of the case would have been taken up in the form of a parade of friends of the litigants. First, one of the two consuls then holding office would appoint a judge. Depending on who that consul wanted to win, or whichever litigant bribed him the most, the consul would appoint a judge obviously biased in favor of one or the other litigant. I don’t know of situations in which the pretense of objectivity was violated so badly as to have, say, a litigant’s brother sitting as his judge, but it would come close to that.

Then, each litigant would appoint a lawyer — and the identity of the lawyer, his prominence and reputation, was more important than anything that lawyer said. Each litigant would then call all of his clientele and all of his amici and perhaps even his patron to come and vouch for his good character, patriotism, and appeal to the jury’s emotions of pity and outrage. Mixed in with all of this would be calling various inimici of the other party as witnesses to testify as to the low character, almost completely irrelevant dirty deeds and scandals, unsavory personal habits, and fell intent of the adversary.

At the end, each lawyer would deliver an impassioned speech to the jury — a body of anywhere from twenty to a hundred nobles drawn from various ranks of society, which would then issue a majority vote based in theory on what they had heard in evidence and argument, but in reality on their desire to become amici with various members of the bar or witness panels and their willingness to accept bribes.

The amazing thing to me is that many of the judges involved actually did seem to take their roles seriously, that they did try to steer the courts under their charges to make decisions more or less on the merits of the disputes. Now, not every case involved former consuls and high-profile political revenge. Often enough, it was middle-class folk disputing with one another and no one was important enough that jurors or judges needed to use the trials to jockey for political position. But it was the case that the identity of the witnesses and the litigants was more important than the merits of the dispute.

The Gray Lady is indicating that the identity of the former Republican lawmakers signing on to the amicus briefs is more important than the legal arguments in them. The judges, who will decide the case,*** will be moved more by the political cover afforded them by this brief than by the law and facts and theories developed in the brief. The merits are less important than the disputants. Rather like they were for the Romans.


* I understand, but I’m irritated. The Gray Lady needs to make money like any other business and if sugar just gives it away all the time, ain’t no money coming in the door to pay for all them fancy journalists.

** Technically, the Senate wasn’t a lawmaking body but rather one that provided advice to the consuls, who legislated on their own authority in sort of a blended executive and legislative function. In practice, a consul who wanted to do anything that pretty much anyone was going to complain about needed to get a majority vote in the Senate to implement his desired law.

*** I should say “judge” since although the Times is pretty elliptical about this, everyone assumes that all of this is aimed at Justice Anthony Kennedy. I suppose there’s an off chance it could also be aimed at Chief Justice John Roberts. Either way, and as much as I’m in favor of SSM rights, I’m not sure I’m comfortable with the kritarchy.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. Much as I’m irritated at the New York Times’ paywall… I understand, but I’m irritated. The Gray Lady needs to make money like any other business and if sugar just gives it away all the time, ain’t no money coming in the door to pay for all them fancy journalists.

    May we please find something else to call it? The Gray Lady tip jar? Request for donations? If you simply follow the instructions that many colleges and universities give their students and staff for safe browsing, the “paywall” is defeated. Their implementation is basically of the form, “Please let us run scripts on your computer, which we won’t guarantee are harmless, so they can bug you for payments now and then.” My response is basically of the form, “Bugger off! If you want people to pay for content, put up a paywall that runs on your computers and that can’t be inadvertently defeated by clueless users.”

    We now return you to contents that actually have some bearing on the post :^)

    • Michael,

      I’m not a tech person, but couldn’t the NYT address this issue by requiring registration and then tracking how many times your logged-in account accesses an article? That is actually what I assumed they were doing but it appears not. And what they may ultimately end up doing if people keep making an end-run around their current system, which I assume they opted for because they know people HATE registering. Which is only going to make MORE people upset.

      We’ve discussed this elsewhere here… and once it was pointed out to me exactly how the NYT’s system work, I agreed that people should not be required/expected (legally or ethically) to alter their normal browsing habits to suit the NYT’s system. However, I don’t think that gives people a pass if they deliberately alter their browsing habits with the intention of circumventing the system. If you don’t otherwise surf privately but switch over when you fire up NYT.com, I think that is unethical. And the fallout of more and more people doing that is likely an even more onerous system, one that will be more difficult to game and the gaming of which is surely to be unethical and probably even illegal.

      I really think people’s insistence on their right to getting something-for-nothing is going to cause some real problems.

      • Again, I don’t like the NYT pay to read policy. But that’s because I’ve come to expect Internet news for free. I don’t expect to get a physical newspaper for free. So I realize I’m being unreasonable to resent being asked to pay for something that is traditionally sold for (ostensibly) a profit and which I know costs money to generate.

        • The NYT contributed to the problem by giving their work away for free for so long. But let’s be honest… internet news IS free. What you want is the Times’ writing and reporting and all that other stuff. Which is what they (rightfully) charge for, whether it be via the physical paper or the online portal. There are plenty of free news services available.

      • I’m not a tech person, but couldn’t the NYT address this issue by requiring registration and then tracking how many times your logged-in account accesses an article?

        Yes, absolutely — and the Financial Times and Wall Street Journal, to pick two examples, do exactly that, and won’t show you the full text of any content until you’ve registered. Then they make you reconfirm your identity (user name and password) periodically. The FT will give you access for free once you’re registered; the WSJ expects you to pay for everything you get from them. The Times pretty much threw out any hope for real access control when they added, “We want to give every browser running on the planet ten free anonymous accesses per month, and only prompt them to sign up and pay after they’ve had those ten free accesses.” The count is definitely by browser, because after you’ve used up your ten articles from Firefox, you can switch to Safari and get another ten, then to IE and get another ten, then to Opera and get another ten. The Times was also cheap — they could have done the count check on their servers and done the access control there (there’s still a way around that, but it leaves the user in the slightly less ethical position of taking an action for the sole purpose of defeating the paywall), but instead they decided to do the check on the user’s computer. Maybe I’m just paranoid (or simply old and experienced enough to have seen enough security holes), but I’m picky about who I let run code on my machines. I don’t trust the Times’ good will and competence enough to let them run a script with every article that gets downloaded. Especially since many of those articles come along with a variety of junk downloaded from other companies that the Times doesn’t vouch for. For example, I sure as hell am not going to let my browser download and run anything that comes from DoubleClick.

        • Michael.

          I think that is an entirely ethical and defensible position to take. What bothers me is the folks who say, “Fish that, man. I’m not paying for it! Why should I have to?” Because folks like that are likely going to continue to skirt rules and ultimately make things worse for everyone. And those folks will probably continue to skirt rules regardless, thereby exporting the harm done to others.

          It sort of boggles my mind that the Times used such a faulty system. I can’t really imagine why, other than either A) ignorance/stupidity or B) wanting to give the illusion of charging without actually limiting access. I can think of reasons why they’d take the latter tack, but none of them reflect well on the company.

          • Does putting the headline of the article in a search on Twitter and following one of the links in the queue of tweets linking to it count as skirting the rules? ‘Cuz that’s all you have to do to read whatever NY Times content you want to read, regardless of how many articles you’ve read via links from the mainpage in a given month. And if the Gray Lady isn’t aware of or can’t figure out how to solve that problem, they don’t deserve to make any money. But they are aware, and could change that in a second if they wanted. In other words, it’s a money-making feature of their internet access strategy.

            So what are we even talking about here?

          • Michael,

            Again, I have no issue with people continuing their normal browsing habits. But if I were to sign up for Twitter, a service I don’t otherwise use, solely to take advantage of that loophole in their system, I think there is an issue there. That the Times takes no action to stop it doesn’t make it any more ethical than robbing an unlocked house. Now, if the Times, for whatever reason, deliberately constructed such loopholes, knows they are being exploited, and consciously opts not to do anything about it (either in terms of closing the loopholes or pursuing their exploiters), then I think that raises some real ethical questions about the NYT. Basically, if their plan is too only charge the people stupid/ignorant/honest enough to pay and let everyone else get away with accessing content for free… I have an ethical issue with them for doing that (though I’m not sure it’d rise to a legal issue).

          • I just have none of those intuitions. If you can get through that easy, it’s not a loophole it’s an open barn door. It makes the paywall not a statement of restrictive ownership over the content but rather just a partial obstacle to its free access. Which makes it not stealing from a house with an unlocked door to access it that way. It’s more like leaving an air dispenser on the side of a bike trail that works at the push of a button and leaving a sign that says “Donations Accepted.”

            And what in the world are you talking about with your ethical concern with the Times if it’s deliberate (and it is). Would they be doing something wrong if they just got rid of the paywall? So what could they be doing wrong by designing certain holes into it that they will help spread awareness of the content’s quality among those most interested in it and willing to expend a couple click-n-drags to get it? Do pharmaceutical companies cross the same ethical line by giving out samples to docs?

          • I suspect that there’s some sort of quid pro quo arrangement, or at least recognition, between Twitter and the Times. Perhaps an explicit payment; more likely recognition that a link on Twitter generates lots of page views and the accompanying ad downloads. The Times has multiple revenue streams, including advertising. If the Times chooses not to count a page against the monthly limit because the Referer: field is present and has an acceptable value, that’s their choice.

            More problematic for some might be that in addition to blocking scripts with NoScript, I block an enormous amount of content with AdblockPlus. It has become relatively routine for me to read a comment at some site or another complaining about an obnoxious or obscene ad, and have the reaction, “This site has ads?” For the Denver Post front page, AdblockPlus reports that it blocked (did not download or render) 24 of 135 items. The Times is even worse: 35 of 147 items from its front page were blocked. For the record, the LoOG page on which I am composing this comment had 2 of 124 items blocked (both from a twitter.com site).

            I don’t have any ethical problems with what I do. The Times puts unencrypted content up in a public location. But I choose what parts I download, which links I follow, and what scripts I let run.

          • +1 to what Mr. Cain says.

            I exaggerated when I said that it’s a disavowal of ownership. What I meant is that it’s just a clear part of the policy about what kinds of access require payment. Direct clicks from the homepage (or elsewhere on the site), you get ten of those a month. But you can link from Twitter as much as you want. That’s just clearly the policy, and will be until it’s changed in practice. You can’t change the fact the the internet is a public space. If you’re not making a concerted effort to restrict access to some part of it, you can’t maintain the claim that it’s actually not meant to be accessible to the public. You don’t put something on the internet because you don’t want it seen.

          • Michael, first allow me to say that I am not an expert on either intellectual property OR on computers, so my responses are largely intuitive hunches.

            Regarding the “unlocked house” analogy, I did not mean to imply that accessing the files was the same as theft of physical property; I realize that is an argument had ad nauseum in conversations on IP and didn’t mean to wade into that ground. My intention there was less on “unauthorized access is theft” and more on “just because someone doesn’t take an active role in stopping you from doing something makes it excusable to do”. So, even if the NYT leaves the barn door wide open, I don’t think it makes it okay for people to barge through. Rather than a bike pump with a “Donations Accepted” sign, imagine the same pump but with a “5-cents” sign but no one there to monitor it. Ethical to take free air?

            As I understand it, the NYT explicitly states that users may read 10 articles per month after which they are expected to pay. That is there terms of use. In accessing their site, users de facto agree to abide by their terms of use. Now, I recognize that their enforcement mechanism encroaches on the individual and I think that changes things. I don’t think people should have to go out of their way to change their browsing habits to meet the NYT’s standards. But I would call out folks who deliberately adjust their browsing habits to exploit the NYT’s flaws, no matter how gaping the barn door opening might be.

            As for the NYT, if they are going to enact a policy and verbally insist on people following it while knowingly allowing more knowledgeable users to make an end run around that system, that is problematic. I think it creates an equity issue. If you are a well-intentioned, honest user who says, “Their policy says 10 articles per month so I will limit myself to that,” you end up losing out to people who ignore the policy… and if the Times knows this is happening, I think that is wrong. Not illegal. But not the type of business practice I like to see.

          • MC,

            I wouldn’t object to your practice. I think it is your right to choose what you download unless you have a more explicit agreement with the site. For instance, if you signed an agreement that stated you would willingly accept ad downloads in exchange for free access and then block those downloads, I think you’d be in breech of that contract. But if no such explicit agreement works, I’d take no issue with what you do.

            Personally, I think much of IP law ought to be as simple as this: the creator ought to have control over the means of distribution. So long as they are not overly onerous, folks have three options: accept the creator’s chosen means of distribution; negotiate with the creator for a new means of distribution; choose not to indulge in the creator’s work.

            If the NYT decides to go to a full paywall and requires registration, paid or otherwise, I’m not very sympathetic to people insisting that they should be able to get what the Times creates on their own terms.

          • Their Terms of Service don’t make any such thing clear. In fact,they don’t even mention the paywall. They basically just say, whatever we charge you, you owe us. I don’t read the pop-up warning about free articles to say what acceptable user behavior is, but rather to describe what kind of behavior users can expect from the site. I believe your interpretation of those warnings as a kind of condition on use of the site is a gross extension of the actual agreement that users enter into by using the site based on your views about the ethics of content value on the internet.

            The Times has an online marketing strategy, and it’s my belief that pretty much whatever users can do to access content that doesn’t require some degree of technical hacking ability is essentially a behavior they’re trying to induce out of users. They control these access points; they know who and how they’re letting into the site, and they know why they’re doing it. When it’s no longer advantageous to do what they’re doing, they’ll change what they’re doing.

          • Michael,

            So what makes the current system advantageous? I see two possible ways:
            1.) People who are unaware of workarounds or too guilt-ridden to utilize them will essentially voluntarily pony up cash
            2.) The illusion of a more robust pay-wall might somehow benefit management in contract negotiations with writers. I’m not sure how this would work in practice, but I could see them saying, “Hey man! We’re trying to charge people and no one wants to pay so you’re going to have to take a cut!”
            I’m not really comfortable with either of those as a business practice. Again, I don’t think it should be illegal… it just doesn’t measure up to the standards I hold for engaging in honest business.

            I do agree with you that absent explicit agreement on the part of all parties, any stringent enforcement mechanism is suspect. For instance, I disagree with assumed opt-ins to changes of ToS’s. So I would not necessarily support the NYT or another creator suing the pants off users who violate assumed terms. But I also am not sympathetic to users who will read a disclaimer that says, “This product is created with the intention of being distributed/used in such a way,” and respond with a, “Fuck that… I’ll do what I want.”

            Really, I’m splitting the middle a bit here. I think the NYT needs to clean up their policy before they seek any real enforcement mechanism, if they even desire one. If they don’t, I think it would be more ethical if they had a more honest and transparent policy. And I think users are unethical if they deliberately adjust their behaviors to exploit loopholes, even if the loopholes are gaping. No one has a “right” to the NYT’s content.

          • It’s not a loophole. It’s an intentional feature of the policy. It’s a strategy. You’re right, it may not in fact be advantageous, but at the moment they’re operating on an assumption that it is, or on a desire to test whether it’s an optimal strategy.

            The idea that it’s unethical for consumers to alter their behavior in response to broad features of policies of organizations with which they interact boggles my mind.

    • I must admit that I’m utterly fascinated that when I write a post blending a) same-sex marriage, b) the Supreme Court, c) ancient history, and d) the dysfunctional Republican party, more than half the comments I get are responding to a throwaway line about the New York Times‘ hamfisted attempt to monetize its website.

      I mean, if this is what you’re interested in, folks, cool. Just goes to show you never can tell where the blog is going to take you.

      • I’d like to repeat my question. I don’t seem to have any trouble accessing articles in the NY times. I don’t see a paywall at all. What are you guys talking about?

        • I’m sorry, I thought you were being sarcastic. The NYT imposes a cookie-based paywall that lets nonpaying readers get ten full articles every month. After your counter hits ten, you have to pay, either on a per-article basis or by subscribing. As you can read above, their system is a bit different from other more traditional sorts of paywalls like that of the Wall Street Journal, and suffers from significant problems in both conception and execution. It’s just effective enough to make me prefer a different source for online news reporting, because I’m too lazy and too uncertain of the morality of the cheatarounds that are readily available for it — and rather than invest in the soul-searching and practical solution creating, I can just look for news elsewhere.

          Maybe the paywall structure the Gray Lady has thought of is prohibited in your part of the world. Here in the USofA it’s a source of dwindling annoyance as I modify my media consumption habits to avoid this provider.

          • maybe I just haven’t hit 10 articles this month yet. I’m afraid to try out just in case I hit the paywall. I’ll see what happens when I turn off cookies.

          • ok after I hit 5 articles a warning came on. But I signed up for it back in the old days when it was free. should I have any problems if I just sign in?

          • I created an account back before this idea had seen the light of day, too. I get blacked out after 10 articles. I have to imagine you will too.

            This idea would work well if the New York Times didn’t have so much competition still giving the news away for free, or rather, in advertising-supported rather than subscriber-supported formats.

      • Burt,

        I apologize if we derailed at all. I didn’t feel I had anything meaningful to contribute to the crux of the post. You examined the legal aspect better than I could and others touched on other issues as I would have. I just find ongoing conversations around intellectual property fascinating.

        • No worries at all, dude.

          I used to be anal about discussions moving off on tangents and people not really talking about the subject I wanted to talk about. Then I realized that I’d be better off in terms of readership and personal stress if I just let that go and took a stance that left my hands off the wheel more. The comments culture has improved and expanded since then.

  2. “The Gray Lady is indicating that the identity of the former Republican lawmakers signing on to the amicus briefs is more important than the legal arguments in them.”

    FWIW, I think the Grey Lady is really reporting on two connected but separate stories here. The first is about the case itself, where the matter of who does and doesn’t support it should be irrelevant.

    But I also think there’s separate, larger story about social shifts surrounding this issue. That these prominent GOPers felt compelled to add their names (and that they did so after they were out of office) actually seems to me to be very, very important – maybe even more important than whatever will happen with this single case.

    • I tend to agree.

      The story is really “What Republicans who don’t worry about primaries think”, but I guess calling out a party on the extremism of it’s base on this issue is a little too political, so its’…cloaked.

    • Legal analysts said…

      None are named.

      Later in the article:

      Experts say that amicus briefs generally do not change Supreme Court justices’ minds. But on Monday some said that the Republican brief, written by Seth P. Waxman, a former solicitor general in the administration of President Bill Clinton, and Reginald Brown, who served in the Bush White House Counsel’s Office, might be an exception.

      Tom Goldstein, publisher of Scotusblog, a Web site that analyzes Supreme Court cases, said the amicus filing “has the potential to break through and make a real difference.”

      He added: “The person who is going to decide this case, if it’s going to be close, is going to be a conservative justice who respects traditional marriage but nonetheless is sympathetic to the claims that this is just another form of hatred. If you’re trying to persuade someone like that, you can’t persuade them from the perspective of gay rights advocacy.”

      Like the esteemed Counselor Likko, I am a bit troubled by the elevation of signatories over legal arguments, as if the amicus brief were comparable to a full-page ad in the paper to protest some proposed legislation. (The next logical step will be amicus briefs co-signed by Hollywood celebs and American Idol winners.) But my despair is tempered by two thoughts:

      (1) The best spin I can place on the story is that Justice Kennedy is not supposed to be swayed because these retired politicians and out-of-power Cabinet members co-signed the amicus brief; rather, their signatures are supposed to provide evidence of a shift in the public attitude toward the subject; Kennedy (or Roberts) is supposed to look at the brief and think, Well, if these people are in favor of dismantling DOMA, then that fact is evidence that the public at large would be OK with dismantling DOMA, and therefore ruling in favor of SSM would not be outside the mainstream.

      So, the brief is meant to signal to the wavering justice that it would be safe to rule in favor of SSM. The signatures of these politicians is meant to remove an obstacle or to reassure, rather than to persuade through force of gravitas.

      (Why the justices should care about public opinion in these matters is a separate issue, but it does seem to come into play at times, especially in 8th Amendment cases where certain justices like to listen to the wind to sense how the thoughts of the people are trending on, say, the death penalty.)

      (2) I am reassured by the knowledge that amicus briefs*, at the SCOTUS level, are rarely determinative. In fact, the only instance where I can remember an amicus brief making a big splash was the instance of the Generals and Admirals’ Brief in the affirmative action cases ten years ago.

      * Not counting an amicus brief by the Solicitor General and DOJ in a case where the US is not a party. Those are different.

  3. Buzzfeed has a list of the 82 Republicans who have signed on the amicus brief.

    Four current officeholders are on the list: Richard Hanna, a U.S. Congressman representing Utica and a part of the Finger Lakes region of New York; Ileana Ros-Lehtinen, a U.S. Congresswoman representing parts of the Miami area; Dan Zwonitzer, a member of the Wyoming state legislature’s lower house; and John Reagan, a member of the upper house of the New Hampshire state legislature. I offer my thanks, support, and congratulations to these politicians, and my regrets that their public stance in support of equal rights for all Americans may be commended as a showing of political bravery on their part as they all may farily be inferred to have invited challenges during their primaries based on this act alone.

    Of the literally thousands of Republicans currently holding elected or high-level appointed political office in the Federal and state governments, so far only four have managed to find the courage to get on the right side of history. Four is better than zero, of course. But this is not a showing of which Republicans ought to be proud.

    • So that’s what, four primary losses? 🙂

      I kid. The one from New Hampshire’s probably allright.

      • Zwonitzer is from the Cheyenne area (University of Wyoming). He’s won at least a couple of primaries — comfortably, I believe — since he started speaking out publicly in favor of gay and lesbian rights.

  4. While I don’t think it’s right for the court to sniff public opinion in deciding constitutionality, but I think it understandable in light of the ongoing debate about Row V. Wade. I’d guess there are many other such decisions that led the way on civil liberties but provoked social upheaval; you would be better able to list them then I am at the moment. (Another storm moving in, the brain’s beginning to scrabmle.) What’s right and what’s socially acceptable sometimes take time to align; and I am guessing that this might have grown to matter more to the Honorable Justices.

  5. This is what I found interesting:

    “…signed on to an amicus brief advocating the finding of a Constitutional right for same-sex couples to marry.”

    Constitutional rights are not “found” or “created”. They fundamentally exist. (I realize that judges in the past have done this but it doesn’t make it correct.) If they are not enumerated in our current constitution, there is a method to add them.

    • Given the wording of the ninth and tenth amendments and the general nature of the fourteenth (among others, I suppose), I can easily see how a matter could be laid before the court and how they could then “find” a Constitutional right to “X”.

  6. I’ll offer what I think is a partial defense of this kind of judging, noting that others have done something similar. My take is a little different, though, in that I think our Constitution is written (and read, at least for most of our history) in a way that requires justices to pay attention to public opinion, at least on some issues.

    As Morat mentioned, the 8th Amendment is a pretty good example in cases like these, because “cruel and unusual” is a concept that doesn’t make sense unless you’re willing to infuse it with someone’s opinion of what “cruel and unusual” means. The justices, to my mind, have done the best possible thing by kind of looking around and figuring out what the average American thinks fits that description, and then ruling that way. You get cranks who whine about “the living Constitution” or whatever, but there’s no other way to read it that makes any sense. You can try to play originalist games with it, but divining the one true meaning of a vague phrase voted on by thousands of people over 200 years ago strikes me as little better than reading tea leaves or bones.

    Other concepts are closer calls, of course, which is why it’s so nice to talk about the 8th. But the “equal protection of the laws” bit in the 14th is equally kind of hard to figure. And of course it leads to all these different levels of scrutiny that courts use because how else do you figure out when you’re denying someone equal protection and when you’re just enforcing a neutral law that happens to affect one group more than another? It’s a legitimately hard question and just spouting off about how “right are not found” is a charlatan’s way of refusing to answer hard questions simply because they’re hard.

    Anyway, to the extent that briefs like this, written by smart people who have changed their minds, help contradict the notion that anti-SSM laws are facially neutral, I don’t see a serious problem with justices being influenced by them. Of course I’d prefer if justices just got the right answer “on the merits”, but in some cases (although I don’t think this is one of them), “the merits” do kind of shift over time with public opinion.

    • In his compilation and analysis of his Supreme Court reporting, Jeffrey Toobin offers praise for Sandra Day O’Connor, the only Justice since Earl Warren who held elected office for any substantial amount of time in her career. Toobin suggests that while not all of her decisions were strictly principled from a legal perspective, O’Connor was able to use a politician’s understanding of the public zeitgeist to guide her efforts to draw lines in difficult cases in places where the body politic could at least tolerate as the kind of compromises that a legislature might come up with, if only politicians could deal with difficult issues in a reasonable sort of way. That concept seems to be at least harmonious with what you’re getting at here.

      The objection is that this is kritarchy by way of anticipation of democracy, rather than democracy itself. A judge should decide on what the law is, rather than what she thinks the electorate might do.

      I’m not particularly enamored of democracy as being clad in any particular claim to superiority as compared other kinds of government other than “more legitimate than any other reasonably available alternative,” so the criticism of the Court being a council of mandarins is a little less cutting for me than the makers of that criticism intend it to be. (Certainly from a perspective of optimizing the efficacy of policies, any form of government that is not a burtlikkocracy will inevitably produce sub-optimal policies in abundance.)

      And I’m probably guilty in my criticism of the OP of deliberately ignoring that the amicus brief’s significance not as a legal act, but rather as a political one.

      • Certainly from a perspective of optimizing the efficacy of policies, any form of government that is not a burtlikkocracy will inevitably produce sub-optimal policies in abundance

        Not a Muralicracy. A Muralicracy would be pure awesome in awesome sauce shot into awesome space.

          • Don’t you know? behind the VoI, people willchoose a back-up principle which kicks in and says that if someone as awesome as myself or more awesome* ask for it they should be made God-King of the world. The fact that I am currently not in power is just a travesty of justice!!!

            *Not sure if that is logically possible

      • Sure, I think there are legitimate criticisms of this kind of judging, especially when practiced the way some judges have done it. But there are also places where the Constitution is just written unclearly. Our bottomless fetishization of it can sometimes obscure that it’s actually not the best legal document because it relies heavily on terms of art (although I would argue, and I think a fair share of legal scholars would as well, that it *intentionally* uses terms of art so that future generations can reinterpret it usefully instead of being bound by maxims that make no fishing sense). I don’t consider same-sex marriage to be an issue on which it’s unclear whether to swing the “equal protection of the laws” hammer, but the majority of the legal profession since the late 1860s presumably does. And, in their partial defense, since it doesn’t say “equal protection of the laws FOR GAYS WHO WANT TO MARRY EACH OTHER”, they are required to interpret. Using public opinion to help interpret what “equal protection” means in a current context doesn’t strike me as obviously unacceptable.

      • I simply can’t imagine being a judge for more than, say, five years and still thinking there is such a thing as “what the law is” if you’re operating at the Constitutional level and trying to be at all honest with yourself.

        • …In all cases, that is. In some cases it will be clear, or clear enough to act as if it’s clear. Or still thinking that your jobs is only to determine what the law is and then to apply it objectively. How do you deal with stare decisis, for one thing?

        • Thus Oliver Wendell Holmes Jr.’s* famous comment about the law not actually being a brooding omnipresence in the sky.

          If the law is not static and obscured but rather somehow dynamic, then the job of a judge is not to “discover” it or “interpret” it, but rather to participate in its ongoing modification through the experiential function of applying it to particular cases. I remain convinced that for all of his other intellectual and moral failings (he was a man of his times, not a man ahead of them) Justice Holmes was on to something there.

          * For Jaybird: ptui!

          • Not dynamic, just flat-out indeterminate at all times, from the moment any law is enacted. Which, yeah, makes likely to be dynamic in application (though that’s why they do the stare decisis thing – to keep the dynamism under control and the system reasonably predictable. Not that I’m telling you something you don’t know.)

    • As Morat mentioned, the 8th Amendment is a pretty good example in cases like these, because “cruel and unusual” is a concept that doesn’t make sense unless you’re willing to infuse it with someone’s opinion of what “cruel and unusual” means. The justices, to my mind, have done the best possible thing by kind of looking around and figuring out what the average American thinks fits that description, and then ruling that way.

      (Did Morat say that?) A basic problem here is that the Supreme Court has no particular expertise or institutional machinery to determine what “the average American thinks” about a topic like the treatment of prisoners. They’re not the Census Bureau, and they’re not social scientists. Congress and the state legislatures at least have the feedback of elections every two years.

      Also, in the particular case of the 8th Amendment’s cruel-and-unusual clause, this type of jurisprudence operates as a one-way ratchet. Back in the 1980s, the Supreme Court noticed that a large number of state legislatures had eliminated the death penalty as a punishment for rape; so then the Court declared that the death penalty as a punishment for rape was cruel and unusual. (This was a case striking down Georgia’s law at the time.) Now, with that decision in place, there is no way for any state to trend in the other direction; any state legislature that enacted a death-penalty-as-punishment-for-rape statute* would have that statute shot down by the courts.

      The objection is that this is kritarchy by way of anticipation of democracy, rather than democracy itself.

      +1. For your consideration: groups that want to effect a constitutional change now look to the courts, rather than to the Constitution’s amendment process. So, unlike the Progressives of the early 20th century, who fought for and won amendemnts to directly elect senators, extend the franchise to women (yay!), and ban alcohol (boo!), modern progressives divert their energy into court challenges.

      * There are policy reasons why such a statute may be a bad idea (like affecting the malefactor’s incentives of whether to kill a victim), but I’m talking here just about the Constitutional and judicial aspect of such a law, i.e., whether a particular constitutional interpretative and constructive scheme will allow a legislature to enact such a law.

        • Well, as I hinted above somewhere, I think the vague-ish formulations used in the Constitution are there intentionally. Interpretation is expected. Originalists just plain misunderstand the point of the document.

          • I tried to find it and couldn’t, but I’ll just say that I saw a pretty persuasive article from the Federalist Society or Cato or someplace saying that “cruel and unusual punishments” is actually something of a a term-of-art coming from common law in England where it just means that judges can’t freelance sentences, but have to draw them from written laws themselves or I guess a conventional slate of measures in the absence of specific punishments laid out in law. So basically they say the term itself is not as vague as it sounds if you look at its origins.

            But I still side with you on the general point, because there certainly are a lot of other vague terms other than that, or if they’re all terms of art, did they really expect them all to be identified and scrupulously followed? It seems unlikely that that’s the origin of all the vague language in the Constitution in any case and even if it is, I can’t imagine they thought these terms would be given different meanings as interpretation proceeded.

      • Morat suggested it as an example. Whether he endorsed its use in that fashion remains an open question. I apologize if my writing was unclear on that point.

        The problem with the “legislatures can do this better” argument is that it ignores the existence of the Constitution in the first place. It’s the Court’s job to interpret “cruel and unusual” because the Constitution explicitly bans those kinds of punishment. Whether Congress has a better ability to conduct the kind of fact-finding necessary to determine what everyday Americans think is orthogonal to the Court’s responsibility to apply the laws we have in some way. (They could, of course, put the responsibility on Congress explicitly and just ignore the 8th, but that has its own problems.)

        As for the one-way ratchet, didn’t we already have a moratorium on the death penalty for constitutional reasons that was lifted? Seems like the ratchet effect isn’t absolute, at any rate. And I don’t see any clear contradiction between the 8th Amendment’s text and the banning of rape as a capital crime. I suppose you might want to preserve wiggle room in some cases, but does anyone seriously believe that date rape (disclaimer: date rape is not a laughing matter, it’s a serious crime both morally and legally and should be treated as such) should lead to the electric chair?

        • IIRC, the “moratorium” that went into effect in 1972 was a period of time for the state legislatures to redesign the procedures for enacting the death penalty. The majority of the justices explicitly said that they were not abolishing the death penalty; they were simply giving the states a chance to do a rewrite. Most of them did so, within the next four years, and then the Court resumed allowing executions.

          There may be no “clear contradiction” between the 8th Amendment’s text and a ban on rape as a capital crime, but I also do not see anything in the text that would make such a ban required.

          It is likely that we disagree about how much “wiggle room” the states deserve. The same Justice O’Connor who, in Burt’s phrase, used “a politician’s understanding of the public zeitgeist to guide her efforts” was also a proponent of the states as “laboratories of democracy,” allowing individual states to pursue different solutions to problems and compare results.

          • Well, the text is the point. What is “cruel and unusual punishment”? It certainly seems to me that giving a drunk frat boy lethal injection for the (VERY REAL AND STILL SERIOUS) crime of date rape would be a pretty major infraction given a sensible understanding of what is cruel or unusual.

            Again, the Court is required to say what “cruel and unusual” means. I don’t know how you’d do it if not by using public opinion or something similar to it.

          • the Court is required to say what “cruel and unusual” means

            Agreed. They have that responsibility and are not permitted to abdicate it. I believe that they should use the tools that they are equipped to use (textual analysis and a knowledge of the common law tradition as it may shed light on original meaning), and defer (more) to Congress and state legislatures when it comes to public opinion.

            In 2006, Congress amended the Uniform Code of Military Justice to make child rape a capital offense in the armed forces. SCOTUS effectively invalidated that law in 2008 when they struck down Louisiana’s similar law in Kennedy v. Louisiana. My main points are (1) that maybe Congress and the Louisiana State Legislature have a better sense of public opinion than the Supreme Court justices, and (2) we should not interpret the text in a way that unduly restricts the power of legislatures to experiment or to stray from the pack.

        • Actually I didn’t. 🙂 Pub Editor did.

          I think it’s quite a good point though. My interaction here has been mostly snark about how quickly minds change when you’re no longer dependent on votes.

  7. Eh, you’ll be okay.

    The Romans didn’t really start to get into real trouble until they started making Emperors also the head of their Orthodox Christian church….THEN the fecal matter really hit the fan. Roman consular politics was vicious, personal and often venal, but it didn’t collapse their polity! (Now, reading Cicero you get the sense the man wasn’t particularly moral, and that he’d probably give lawyers the world over a bad name…)

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