Rational Basis

Unsurprisingly, the district court judge found no rational basis behind denying gay marriages state sanction.

Douthat, acknowledges the weakness of the general conservative apologia in attempting his own, which, when stripped of pretension, amounts to little.

Von Hayek would suggest an indirect defense. He taught it was wholly rational to respect our cultural inheritance -- which he viewed as the product of a complicated evolutionary process -- as such. In his frame, to argue that a, for example, commonly-held traditional moral view is without rational basis, one has to assert deep understanding of the complicated interconnections binding us together as a society, and therefore the consequences that flow from upholding or rejecting that view. No person can rationally make that assertion.

That said, Judge Walker was not simply disregarding tradition. After all, our founding fathers envisioned a politics in which reason displaced passion.

Alito and Empathy

Alito made waves in his Ricci opinion with an overt critique of empathetic judging:

“sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law... what, until today’s decision, has been denied them.

The core of opinion itself however, is a much more subtle, and damning critique of the President's nominee, in line with my prior analysis.

As discussed in that post, the President's view is:

I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives.

Alito's opinion exemplifies this sort of understanding. While it doesn't lack for cogent legal analysis, its heart is dedicated to plainly describing how the legal theory in question -- what Roberts more artfully elsewhere labeled "a sordid business" -- affects the daily realities of ordinary people's lives. However justified, the sort of race-conscious judging Obama and Sotomayor favor, gives life, or at least terra-firma, to characters such as this Reverend Kimber, and the ugly and corrupt role they play in our political (and economic) lives.

Given that the President is no fan of Alito or his manner of judging, one is led to suspect that the President's judicial philosophy is less about a general framework for making wise judgements and more about reliably supporting a particular political agenda.

Ginsberg's Dissent

A few observations regarding the dissent in Ricci.

Ginsberg argues that while the petitioners "attract" "sympathy", "they had no vested right to promotion." It takes a particularly empty flavor of sympathy to miss that what was at stake here was more than simply a "right to promotion". This is, whatever else, a case of breached trust. Their employer, the city government, initially, established a process by which promotions would be allocated. They sacrificed to succeed within that process only to have the rug pulled out from underneath. On a very broad -- and admittedly non-legalistic -- level, we have a right to trust, if not our employer, then our Government.

On a more legalistic level: In 1964, Congress passed the Civil Rights Act, Title VII of which prohibits intentional discrimination in employment ("disparate treatment"). In 1971, the Supreme Court discovered an additional prohibition basically against policies which cannot be justified by business necessity that, in-practice, produce discriminatary outcomes ("disparate impact"). Tangentially, its worth noting the bright line between this sort of actual "legislating from the bench" that was then popular, and the sort nowadays attributed to conservative justices. In 1991, Congress blessed this discovery by enacting a Civil Rights act explicitly codifying disparate impact.

Conservatives on the court, perhaps with this history in mind, see a tension between the two prohibitions. To them, the former, generally speaking, mandates race-neutral decision making where as the latter, in practice, can encourage race-conscious decision making.

The liberal dissenters argue that this law -- as laws in general -- should be interpreted as a cohesive whole. Understood as such, the manifest intent is to remedy historical discrimination. One should not, in keeping this spirit of the law, actively acting to remedy historical discrimination, be overly taxed with concern for reverse discrimination.

In other words, to the Court, disparate treatment should be evaluated in a race-neutral manner. A city surely cannot throw out tests for promoting too many blacks, ergo it can't throw out test for promoting too many whites. To the dissenters, "context matters" (which is to say "race matters"), and there is expanded wiggle room for reverse-discrimination if it is in the service of remedying historical discrimination.

The above said, the dissenters appear to go on to apparently agree with the rest of the Court that not only outright, but even de-facto, quotas are a no-no. The dissent appears to agree with the Court that the test results could not have lawfully been discarded entirely on the basis of disparate impact, that some legitimate basis for questioning the exam itself is required. In the end, they merely quibble with the Court's "Strong Basis in Evidence" standard as unnecessarily high.

The alternative standard they propose is, to my mind, low to the point of meaningless. In reality, if it governed, no exam producing statistical disparity would likely be protected.

What is most interesting to me in this is the contrast with the district court decision approved by Sotomayor. The dissent, in theory, prohibited de-facto quotas even if, in practice, it would support their establishment. The district court, as summarized in the dissent, and by implication the likely future Justice, were not troubled at all by de-facto quotas.

Too Cute By Half

An op-ed piece in the times makes a variant on the cutesy argument that conservatives are the real empathetic judicial activists.

The author makes a few arguments, none particularly cogent. A sample:

...when it comes to the race cases before the Supreme Court, too many conservatives abandon both originalism and judicial restraint.

The Voting Rights Act decision was a case in point. Eight justices avoided weighing in on the constitutionality of the law... But Justice Clarence Thomas went further, declaring the provision unconstitutional. Congress, he argued, was justified in the 1960s in responding to the denial of the voting rights guaranteed by the 15th Amendment, but things have changed and the provision is no longer needed... is that really for him to say? Congress is the proper body to make that judgment. none of the justices... discussed any historical evidence about what the ratifiers of the 15th Amendment intended. It is hard to believe that, back in 1870, they wished to empower courts to determine which voting rights laws were necessary. The occasion for the amendment was, after all, the end of a civil war brought about in significant part by judicial overreaching in the Dred Scott case.

The actual facts are these: Under the constitution, State governments have fundamental rights protected from intrusion by the Federal government. A majority of justices likely believe, for good "originalist" reasons, that section 5 of the VRA would have been an unconstitutional intrusion of the Federal Government in state affairs prior to the adoption of the 15th Amendment. The plain text of the 15th Amendment gives Congress the power to protect voting rights, but not to otherwise arbitrarily intrude into sensitive areas of state and local policymaking. Historically, the Supreme Court, not Congress, has the responsibility of Judicial Review, which, in this case, involves determining whether this legislation is a constitutional protection of voting rights or an unconstitutional intrusion on State autonomy. The suggestion that somehow because of Dred Scott the 15th Amendment is governed by an original intent to assign Judicial Review to Congress is, to my mind, rather fanciful.

In stretching to make a less tenable point, the Author actually missed a more accurate, if limited, one. The politics of this case are such that a court finding Section 5 of the VRA unconstitutional would be almost as political valuable for Democrats as Roe v Wade has been for Republicans. It is easy to believe that the Conservative Justices in the majority, had the politics in mind, as they, best I can tell, found a creative way to gut the law -- by discovering an expanded “bailout” provision -- without, technically, overturning it.

In the end, however, there is all the difference in the world between Justices, perhaps like Roberts, who may, on occasion, creatively, or expansively, interpret in an effort to avoid making political waves, and those who do so -- as conservatives fear (perhaps unjustly) of Sotomayor -- without similar concern.