Sunday, March 16, 2008 - Posts
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Jack noted Jeffrey Rosen's NYT Magazine article, "Supreme Court, Inc." Reading it this evening, I noticed a rather curious line:
Ever since the Reagan administration, there had been a divide on the right wing of the court between pragmatic free-market conservatives, who tended to favor business interests, and ideological states-rights conservatives.
This strikes me as a pretty good example of what goes wrong when Rosen tries to force-fit his ideologues-pragmatists view of conservative jurisprudence where it really doesn't work.
Here, he arbitrarily labels "free-market conservatives" as the "pragmatists" while "states-rights conservatives" are the "ideologues." He offers no justification for those labels, and, indeed, you could just as easily reverse the labels: After all, Justice Holmes famously criticized free-market ideologues on the early-20th-century court, and Justice Brandeis' description of the role of states as our Republic's "laborator[ies]" was, of course, a pragmatic one.
Ironically, Rosen's own error on this point likely is rooted in ... his ideology. So devoted to his view of Scalia and Thomas, he allowed this sort of error to creep into his analysis.
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I'm currently a professor at Yale Law School, where I have taught since 1997, but will be moving to NYU School of Law next year. I'm new to blogging as well but couldn't pass up the chance to be in the mix with so many people I admire. My fields are constitutional law, anti-discrimination law, and law and literature. My first book was on the relationship between assimilation and discrimination, and I'm now at work on a book on law and Shakespeare.
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By way of brief introduction: I am a professor of law, teaching constitutional law at Indiana University-Bloomington School of Law, so will be writing from the Heartland, as they say. I am a New Yorker by birth, but now have a Hoosier husband and two Hoosier sons (who, like Deborah Pearlstein, are Colts fans, but inherited from my family a deep love of the Yankees). I have happily called Bloomington my home for almost 10 years now, and for the previous 10 lived and worked in D.C. (also happily). Currently of note here in Indiana: People are quite excited that their votes in the Democratic presidential primary likely will matter for the first time in memory.
I am new to blogging but grateful to Dahlia Lithwick and Emily Bazelon for prior opportunities to publish for Slate, here and here. Many thanks to Dahlia, Emily, and Phil Carter for the invitation to be part of this project. Anyone who may have interest in my more academic work can check out some articles posted here. Of most current relevance is Faithfully Executing the Laws, a piece from a 2007 UCLA symposium that examines the failure of President Bush and his lawyers to live up to this constitutional command, particularly regarding the use of torture and other extreme interrogation practices.
My scholarship and interests reflect my two principal areas of legal experience before teaching. Most recently, during the Clinton administration, I advised the president and the executive branch on legal matters for five years, including as the acting assistant attorney general heading the Office of Legal Counsel. For the six years before that (1987-1993), I worked to safeguard reproductive rights at a time when they seemed gravely in danger (as they do again today) as legal director of NARAL Pro-Choice America and at the ACLU.
I serve on the board of directors of a wonderfully vital organization, the American Constitution Society for Law and Policy, which seeks to promote progressive legal values through a network of more than a hundred law school chapters and lawyer chapters around the country. ACS sponsors a terrific annual convention, this year June 12 to 14 in Washington, D.C.
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