Horse-Trading Constitutional Rights

Dahlia Lithwick managed to overcome her Canadian roots, graduate Stanford Law and become a respected writer about the Supreme Court and American law at Slate and other, more credible, media outlets.  So what was she thinking when she blew her cred in this opening paragraph?

The Supreme Court of the John Roberts era gets one thing very right: It’s one of the most free-speech-protective courts in modern history. There is no purveyor of semi-pornographic crush videos, no maker of rape-aspiring violent video games, no homophobic funeral protester, no anti-abortion clinic counselor, and no filthy-rich campaign contribution–seeker whose rights and privileges will not be treated by the court with the utmost reverence and solicitude.

Some very harsh descriptions of the cases, the sort designed to inflame the ignorant who think nothing of the underlying doctrine and instead focus only on the hatred of the content, from someone who passive-aggressively agrees with the rulings.

This is important and vital, and one doesn’t want to slag the court for the boundless attention and care it lavishes upon the most obnoxious speakers in America. After all, the First Amendment is kind of the constitutional gateway drug, the portal to the rest of the Bill of Rights. And without securing meaningful protection for the rights to speak, assemble, worship, and publish, so many of our other rights might be illusory. Great. Stipulated.

The importance of the First Amendment isn’t because it’s a “constitutional gateway drug,” a bizarre and foolish characterization befitting a thread of its own on a sub-reddit dedicated to readers in tin-foil hats.  But one must presume Lithwick knows this, or she should demand her money back from Stanford.

Rather, what’s got her all twisted is that the Roberts Court hasn’t been as protective of other concerns, concerns more dear to Lithwick’s heart, as it has of the First Amendment.

That makes it extra weird whenever the assorted (lets call them largely “conservative”) justices of the Roberts court, and judges on lower courts across the land, turn their attention to the protection of other rights—equally crucial but perhaps less sexy—like, say, the right to vote or to obtain an abortion. That’s when the nameless, faceless rights seekers all blur into oblivion, a great unwashed mass of undifferentiated shadow people. And that it when some judges find it all too simple to bat these rights away with a stroke of the pen.

In the past few weeks, it’s been astonishing to contrast the regard afforded to individual speech rights with the cavalier dismissal of other, equally precious hallmarks of democracy.

Lithwick raises two issues in particular, voter ID laws and Texas’ abortion clinic restrictions, that chafe her sensibilities.  As it happens, though it’s not particularly important, I agree with her on both counts.  The fatal flaw is the use of balancing, how “important” a right is to some versus how the purported need to prevent some claimed harm to society.  This is where law secretly devolves into a pissing contest over whether chocolate ice cream is more delicious than vanilla. Either could be the right answer, but it’s left to the taste of the decision-maker. Except, law isn’t about the judge’s favorite flavor. Except, it secretly is.

It’s utterly baffling, this new math. Math that holds that seven incidents of vote fraud should push hundreds and thousands of voters off the rolls. Or that hundreds of thousands of women can be denied access to safe abortion clinics, supposedly to prevent vanishingly small rates of complications. I don’t know how we have arrived at the point where members of the judicial branch—the branch trusted to vindicate the rights of the poorest and most powerless—don’t even see the poor and powerless, much less count them as fully realized humans.

As strong as this emotional tug may be on those who, like me, favor one side of the argument, this is not the right argument.  Lithwick does what the judges do, seeking to substitute her feelings for their feelings.  This shouldn’t be about anybody’s feelings.  Not the judges. Not Lithwick’s. Certainly not mine.  This should be about a doctrine that can promote the good, eliminate the bad to the extent possible, and uphold the constitutional values at stake, like voting and (controversy aside) the right to an abortion.

But why must Lithwick use the Roberts Court’s adherence to First Amendment Doctrine as a trade-off for the rights that aren’t being shown the degree of respect she believes them due?  First, it’s a mixing of apples and Fords point, which serves only to confuse non-lawyers who struggle with an understanding of why all sacred cows aren’t equal. But more importantly, constitutional rights aren’t a zero-sum game.

The Supreme Court didn’t use up all its constitutional juice on the First Amendment, leaving it empty when it came to voter ID laws and abortion clinics.  It’s not a trade-off. It’s the old Doritos commercial, munch crunch all you like, we’ll make more.

Or is the problem that Lithwick doesn’t care for the First Amendment outcomes, not because of any dispute with doctrine but because she doesn’t care for “purveyors of semi-pornographic crush videos, makers of rape-aspiring violent video games, homophobic funeral protesters, anti-abortion clinic counselors, and filthy-rich campaign contribution–seekers”?  Hell, nobody ever likes the parties in test cases, which is what makes them test cases.  Would you invite Gideon, Miranda or Escobedo to dinner?  Yet, where would we be without them?

That Dahlia Lithwick is pissed at how the Supreme Court has tipped the scales when it comes to the huge number of people disenfranchised and deprived of access to an abortion clinic is a perfectly fair position to write about.  But to do so by arguing that an entirely unrelated constitutional right, afforded to all but upheld specifically for people and groups she finds distasteful, is tainted and unworthy is no way to make her point.

Writing snarkily, “Great. Stipulated,” doesn’t cut it. This attack on free speech to play its juxtaposition with rights she holds more dear is not merely a logical fallacy, but the very game she accuses the Roberts Court of playing.  We uphold the Constitution or we don’t. We do not uphold only those rights we find most appealing because we prefer vanilla to chocolate.

And we most assuredly don’t horse-trade our favored issues against those rights that inure to the benefit of people we don’t like. That’s not how the Constitution works, and it’s not how credible commentators make their point.


52 thoughts on “Horse-Trading Constitutional Rights

  1. william doriss

    My mother used to say, “If wishes were horses, we all would ride.” Horse-trading Constitutional rights is weird. Either we got em or we don’t. Often, it seems like we don’t have em, or they’re restricted in some by by officials who and agencies which think they know what’s good for us. Hope this was somewhat relevant?
    My fingers like to tap-dance in the morning. No name-calling today, no we won’t succumb to the temptation.

  2. Richard G. Kopf


    This is one of the best pieces you have written since I have been following your blog. The writing is of the highest caliber, and you make a supremely important point powerfully.

    As I have said before, you would make a great federal trial judge. Above all else, you are intellectually honest.

    All the best.


  3. Pingback: The evisceration of Dahlia Lithwick « Hercules and the umpire.

  4. Peter Attwood

    Well, to me it looks like everyone has gotten just a little too pissy here to think straight. Litwick’s piece doesn’t state or even imply that emphasis on one constitutional right necessarily means horse-trading away others. That whole exposition is, plainly, just malarkey. The point she makes, as you have set it forth here, is that the Roberts Court’s delicacy about the 1st Amendment ought to in fact characterize its concern with others, such as the right to vote.

    And in fact, it’s perfectly reasonable to characterize the 1st Amendment as the gateway drug into other constitutional rights, for the simple reason that if you can be punished for speech, association, petition, or other such advocacy, it won’t take you long to be done out of the others as the authorities may see fit.

    That’s a long way from an attack on free speech rights, because characterizing free speech rights as the gateway to all others isn’t denigrating free speech rights in any way, much less attacking them. Her point was analogous to that which the 9th Circuit made in 2009 in Barker v Riverside County Office of Education concerning what happens to the value of disability rights if you can be retaliated against for advocating for them. The 9th didn’t exactly attack disability rights in that decision!

    1. SHG Post author

      Obviously, I disagree, and quite strongly. Had this not been her purpose, there would be no reason whatsoever to juxtapose First Amendment rights with other issues. Inclusion of the usual caveats is a rhetorical trick to calm the shallow. Nothing more.

      1. Brenda Johnson

        I’m on Peter Attwood’s side. While I think Dahlia Lithwick could have done a better job of getting her point across if she’d dispensed with the inflammatory rhetoric and written a less emotionally-charged article, Peter’s done a better job of hearing her through. When it comes to First Amendment issues, the Roberts Court has done a very good job of subjecting laws that curtail the least sympathetic speech imaginable to rigorous, and objective, scrutiny. When it comes to other civil rights, though, it’s hard to say the same thing, and that’s Dahlia Lithwick’s point. She’s saying that compared to the scrutiny that the Roberts Court has given justifications for laws that curtail free speech rights, the Roberts Court’s been practically credulous when it comes to the justifications that have been given for laws that restrict abortion access and the ability to cast a vote. You may disagree with her on that, but it seems you’re missing the point if your take-away is that Dahlia Lithwick thinks this is a zero-sum game, or that she is arguing simply on the basis of her feelings about the persons or issues affected by the Court’s rulings. That being said, I think her article is far from a model of persuasive writing, and that it practically begs to be misconstrued by persons who do not care to share her viewpoint.

        1. SHG Post author

          Seems as if you’re on every side. In your effort to defend, you do as Lithwick does, and as I disagree with her for doing. By comparing and contrasting, she made the choice to disparage one as opposed to the other. That’s just how logic works, whether you like the outcome or not.

          1. Brenda Johnson

            There is nothing illogical about making comparisons and pointing out contrasts. Jurists and logicians do it all the time.* I’m also neither defending nor attacking her position– I’m simply reading her article in order to determine what her argument is in the first place, and you have misstated it. But that’s ok, your blog, you get to say whatever you want.

            *Not that it means anything one way or the other, but I used to teach truth-functional and syllogistic logic back in my grad school days, before I got the bug to go to law school. Analogical arguments are a powerful tool, both in advocacy and critical thinking. But don’t take my word for it!! I would never argue from authority, because that’s illogical.

            1. SHG Post author

              …and you have misstated it. But that’s ok, your blog, you get to say whatever you want.

              If you say so. Some, like you, think I’ve misstated her position. Others disagree. But then, you’ve decided I misstated it, and that’s ok, as it’s your opinion, and you get to say whatever you want. And I still disagree.

            2. Anon Prawf

              There is nothing illogical about making comparisons and pointing out contrasts. Jurists and logicians do it all the time.

              Brenda, I think you realize the fallacy of this statement. No one suggests that comparisons are, per se, illogical. It was the comparison Lithwick chose that gives rise to the problem, the evil First Amendment decisions — vilified in her characterization – rather than a neutral comparison of Supreme Court interest or, better still if your interpretation were a possibility, no negative tone and characterization at all.

              Perhaps Dahlia Lithwick doesn’t disdain the First Amendment, but one certainly wouldn’t know it from what she wrote. Nor can it be claimed, as those who support her try to do here, that it was just poor or rushed writing. She chose her words, and she now must live with them.

              You may be happy pretending they dont say what they say, or mean what they mean, but as SHG suggests, that’s just your political blindness or spin. To the rest of us, it’s meaning is similarly plain.

    2. Andrew

      Had Lithwick not characterized the 1st A cases in a way designed to ridicule them, your point might have some merit. But she went out of her way to make them appear as horrible as possible, reflecting her disdain of the 1st A. That’s an attack on free speech.

      The argument that it was just poorly written misses the point. It’s written as it was written. Nobody put a gun to her head and said, “write poorly.” And so, she gets the criticism her writing deserves.

  5. John Barleycorn

    Going jester ad hominem on
    Ottawa while folding
    Dahlia’s tu quoque paper airplanes will not be good for you if you ever happen to find yourself inebriated while hitchhiking on the trans-Canada highway system in February.

    P.S. Dahlia’s bloom, Delilah’s shave heads, and gelding Alpaca’s are trading at Santa Cruz de la Sierra for just under
    $600 Boliviano.

      1. william doriss

        Neither, but it is “genuine”. Ha. Welcome aboard! Not exactly the Hotel Caulifornia, but close.

  6. Troutwaxer

    “It’s not a trade-off. It’s the old Doritos commercial, munch all you like, we’ll make more.”

    Nice. Very nice. I don’t have Judge Koph’s intellectual juice, particularly where legal matters are concerned, but I’d say you got it exactly right!

    1. SHG Post author

      Just to correct my (ridiculously picky) error, I’m informed that my use of “munch” was incorrect, and it’s crunch. (Yes, that’s you I’m talking about, Hawkinson.)

  7. Jim Majkowski

    People like Dahlia sometimes forget (1) 1st Amendment cases don’t get to SCOTUS unless there’s a powerful sentiment to suppress the speech, and (2) that sentiment may be held by a great many people. And that’s why, as Brandeis put it, ” [r]ecognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.” Whitney v California, 274 US 357 (1927) (concurring opinion). Even “liberal” John Paul Stevens thought the U S Flag so important that protection of even one of its corporal manifestations trumped the First Amendment. But one might hope a Stanford Law grad whose job it is to report on SCOTUS might comprehend Brandeis’s unexcelled expression, “the remedy to be applied is more speech, not enforced silence.” Whitney, supra. (Yeah, I know, he voted to affirm the criminal syndicalism conviction, but the quality of his poetry is not the less for that.)

    BTW, I agree with hizzoner, provided moonlighting on the federal bench wouldn’t hurt your blawg’s quality.

      1. Troutwaxer

        It should noted that one of the weaknesses of the Federal Bench is the current preponderance of prosecutors. You should take Judge Koph’s recommendation and head to the Federal Judge Employment Office – I’m sure they’ll give you a job! 😉

            1. SHG Post author

              Prison stripes. That’s the only other way CDLs are allowed in a courtroom if they’re not at counsel table.

  8. The Absinthe-Minded Perfesser

    I think it was Justice Jackson who said he had three arguments: the one he intended to make to the Court, the one he actually made to the Court, and the one he really should have made to the Court. I have to cut Dahlia a little slack here, because she is writing to the deadline, and she is going to let out a few clinkers. He who is without sin, may cast the first stone. When I think of how many compelling points I’ve left in my head over far too many years, I shudder.

    Though it wasn’t her best work, she raises a valid point: While the Roberts Court has lavished its attention on picayune First Amendment questions (e.g., the length of a Muslim prisoner’s beard), it has consistently ‘punted’ on real issues involving the most essential rights of real people. [Ed. Note: Ridiculously long balance of comment deleted as off topic. If you want to read it anyway, it’s the same as posted at Judge Kopf’s blog.]

    1. SHG Post author

      Just say no to drugs. Did you see a line in Lithwick’s post that said she wanted to write something thoughtful but was on a deadline? So you just pulled that out of your ass. Or maybe it was space aliens? Yeah, that must be it, space aliens.

      As for the rest, this isn’t your soapbox. This isn’t about same-sex marriage cases or your world view on Supreme Court cert denials. Think you’ve got fascinating views? Start your own blog.

  9. AisA

    It’s funny how Lithwick’s “objectivity” returns to her when the rights that she’s talking about are ones that she doesn’t — for example, the right of private property owners to not have their homes taken in order to line the pockets of private developers and municipalities.

    She wrote a book review of “Little Pink House” for the New York Times back in 2009 (easily findable via Google) in which she had this to say about Suzette Kelo’s struggle to protect her home from eminent domain: “As a story about injustice, ‘Little Pink House’ is a success. Nobody can be immune to the plucky redhead, the zany deli owner or the terrified senior citizens, battling to live quietly in the homes they love. But to the extent that this is a story about the justice system, it’s built on preconceptions about the cold inhumanity of the law. With little regard for the possibility that judges might base decisions on cases and state statutes, Benedict implies it was judicial whim or ideology that knocked down Kelo’s community, and that by failing to vote for Kelo the justice system betrayed her. Pitting an all-too-human Susette Kelo against the heartless “five strangers in black robes” is a convenient frame for the narrative. It’s also a dangerous one . . . .”

    Funny how those sensibilities immediately disappear when the rights at issue are abortion or voter-related. I wonder why?

  10. Peter

    So, she compares the first amendment to a gateway drug, and you compare constitutional rights to snack food. Irony much? Her obvious point was that this court does a great job of protecting the rights of the powerful and a bad job of protecting the rights of the powerless. Her intro paragraph was a red herring, and bad writing. But she neither said nor implied anything about horsetrading or zero-sum games or any of the other purely rhetorical tropes you threw in to obscure her basic point and make her look bad. You’ve criticized someone else’s argument for failing to address the strongest arguments on the other side, by failing to address the strongest arguments on its side. Self-awareness fail, irony fail.

    1. SHG Post author

      Crush videos are the powerful? Westboro Baptist Church is the powerful? Or does your anger over Citizens United blind you? Whatever. Sadly, most people can’t see beyond their politics.

    2. Myles

      The comparison to a gateway drug wasn’t the problem. The denigration of the First Amendment rights by characterizing them as nasty and brutish is what is being ignored. I agree with Lithwick’s views on voter ID and abortion too, but not so much that I’m willingly blind to what she did here. And that’s what’s obvious.

    3. Sgt. Schultz

      So, she compares the first amendment to a gateway drug, and you compare constitutional rights to snack food. Irony much?

      You do realize this is just totally idiotic, right? Idiotic much? Anybody can play that game, fool.

  11. Fubar

    The Supreme Court didn’t use up all its constitutional juice on the First Amendment, leaving it empty when it came to voters ID laws and abortion clinics.

    From a secret memo on proper upselling protocol for tray line servers at the Supreme Court cafeteria:

    On your ham sandwich, we can deduce,
    You’ll enjoy constitutional juice.
    We can ladle it up
    By the spoon or the cup.
    You want red, white or blue? How ’bout puce?

  12. Art Hawley

    While it wasn’t an exemplar of clarity, she makes the same point Kozinski makes in his Silveira v. Lockyer dissent: When judges like a doctrine, they can find it in the white spaces between the text, and when they don’t, they can make entire Amendments disappear (Hans v. LA). The Justices love religious freedom and corporations, but voting rights? Not so much.

    1. SHG Post author

      The First Amendment is in the white spaces between the text? Sheesh. So you’re arguing that Lithwick hates the First but loves the ones that come from the Constitution’s shadows, and that’s good because Kozinski? And this somehow helps her case?

  13. Paul

    Am I the only one who think it’s highly comical and absurdly hypocritical that Dahlia now proclaims that the rights of McCutcheon are not great! Stipulated! Yet, six months ago, she wrote an article that belittled the Court’s decision? Now, as it may suit her ideological bend, the rights of McCutcheon are deserving of the utmost reverence because they are “important and vital” yet, if she were on the court, would rule against McCutcheon?

    Im not saying I agree with McCutcheon, the recent voting cases, etc. All I’m saying, is that the clear error in Dahlia’s article is that she is flatly lying to make a ridiculous analogy.

    1. SHG Post author

      I think you read too much into the standard caveat of “important and vital.” This isn’t something you say, but something you demonstrate by the substance of content. It’s similarly possible that one can find the First Amendment “important and vital” without loving every decision.

  14. Sgt. Schultz

    All these new names of commenters, all trying their damndest to spin. I love it when day trippers show up because you’ve skewered one of their sacred cows. Moooo. And the only irony I see here is that you don’t disagree with Lithwick’s issues, but with her disparagement of the court’s position on free speech (which, as so many of the day trippers say, is only for the benefit of corporate money and power!!!)

    There is nothing that makes one tend toward conservatism more than blind, knee-jerk liberals who love the rights they love and hate the rights they don’t. Can you imagine if Lithwick used the 2d Amendment instead of the first as her whipping boy? That would have been fun.

    1. SHG Post author

      Yup, all day trippers. This is why I keep things apolitical here. The ridiculousness of the political blindness gives me a headache.

    2. william doriss

      Let sleeping dogs lie, Sarg. You are trying to muddy the waters, Big Time.
      And I’m not talkin the Blues! (Muddy Waters, the band.)
      From the Eastern District, are ye?
      Not all of us have a “license to carry”. Ha. We are afraid we’d shoot one
      of our pet animals accidentally, not to mention the old lady or the bratty kids
      who just won’t frackin shale-oil-listen! We might even shoot ourselves “accidentally-on-
      purpose”. What a Life.

  15. Sarah F.

    At Volokh Conspiracy, Will Baude writes:

    [This makes me somewhat puzzled by this criticism by Scott Greenfield (endorsed by Judge Kopf) which reads Lithwick as trying to “horse-trade” or “attack” the free speech cases. I’m not sure that’s really a fair characterization of Lithwick’s piece, which advocates leveling up, not leveling down.]

    I would provide the link, but rules. Is the leveling up/down a fair distinction?

    1. SHG Post author

      His point about leveling (I get to break the rules) is a good one, but I think he is being unduly simplistic to say it’s up or down. She’s trying to elevate the voter ID and abortion rights while simultaneously disparaging the First Amendment rights. So ot seems to me that while it’s definitely leveling, it’s both up and down. Had she not found it necessary to diminish and disparage the First Amendment rights, I wouldn’t have taken issue with her post.

  16. ECF

    Nowhere does Dahlia Lithwick say she wants to horse-trade constitutional rights, so the thrust of your argument is based on lie.

    1. SHG Post author

      That’s true, she didn’t say that. That was my interpretation. There are two types of people, those who can extrapolate from incomplete data.

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