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.