The evisceration of Dahlia Lithwick

Scott Greenfield

Scott Greenfield

If you want to read a great piece of critical legal writing, page through Scott Greenfield’s piece Horse-Trading Constitutional Rights. Scott incisively dissects a poorly reasoned article written by the very bright Dahlia Lithwick for Slate entitled The Courts’ Baffling New Math.

Dahlia Lithwick

Dahlia Lithwick

To be clear, I pimp Scott’s piece primarily because it is an example of excellent legal writing. Moreover, but less importantly, I agree with his point. Finally, Lithwick can be a tiresome scold. Taking her down several pegs is a good thing if you care about intellectual rigor and the national legal commentariat.


34 responses

  1. Judge:
    One should not be surprised that such reportage (if one could cal it that) from Ms Lithwick is so execrable. After all, this is the same woman who actually said, presumably in another Slate article that she wanted President Obama to nominate to the U.S. Supreme Court someone who was “a cross between Rachel Maddow and Emma Goldman.” It takes a very smart person to say something that stupid in public. Here’s to more bitch slaps.

  2. 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. Take the same-sex marriage cases: thanks to their refusal to take the Tenth Circuit case, fifty-three (or more) federal district courts had to hold fifty-three trials deciding the fate of each state’s ban and twelve federal courts of appeal will have to decide their appeals. It is a full-employment act for a federal judiciary that claims it has too much on its plate to even read supplicants’ legal briefs (I’m not naming names here 😉 ).

    In substance, Dahlia has it right: To the Republican-nominated Justices, voting rights aren’t really that important (we want to make it harder for the poor to vote, because they have a nasty habit of voting for the wrong people), and to the rich Catholic justices, it is no major imposition for a poor girl to have to travel from Brownsville to Houston and wait three days to get an abortion (as that shameless slut should have used the “aspirin between the knees” method), but to the religious zealots on the Court, the length of a few prisoners’ beards is a Really Big Deal. By what logic do hundreds of thousands of Americans simply stop counting? Answer: When they are The Wrong People. Why? Just because.

    I think Their Majesties should have to explain every denial of cert or failing that, should have to submit secret ballots when voting to hear a case, with the ones who voted having to explain to the public why the case should have been heard. Right now, the decision-making process is a black box and in fact, a lot of horse-trading of our constitutional rights is being done on Mount Olympus.

    The more interesting cases are the ones that don’t make the cut. In effect, the Justices play God, deciding whose rights are important enough to warrant their Eminences’ attention, and whose are not. It is beyond outrageous, and that is Dahlia’s (valid) point. One litigant directly challenged the practice of discretionary certiorari review, and the lower courts said they didn’t have jurisdiction to hear it. Stranger yet, the Justices actually proclaimed, en masse, that they could not even sit in judgment of an official capacity lawsuit, despite the fact that Scalia sat in the Cheney case, explaining in great detail why he had a solemn duty to sit in judgment of his good friend. Cheney v. United States District Court for the District of Columbia, 541 U.S. 913 (2004) (Scalia, J., memo). Even Scalia didn’t endeavor to explain the discrepancy. As the courts below concluded that they had no jurisdiction, Congress can now pass laws affecting your fundamental constitutional rights which literally cannot be challenged in any court in the land. If there is anything left to the Bill of Rights, I’m not quite sure what it is.

    Tom Clancy once quipped that the difference between fact and fiction is that fiction has to make sense. The Roberts Court’s decisions have become so erratic that it is hard to know what is or is not the law any more. As Scott Greenfield puts it, “We uphold the Constitution or we don’t.” The short answer is that the Roberts Court doesn’t. Their will is the law, and that “parchment barrier” might as well belong in the round file.

  3. I generally find Dahlia Lithwick’s columns to be well-written, fun to read, and insightful. (Whether I did or not, I would object to your using a sexist construct (“scold”) to criticize her.) Not so as to the column which is the subject of your post, but for an entirely different reason from Greenfield’s. (Seems to me that SHG misunderstands what she is trying to say in the first paragraph of her column, but that’s not what I want to comment on here.) The real problem with this particular Lithwick column, it seems to me is this: It is inherently misleading to discuss rulings on emergency stay applications as if they were rulings on the merits of those cases, and then compare those ruling to actual rulings on the merits (here litany of First Amendment decisions). It is also misleading to attribute a ruling on either a stay application or the merits of a particular case to the degree of sympathy a majority of Justices may feel toward the exercise of the underlying right that is implicated, without pointing to some evidence that the case was decided on such an intellectually dishonest basis. Some are, in my view, but most aren’t; a presumption that all Supreme Court cases are decided dishonestly panders to the worst assumptions of the uninformed general public. The Court’s recent stay rulings stopped the Wisconsin voter-ID law from going into effect, while allowing the Texas law to take effect, for example. Those two rulings can at best tell us something about enforcement of the stay standards, not about the Supreme Court’s views on voter ID. Of course, it is harder to write a punchy column on the standards for issuance of stays, and whether those standards are or are not being faithfully followed.

  4. Judge, Read recommended twaddle, analysis weak, scholarship nonexistent, notion that rights do not have a trade goods quality would end contracts, dislike of balancing garden variety freshman con l;aw paper. Amusing though to see Roberts and Scalia channeling Bill Douglas. Always suspect they used a Ouija board to decide cases. Nuns were right those things were dangerous. Mine has turned me into Canadian Robert, his leftish anti particle.
    More seriously I think Greenfield’s piece and your reactiion are reflections of much American legal thought about the Constitution and particularly the 1st Amen. as absolutes that trump other values. This lack of balance is not reflective of much of constitutional thought elsewhere and in part reflects the parochial character of our legal education and in part the American bar’s boosterism. Always dangerous to confuse a Law Day speech at the high school with jurisprudence. The case Lithwick makes for a more nuanced interpretation of our Bill of Rights, 14th Amen. requires more than noticing her Canadian origen, though an occasional reading of S.might enrich our discussion Ct. Can.

  5. The Voting Rights Act decision told me all I wanted to know about the Court’s hostility toward voting rights, and Scalia and Thomas bring up abortion almost as often as Randal Terry. Dahlia Lithwick can do the math from there, as can everyone else.

    I’ve come to the point where I do presume the worst, because my suspicions are so often confirmed, and if the Justices didn’t have a noxious track record, I would agree with you. The purpose of a stay is to preserve the status quo, which is generally a good idea. The clinics might be forced out of business if they had to wait for the Court to decide, which constitutes a significant harm. That a stay was not granted in that case speaks volumes and primarily, about the Catholic Justices’ penchant for imposing their provincial religious views on our Constitution.

  6. Oops! My mistake. SCOTUS did grant a stay, but the Fifth Circuit’s decision was indeed a head-scratcher. See what I mean?

  7. As long as I am being snarky, is that a word, I would note that Greenfield mocks Lithwick’s Stanford degree while he snorts the typical bar prep thought of most lower level law schools

  8. I agree with you about the Shelby County/VRA decision. But Lithwick doesn’t reference that decision in her current column. My point was about building a critical analysis focused on the merits from the rulings on stay applications. And I pointed out that not all of them point the same way.

  9. Perfesser I am not quit sure how Catholic figures in, Kennedy in Casey is hardly spouting Vatican line, Sottomayor has not pushed the line and Thomas came on the Court antiRoe and Episcopalian, and why not parochial views, more RC.

  10. Judge:

    Mr. Greenfield writes, “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.”

    Intellectual rigor aside, that’s not even a good sentence for a blog post, much less “excellent legal writing.”

  11. 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.

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  13. PaulieD, If you are the only one be not afraid, solipsism is the one thing all commentators on this blog have in common, even if that looks like a contradiction. My poor old memory no longer holds all Lithwick’s writings so two passages would help in deciding if she was lying and hypocritical or not. I know it may be unfair to make this demand of 416, perhaps a higher order PaulieD 125 could perform this task. That Lithwick becomes upset by the majority of the Robert’s Court and its tendency to protect the oppressed rich while putting power hungry women and racial minorities in their proper place is probably explained by her Canadian birth, the Canadians lack the cool logic and lack of emotion which are the standards of American legal thought.

  14. I don’t think either one of these two are good legal writers, although Lithwick can at least write. I’m very disappointed that you would tout Greenfield’s piece as an example of good legal writing when it’s hard to even tell what he’s saying, and what little is clear is either nonsense, hopelessly vacuous, or on its face a terrible misinterpretation of a much more lucid (if nothing else) piece of writing. Lithwick’s piece is a junk piece, but not for the reasons Greenfield (hamhandedly) gives.

    Lithwick, I think, complains that the Court selectively enforces constitutional rights – a fair point – and specifically complains about the Court’s stay decisions, more or less confusing them with merits decisions and calling the Court out for being wrong on the merits when it’s made no merits decision. Of course, the Court stayed Wisconsin’s ID law and didn’t stay Texas’s because of Purcell v. Gonzalez, under which courts aren’t supposed to alter election law shortly before an election. In both cases, the Court restored the status quo (the status quo in Wisconsin being a district court stay that the Seventh Circuit reversed shortly before the election). Lithwick, who probably knows this, disserves her readers by not mentioning the stay in Wisconsin and by making out the stays to be merits decisions. (Of course, as Ginsburg said in dissent, there are arguable grounds on which to distinguish the Texas case from Purcell, but that’s what Lithwick should be talking about, not an imaginary merits holding.)

    Now, Greenfield takes this piece, and rather than pick it apart along the lines above, focuses on the paragraph about selective enforcement of constitutional rights, accusing Lithwick of suggesting that the Court does or should “trade off” constitutional rights against each other. Well, that’s not what she said. What she said is that there’s an inconsistency and selectivity in the Court’s investment in certain rights and its relative disinterest in enforcing others – a fair, if at this point tired and obvious, observation about the Roberts Court. She never suggested that the Court should skimp on the First Amendment to protect abortion rights, or that the Court is somehow limited in how many rights it can protect at any time and is failing to protect certain rights because it’s spent its resources on others. To the contrary, she suggests a more even level of rights enforcement.

    Nevertheless, Greenfield rants and rambles about how Lithwick has made constitutional rights out to be a zero-sum game (nope), how she possibly doesn’t like the Roberts Court’s speech decisions when she never said any such thing, and how Lithwick is making up the law on the basis of her “feelings” because she opined that massive disenfranchisement can’t be justified on the basis of extremely rare incidents of voting fraud. (That’s a “feelings”-based argument?) Not only is all this a misreading of Lithwick’s piece, it’s not even a convincing misreading; that is, as I read his piece and his block quotes of Lithwick, I knew he misunderstood what she wrote before I even read her article.

    Then we get Greenfield’s “feelings”-free theory of the law. There’s a particularly dumb passage on this point where Greenfield explains that the law shouldn’t be about “anybody’s feelings . . . [but] about promot[ing] the good, eliminat[ing] the bad . . . and uphold[ing] the constitutional values at stake.” (This is good legal writing? Shouldn’t you be able to tell what good legal writing means?) Surely if we charge judges with promoting the good, eliminating the bad, and upholding the values at stake, their feelings will never enter into anything, since “the good,” “the bad,” and “the constitutional values at stake” are all uncontested concepts, the contents of which a judge can objectively ascertain.

    Finally, and remarkably, Greenfield says that he actually agrees with the substance of everything Lithwick says about the Court’s decisions on the abortion and Texas voter ID stays, even though what she says on these matters turns entirely on her (purposeful?) misunderstanding of these decisions as merits decisions. Worse yet, he says he agrees because the merits decisions he and Lithwick imagine the Court made rest on balancing tests, and balancing, he claims without explanation, can’t help but “devolve[] into a pissing contest over whether chocolate ice cream is more delicious than vanilla.” (This is good legal writing??) That is, Texas’s voter id law is per se unconstitutional because it disenfranchises people; Texas’s abortion law is per se unconstitutional because it makes it harder for some people to get an abortion. This is utter nonsense, and not even superficially persuasive nonsense. Left unexplained is how a court could ever determine whether a law violated, say, voting rights without relying on balancing – for just about any regulation of voting will have the effect of disenfranchising some voters or limiting some voters’ opportunity to vote, yet regulation of voting is not only inevitable but necessary. The law in this area cannot help but balance a regulation’s impingement on voting rights against the interests the regulation serves, the degree to which it serves those interests, and the extent to which less restrictive means could serve the same interests.

  15. pgda While Blackstone limits the public nuisance of common scold to women in America either sex could commit the offense and the scold’s bridle was probably not used in either Country, though it was used in Scots law. While it would be fun to subject the Judge’s remarks about scold, a tiresome woman, and evisceration to a McKinnon like analysis or do a little Freudian Marxist analysis that would be unfair.

  16. As a (retired) judge myself, I think you are being a little harsh on Ms. Lithwick, given that she is writing as an op-ed journalist, not as a legal analyst. Sure, she’s got the law degree and is usually insightful about the law, but here she’s taking the viewpoint of an observer with a legally progressive slant. As a legal conservative, if you disagree, fine, but Greenfield hardly ‘eviscerated’ her. Her general point is that the Court is somewhat inconsistent with regard to protecting rights. Greenfield doesn’t touch that. Plus, I don’t read her piece as asserting that the Court is ‘horse-trading’ rights. That seems to be an unsupported overreach on Greenfield’s’s part.

  17. Judge —

    I’ve read both articles three times now, and still I end up disgreeing with your assessment. I think that, for one writer to “eviscerate” another, the first writer must actually understand what the second writer meant.

    Mr. Greenfield seems to presume that Ms. Lithwick’s concern is that the SCOTUS is using up some finite amount of concern about the Constitution on the First-Amendment cases. I don’t read her to be saying that at all. My interpretation of Ms. Lithwick’s thesis is that she’s pointing out the irony between the Supreme’s strong protection of First-Amendment rights and what to her is the Court’s comparatively poor performance in protecting other rights (at least in the prelimary consideraion given stay petitions).

    Viewed that way, if indeed I’m undersanding Ms. Lithwick’s essay correctly, her position is not a matter of suggesting that First-Amendment rights should be horse-traded with other rights in a sort of zero-sum approach. Her position is that a court that is so concerned about the First-Amendment rights of some unsympathetic litigants should, at the same time, show the same respect to the rights of others.


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  19. David,

    At bottom, Greenfield objected to comparing the “value” of one Constitutional right with another. He argues that her pet rights are no more or less important than other Constitutional values. By characterizing the Court’s First Amendment jurisprudence in the worst possible light–read her opening paragraph–Greenfield correctly argues that her “mixing of apples and Fords . . . 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.”

    If Lithwick was writing for lawyers only her article could be dismissed as an unserious but, perhaps, clever leftist attack on the Court–a sort of “inside baseball” snark having no value except for being relatively high on the snark scale. But she isn’t writing for lawyers only and she knows it. In short, her piece should not be taken seriously by anybody, and Greenfield explains clearly why that is so.

    All the best.


  20. Judge —

    Many thanks, but I guess we’ll need to agreeably disagree. I don’t think this is Ms. Lithwick’s best thinking, but I think Mr. Greenfield has taken aim at a point she wasn’t making.

  21. Asher,

    I am sorry that I disappointed you.

    I think Greenfield’s piece is good legal writing because it exposes Ms. Lithwick’s weak and confused reasoning. As Will Baude points out, if Lithwick was serious about comparing the Court’s decisions on First Amendment rights with non-textual Constitutional rights (such as abortion) she should have addressed that issue seriously.

    Instead, she elected to denigrate the Court’s First Amendment rulings by characterizing them in the worst possible light while grudgingly agreeing with them. She then proceeds to whine about the poor being disenfranchised and women being denied easy access to abortion. Her piece is little more than a rant that her preferred values are not being given the solicitude that they deserve. Why should we care what Constitutional values Lithwick finds important? She never provides a cogent argument. Her discussion of the First Amendment serves only to distract and confuse.

    While you don’t agree with me and that is perfectly fine, I wanted you to know why I touted Greenfield’s piece as an example of good legal writing. All the best.


  22. Judge Lawyers are not a priestly class or the modern substitute for such a caste, pace Dean Pound, Most lawyers know zip about the Constitution and do not follow the Court. Conversly the amount of very good legal commentary available in books stores and on line assures that anyone interested in con law can quickly become better informed on con law than most lawyers. Dahlia is much less responsible for any misperception about the Constitution than say your Senior Senator, who has a law degree, and the other Republicans with the blockage of Ct of App appointments, Gordon Liu for example. The readers of Slate are not an ignorant mass of ill informed lay persons in need of guidance. On the other hand you clearly understood what Lithwick was saying, you just do not like it because it does not agree with the way you want to see the Constitution read. Lithwick speaks a different but legitimate jurisprudence about the Constitution. Strange that you can not see that when you can see the jurisprudence of the current majority, even when you say it is not yours

  23. repenting lawyer,

    If you honestly believe that was my motivation, then I am doing something wrong. I believe–and without regard to whether I like her jurisprudential views or not–that her article was confusing and lacking in intellectual rigor. I thought Scott did a good job of explaining why. Since Ms. Lithwick has a wide (and largely adoring) constituency, I thought it important to highlight her poor post.

    Additionally, since I write this blog, for among other reasons, to stimulate the thinking of young lawyers, I wanted to highlight Scott’s piece because (1) it was a good example, in my opinion, of slicing and dicing an inspid piece written by a heavy hitter; and (2) it did a nice of job of stressing to younger criminal defense lawyers that they must never elevate one Constitutional value over another.

    All the best.


  24. Judge —

    Dahlia Lithwick can be dispassionate about the law when she wants to be — she just has to be talking about a right that she doesn’t think holds any importance, like the right of property owners to be secure from redevelopment takings (which the Supreme Court eviscerated in Kelo v. New London).

    Note the following language that Lithwick used in her book review of Little Pink House, which chronicles the story of Suzette Kelo to keep her home from being taken by 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 . . . . Perhaps it’s better for everyone that, faced with the choice between delivering made-for-TV resolutions and dispassionately applying state law, courts generally seek to apply the law.”

    Now contrast that analysis against this line in her recent Slate op-ed; “The idea that judges would simply vaporize the interests of hundreds of thousands of poor and minority voters is perhaps just as amazing. By what logic do thousands of abortion-seekers and would-be voters simply stop counting?”

    Funny how Ms. Lithwick seems to think that “the plucky red head” and “terrified senior citizens” — as well as thousands of other property-owning, low-income persons minorities faced with abusive eminent domain taiks — don’t count, while (as she puts it) “thousands of abortion-seekers and would-be voters” do.

    It’s also funny how she has now adopted the very “dangerous” frame that she condemned author Jeff Benedict for taking in Little Pink House. I guess what’s good for the goose isn’t good for the gander.


  25. Judge, Most of my posts yesterday were a bit of misbehavior, second childhood no doubt. I do think you are not sold on the theory of unenumerated but implied rights and hence have doubts about equal ranking. If you have the more complex system then you will have either tradeoff or delineation to balance conflict, a point Baude misses.
    You do prefer a more formal style of discussion than Lithwick displayed in the article. I do not disagree, despite my Dahlia imitations. Still the Irish and the Germans will probably never be on the same page where serious is concerned.
    Your blog has diminished the boredom of retirement and I value it highly and I have great respect for you and for what you do with the blog.

  26. AisA Under the existing case law on condemnation at the level of SCOTUS the identity of indisernables makes the dissents amazing, though the Washington case shows that a different approach could have been taken in Conn. as a matter of state con law. Whole point of eminent domain is troll avoidance and a plucky little troll is still a troll.

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  28. Judge Kopf, your motivation seems pretty clear: you dislike Lithwick. That’s why you opine that she’s a “tiresome scold” (at least sometimes). That’s why you endorse “taking her down several begs.” That’s why you use a clickbait worthy headline. That’s why you hold in such high regard Greenfield’s piece, which doesn’t deserve the praise given that it misunderstands Lithwick pretty significantly in pretty obvious ways, as other commenters here have said.

    (Personally, I think Lithwick’s pieces are occasionally delightfully witty and barbed, sometimes so slanted that their persuasiveness is impaired, and generally worth reading regardless of whether they stand out as good or bad.)

    This being the blogosphere, developing and announcing dislikes of certain people and their writings is par for the course. It does seem notable for a sitting judge to engage in that though.

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