Last week, a California judge sentenced former Stanford University swimmer Brock Allen Turner to six months in jail for a horrifying sexual assault on an unconscious, alcohol-impaired woman. The resulting uproar over the sentence’s undue leniency risks missing the most important lesson of the case. Contrary to campus conventional wisdom, the Turner case shows that the best way to deal with a campus sexual assault problem is to rely on law enforcement professionals to protect women and to pursue justice, not on campus disciplinary systems run by amateur sex bureaucrats. The backlash against Turner’s sentence is being exploited by a […]
“Survey: 1 in 5 women in college sexually assaulted.” This headline, on The Washington Post’s long Sept. 21 article about a large survey of students at 27 public and private universities across the country college, is false.
The Supreme Court is scheduled to hear oral argument next week in Fisher v. University of Texas, the high court’s first case on the use of race in higher education admissions since its 2003 decisions in Gratz v. Bollinger and Grutter v. Bollinger. Why did the court decide to revisit this issue after less than a decade? Much of the speculation on this question centers on the shift in the court’s alignment; since Justice Samuel Alito replaced Justice Sandra Day O’Connor in 2006, the court is less sympathetic to racial preferences. But another factor is perhaps as important: Grutter and Gratz laid out a strategy for containing affirmative action that clearly, objectively failed.
Why does the supposedly nonpartisan Supreme Court split so often along ideological lines, with the four conservatives locked in combat against the four liberals and the eclectic Justice Anthony Kennedy determining which faction wins?
And why do all of the justices so often find in the Constitution a mirror image of their own political and policy views on issues as diverse as abortion, race, religion, gay rights, campaign finance, the death penalty and national security?
The justices strenuously deny voting their own policy preferences. So, are they insincere?
Well, no, except that none admits that interpreting the Constitution is an inescapably subjective enterprise in which policy and political preferences unavoidably play a big part. This is especially true at the Supreme Court, which is not strictly bound by its own precedents.
Even a rigorously apolitical justice passionately committed to "applying the law" would often find no clear law to apply.
Conservative (and some liberal) "originalists" are correct in saying that justices who seek to override the text and original meaning by invoking the "living Constitution" have nothing to guide them but their own policy preferences — and precedents, which can be overruled.
But originalists cannot avoid subjective judicial policymaking, either, for at least four reasons.
First, there has never been a consensus on the original meaning of expansive constitutional phrases such as "due process of law" and "equal protection of the laws," or on how to handle the tensions among various other provisions. The Framers themselves often differed on how to apply the Constitution to specific cases.
Second, any consensus that may have once existed about the meaning of the most important provisions has been erased by time and by the revolutionary changes in the way Americans live.
One night in jail: So concludes the Duke lacrosse rape case — rape fraud, as it turned out. The legacy of this incident should include hard thinking about the deep pathologies underlying the media sensationalism and the perversion of academic ideals that this fraud inspired.
The 24-hour sentence was imposed on Mike Nifong, the disbarred former district attorney of Durham, after a contempt-of-court trial last week for repeatedly lying to hide DNA evidence of innocence. His prosecution of three demonstrably innocent defendants, based on an emotionally disturbed stripper’s ever-changing account, may be the worst prosecutorial misconduct ever exposed while it was happening. Durham police officers and other officials aided Nifong, and the city and county face the threat of a massive lawsuit by the falsely accused former students seeking criminal justice reforms and compensation.
All this shows how the criminal justice process can oppress the innocent — usually poor people lacking the resources to fight back — and illustrates the need for reforms to restrain rogue prosecutors. But the case was also a major cultural event exposing habits of mind among academics and journalists that contradict what should be their lodestar: the pursuit of truth.
Nifong’s lies, his inflaming of racial hatred (to win the black vote in his election campaign) and his targeting of innocent people were hardly representative of criminal prosecutors. But the smearing of the lacrosse players as racist, sexist, thuggish louts by many was all too representative.
Whether George W. Bush or Al Gore ends up winning the presidency, the Constitution charts a course for him to carve out with one bold strike of bipartisanship the best conceivable way of pulling the country together.
If Bush wins, the 12th Amendment not only permits but explicitly requires that–under the present unprecedented circumstances–Joe Lieberman be chosen as vice president.
That’s right. It would be the Bush-Lieberman administration, not the Bush-Cheney administration. This would be a wise resolution of the controversy in any event: Bush and Lieberman are well suited to work as a team to overcome the partisan bitterness that could consume either a Bush-Cheney or a Gore-Lieberman administration.
The 12th Amendment, ratified in 1804, begins: "The Electors shall meet in their respective states, and vote by ballot for President and Vice President, one of whom, at least, shall not be an inhabitant of the same state with themselves." This means that no Texas elector can vote for both George Bush and Richard Cheney because both are "inhabitants" of Texas. And in an election this close, that means that Bush or Cheney can be elected but not both.
It was this 12th Amendment language that prompted Cheney’s hasty change of voting registration to Wyoming. But the Constitution is not so easily circumvented. The purpose of the quoted language was to prevent one big state from using its votes in the Electoral College to capture both the presidency and the vice presidency. If, for example, Thomas Jefferson and James Madison of Virginia had run as a ticket, the 12th Amendment would have barred Virginia’s electors from voting for both. It is inconceivable that Madison could have avoided this result by moving to North Carolina a few months before the election.