Scott Lemieux

Scott Lemieux is an assistant professor of political science at the College of Saint Rose. He contributes to the blogs Lawyers, Guns, and Money and Vox Pop.

Recent Articles

THE GOODRIDGE BACKLASH?...

THE GOODRIDGE BACKLASH? In response to my point that Mickey Kaus 's nominal support for gay marriage was empty because he never finds any means of achieving it acceptable (the only meaningful difference between people who are flat-out reactionaries and people who support social change unless it might cause social conflict or affect entrenched interests is that the former are at least honest), a commenter at my other site asks : "There wasn't a massive backlash after the San Francisco and Massachusetts decisions? This didn't mobilize the Republican vote in Ohio and other battleground states, thus costing Democrats the 2004 election?" Although the question is apparently meant to be rhetorical, the short answer is in fact "no." I'm presenting the long answer in an updated version of a paper I'm presenting at the MWPSA conference next month, and Dan Pinello does a good job of summarizing the arguments in his new book too. To summarize some of the many problems with the countermobilization...

THE INEVITABILITY OF ANACHRONISM.

THE INEVITABILITY OF ANACHRONISM. I wholly endorse Ezra 's argument here , and also strongly recommend Sandy Levinson 's book (although, as is often the case, his diagnosis is more convincing than his remedies.) Obviously, to defend an institutional feature as irrational and undemocratic as the electoral college (even though it produced a constitutional crisis in the third presidential election after the Constitution's ratification!) merely because the framers designed it is ridiculous. To add another point, the reviewer Ezra cites claims that the Constitution is a "workable document that only got us through a bit under 250 years." The rather obvious problem with this is that the first Constitution failed , as it proved unable to prevent the collapse of the nation into an exceptionally bloody civil war. This is not because the framers were stupid, but because even very smart people aren't clairvoyant. One would think that this would have permanently made a stance of uncritical...

PROFOUND LEGAL COMMITMENTS THAT HAPPEN TO MIRROR THE GOP PLATFORM

PROFOUND LEGAL COMMITMENTS THAT HAPPEN TO MIRROR THE GOP PLATFORM . I'm working on a piece about Jan Crawford Greenburg 's new book , so I was interested in this take by John O. McGinnis . I agree that it's a good book, although obviously to me her credulous acceptance of self-serving arguments made by conservatives is more a bug than a feature. I agree with McGinnis that this book should put to rest the idea that Clarence Thomas is simply Antonin Scalia 's sockpuppet -- an argument also made by Mark Tushnet 's excellent book about the Rehnquist Court . Really, this would be obvious enough from just reading their opinions, but Greenburg has some interesting material about how during his first term Thomas actually convinced Scalia to adopt a stronger position (but, as McGinnis says, in doing so alienated O'Connor). McGinnis does, however, make a familiar conservative move by claiming that conservative justices aren't result-oriented while bringing up examples that fatally undermine the...

JUDICIAL CONSERVATISM AND LEGAL INDETERMINACY.

JUDICIAL CONSERVATISM AND LEGAL INDETERMINACY. I'm a little puzzled by this Sasha Volokh post, in which he cites an article by Mike Seidman pointing out that the indeterminate nature of legal materials has produced conservative results as the federal courts have become dominated by Republican appointments and then uses it as a "gotcha" against CLS scholars, warning them that "progressives who, in the name of indeterminacy, try to undermine rule-of-law norms, will find this biting them back in the end." If Volokh thinks that this would be remotely surprising to the crits, however, he doesn't understand their work. First, the indeterminacy thesis is an empirical one, and as both Volokh and Seidman seem to concede, the federal judiciary under the Bush administration has provided powerful evidence for it. I'm not inclined to agree with the strongest versions of the crit/realist argument, but as Mark Tushnet (the most important CLS scholar) has pointed out, Bush v. Gore "seems to have let...

THE CENTRAL PROBLEM OF PURGEGATE

THE CENTRAL PROBLEM OF PURGEGATE . As the story expands, it's worth returning to this post by Josh Marshall , which in addressing the inevitable tu quoque rejoinders lays out the central problem with this particular series of firings. Presidents are, of course, entitled to set law enforcement priorities, and Bush may fire U.S. Attorneys for reasons that I would consider substantively wrong but not illegitimate, such as failing to enforce immigration laws effectively enough or refusing to seek the death penalty in all circumstances. (If you disagree, would you also believe that it's illegitimate for a Democratic President to fire a U.S. Attorney who insisted on taking resources away from investigating corporate fraud or violent crimes in order to prosecute marijuana possession cases?) In this case, however, the attorneys were fired for reasons of strict partisanship, for "not sufficiently politicizing their offices, for not indicting enough Democrats on bogus charges or for too...

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