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

Scalia and Thomas: Originalist Sinners

How Thursday's ruling on school integration gives the lie to the two justices' supposedly devout "originalism."

Gracie Lewis and Kathleen Parks hold signs during a news conference in Louisville, KY, yesterday, after the Supreme Court ruled on the city's public school integration plan. (Photo by the Associated Press)
Yesterday's regrettable decision by the Supreme Court to strike down school integration programs in Louisville and Seattle, in addition to being bad on the merits , exposes some tensions and internal contradictions within the conservative jurisprudence currently in ascendance in the federal courts. The most obvious contradiction is how much more seriously the Court's conservatives take racial discrimination when it involves white people. This was particularly glaring in the case of the late Chief Justice William Rehnquist, who opposed Brown v. Board of Education as a Supreme Court clerk and urged Barry Goldwater to argue that the 1964 Civil Rights Act was unconstitutional, but suddenly believed in a more robust equal protection clause where affirmative action was concerned. But this can be seen in many cases -- it's rather hard to square, for example, the conservatives' alleged commitment to a "color-blind" Constitution with their willingness to wink at even the most egregious...

INITIAL THOUGHTS ON THE SCHOOL INTEGRATION CASES:

INITIAL THOUGHTS ON THE SCHOOL INTEGRATION CASES: Some initial observations based on a first reading of the Court's opinion striking down voluntary school integration programs in Louisville and Seattle: Nothing in the text of the Constitution compels these programs to be struck down. Essentially, Roberts 's plurality opinion rests on the assertion that racial classifications intended to perpetuate a caste system should be considered the precise legal equivalent of racial classifications intended to remedy segregation. This is exceptionally unpersuasive, and also makes it almost impossible to actually remedy the ongoing de facto segregation of American school systems , much of which has roots in various forms of state discrimination (not just formal apartheid in the South, but the drawing of arbitrary school district lines to create segregated systems, local ordinances encouraging residential segregation, etc.) As Breyer says, "This context is not a context that involves the use of...

PROCESS OF ELIMINATION.

PROCESS OF ELIMINATION. Jonathan Chait 's case for Fred Thompson as the odds-on favorite smartly starts by eliminating purportedly major candidates with no chance of winning the nomination. As I and several TAPPED colleagues have mentioned before, Chait is clearly right on two. Giuliani is a pro-choice and pro-gay-marriage candidate in a party whose base is dominated by social reactionaries, and also has enough baggage to sink a candidate without those virtually disqualifying characteristics. McCain, too, has obviously been a non-starter for a while. Chait mentions the fact that he's hated by the conservative base; when you combine that with the fact that he's the most right-wing major candidate and that his more-lunatic-than- Bush foreign policy has crushed him among the independents who were his former base, his campaign is obviously as DOA as Giuliani's. On Mitt Romney , though, I don't really buy it. Chait says that "Romney has been defined as a flip-flopper in a way that just...

OYEZ: NOT TRUSTWORTHY?

OYEZ: NOT TRUSTWORTHY? I've discussed before the phenomenon of a textbook repeating the right-wing canard that Bush v. Gore was 7-2. And now I see that Oyez, normally a valuable resource, is printing a lie about the vote in the case: the per curiam opinion held 7-2 that the Florida Supreme Court's scheme for recounting ballots was unconstitutional. This claim is straightforwardly factually erroneous (it's not even phrased in a weaselly technically-accurate-but-misleading way, like "7 justices found an equal protection violation of some sort.") Breyer and Souter dissented. Full stop. They did not concur in part and dissent in part. They did not join the equal protection analysis of the majority, period; this is not a matter of debate. The fact that they identified an equal protection problem does not mean that they identified the same equal protection problem as the per curiam. To say that Breyer and Souter only disagreed about the remedy is missing the point; Breyer and Souter were...

FREE SPEECH AND SELECTIVE ORIGINALISM.

FREE SPEECH AND SELECTIVE ORIGINALISM. The Supreme Court today issued a relatively narrow holding upholding a principal's suspension of a student for holding a banner reading "Bong Hits 4 Jesus." Clarence Thomas , meanwhile (and, interestingly, without a join from Scalia ) wrote a concurrence arguing that the landmark student free speech case Tinker v. Des Moines should be overturned and schools be given the essentially unlimited power to censor student speech on (plausible, it must be said) originalist grounds. Oddly, however, in joining Scalia's concurrence in another case today arguing that virtually all campaign finance laws are unconstitutional, neither of the Court's two "originalists" managed as far as I can tell to muster a shred of evidence that the First Amendment was understood in 1791 as creating an absolute prohibition on the regulation of campaign spending and donation. Nor did Thomas's dissent in McConnell contain a historical analysis of the original understanding of...

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