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The Amazing Ms. Lithwick

I share the Clerk's disdain for Dahlia Lithwick, possibly the most overrated legal commentator ever to put pen to paper. Particularly annoying is her use of rhetorical devices that my undergrad professors, let alone my law school professors, would laugh at:

One of the most persistent complaints of conservative commentators is that liberal activist judges refuse to decide the case before them and instead use the law to reshape the entire legal landscape for years to come. The Massachusetts Supreme Court, in finding that the ban on gay marriage violated the state constitution, did exactly what good judges ought to do: It confined its reasoning to the case before it, rather than addressing the myriad hypothetical future cases that may be affected by the decision. Opponents of gay marriage should consider doing the same.

But even accepting that this was a 'persistent complaint of conservative commentators' (it's a massively trivializing generalization of a legitimate objection to broad judicial review), Lithwick's 'prescription' would only hold true if the opponents of gay marriage were judges.

The conservative complaint--properly written--generally runs along these lines: the judiciary should not ignore possible future outcomes, but should realize that as an institution it is competent at applying settled law, and be highly reticent to make new law when the outcomes of such a decision might be debatable. This would be because conservatives in general consider the legislatures to be more competent institutions for such things. (As, indeed, the Democrats did in the 1930s.)

Consideration of slippery slopes are properly a matter for consideration. (It's notable that she quotes Volokh as one who argues for taking slippery slopes seriously, but doesn't link to the article where he finds a slippery slope that leads to gay marriage.) They're matters of consideration for legislatures, commentators, and the public in general. Yes, they should be subjected to analysis, and some of the slippery-slope arguments being made are ridiculous. But the fact that Lithwick can't see the difference between the judiciary, a legislature, and a commentator rather proves the point that actual conservatives (as opposed to the hobgoblins she's dreamed up) are trying to make.

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Comments

The trouble with weak rhetorical devices is that, empirically, they work rather well. (Rhetoric in general that is, not weak rhetoric in particular !) From a game-theoretic perspective, this kind of nonsense isn't going to go away until it's actually ineffective. The trick of characterising one's opponent(s) inaccurately can be devastatingly effective, so I don't expect it to vanish anytime soon. After all, everyone in the world knows Dubya is stupid (in the words of his opponents). A far smaller proportion could name an alleged positive attribute.

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