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Dissenting Opinions And Strange Bedfellows

Our conservative columnist, Tamara Tabo, looks back on the past year of writing for Above the Law.

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It’s been a week of strange splits and noteworthy dissents at the U.S. Supreme Court.

In Navarette v. California, Justice Clarence Thomas wrote for a five-justice majority, holding that a traffic stop premised on an anonymous but reliable 911 tip about a swerving driver provided a police officer reasonable suspicion that the driver was intoxicated. So much the worse for the driver in this case, who happened to have thirty pounds of pot in the bed of his truck. Chief Justice Roberts agreed, as did Justices Kennedy, Breyer, and Alito. Justice Antonin Scalia dissented, joined by Justices Ginsburg, Sotomayor and Kagan. The usual yammering about Thomas as Scalia’s lap dog was quiet in this case. In Navarette, they apparently don’t even agree about how booze works: Scalia writes, “Whether a drunk driver drives drunkenly, the Court seems to think, is up to him. That is not how I understand the influence of alcohol.” He then cites to an article on the science of drinking.

In Paroline v. United States, the case involving restitution for child pornography victims, Justice Kennedy authored the majority opinion, joined by Justices Ginsburg, Breyer, Alito, and Kagan. The Chief dissented, along with Scalia and Thomas. Justice Sotomayor dissented separately. While none of the other justices joined her opinion, Sotomayor would have affirmed the Fifth Circuit’s en banc majority, granting the victim Amy full restitution. That majority included some conservative stalwarts (such as my former boss, Edith Jones) who aren’t often on the same side of divisive issues as the Wise Latina.

Justice Sotomayor also dissented in Schuette v. Coalition to Defend Affirmative Action, this term’s high-profile affirmative action case. Justice Ginsburg joined Sotomayor’s spirited (58-page!) dissent. Justice Kennedy, writing for himself, the Chief, and Alito, concluded that the Constitution does not require the Court to strike down Michigan voters’ ban on race-based admissions policies in higher education. Scalia and Thomas concurred only in the judgment. Breyer separately concurred, based on a different rationale. Kagan was recused.

If the Supreme Court this week is any indicator, we often agree on little. Where we do, we sometimes find ourselves sharing the sheets with some strange bedfellows. A week of vociferous dissents and unexpected alliances suits seems strangely appropriate to me this week . . . .

One year ago this week, my first column appeared on Above the Law.

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Writing for ATL has revealed all sorts of quirks about my own writing tendencies, starting with my petulant resistance to as much self-editing as I deserve. There are other oddities to this medium too. While writers are always advised to consider their audience, predicting who your audience is when writing for ATL can be tricky. Am I writing for my friends, largely appellate lawyers with Fed Soc memberships? For my left-leaning colleagues and bosses at the law school where I work? For the prim sensibilities of a potential future employer? For my students? For Brocaine Brandy? For my mom? No matter what tone I take or view I espouse, somebody’s going to be sorely disappointed.

Writing for a mostly-safe-for-work publication has also reminded me each week exactly how much I curse. Sure, when I’m writing a report for my law school dean or a research proposal, I manage to use appropriately professional language. When I clerked, I didn’t draft filth. When I’m writing in a more conversational tone, though, my prose naturally reflects my spoken language. My F-bomb payload rivals the Enola Gay’s. If the language in my column seems stodgy, it’s probably because I spent the last twenty minutes before submitting editing out all the profanity. Sometimes there’s not as much left over after that as I’d like.

Invariably, one of the first things lawyers ask me when they talk to me about writing for ATL is, “How do you handle the comments?” This question is usually followed up with a few winces and grimaces. In response, I point out my preternaturally thick skin, coarse sense of humor, and charitable picture of human psychology. Taking too much umbrage with what’s been “hidden for your protection” is like visiting a strip club and trying to get the dancers to put on sweatpants. Sure, you can do it, but, seriously, why did you come?

Having been a devoted ATL reader before becoming a contributor, I knew well that posting here meant taking a few on the chin. Then again, to quote Flannery O’Connor, “I don’t deserve any credit for turning the other cheek, as my tongue is always in it.”

The most generous, if undeserved, praise I have received about my writing here has come in personal emails, face-to-face conversations, or the occasional curmudgeonly blogger’s backhanded compliment of being pretty good by ATL standards. (This latter line of compliments, I’ve learned, is sort of like being told that you’re pretty rational for a woman or pretty hot for a lawyer.) Unfortunately, the most hurtful criticism has appeared outside the comments section too — real people who really think you are a really bad person can cut much deeper than internet chatter. I’m grateful that there’s been much more encouragement than criticism.

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Curiously, I have heard many times from fellow conservatives that either I was not sufficiently harsh toward liberals or that, although what I was saying was right, I was foolish to say it publicly and openly.

Writing anonymously would be easier. I could talk more trash, run faster and looser with facts, opt for snarkier quips. I would certainly not endure personal attack.

Writing anonymously, however, would defeat part of my purpose in writing this column. I try to provide a counterbalance to the liberal leanings of much of ATL’s commentary, but I also aim to be a public example of how one can be politically conservative without being a caricature. I own what I do here because I think conversation among people with different values would be a hell of a lot better if more of us owned what we do and what we think in our everyday lives. It’s easy to be outspoken when your audience agrees with you. Shouting in an echo chamber can be a great way to vent, but it’s not hard. Writing sometimes-unpopular things for a sometimes-hostile audience asks more of you. Putting your name on it keeps you honest.

When it comes to politics, many of my liberal friends think I’m nuts. This column certainly has not reformed that diagnosis. Even if I’m nuts, though, I’m not stupid. Nor am I lazy or vicious or humorless. Nor is it fair to characterize all conservatives (or all liberals) that way. I try to be honest, forthcoming, never dismissive. I try to be respectful of those who see things differently than I do, even as I try to explain why I think I’m right. Isn’t that what we’re supposed to do in the law? Isn’t that what dissenting opinions are for?

I thank David and the rest of the ATL editors for giving me the opportunity to appear on these pages for the last year. I look forward to continuing to contribute. Most of all, I’d like to thank you, readers, for letting me respectfully dissent. Again and again.

Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at tabo.atl@gmail.com

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