Dahlia Lithwick

Truth Is Not A Defense On Twitter
(Or, why Phill Kline is a total tool.)

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I was born and raised in Kansas. No big whoop. That state is where I took my first dump, drank my first beer, and felt my first boob. So, y’know, lotta fine memories. It’s where I first embraced my own mediocrity, never rising above third chair in a middle school band that had four trumpets. I have stories in which hay bales feature prominently. The town I was born in, Manhattan, is nicknamed the Little Apple. The more cosmopolitan among us always get a kick out of that last one.

Yesterday, a research attorney for a Kansas Court of Appeals judge was fired for tweeting the sentiment you see in the headline above these words. She was fired for getting all fired up and telling the world what she thought about one of the more irksome characters to pass through Kansas jurisprudence in the past many years. Sarah Peterson Herr, the lady who was fired yesterday for the tweets, learned an invaluable life lesson. Namely, that truth is almost never a defense. That you cannot, and probably should not, speak the truth whenever the mood strikes.

Even if it is about a man who doesn’t know how to spell his own first name…

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(Or, why Phill Kline is a total tool.)”

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ATL Readers: Obamacare Is Either ‘Clearly Constitutional’ Or ‘The Birth of Tyranny’

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After a rough week, a near consensus has emerged that Obamacare has a murky future. Liberal pundits are reeling: Dahlia Lithwick is palpably depressed, and Jeffrey Toobin — so recently heard predicting that the ACA would be upheld by an 8-1 majority — is now characterizing the proceedings as a “train wreck for the Obama Administration, and it may also be a plane wreck.” On the other hand, Philip Klein of the avowedly right-wing Washington Examiner encapsulated the opposition’s mood of gleeful triumphalism when he tweeted, “Clement channeled Michael Jordan, Verrilli channeled Scott Norwood.” (But see: Elie’s lonely defense of the Solicitor General.)

Before the arguments commenced, we asked our readers for their opinions and predictions on the case: Will SCOTUS uphold the ACA? Should it? 1,100 of you weighed in.

After the jump, we’ll look at the results of our survey, and sample some representative reader comments. (Here is an example of a non-representative reader comment: “I hope the law is overturned. I am a Christian Scientist and have not been to the doctor in 40 years.”)

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Breaking: Ninth Circuit Issues Landmark Ruling on Gay Marriage

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Or, if you prefer, a ruling on marriage equality. We knew this ruling was coming because the Ninth Circuit kindly informed us in advance that its opinion would be issued today: “The Court anticipates filing an opinion tomorrow (Tuesday, February 7) by 10:00 a.m. in Perry v. Brown, case numbers 10-16696 and 11-16577, regarding the constitutionality of Proposition 8 and the denial of a motion to vacate the lower court judgement in the case.”

The Ninth Circuit’s practice of providing advance notice of certain opinion filings is very helpful to those who cover the court. It would be nice if other circuit courts followed the Ninth Circuit’s lead. (Yes, I just typed that sentence.)

Now, let’s find out how the three-judge panel ruled in Perry v. Brown (formerly known as Perry v. Schwarzenegger)….

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A Portrait of Elena Kagan as a Young Justice

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Justice Elena Kagan

The latest issue of New York magazine contains a very interesting profile of the U.S. Supreme Court’s newest member, Justice Elena Kagan, penned by Dahlia Lithwick. Here’s the bottom-line summary of the piece (via Ezra Klein):

“While Kagan is assuredly a liberal, and likely also a fan of the health-reform law, a close read of her tenure at the Supreme Court suggests that she is in fact the opposite of a progressive zealot. By the end of Kagan’s first term, conservatives like former Bush solicitor general Paul Clement (who will likely argue against the health-care law this coming spring) and Chief Justice John Roberts were giving Kagan high marks as a new justice precisely because she wasn’t a frothing ideologue. The pre-confirmation caricatures of her as a self-serving careerist and party hack are not borne out by her conduct at oral argument, her writing, and her interactions with her colleagues. In fact, if her first term and a half is any indication, she may well madden as many staunch liberals as conservatives in the coming years.”

That’s just the overview. Let’s delve into the details a bit more….

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John Roberts Pokes Fun at AT&T’s ‘Personal Privacy’

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Southwestern Bell payphone with new AT&T signage

Not human enough to warrant 'personal privacy'

There’s some good news this week for those people whose blood boils at the mention of Citizens United. The Supreme Court proved that it is not always sympathetic to the rights of corporations — and is even willing to have some fun at their expense.

Chief Justice John Roberts penned a tongue-in-cheek opinion lambasting AT&T lawyers’ legal reasoning that has Dahlia Lithwick at Slate asking whether Roberts is the funniest justice ever. (Cue a scowl here from the legions of Scalia lovers in the audience.)

The case at the heart of the hilarity is FCC v. AT&T. The telephone company was involved in a billing practices investigation in 2004, in which it paid a $500,000 fine but admitted no wrongdoing. Some clever rivals at CompTel — a trade association representing some of AT&T’s competitors — wanted to take advantage of FOIA to get documents from the investigation and find out more about AT&T’s inner workings and alleged wrongdoing.

AT&T claimed protection under the Freedom of Information Act’s “personal privacy” exemption. A lower court was sympathetic to AT&T: “Corporations, like human beings, face public embarrassment, harassment and stigma” when they get involved with investigations by authorities. In other words: artificial persons have feelings too!

The Supreme Court did not agree. John Roberts whipped out a can of dictionary definitions to explain why corporations aren’t entitled to “personal privacy.”

Read on at Forbes….

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Biglaw Baby Making 101

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There’s been so much talk of Biglaw women and baby making floating around the blogosphere this week that I think there must have been a “repopulate the species” action memo in US Weekly. Existentially, I blame the season. It’s January, and childless professional women just went through another holiday season getting bombarded with images of children on television (to say nothing of little nieces or nephews that might have been swarming like locusts when they visited family). They return back to their regularly scheduled lives, many of them with raises or bonuses for the new year, and now they’re looking around at their barren apartments and thinking, “What am I missing?”

You’ll see the same thing happen to men… after the Superbowl. They’ll watch the game and have fond memories of their dad or uncle or somebody teaching them fun things they can do with balls. Then post-Superbowl depression will set in, and you’ll see men sleepwalking through “honey-do” errands with vacant, suicidal looks on their faces. They’ll look around at fathers who don’t even seem to care which NCAA teams are on the bubble, and they’ll think, “What am I missing?”

But this week it’s women who are having replication pangs. Clear as I can tell, Vivia Chen on The Careerist started the ball rolling in the legal blogosphere by repackaging a Slate XX Factor article (by Dahlia Lithwick) that featured one woman telling other women that they were hobbling their careers by planning for a family before they had one.

And since women generally can’t stand to even be in the same room with each other, it wasn’t too long before everybody was rolling out their best women-dogging-other-women content….

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In Defense of Going to Law School: A Prudential Perspective

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A prudential perspective, because it appeared in Slate’s advice column, Dear Prudence (alongside an inquiry from a woman dating a wonderful man who unfortunately has a “micropenis”):

Dear Prudence,

I am just a little over a year away from becoming a lawyer, and I’m miserable because I hate it. I wasn’t forced into the profession. I just mistakenly believed that since I loved to read and debate, law was the natural progression. But I don’t like law, and I’m not applying myself to it wholeheartedly. I can’t imagine being in this field for the rest of my life or even a few years. My parents have sacrificed and spent so much on my education, and I have no idea how to tell them that I made a mistake. Worse, my mom thinks this is my dream, and I don’t have the heart to tell her that it isn’t. The only thing that really brings me joy is escaping into books that have nothing to do with law. Please help me.

—Inadmissible

So what did Prudence say to “Inadmissible”?

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Non-Sequiturs: 10.11.10

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Molly Wei

* Professor Larry Lessig’s review of The Social Network. [New Republic]

* Dahlia Lithwick’s review of the big new Brennan biography, by Seth Stern and Stephen Wermiel. [New York Times]

* Molly Wei, one of the two Rutgers students involved in the Tyler Clementi case, feels “attack[ed]” — but she’s hanging in there. [Celebitchy]

* Reports of a hunter’s death may have been greatly exaggerated, but they don’t entitle him to a defamation award. [Courthouse News]

* “Thinking of a Career in Law? Hahaha!” (Or: the U.K. legal market sounds a whole lot like ours.) [Charon QC]

* Can a lawyer use publicly available information on Facebook in a pending case without friending the person? [Adjunct Law Prof Blog]

* Vanderbilt law professor and leading class-action scholar Richard Nagareda, R.I.P. [TortsProf Blog]

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Quote of the Day: Was Porky Pig a Founding Father?

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The drafters could have written the Constitution as a list of specific rules and said, “That’s all, folks!” Instead, they wrote a document full of broadly written guarantees….

– Time magazine columnist Adam Cohen, criticizing Justice Antonin Scalia’s approach to constitutional interpretation. (Gavel bang: Dahlia Lithwick.)

(Please note that Quotes of the Day are selected for being interesting, thought-provoking, or funny — not because we necessarily agree with them. Personally I’m inclined to the view that originalism isn’t perfect but is probably better than any of the alternatives.)

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Quote of the Day

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The prospect of Lady Justice blindfolded and on roller skates is simply too terrifying to contemplate.

– Dahlia Lithwick

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