Cass Sunstein, the brilliant and incredibly prolific constitutional law scholar, who just left the University of Chicago for greener pastures at Harvard, has written an editorial warning us about the dangers of electing McCain and Palin, who would most certainly, we are told, pack the federal courts with extreme right-wing ideologues.  Well, it is true that McCain would be more likely to appoint conservative judges and justices, whereas Obama would be more likely to appoint liberal jurists.  And Sunstein, who is certainly a liberal, is free to characterize George W. Bush’s appointees to the courts of appeals as “extreme” (which he does), if such judges are extreme relative to his ideology.  However, in his attempt to scare us about a McCain-packed Supreme Court, he engages in a certain degree of intellectual dishonesty that is, frankly, beneath a man of such intelligence and nuance.

He starts with abortion, and what might happen if Roe v. Wade were overturned as the result of McCain appointees to the Supreme Court.

We might well return to a period in which states threatened to subject pregnant women, and their doctors, with jail sentences for exercising the right to choose. Alaska Gov. Sarah Palin opposes abortion even in cases of rape and incest, and there is no doubt that many states would attempt to enact that belief into law.

First of all, in the states that prohibited abortion prior to Roe, the law rarely implicated the mother.  Either the law punished only the abortionist (as was the case in the Texas law struck down in Roe) or the law was enforced (if ever) only against the abortionist.  Examples of women actually being fined, much less jailed, for obtaining an abortion are few and far between.  Sunstein either doesn’t know his abortion history, or knows it and is trying to shade the truth with the phrase “threatened to subject pregnant women.”  What does it mean to “threaten[] to subject”?  Is that kinda like almost enacting a law?

Second, while it is true that “Palin opposes abortion even in cases of rape and incest,” Sunstein is being nothing short of disingenous when he states that there is “no doubt that many states would attempt to enact that belief into law.”  With the overwhelming majority of Americans supporting abortion in cases of rape and incest, and even the solidly conservative South Dakota failing to preserve such an abortion prohibition against a state-wide referendum, I doubt that any state would attempt to prohibit abortion in such cases, much less “many states.”  Or is the wiggle-phrase “attempt to enact” kinda like “threaten[ing] to subject”?  If so, yes, Cass, I suppose in most states there would be at least one die-hard pro-life state representative or senator who would introduce a bill to ban abortion in these cases, after which it would be immediately shot down, like countless other doomed-to-fail bills.  And so, yes, Cass, if we total up all of those single-sponsor, doomed-to-fail bills throughout the country, we could make the words “attempt to enact,” coupled with “many states,” true.  I know what you mean.  But you know very well this is not how the average reader, who doesn’t have your legal knowledge, will interpret it.

But Sunstein really shows his hand when he condemns the Supreme Court as conservative activists (if that isn’t an oxymoron) for “[striking] down provisions of the Americans with Disabilities Act, the Age Discrimination in Employment Act and the Violence Against Women Act.”  Sunstein warns, “A McCain court would go further.”

Look, my only shtick on this blog is abortion; I’m not going to get into other political issues such as whether these laws were good or bad in terms of what they attempted to do.  But I will say that Sunstein knows full well why these acts were struck down.  They were struck down because the Supreme Court held that they were beyond the power granted to the federal government in the Constitution.  Protecting women from violence is a good thing, just as bringing your wife flowers every now and then is a good thing.  But that doesn’t mean the federal government has the power to legislate with respect to either.  Now, let me be clear, I’m not going to actually take a stand on whether the Violence Against Women Act (VAWA) was beyond the powers granted to the federal government under the 14th Amendment and the Commerce Clause.  I am simply pointing out that there was a principled and constitutionally based reason for the Court’s striking down these laws.  It was not simply because they clashed with the Justices’ personal, conservative views.  Striking down the VAWA as beyond the 14th Amendment was not activism; holding that the VAWA also protected puppies would be.

Sunstein knows constitutional law as well as anybody, and therefore he certainly knows these things.  But he writes in such a way that the reader is left with false impressions, such as a conservative Supreme Court striking down legislation that has admirable goals because they don’t like those goals.  Right, I’m sure Chief Justice Roberts beats his wife on a regular basis, and is eager to protect that right from federal encroachment.

But apparently this is typical for Sunstein.  In Professor Scott Gerber’s article, The Court, the Constitution, and the History of Ideas, 61 Vand. L. Rev. 1067 (2008), Gerber notes that while Sunstein champions deciding moral issues by democratic processes, instead of by wide-sweeping judicial fiat, he does so only when those democratic processes yield the results he likes.  When the democratic process does not produce liberal policies, he would prefer the courts to step in, because the legislatures are “failing to promote democracy ‘rightly understood.’”  Right.

In sum, I find it disappointing when smart men suddenly seem to forget all the nuance they so carefully dissect in their scholarship, leaving readers with impressions that are far from the nuanced truth.  Smart men should know better.  And Sunstein is a very smart man.

But to end this criticism on one good note, I commend Sunstein for disclosing a fact that should help readers to take Sunstein’s comments with a grain of salt.  The article closes: “Cass Sunstein is … an informal adviser to the Obama campaign.”  No … really?