Note: This is Not the "Disrobed" Written by Judge Block, and I Would Much Rather Read that One
by Jack Knorps
Perhaps the problem with America is that we don't really give deference to the voices that speak in opposition to ours. It pains me, greatly, to leave that scarlet word "incomplete" in the title of this post (I have not had an "I" since Proust, je pense) but Mark W. Smith is no Mark E. Smith and I can hardly bear to waste anymore of my time reading this book. I got through 33 pages. I thought it would be a fun review to write, but I was wrong.
I have written at length on the "right" and the "left" swinging of the Court, but this book is a waste of my time because it is dated! It was published in 2006. If Smith did not get his wish then I'm sorry for him, but from his writing he appears to be an extremely radical conservative.
In the basement of the Brooklyn Law School library, there is some graffiti in the men's bathroom. In the handicapped stall somebody wrote, "My s*** feels like: -a Scalia opinion (painful and offensive)." I don't know who wrote that (it wasn't me--Scalia actually amuses me more often than not and I find him to be charmingly erudite, if politically "unattractive"), but if they are a terrorist then we should find him and torture him by forcing him to read this book. That would be perfectly constitutional, actually. (I think.)
This book is dated because it opens up with Smith's Blackberry blowing up over Harriet Miers' failed appointment to the Court to replace Justice O'Connor (how charming to think, by the way, that there might have been a Justice Miers rather than a Justice Alito--Alito may be just about as conservative as you can get before entering lunatic land, but he is a much better writer than Smith--more respectable, at least).
This book has a chapter called "No More Souters." I can guess what it says. I didn't get that far, nor did I get to the titillatingly-titled fourteenth chapter, "Do You Sodomize Your Wife?" I made it to the first mention of Justice Douglas and Justice Brennan, and I stopped:
"Just look at how liberal justices decided when to use the power of the courts--and when not to. In Williamson v. Lee Optical (1955), for example, the Supreme Court upheld an Oklahoma law preventing opticians, as opposed to licensed optometrists or ophthalmologists, from fitting lenses to eyeglasses. In short, the Court rejected any suggestion that opticians or their patients had a right to enter into a voluntary economic transaction without the blessing of the state. In his opinion, Justice William O. Douglas concluded, 'The day is gone when this Court uses the [Constitution] to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought...."For protection against abuses by legislatures the people must resort to the polls, not to the Courts."' (emphasis added).
Yet it was the very same Justice Douglas who a decade later wrote the majority opinion in Griswold v. Connecticut, striking down laws that restricted the sale of contraceptives. Apparently, in the eyes of Justice Douglas, only economic conservatives needed to 'resort to the polls' when government regulators curtailed their liberties; social liberals could absolutely resort to the courts 'for protection against abuses by legislatures.' Justice Douglas and the rest of his left-wing cronies on the high court obviously took to heart Emerson's line that 'a foolish consistency is the hobgoblin of little minds.'
Liberal justice William Brennan approved of the same double standard. As constitutional scholar Bernard Schwarz explained, Brennan practiced 'judicial deference in the economic realm' but 'believed that the Bill of Rights provisions protecting personal liberties imposed more active obligations on the judges. When a law infringed upon the personal rights the Bill of Rights guaranteed, Brennan refused to defer to the legislative judgment that the law was necessary.'
Why should Justice Brennan defer to government actions in the economic realm but not in the social or personal realm? What about the constitutional guarantees to the right to keep the fruits of your own labor? Did the Framers of the Constitution jettison the original Articles of Confederation to guarantee the 'fundamental' and 'unalienable' rights to abortion and buggery and the right to be free from hearing the words 'under God' uttered in the Pledge of Allegiance?" (31-32)
Actually Douglas used the words "the Due Process Clause of the Fourteenth Amendment," which, yes, is part of the Constitution, but does not comprise the entirety of its text. And Smith perhaps does not seem to worry about rogue "eye doctors" that would create things like the Opti-Grab and make people go cock-eyed. But plenty of people try to practice law without a license. I am sure that Smith would not worry about rogue "baby doctors" that would perform "back-alley abortions with coat hangers"--no, we can have every baby carried to term, and if the mother is irresponsible, well she can put it up for adoption, I guess. Shame on her--she should at least need to suffer for 9 months and we should DEFINITELY BRING MORE PEOPLE INTO THIS WORLD BECAUSE IT'S GREAT!
Writing this review is like shooting fish in a barrel. The part about Romer v. Evans is priceless. Jeffrey Toobin may write books about the Court that read like "Con Law for Dummies," but Disrobed is truly written for the lowest common denominator--that is, someone that does not consider the other side's position because they know they're right.
It is quite funny, however, to think of this book as dated though it was published just seven short years ago. Smith probably blew his brains out when Obama won the election and put Sotomayor and Kagan on the Court. Or at least he probably got really bad migraines for a while.
I am guessing, however, that Smith did not lose very much money in the Great Depression, Part Two (the first of which he asserts was drawn out--not ameliorated--by the New Deal), but he does believe that allowing banks to fail back in the day was a bad thing--not sure how he could get what he wants. Reading this is like listening to Rush Limbaugh. One is saddened that people who are obviously capable of publishing a book, or speaking for hours on end and entertaining millions of people, can have their voices heard so loudly, and can propagate such myths and fool the masses into believing whatever sounds good for their agenda
I love the part in Romer v. Evans where Scalia references the Chicago Cubs (I think I have written about this on Flying Houses several times before) and talks about how gay law schools are. I had to skip ahead to "No More Souters" to make sure that Smith was not in fact gay because then he might actually be ridiculously clever--but I guess I am wrong:
"But now we know the kinds of judges we need to look for--principled conservatives who want to protect traditional American rights and values and who will focus on results rather than merely process--how do we find our Judicial Reagans? As any of my ex-girlfriends can tell you (and certainly as any of Bill Clinton's can), a woman knowing what she wants in a man is a far cry from her actually finding one who meets those criteria. It's the same with conservatives who are selecting judges: There's no guarantee we'll appoint Judicial Reagans just because we have certain qualities in mind." (124)
I have a serious problem with people that like drama for the sake of drama or fighting for the sake of fighting. There is a book called "Perpetual War for Perpetual Peace" and Justice Douglas made a similar point in Points of Rebellion: let us keep fighting because we don't know what else we are supposed to do with ourselves. There is a civil war going on in this country, but it is hidden, and for good reason: it would tear families apart. Many of my friends are conservatives--or libertarians--which I believe is just code for "reputable Republican." Smith repeatedly refers to the "loony left." But writers like him give Republicans a bad name. I can agree to disagree, but I am not going to write an entire book accusing my enemies of being insane and taking the Supreme Court to task. It's a foolish endeavor. It has been foolish for me to read this book and waste my time with it.
I will say that the book--while written extremely poorly--at least uses pretty decent grammar. It is more than I could say for Pygmy, but I am sure that even the "terrorist kid" in that book (or whatever he is) is a nicer person than Smith seems to be.
"Do You Sodomize Your Wife?" was apparently asked to Justice Scalia at NYU Law. Smith says that Scalia "does not argue that sodomy is good or bad, fun or unfun, moral or immoral, or anything of the kind. He instead believes only that such questions should be resolved through the democratic process, not by a small cadre of unelected judges." (210)
That may be so but Smith does not give Scalia's answer to that question, which was probably quite witty--instead, Smith just calls the question an "intellectually vapid query" and focuses on the question itself rather than the answer: which is that Congress does not equal Democracy--Congress may be called democracy but it should be clear to any high school student that the democratic process is controlled by moneyed interests and the Court is really our last resort to protect against tyranny--and moneyed interests do not always respond to the increasingly diverse needs of Americans. I personally prefer a world where I have a choice between The Strand, Barnes & Noble, and Borders, but I guess I'll probably be able to find something decent at Barnes & Noble anyways....
I have said all I can about this book. I regret checking it out because it forces me to make a terribly unattractive statement: it's okay to stop reading a book if you think it sucks (or if it just makes you so angry that you feel you have wasted your time). Now I really have to go study Crim Pro, Sec Reg, Tax, the MPRE, and whatever other fun stuff I do. Luckily I do not need to "take a side" in these activities.
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