The Times New Relationships Columnist

Does Ross Douthat have the experience necessary to lecture the whole frickin' world about relationships? Did I miss it? How long has he been married?

I especially like his quotation-marked use of the term "companionate marriage." Now, is that supposed to be a bad thing? That spouses actually, you know, think of each other as life companions?

Fighting Fire

So the right-wing talking point is that all nine Supreme Court justices agreed that summary judgment was inappropriate in the district court in the Ricci case. (Too lazy to link.) This talking point is based on a footnote in the Ginsburg dissent, so I'm not sure how much weight I would give that (the footnote--I know how much to give the talking point). And the footnote is couched in conditional terms. So, again, it's reading a lot into the text . . . of a footnote.

OK. Let's assume that nine justices of the Supreme Court disagreed with the district court's grant of summary judgment in this case. Let's.

So what? There is good reason to think that summary judgment is used with a relatively high frequency in employment discrimination cases--like this case. There was a report by the Federal Judicial Center (Cecil and Cort 2008) on summary judgment, and the authors found that summary judgment was very common in employment cases.

Not a surprise, really. Summary judgment is how the lower courts have determined to resolve employment cases. For the non-lawyers, summary judgment is a pretrial motion by which one party (or both parties) assert that, based on the undisputed facts established through discovery (depositions, document production, etc.), that they are entitled to judgment as a matter of law. Because a jury is empaneled to determine facts, and the facts--at least the important ones--are not disputed, then no trial is necessary. The moving party--usually the defendant--says, in essence: "There are no factual disputes, and I win on the law."

But there is a sense that lower courts have started granting summary judgment even where there is a factual dispute, but where the likelihood of a jury finding for the plaintiff is low.

Don't believe me? Then ask Judge Posner. (I know I cite Posner a lot, but when it comes to empirical matters, as opposed to normative matters, he is someone interested in evidence. His normative conclusions, I generally don't agree with.) Posner, in the revised edition of his Federal Courts book, suggests that the district courts, with the acquiescence of the courts of appeals, have relaxed the standard for summary judgment.

My guess is that this is particularly true in employment discrimination cases.

Why? Well, think of an employment discrimination case where the plaintiff has a great case. Exemplary (at least spotless) work record, no write-ups, etc. But s/he is black, or female, and gets fired, passed over for promotion, etc. Does this case get very far in district court? No, because there isn't a plausible non-discriminatory justification for the employment decision, as a result, the employer settles. The case, if filed, doesn't get to summary judgment.

Think of an employment discrimination case where the defendant has a great case. Employee has a bad record. That employee has trouble finding an attorney. If it's not filed, it never goes anywhere. (Duh.) This is not to say that those cases don't get filed, or even settled. It is to say that truly bad cases are relatively rare.

The case in the middle is the problem. Employee has a mixed record. Some bad history, but not necessarily more than other, similarly situated employees. Employee happens to be black, Hispanic, a woman. Fired, or denied promotion. Plaintiff can make out a prima facie case, defendant can offer a non-discriminatory justification . . . .

What's the district judge to do? S/he can deny summary judgment (almost always for the employer/defendant) and try the case. But in most such cases, the defendant will win a close case at trial. And it takes a lot of time and energy to try a case. There's so much on the docket--all of which will have to wait if s/he tries the case. So . . . the district court grants summary judgment. Even if there is a dispute of material fact. Based on the weight of the evidence.

The trick here is that the court of appeals gets to decide whether there is a trial. If the plaintiff thinks s/he has a strong enough case, s/he can appeal. If s/he does, then she might win on appeal. If the appellate court says, "Reversed. Error to grant SJ," then the plaintiff (usually) gets a trial. In theory, close enough cases will settle on the appeal. The district court never sees them again.

Now, it's hardly surprising that the Supreme Court would have a problem with what is essentially the lower courts' bending of the rules to suit their workload needs. Because what is probably the SOP in lower courts is not Hoyle, if you get my drift.

Indeed, it is probably the case that the Supreme Court would find error in many, many employment discrimination cases in which summary judgment was granted--if it took those cases. Which it generally does not. The Supreme Court is not in the business of error correction, for the most part. So it doesn't take these cases. Mostly.

This case was a little different--at the Supreme Court level, where affirmative action is a hot issue. But my guess is that, at the trial and appellate level, this just looked like another employment discrimination case--one where the court grants summary judgment, and the appellate panel affirms. That's most of 'em, people. That's how these things get done.

So one way to understand Ricci is that the lower courts, in one instance, got busted for something that they have been doing--according to Posner--for a long, long time. What we have here, is, failure to understand the context. Even if that footnote, in a dissent, written in conditional language, can be given the import that some folks have tried to give it.

Also: Needless to say (again), summary judgment in these cases is almost always granted to the defendant (the employer)--like a municipality. And probably equally needless to say, but I will, that one side of the aisle prefers when employers win employment discrimination cases, more often than not. So take a run-of-the-mill employment discrimination case, and have the Court grant cert--I know, why?--and see how the votes break down. Affirmative action makes for a strange employment discrimination case issue, IOW.

Today's the Day

Since news coverage will be wall-to-wall Michael Jackson's death, today is the day for house-cleaning. Nothing else will even distract the unblinking eye of the 24-7 news media for a second.

So . . . pols, embarrassing disclosures? Today's the day. Sanford should have waited about 48 hours and he would have escaped ridicule. Affair? Financial shenanigans? Just get it out there. No coverage, and it will be old news in two weeks.

Does the government need to release any scandalous reports? Today's the day. Oh, you mean we did torture? And we really did let bin Laden escape at Tora Bora? And high-ranking officials did cover up the Pat Tillman friendly fire incident? And Area 51 is real? Who cares? Back to footage of the helicopter carrying the King of Pop's body!

Even more important--legislative agenda time. Need to pass some controversial legislation? Today's the day! I think the House is voting on cap-and-trade today (on a Friday?)--which the GOP had hoped to make an issue. Sorry, GOP, but who cares? Cap-and-what? Did you know "Thriller" yadda yadda . . .

But today's the day to go for broke. Not just cap-and-trade. Single-payer health-care, raise marginal tax rates, abolish the CIA, establish a Kucinich-style 'Department of Peace,' . . . you name it--today's the day.

Monday's news cast: "Apparently, while the world was mourning the King of Pop last week, the U.S. Congress expanded the size of the Supreme Court to 15 justices, giving President Obama six additional vacancies to fill. The president nominated, and the Senate confirmed, all six nominees late Friday afternoon." Pause. "But breaking news. Michael Jackson wasn't really in a coma when he arrived at the hospital! New facts in the story that has captivated the world . . . next."

The Mark of Failure

Some stray thoughts on Sanford. He's in the feeding frenzy now, and while entertaining, I think that, in a fit of over-dramatization, the longer implications have been widely missed.

1) Despite the buzz, Sanford was NOT a serious contender for 2012. Charmless, melancholic, right-wing, small state governor who had proved too far right even for South Carolina!! Oh yeah, that guy beats Obama! On Hardball yesterday, Matthews and Dan Rather went on about his "nothing but bright skies" future, when it's been pretty clear for months that this guy is largely played out. The GOP-controlled legislature just overrode all ten of his recent vetoes, he lost the fight over rejecting stimulus $$ (where he's depicted himself as a heartless killer of schoolkid dreams in a state that's near the worst in the country in unemployment and education), and he's got no Senate seat prospects, with two relatively young GOPers in those slots already. Even his own state party mates (and staff) didn't respect him very much. How else did those e-mails get to The State--in November? Inside job.

2) Matthews showed a funny clip of Rush looking like someone had just told him there was no Santa Ronald Reagan Claus. "He coulda been our JFK!!!" moaned the Jabba of the Ozarks. Aww. Poor baby. Take a pill. You'll feel better. Just shows that Senor Cigar is as good a judge of talent as he is of character. Well, here's your consolation, Rushbo, he was your JFK, at least in the "adulterous, self-destructive pretty boy" sense. Which is far more of a logical connection than existed before he got caught. Let's face it. Sanford was a lightweight. Being prettier than Huckabee and farther right than the Mittster doesn't a mirror-Camelot make.

3) Remarkably, the dumbest comment on Hardball came from Howard Fineman, who lamented Sanford's fall by describing him as a "really principled guy," a "state's righter," and "not the racist kind," but a "more traditional" decentralized government guy who just thought that as a constitutional matter "as a governor, he was the equal of the President of the United States." Oh my. Oh my. Where to start? OK, let's go obvious. Howie, I know you're not a southerner, but let's pretend you took a freshman history class once, long long ago. The "traditional" form of states' rights is, like it or not, the "racist" kind. Especially if you're the governor of South Carolina and you think that you're the equivalent of the President. For better or for worse (by which I mean, for better), Neo-Calhounianism is not a neutral, "principled" position a century and a half after the Civil War. It's just not. You may have moved on, but South Carolina--my home state BTW--has not. That's why when you see the Lt. Gov giving interviews in front of the capitol building in Columbia he's got a big Confederate flag flying behind him. This is the state (and the party) whose political icons are Strom Thurmond and Lee Atwater. A modern state party built on the backs of guys like neo-rebel AG Charlie Condon and former governor, Carroll Campbell, who first won a seat to Congress by running anti-Semitic push polls against a Holocaust survivor. And remember how Bush secured the GOP 2000 nomination by running push polls in SC about McCain's black babies? Good times. Good times.

4) Since Sanford was never a credible threat for 2012--except in his own mind--the real effect here is to winnow the field a little earlier, yet in the same direction (see also, Ensign, John). Dan Rather, oddly, claimed this would help Haley Barbour. Really? Really? We're going to elect the far right governor of Mississippi, a guy who comes across as a combo b/w W.C. Fields and John Goodman in O Brother!? Not even Republicans are that nuts. What all this does is just clear the field a little earlier for Mitt, giving him a fundraising boost. Hard to see what serious challenge he gets now other than Palin. And she'll flame out fast, especially when the money-cons see her "slutty flight attendant" act coming a mile away. Which means, as much as it hurts for them now, this may be a net gain for the GOP in the 2012 race.

5) Final thought: Sanford was getting vetted by McCain as VP material. Do you think they knew?

Where's Marko?

Where is South Carolina Governor Mark Sanford? My guess: psychiatric leave. No one I've heard has raised this idea. Yet the "book writing" excuse is implausible. I think a lot of his people actually do know where he is, but they can't say b/c it would be a huge embarrassment for a presidential hopeful. So weird medical condition is a good overarching guess, and mental instability is high on that list of specific possibilities. Any other ideas?

Forbidden Love

So I was hiking in Washington State two weeks ago and stayed in Forks. It's a little logging town that has become 'famous' as the setting of the Twilight series of books. If you don't know what that is, you are old and out of touch.

This got me thinking about the increasingly common plot, in novels, television, and film, of the 'impossible' love between a (usually male) vampire and a (usually female) human. There is Twilight, the teevee series (short-lived for good reason) Moonlight, and I'm sure I could come up with other examples.

I was thinking that for romance to be interesting, dramatically, there must be obstacles to the lovers' embrace. Now, historically, barriers to romance were dramatically easy: Lovers from different social strata, from different (feuding) clans or families, interracial couples. Not to say that these things are necessarily easy in the contemporary world, or even common, but in terms of their dramatic potential, they are used up. Royal marries a commoner? Been done. Feuding clans? Just Romeo and Juliet, redux. Interracial? Somewhere between Guess Who's Coming to Dinner and Jungle Fever. The increasing normalization of same-sex coupledom, while far from complete, means that teh gay is not even much of a dramatic obstacle today.

Where is the writer of the modern romance to look for a barrier to true love? Among the undead!

The last forbidden love is vampire love. Because you can't be in love with a vampire because they can't consummate the love. (This appears to be the reason.) And certainly the other vampires won't approve, on one side, and humans have a long-abiding dislike of vampires--I think it's safe to say.

This is my Twilight thought. Just to be clear, I haven't read the books, though.

Radio Free Murfreesboro, GOP Edition

Taped in mid-May, broadcast last Sunday morning. Click on the date at the link to listen. Amazing how little had changed in between, even the Sarah Palin victimization tour. Props, as always, to the incomparable Gina, who was one of the South's first female rock DJ's, interviewed Ozzy, covered Wallace as a reporter in Alabama, and has dated at least one former US Senator. And those are just the stories I know.

Swept Under the Persian Rug

Prior to Iran's election, I pondered whether this would be like our 2004 or 2008. Looks like now the major debate is whether it is 1972 or 2000: (a) energized, grass-roots liberals challenge corrupt right-wing warmonger and vastly underestimate his appeal to the "silent majority," then lose in landslide; or (b) stolen by the Supreme Clerics. I'm betting on (b): the irregularities are great and the counting procedures are opaque. But the case for (a) is not a trivial one. None of us have very good information, and all sources from within Iran are self-interested and spinning. Even if the answer is (a), however, the episode cannot help but erode the legitimacy of the regime. Most Iranians were born after 1979's revolution. The rule of the old can only last so long. Even if the hard liners manage to put down the protests, their days seem numbered.

Judge Dread, Part Deux (Process)

Nice old school donnybrook--haven't had one of those on FFB for a while. Let me sum up: #3 argues that state judicial elections should NEVER raise due process issues under the 14th amendment; I argue they should sometimes raise DP issues. Man, I like the way that one shakes out! All I have to do is come up with some hypothetical where a state judicial election undermines any pretense of "fairness" and I win the argument.

Apparently, a $3 million campaign contribution from one party before the court, installing a new chief justice who proceeds to throw a 3-2 decision in an $83 million lawsuit isn't good enough for #3 and his best buds, Scalia, Roberts, Thomas, and Alito. So let's up the ante. Say the judge flaunted his opposition to the plaintiff prior to the case, or that he switched from pro- to anti- within hours after getting his suitcase full of cash. Or let's add race: David Duke gets elected supreme court judge in Louisiana with the campaign slogan, "the Negras is always guilty!" Or say Benjamin was Massey's brother, he still refused to recuse himself, and state law was silent. Really, this is like a parlor game. I'm sure you can come up with other scenarios. Now maybe I misread you, 3. But if so, when is due process implicated? And if it can be implicated in some circumstances, why draw the line on the other side in this egregious case (Caperton v. Massey)?

Now let's think about this from a systemic standpoint. Why is it reasonable, in general, for the Supreme Court to intervene in state court decisions regarding the results of judicial elections? Simple. States are often controlled by large, powerful, wealthy special interests, and are so to a much greater degree than the nation as a whole (this is just basic Madison, Fed 10). What would happen to those state judiciaries if the most powerful interest in any state--say Big Tobacco in NC or Big Credit Card in DE--could just buy any judicial election they wanted with the US Supreme Court having said that, a priori, they will NEVER intervene on due process grounds when a judge so elected casts a deciding vote in a case where he has a clear conflict of interest? Now, in theory, voters could rebel and support an opposition candidate. But we all know that this is NOT how state democracy works. If you take #3's "no limits" approach, holding that the circumstances of a judge obtaining his or her position NEVER implicate due process, you essentially hand over those judiciaries to the wealthiest bidder. Apparently, #3 thinks the deck of American justice isn't yet sufficiently stacked toward the rich and corrupt. Call me crazy, 3, but I think your limb has been sawed out from under you.

Wrigley Thoughts

So Deadspin has a new series on why your stadium sucks. In general, it is true, that your stadium sucks. Unless it's the Jake in C-Town, which is perfect.

But I love Wrigley. I believe I've been three times. Once with college buddy Tony. We drove down, last minute, and bought SRO tix. Sat on a rail, in August, and watched Jose Rijo four (?) hit the Cubs. Ryno did not get a hit.

Second time: Ponder, Pat Fett (may he rest in peace--one of the best guys ever), and one of Pat's grad school buddies--in the snow, at a Midwest meeting. The Reds--again. Hmm. A treasured memory.

Third time--many years later. With TMcD. And that was a Reds game too.

Wait--I've been to three Cubs games, and all three were against the Reds? How weird is that?

Btw, the Deadspin folks talk about the trough urinals, the smell. I grew up going to Tiger Stadium. If you can survive Tiger Stadium . . . Wrigley is like the Disney version.

That's a post of it's own.

Hey Fronesis--I'm watching the pre-game for Game Seven! A shot on goal is always a good play. Yes! Go Wings!!!

Update: The tip. It's on.

Feedback Oops

Here's something I've been thinking about lately.

I almost always underestimate the amount of time something (a task, anything, really) is going to take. This is a problem at work, where I am always behind schedule. But also at home, when I think a particular chore will take "one hour," and it takes two, that sets me back. And it's not like I have a lot of "free time."

So you would think that I would build that into my estimates, at some point. IOW, I would start to say to myself that if I think Task A will take one hour, I should set aside two for it. That way, I can make plans accordingly.

But of course, that doesn't work. Because once I know that I've overestimated in an effort not to underestimate, I don't work quickly at Task A and try to get it done in less time. (I'm not chief engineer Scottie.) I usually slow down. Which means that my overestimate becomes an underestimate because I knew it was an overestimate and therefore I felt no great urgency.

Follow me so far?

This is even a worse problem when other people are involved. IOW, if you can't fool yourself, how are you going to fool anybody else? We agree that the meeting will start at 8:30 sharp. But that's soft. You know that I will tolerate your being five minutes late. So you start from the belief that 8:35 is the time you're supposed to show up. That means that you endeavor to arrive at that time. And, in turn, anything that delays you delays you past 8:35, not 8:30--because you never intended to show up then.

But I know that you won't show up at 8:30; so I dally, myself, and again, anything that pushes me back, that just makes the meeting start later.

Now, no one gets angry that the 8:30 starts at 8:45. Everyone "knows" that the scheduled time is not the actual time that a meeting starts. Everyone "blocks out" 90 minutes for an hour meeting.

But if hour long meetings take 90 minutes, then the work day is not eight hours (stay with me--it could be ten or twelve), but only two-thirds that length. That's how much slack is built in by the inefficiency.

Now, again, one "knows" this. So one plans on only doing two-thirds what one believes could be accomplished in the workday. But again, the feedback loop is that now I "know" that I have plenty of time, and therefore I dally. And get less than two-thirds done.

I can't see a way out of the loop.

It's no wonder that Peter Drucker identified the most important skill of an effective executive as time management.

Now I have to run--because I'm late for work. But who shows up on time, right?

Into the Wild

The last week I was hiking in Washington State. Very nice. I actually didn't sleep here. But it's a nice shot of the Hoh River. Very nice.

And Iran, Iran So Far Away

Tomorrow's elections in Iran are exposing a side of Iran that Americans don't often see: that, in its own odd way, Iran is a kind of democracy, albeit an illiberal one.

Voter choices are constrained so that only those within the elite theocratic consensus can run, and elected leaders have limited powers, especially when weighed against the clerics of the Guardian Council. But as this NPR report shows, that doesn't mean the elections are meaningless or that campaigns lack energy, passion, and ideological distinction. It is a testimony to democracy itself, as both ideal and practice, that it can wield such force even in such inhospitable circumstances. We often think about the pressures that anti-democratic forces exert even in the most democratic nations, but the reverse may also be true. If Mousavi can defeat Ahmadinejad, it will be a victory both for the Obama administration, in its devotion to "soft power," and for the Iranian people, in their desire to modernize and turn a more hopeful eye toward the West.

But these elections, however they turn out, also reveal an irony of American conservatism. For all its anti-Iranian saber rattling, our right really dreams of something like a Christian Iran: a truncated democracy where religious leaders and secular reactionaries wield outsized power. Indeed, Ahmadinejad cuts a very Bushian figure. He's a well-educated and bellicose nationalist who panders to the most retrograde forces in the Iranian political world, a reconstructor of the glory days of the 1980s (Khomeini vs. Reagan), who unapolegetically embraces the language of "evil" to describe his enemies, while showing contempt for international norms. Indeed, the simultaneous rise of Khomeini and Reagan, both on the backs of culture war fundamentalists, represented parallel movements in very different political cultures, much as the 1960s produced counterculture movements and student revolts across the globe. Khomeini implicitly recognized their brotherhood when he waited to release the plane of hostages until after Reagan had sworn his oath of office.

All of which suggests that, as much as these religious reactionaries traffic in nationalism, political movements in general, even the anti-modern and anti-international ones, have become increasingly globalized in the last several decades. In its rhetorical extremism against Iran--and I think here of people like John Bolton and Bill Kristol--the American right is reacting against a mirror image of itself, making its brinkmanship a strangely Freudian exercise in self-loathing. We have met the enemy and he is us, as Pogo said. Here's hoping that tomorrow in Iran will be more 2008 than 2004.

The Dread Pirate Roberts

I know I bash the Chief Justice a fair amount here at FFB, but I was still surprised by his inexplicable dissent in the 5-4 Caperton v. Massey Coal Co. After losing an $83 million lawsuit, Massey's CEO gave $3 million to elect a new chief justice, Brent Benjamin, to the WV Supreme Court. Benjamin then twice provided the pivotal vote in a 3-2 decision to overturn the verdict. Anthony Kennedy, writing for the majority, made the common sense ruling that this creates such a clear appearance of impropriety that Benjamin should have recused himself. Somehow, Roberts found this objectionable enough to write a scathing dissent, claiming that judges would now have to become "political scientists" divining the causes of elections and judicial decisions.

This is about as clear cut a case of bribery via campaign donation that I can imagine, proof that judges should not be elected. It taints the entire system. Benjamin should be facing not only impeachment but criminal charges right now. He is scum. The problem, of course, is that the law is typically written so narrowly on campaign-related bribery that such a prosecution would be as difficult legally as it is politically. Think Ted Stevens. On the take, dead to rights--hell, VECO raised up his house and built him a new first floor underneath it, then outfitted the whole thing--and the Feds didn't even bother to make the case on "bribery" grounds. But $3 mil? Holy crap. And yet somehow, Roberts, Scalia, Thomas, and Alito all think this is copacetic. These guys just don't live in the same moral universe as most of the human race. Could there be a better reminder that these guys are little more than blind worshipers of wealth and power? They are modern day Social Darwinists.

Pretty Boy Roberts deserves special scorn here, and not only because he wrote the dissent. The other dissenters are all well-known freaks: a Catholic revanchist, a self-loathing porn addict, and Nerdito, the Soulless Automaton. Roberts was supposed to be the normal and likable one, the "neutral umpire," the poster child for a more mature, less angry conservatism. He's the guy with a temperament so soothing that even Jeffrey Rosen swoons. And yet here we are. His opinion in this case is so morally confused that it calls into question any decision he ever renders. Worst Chief Justice Ever (WCJE)? And we've only got 30 more years of this turd.

Low battery is the idea

So we have the house alarm from hell. "Oh," I hear you say, "You have a house alarm?" Well, it was here when we moved in. I don't pay for a service. It beeps randomly, and every Tuesday morning at 7 am. Why? No idea. I would like to remove it--but that is more difficult than it sounds.

Last night, I decided to unscrew it from the wall. Or, more precisely, to unscrew the power cord from the wall. But, FAIL. Because it has a battery. But then this morning, it started beeping. (It does that a lot.) Home invasion in process? No, "low battery."

Ah, yes, Mr. Battery. Soon you will die . . . and I will WIN!

Don't Do This, Douthat

Ross Douthat hasn't been on the NYT columnist roster very long, but he's already justified his hire with some serious and thought-provoking columns. Props where due: the NYT conservatives, Brooks and Douthat, kick the living shit out of the partisan hacks (Kristol, Will, Krauthammer, Broder) now employed by the WaPo.

Today's Douthat takes up the Supreme Court and its activism, making a surprise admission that activist justices come on both sides of the aisle--although he does cherry pick his case a bit by focusing on Stevens (the most activist of the moderates) without noting that, as a whole, the five on the right have been far more activist in their willingness to overrule legislative decisions than the four in the middle (our Court having no real "left"). His data on the Court overturning state statutes is also a bit misleading. It shouldn't be surprising that the number of state statutes invalidated by the Supremes rises dramatically from the pre-Civil War era. After all, there are a lot more states now, and the Reconstruction amendments that followed the CW greatly expanded the federal government's responsibility for preventing abuse of power at the state level. Still, his case has a refreshing honesty to it, at least in its formulation of the issue and problem: a Court that sees itself as a kind of super-Senate.

His solutions, however, are a mixed bag. I'm sympathetic to the idea of term limits for justices, although I'd prefer a 15-20 year window rather than Douthat's 12. Justice is a job that one can mature into, and as much as it pleases me to think that Clarence Thomas would have already rotated off the highest court to pursue his lifelong ambitions as a porn star (or FOX commentator, but they're hard to distinguish), it seems to me that you also lose some very good justices who are just hitting their stride--a Stevens or a Brennan who get better with age.

The more problematic idea is a 6-3 supermajority to exercise judicial review. As a general rule, I think supermajorities are bad ideas, the Senate filibuster and California budgets being the most obvious examples. Now, in some ways the perils are different here. After all, rather than legislative stalemate, what we'll get is legislative status quo, which is much better. What if, however, a 5-4 majority ruled an act unconstitutional but still "lost" (under a 6-3 requirement). What would the controlling decision be? The minority? Maybe the lawyers here can comment, but this seems like a recipe for confusion in lower courts.

The bigger problems are the political ones. Douthat pushes his idea as a compromise b/w liberals and conservatives, both concerned with an imperial judiciary. To sweeten the deal for his side, he says that this 6-3 rule would apply not only to federal legislation (disliked by conservatives) but also state legislation (viewed warily by libs). Looks like a pig in a poke. States have been more often subject to federal review b/c (a) there are more of them, and (b) they have lower quality office holders and are generally more prone to abusing the constitution. Congress and the states are not equals. The founders were nationalists, the Reconstruction Republicans were nationalists, the New Dealers were nationalists, the constitution is a nationalist constitution. I think part of Douthat's calculation is that, although conservatives have an unreliable 5-4 majority on today's Court (and for the foreseeable future), they have a rock solid, unswayable 4 man minority who could prevent any federal interference with the states--except, of course, on those issues that the cons wanted to cherry pick for ideological purposes (medical marijuana? gay marriage?).

More seriously, Douthat speaks only of Congress and state legislatures. What about the executive? The most critical need for judicial review over the last decade--and the subject of several of the 5-4 rulings Douthat decries--involve the expansion of executive power. This was a crisis under Bush, and has not completely disappeared under Obama. If the 6-3 rule were applied to judicial review involving the executive as well, the cons would have an unbeatable 4-man minority to prevent any challenges to creeping Cheneyism. That, I'd say, would be a deal breaker.