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from: Walter Dellinger
to: Dahlia Lithwick

The News From the Counter Seat

Posted Wednesday, June 19, 2002, at 10:50 AM ET

Who are these people?

Dear Dahlia,

All I know about this "Breakfast Table" thing you and I are doing this week and next is that we are supposed to converse with each other a couple of times a day by e-mail about things we usually talk about over breakfast—what we are reading in the morning papers or magazines or whatever.

What are the real rules? Do you think Breakfast Table contributors honestly stick to what they normally read and converse about? Or do they "upscale" their reading habits just in time for their Slate appearance? I've been tempted for days to sneak out to the newsstand and grab some impressive journals so I could write you and say something like:

Dearest Dahlia,

It being Wednesday morning, I am, as usual, perusing the new issue of Cahiers du Cinema, which arrived a bit late from Paris. Of course, I am simply dying to know what you thought of the article on Foucault's analysis of postmodern Italian film.

The truth is that I usually spend breakfast buried in the sports section of the Raleigh News & Observer. And I don't get very far beyond sports because I'm distracted by the breakfast counter conversation at Sutton's Drugstore. The talk is as much the reason I eat at Sutton's as the fine grits Joyce Seymore makes. For years, I've walked down Franklin Street to Sutton's for breakfast whenever I'm home in Chapel Hill to get some sense of what people beyond the university are thinking. It's a classic small-town drugstore, largely unchanged since 1923.

Returning to Sutton's after a couple of weeks away in Washington, I settle into a vacant counter seat and inquire what people have been talking about in my absence. "Top three" I'm told, are "the Catholic Church, the Catholic Church, and the Catholic Church." From the end of the counter Mike Walker cheerfully scorns the bishops' newly minted sex policy as "three tykes and you're out." George Tomasic, the proprietor of the Tar Heel Barber Shop who is sitting next to me, doesn't seem to take offense at Mike's quip, even though George is very active in his parish and is being elevated to a Knight of Columbus in the third degree this very weekend. George turns the talk serious by observing that the crisis has energized many alarmed lay people to become far more involved in the church's work, which he thinks will be for the good in the long run. (Is there a silent reformation going on here?)

Seeing that people are worn out by the church topic, I risk a food fight by asking about last week's failed attempt to repeal the "death tax." One person who's glad repeal went down says that you have to be stupid or selfish to think that the nation's big problem is that the very richest Americans don't have enough of the money. The contrary opinion comes from Mike, one of Chapel Hill's few Republicans, who responds that it's our money, its already been taxed once, and the tax will kill the goose that lays the golden egg. A debate over the economic effects of the tax quickly turns local with expressions of concern about the slow business in downtown Chapel Hill now that the Big New Mall has opened. George blames slow times at his barber shop on 9/11. A lot of academic conferences got canceled, he says, and his guess is that professors whose out-of-town trips were scrapped didn't bother to get their hair cut. If he's right, our economy is even more interconnected than I thought.

As I get up to leave, Scott Simmons, a map maker for the town planning office who usually reads a book at breakfast, quietly asks me whether the TV show about the Supreme Court, First Monday, is realistic. Scott says he finds the show distressing because it makes the justices seem venal and the law clerks appear manipulative. I tell him I don't think the show is very accurate, and he seems relieved.

Which brings me to the court. I suppose the reason you and I were asked to do Breakfast Table is so we can exchange thoughts about whatever decisions the Supreme Court hands down during its end of term rush. Tomorrow and Monday the 24th are the scheduled decision days, with one additional day likely next week. It could be an interesting week for schools, with decisions coming on the constitutionality of vouchers, student drug testing, and whether students can sue private universities for damages for violating the federal law on student records.

I have a parochial interest in one pending case, Utah v. Evans, which I argued in March. My client, North Carolina, will get the last seat in Congress instead of Utah if the court upholds the Census Bureau's use of "imputation" to adjust the final population count. The decision seems overdue, since neither state can hold its primary election until the issue is resolved. We could have a lot to talk about.

Regards,
Walter

the breakfast table
entries
12345678910111213141516
from: Walter Dellinger
to: Dahlia Lithwick

The News From the Counter Seat

Posted Wednesday, June 19, 2002, at 10:50 AM ET
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Walter Dellinger is an attorney in Washington, D.C. and the Douglas B. Maggs professor of law at Duke. Dahlia Lithwick is a Slate senior editor.
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Notes From the Fray Editor:

The Breakfast Table Fray has remained a shining example for all. The Table moved from discussions of the merits of Atkins to broader discussions of the nature of court representation. The Fray moved along with it. Several incisive debates about the nature of contemporary judicial federalism and Dellinger's "rule of three" have ensued. One of the best Frays ever began with Dira Necessitas's supposition that Lithwick would stop her Scalia-bashing—a harmless introduction to a fascinating juridico-psychoanalysis (or psycho-juridical analysis).

Notes From the Fray:

[Dellinger] has the good sense to understand that judicial overreaching is not a liberal or a conservative problem but an institutional one that should be resisted by everyone who has a shred of faith in democracy and, in particular, in the increasingly quaint idea that popular legislatures should make legislative decisions….

There is a longer-term insidious consequence of judicial overreaching, too, that takes the form of executives and legislatures dallying about nearly everything really controversial in the hope -- increasingly realized -- that they will be relieved of the hot potatoes by the courts, especially the SCOTUS.

-- Publius

(To reply, click here.)


I challenge [Lithwick's] shorthand characterization of that Federalism jurisprudence as "efforts at curbing congressional overreaching (often to give powers back to the states)".

That portrays some of the less controversial of the Court's Federalist opinions. But the most controversial and decidedly activist sequence of the Federalist opinions -- their so-called Eleventh Amendment jurisprudence, named for the Amendment that they now admit does not say what they earlier said it says -- has nothing to do with Congressional overreaching. The issue in the cases I was referring to in the quoted paragraphs above (including the case that the Court agreed this morning to hear) and which I believe Dellinger was referring to did not concern federal legislation whose purpose was to usurp for the federal government powers traditionally held by the states. The statutes at issue have broad applicability not just to state governments but to private entities also.

The Court's conservative narrow majority says the Constitution protects states from being subject to such legislation, this notwithstanding their recent acknowledgment that the text of the Constitution actually contains no such protection.

-- Beverly Mann

(To reply, click here.)


Let's apply Dellinger's analysis to Castillo's streak. The reason that the "Latin American record" was noted and celebrated was that it matters enormously to an important group of baseball fans - Latin Americans in their native countries. Prowess in baseball is an important signal to many in those countries that they belong (maybe more important than prowess in soccer, because the Dominican Republic et al. have great success in placing players in the best professional baseball league). That's why people in Latin American countries know which Latin American players have the most career hits, career wins, the best batting average, etc. Until they stop paying attention to the success of Latin American players compared to other Latin American players, then it's reasonable for baseball to do so, even under Dellinger's analysis.

Besides, it's good marketing.

-- randy khan

(To reply, click here.)

(7/25)

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