Judge Roberts, Privacy, and the Future

My second essay for Wired was published today. It’s about the future privacy rulings of the Supreme Court:

Recent advances in technology have already had profound privacy implications, and there’s every reason to believe that this trend will continue into the foreseeable future. Roberts is 50 years old. If confirmed, he could be chief justice for the next 30 years. That’s a lot of future.

Privacy questions will arise from government actions in the “War on Terror”; they will arise from the actions of corporations and individuals. They will include questions of surveillance, profiling and search and seizure. And the decisions of the Supreme Court on these questions will have a profound effect on society.

Posted on September 22, 2005 at 12:28 PM57 Comments


JD September 22, 2005 1:36 PM

Hmmm….Is Bruce himself now indulging in movie-plot threats?

Yes, technology will continue to create new challenges for public policy. If we want to continue living in a democracy, it is the job of the branches of government that are accountable to the people to resolve political issues, not unelected judges with life tenure.

Benjamin Franklin September 22, 2005 1:38 PM

“Those who would give up liberty for a little temporary safety deserve neither liberty nor safety, and will lose both.”

JD September 22, 2005 1:57 PM

I have to hope Judge Roberts will remain true to his stated principle that his job is to apply the Constitution as it is written, not to amend it from the bench.

The many symptoms of overreaching power and intrusiveness of the federal government that we all criticize in this forum are primarily due to its failure to abide by the Constitution. Maybe with more justices like Roberts, the Tenth Amendment will even be rediscovered.

Tim Vail September 22, 2005 2:16 PM

Bruce, I’m not sure what you are implying by this sentence from the article:

“Where do you stand on privacy?” can be code for “Where do you stand on abortion?”

There are people who still support the right to privacy, yet believe that abortion is outright murder. The fetus is considered a human being with all rights and privileges therein. Those two are very different issues.

If you are saying that people who are against abortion are more likely to erode our privacy based on evidence that you have seen — I’d be willing to accept that. But, I don’t think that the two really should be connected. In fact, it is unfortunate if they are connected.

Davi Ottenheimer September 22, 2005 2:29 PM

Interesting essay. I am curious about how a States’ definition of privacy will factor into Supreme Court decisions.

For example, the California Constitution clearly calls privacy an “inalienable right”:


For what it’s worth, when considering who might be proposed for a seat on the bench by a President who is staunchly anti-abortion, Roe v. Wade was actually decided on the residual right of privacy. In that case the Court extended to the states the protection against limitations on the right of privacy.

Davi Ottenheimer September 22, 2005 2:55 PM

@ Tim Vail

“If you are saying that people who are against abortion are more likely to erode our privacy based on evidence that you have seen — I’d be willing to accept that.”

Eh, that’s a bit odd.

Roe v Wade was not only decided on a discussion for/against privacy, but some of the state laws it struck down were cited as criminalizing abortion explicity for reasons of wanting to reduce “illicit sexual conduct” by women. How’s that for evidence of an intent to erode privacy by anti-abortionists?

The actual decision of the Court reads:

“We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.”

Seems straightforward to me. So saying the two shouldn’t be connected is actually the exact same thing as saying you are anti-abortion.

Chris September 22, 2005 3:11 PM

The abortion issue and right to privacy are inextricably linked for the simple reason that in this country we have decided to place limits on the means and methods our government may use to determine that a crime may have been committed.

In the past, it was illegal in most states for a doctor to perform an abortion. Regardless of whether you consider that murder or not, the procedure was in and of itself illegal. Anyone who performed or solicited an abortion committed a crime and was subject to arrest and incarceration.

The question in this context is what powers we will allow our government to have to prevent the crime of abortion from being committed.

If we remove the privacy right of the mother from the issue, all that ramains is the State’s compelling interest to safeguard the life of the unborn fetus because it cannot assert or defend those rights itself. What tools do we allow our government to safeguard the unborn’s wellbeing? At the extreme, we might decide the government require all women of childbearing potential to register, notify the state immediately upon becoming pregnant, and be subject to close surveilance to ensure she does nothing to harm her unborn child. Even more extreme, we might require the state to take custody of the mother and ensure that she does nothing that might in the slightest endanger the fetus, like say getting out of bed or refusing even the least intrusive medical care.

At the other extreme, the government may have no say in the gestation (or termination), birth, or raising of the child until they reach adulthood.

Neither extreme is tolerable, so we compromise in the middle. The compromise is the government stays out of your life until it has evidence you commit a crime. We set rules to control how the government may obtain that evidence, and judges are the arbiters of those rules.

The right to privacy is the right to be let alone. Not just in your home, or your car, or your diary. Privacy is the government having to let you live your life without constant intrusion just to be sure you haven’t done (or might do!) something naughty.

Tim Vail September 22, 2005 3:30 PM

I guess it is a matter of how to prosecute it if we did criminalize abortion. To me, it seems straightforward enough to just make it illegal for doctors to perform abortion. It should be easier to crack down on doctors with minimal impact on privacy. No?

BruceA September 22, 2005 3:54 PM

It seems the most telling comment Roberts made in his confirmation hearing was that he was a umpire not a player. This is the philosophy of a circuit court judge. Cases only make it to the Supreme court when the decision, no matter what it is, changes the game. The technologies you cite are all game changing technologies — and Roberts is singularly unprepared to meet them.

Davi Ottenheimer September 22, 2005 3:56 PM

“I guess it is a matter of how to prosecute it if we did criminalize abortion.”

Yes, quite. It might seem straightforward at first glance but you might want to actually read up on the topic a bit before you jump to conclusions. For example:


“James Hubert Hallford, a licensed physician, sought and was granted leave to intervene in Roe’s action. In his complaint he alleged that he had been arrested previously for violations of the Texas abortion statutes and that two such prosecutions were pending against him. He described conditions of patients who came to him seeking abortions, and he claimed that for many cases he, as a physician, was unable to determine whether they fell within or outside the exception recognized by Article 1196. He alleged that, as a consequence, the statutes were vague and uncertain, in violation of the Fourteenth Amendment, and that they violated his own and his patients’ rights to privacy in the doctor-patient relationship and his own right to practice medicine, rights he claimed were guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.”

And, as was raised during the confirmation hearings, we shouldn’t forget to consider the nearly forty subesquent Court cases that have touched on Roe:


And that’s not to mention the Court decision in 2003 to let state privacy laws stand, which over-turned US “deviant-sex” laws:


Nick September 22, 2005 3:58 PM

If Judge Roberts were a cryptographic product, I wouldn’t buy it.

“How do you secure the data?”
“Well, I can’t tell you, but I’ll encrypt it when asked.”

Tim Vail September 22, 2005 4:01 PM


“Roe v Wade was not only decided on a discussion for/against privacy, but some of the state laws it struck down were cited as criminalizing abortion explicity for reasons of wanting to reduce “illicit sexual conduct” by women. How’s that for evidence of an intent to erode privacy by anti-abortionists?”

That’s a good point, and is probably true for this particular case. However, it is wrong to generalize that and say all people supporting those policy are doing that with the goal of preventing illict sexual conduct. It’s true than a big side effect of those sexual conduct is pregnancy. But you have that same privacy issue whether the baby is born as opposed to getting pregnant. Think about it a minute — if you had a baby in the privacy of your home, and then kill it immediately after it was born, do you think that is ok? It is all a matter of how you define when to consider this baby a full human being with all rights and privileges therein.

This, in essence is why this is such an controversional topic.

loyal_citizen September 22, 2005 4:04 PM


What if a non-doctor was to perform the abortion (which was often the case before Roe v. Wade, and done in back alleys, other countries, etc.)? Do you intend to make that illegal as well? That makes your “minimal” privacy impact a little broader than your straightforward proposal, doesn’t it?

Outside of the emotionally charged abortion debate and moving on to the larger issue that Bruce raises, I agree that personal privacy is and will be one of the biggest issues to face the SCOTUS in the upcoming decades. My fear is that Scott McNealy will prove to be right.

Tim Vail September 22, 2005 4:09 PM

“Yes, quite. It might seem straightforward at first glance but you might want to actually read up on the topic a bit before you jump to conclusions.”

True, I wouldn’t say I’m all that qualified to make judgement on how hard or easy it is to enforce those sort of policy. Thanks for the info.

I think that giving up on prosecuting something that is wrong simply because it cannot be enforced is not ideal, either.

B-Con September 22, 2005 4:23 PM

The Supreme Court will do a lot to influence the shape of the “science fiction” technology of the future, because they will, basically, decide what can be done and who can do it — thus effectively deciding who will have interest in pursuing and developing said technology, and who will seek to invest in alternatives.

Personally, given the rapid progress in technological advancements, I’m glad to see that we will have a (predominately) conservative bench for the near future. The private sectors, for the large part, have no conscience when it comes to invading privacy, and will push up to, and beyond, whatever limitations are imposed upon them — and the government can be no better.

Frankly, I don’t think that we will ever see a lack of interest on either the part of the government or private sectors in invading people’s privacy. The only question will be to what degree they are restrained from doing so, and I think a conservative Supreme Court bench will help prevent privacy matters from running away.

Jarrod September 22, 2005 4:46 PM


“If Judge Roberts were a cryptographic product, I wouldn’t buy it.

‘How do you secure the data?’
‘Well, I can’t tell you, but I’ll encrypt it when asked.'”

I took away something quite different from the hearings. What I heard was his way of handling things, keeping an open mind, listening to the sides, and using the Constitution, existing law, Congressional findings in the original bills, and past precedent to reach his opinion on a given topic. I took his answer to your metaphorical question to be, “I can’t tell you what it will look like when I’m done with it until I see it, but here’s how I would go about doing it.”

It’s possible that the Constitution will need some adjustments to handle some of the things we now have to deal with. An amendment limiting copyrights would probably be a good idea if handled correctly, and perhaps some work should be considered on an amendment enshrining personal privacy. I am not advocating anything in particular, and amending the Constitution is something that should never be taken lightly, but it might just come to that.

Bruce Schneier September 22, 2005 5:01 PM

“Bruce, I’m not sure what you are implying by this sentence from the article: ‘Where do you stand on privacy?” can be code for “Where do you stand on abortion?'”

I don’t think I am implying anything. I did a lot of reading about the Supreme Court and privacy, and most of what I read was about abortion. People would talk about privacy — on both sides of the issue — when they were really talking about abortion.

My goal here is to write an essay about the Supreme Court and privacy that has nothing to do with abortion. Please don’t bring the abortion debate into my blog.

Davi Ottenheimer September 22, 2005 5:21 PM

“I think a conservative Supreme Court bench will help prevent privacy matters from running away”

Why? Conservatives have traditionally favored the private sector over public, so by your own reasoning (“the private sectors, for the large part, have no conscience”) you might argue that privacy will be reduced by a more conservative bench, no?


“Roberts would bring to the high court a background that corporate America likes and is currently lacking on the court: extensive experience representing businesses as a partner in Hogan & Hartson, a Washington, D.C.-based firm that advised the Bush campaign during the 2000 Florida election recount.”

Davi Ottenheimer September 22, 2005 7:18 PM

Here’s a good case of privacy issues related to Judge John Roberts’ nomination:

The Bush Administration has not yet turned over documents about Roberts that were requested by the Judiciary Committee over six weeks ago. The request appears to be fairly narrow and targeted — documents related to only 16 cases where Roberts was Principal Deputy Solicitor General for the first President Bush (he served Bush Sr. from 1989 to 1993, helping “formulate the administration’s position in Supreme Court cases”).


Ironically, the Judiciary Committee seems to say now that the only person now who can compell the White House to fulfill what they call a “constitutional obligation” to disclose the documents about Roberts is…John Roberts himself.

It seems like Roberts, as a former solicitor general, has been given some pretty strong privacy rights.

The White House argument for keeping the documents private is “it would have a chilling effect on the advice the government receives from its lawyers”. Whereas Roberts contends “the positions he took on behalf of the government were not necessarily his own”, although it’s not clear why this supports keeping them private.


Odd twist, no?

More background here:

Roy Owens September 22, 2005 7:41 PM

I wouldn’t take the hearings seriously. The candidate cannot be held to anything he says. He is not under oath, so his is free to dissemble, shuck and jive, and outright lie all he wants. These hearings are political hearings, not legal hearings. They were never meant for anything but show.

Alex Krupp September 22, 2005 9:00 PM

Bruce I think you may be confusing privacy and anonymity. Privacy is the right to be left alone, whereas anoymity is the right to be anonymous. While it is true that one often affects the other, using privacy for both terms (which most people do) is sloppy thinking because it is really two different issues. And, as you often point out with identification vs. authentication, sloppy thinking leads to sloppy decision making.

David September 22, 2005 10:42 PM

The most junior member of the court, with little experience even at the federal level, will be the “chief.” But that’s okay, because the only questions he won’t answer are those that may appear before the court.

Aren’t those the ONLY opinions of his we care about?

As for abortion and the “rights of fetuses,” you might consider what it would mean if a fetus were considered a legal citizen with such rights:

1) A pregnant woman could not enter a bar (or any other area restricted by age) because the baby is not allowed.

2) If the woman miscarries, she may have commited murder. If she miscarries because of her behavior, it would be murder or manslaughter.

3) Have you ever seen a miscarriage result in a burial/cremation and funeral? Yet it is illegal to dispose of a citizen in any other way.

4) Can we deduct the fetus as a dependent on our taxes?

5) Would a pregnant woman have to buy two tickets? Or three/four if she’s got twins/triplets?

6) Would we issues social security numbers to a fetus?

Alex Krupp September 22, 2005 11:52 PM

Bruce: So you don’t see any difference between surveillance and spam? I think the distinction is often subtle, but there are cases where it can be easily seen, for example:

I remember a few months ago when a major supermarket chain sold consumers some potentially tainted meat that had been recalled. The supermarket knew who had bought the meat but wouldn’t call them they thought it would be seen as an invasion of privacy. But really privacy wasn’t the issue, because no one would have really minded being called if the supermarket already had the data. The real issue was the loss of anonymity from the supermarket having the data in the first place, so refusing to call customers on the grounds of privacy was a moot point.

Bruce Schneier September 23, 2005 12:51 AM

“Bruce: So you don’t see any difference between surveillance and spam?”

How does the fact that I don’t believe that I am confusing privacy with anonymity imply that I don’t see a difference between surveillance and spam? That seems like an awful large leap there.

I think you’re assuming that I don’t believe that there is any difference between the two. I didn’t say that; I said that I don’t believe that I am confusing the two.

Privacy is actually way more complicated than that. I strongly urge reading Daniel Solove:


Rich September 23, 2005 1:00 AM

“The most junior member of the court, with little experience even at the federal level, will be the “chief.””

I thought I’d point out a fact that I found surprising. Chief Justices are usually ‘green’ to the Supreme Court. Rehnquist was an exceptiong, having spent time as a supreme court justice before being made chief.

Alex Krupp September 23, 2005 1:11 AM

Bruce: Point taken, sorry for being presumptuous. I haven’t read any Solove yet, but Digital Person has been on my reading list for a while. Most of my reading on privacy has been through Jeffrey Rosen books, which is why I think of privacy in those terms, although I hear Solove’s book is supposed to be even better.

Clive Robinson September 23, 2005 7:17 AM

Of interest Bruce mentioned “Brain Scans”,

“Can brain scans be used to determine whether a person is inclined toward criminal or violent behavior?” What should be the limits on what the police can do without a warrant? ”

Well in the London Metro yesterday there was an artical that was purported as a way to reduce sick leave due to back problems (Apparently it’s a significant issue for UK employers).

As a side note they mentioned the use of MRI scanns that where an “Almost perfect formuler to detect lies”. It mentioned that this had been published in the last issue of nature…

So the SciFi future is catching up faster than 30 years it got their before he got the job….

(the pain reasurch was carried out at Kings College Hospital in London by Prof. Steven Williams).

Savik September 23, 2005 8:46 AM


  1. Pregnant women shouldn’t be drinking or hanging out in smoke infested pits.

2.Miscarriage is a result, many times of the normal development process. Which can be delicate and dependant on many factors not within the woman’s control. An “intentional miscarriage” is not a miscarriage but an abortion. There have been women and men charged for murder for killing their unborn children.

  1. Yes. It happens more often than you think. And as for disposing if bodies — some states allow you to take a body of a relative and bury them in your back yard if done within 48 hours.
  2. Good idea — although some money/services people receive for the government for being pregnant can be considered a tax “return”.
  3. No — you don’t have to buy two tickets for children up to two years old unless you want hem to have their own seat. Airlines charge, by weight and volume determinations. Not by the person.
  4. No need to. You don’t even have to get them for your kids till a certain age. And only then for tax purposes.

By the way — most children don’t have “rights” as legal citizens until they are 18 and 21 years of age. So can we kill them too just because we were so irresponisble enough to have them and now no longer want to carry the “burden”.

People like you are sick nazi bastards.

ordaj September 23, 2005 9:33 AM


Re: “If we want to continue living in a democracy, it is the job of the branches of government that are accountable to the people…”

Accountable to which people?

This is the major problem. We are an oligarchy or plutocracy.

another_bruce September 23, 2005 10:04 AM

roy owens is correct. confirmation hearings are a game. the president selects a black box, picked for the absence of a damning paper trail, the box is teed up before the judiciary committee where it politely refuses to answer any questions about issues that might come before the court or which are extraneous to its qualifications, the senators then hold a wetted finger in the air to gauge the political wind in their states before casting their votes.
yes, john roberts’ views on privacy are important, but this importance can be overstated. new technology will continue to enable the savvy, aggressive citizens to take privacy matters into their own hands, just as it enables the state to more closely surveil the rest of the citizens, which make up the great majority. a consequence of philosophical maturity, which comes much later than sexual maturity, is the realization that government isn’t there to solve your problems. any problem solving it may do is strictly coincidental, the best one may hope for on a regular basis is entertainment through irony and surrealism.
individuals can provide entertaining irony too, witness savik’s “sick nazi bastards” remark. it makes me giggle when anti-abortionists project their own control fantasies on their critics. the fundamental question does not relate to when a fetus becomes a human or what its rights are. the question is, are you men willing to accord to women the same absolute self-determination over their bodies as you have over yours? if you answer this question “yes” as i do, then you don’t have to present justification for why a woman should occupy a lesser estate of liberty, self-determination and privacy than a man does. this justification appears to me a heavy burden, i’d like to see savik shoulder it without reference to “god”, “jesus” or any other fanciful constructs which are unsusceptible of independent verification.

Brian Kuhn September 23, 2005 12:32 PM

I am anti-abortion on moral and social grounds, but would not stoop to labeling someone a Nazi. Except in extreme cases like rape, I feel abortion is the least acceptable form of contraception as the person who is pregnant wasn’t smart enough to use one of many available forms of contraception or just abstain from unprotected sex. But I agree with Bruce, this is about privacy and the whole abortion issue is tangential and not really to the point, so lets not muddy the issue with our emotional responses to the pro/cons on abortion.

One of the scenarios given was that a man in a public place was photographed and then via technology identified and ‘rated’ as a potential threat to the public good. Based on this rating of threat he is stopped by the police and found to be in possession of an illegal substance. The legal question was about whether the search was legal. Since he was in a public place and that place also has a higher likelihood of being a target of a terrorist attack, the photographing and computerized identification is probably legal. Not to mention he was braking the law. If he had a bomb or a gun, people would praise the police for there efforts. If he was not a threat, then the police should adjust his rating so as not to bother him again.

But is the search legal? I think in this case it is, both for a legal and practical stance. An individual’s privacy is not constant but varies based on their physical location, for example you have much less privacy at an airport than you do sitting in your living room. I think a better question is “what are the criteria that define the scoring/rating of people in a public forum that allow law enforcement to conduct a search”?

The second point posed was whether corporations/entities could discriminate against a person based on the results of data mining. This is likely equivalent to discriminating against them based on ethnicity, religion, or physical disability, and so the answer to that is no.

There will always be a need to balance the rights of the individual against the needs of society as a whole. We no longer live in an age where those who wish to do us harm fight in a conventional manner, and so we may be forced to decrease the rights of the individual in public places in order to better protect ourselves.

This however does not mean we must sit back and allow the loss of our individual freedoms. Most of the time common sense gives the answer to these questions, but in the areas where it is necessary to strike a proper balance we will need the courts to rule on the laws that are passed by the legislature.

We all need to take a strong interest in how all three branches of government are effecting our individual rights and freedom and make our opinions known.

Anonymous September 23, 2005 1:06 PM

one question for all the people talking about abortion: if i were to murder you, would prosecuting me for that murder violate my right to privacy?

Rich September 23, 2005 5:24 PM

Since ‘pro-choice’ is generally a left wing opinion, and ‘pro-life’ is generally a right wing opinion, would it not be more appropriate to call David a ‘Sick Commie’?

Apologies to Bruce, who is trying to keep this on the issue of privacy. That’ll teach you to open a hornets’ nest 🙂

Bruce Schneier September 23, 2005 8:46 PM

“Bruce: Point taken, sorry for being presumptuous. I haven’t read any Solove yet, but Digital Person has been on my reading list for a while. Most of my reading on privacy has been through Jeffrey Rosen books, which is why I think of privacy in those terms, although I hear Solove’s book is supposed to be even better.”

And I apologize for being more terse than polite. The more I read about privacy, the more complex a concept it is. Solove does a really good job pulling apart the different aspects of privacy, of which anonymity is certainly one.

Bruce Schneier September 23, 2005 8:50 PM

“roy owens is correct. confirmation hearings are a game.”

They are 100% a game. There are no consequences for the witness lying. There is no reason to be forthcoming.

Bruce Schneier September 23, 2005 8:58 PM

“Apologies to Bruce, who is trying to keep this on the issue of privacy. That’ll teach you to open a hornets’ nest :-)”

I really was trying to talk about the Supreme Court and privacy without talking about abortion.

Please, people. It’s an important topic, but not really relevent here.

packrat September 23, 2005 9:12 PM

My impression of the difference between privacy and anonymity has always been that anonymity is a specific instance of privacy, that is, keeping one’s identity private. Privacy is certainly more complex than just that one issue, but I find the generalization-specialization relationship to be a useful model in many instances.

You had some good points up until the end of your post, but gratuitous nazi comparisons automatically lose arguments. Do try to help next time.

Bruce Schneier September 24, 2005 1:09 AM

Okay; that’s it. I just deleted a post about abortion that has nothing to do with security. And from now on I will delete all posts about abortion.

I know it’s an important debate; I just don’t want it here. Sorry.

Savik September 24, 2005 2:26 AM


Umm….study the Nazi party. They are from, and their party today, is the socialist democrats…not the right as so many uneducated believe. You know Stalin and Hitler were just two Socialists with different ideas on how to carry it out. Two heads of two different gangs who didn’t like each other.

Anyway…I don’t see how Judge Roberts can affect my personal level of security. No matter what decisions he makes. I spend my money and time on emergency response, contengency plans, and preventative efforts (using secure OS’s such as OS x and Open BSD is one way, not speeding, etc.). None of these will completely protect me from an event but help to minimize the chances and mitigate damage.

How would decisions Judge roberts makes affect my security? If the government or any one else wants to know something about me they will find it out — regardless of what some judge thinks or what some law says. Fact is you only have privacy if you stay under the “radar”.

directorblue September 25, 2005 1:41 PM

Nonetheless, judicial nominations have worked in essentially the same way since the formative years of the republic. Those concerned with the long-term effects of the current administration’s judicial nominations should instead worry about winning elections, rather than losing them.

Davi Ottenheimer September 25, 2005 11:36 PM

@ Savik

“study the Nazi party. They are from, and their party today, is the socialist democrats”

Oh, I can’t let that one slip by unanswered. It’s just too wrong and too funny to dismiss.

I’m not sure what comic book you have been reading, but the Nazi party was and will always be associated with the far right.

You first have to seriously misunderstand the social impact of Germany’s defeat in WWI to think that a German group that blamed the left, as well as the Communists and the Jews for national failure could somehow end up on the spectrum as “socialist Democrats”.

Specifically speaking, the German Worker’s Party, which eventually became the National Socialist German Workers’ Party (i.e. Nazis) started out as a group of ex-soldiers who espoused typical right-wing ideologies of German WWI veterans that were disenfranchized from the “defeated” ruling body and upset about the terms of Versailles. Regardless of their name, which was a piggy-back method of infiltrating a more popular political movement, their ideologies became clear and they were not socialists.

It is common for extremists to integrate themselves with a larger, more mainstream, party in order to grow momentum and power. But it is VERY important to understand that this means people who were once Socialists became radicalized into joining or being forced to join the Nazis, and NOT the other way around.

Although Hitler courted socialists during his rise, as soon as he had seized sufficient power (1934) he purged anyone on the left from the party (e.g. those who generally supported a state economic system over free enterprise). He thus created a dictatorship of the far-right, which merged state and business leadership in order to achieve an extreme (race-based) form of fascism.

But before I get in trouble for being so far off-topic (is this better than arguing over abortion?), let me bring this back to the rather ironic statement you made that “I don’t see how Judge Roberts can affect my personal level of security. No matter what decisions he makes.”

Do you realize that after Hitler’s failure at an armed attempt to overthrow the government in Munich (Beer Hall Putsch) in 1923, it was right-wing presiding judges who gave him a light sentence and the opportunity for early parole?

I mean if you led a failed armed coup to overthrow the government, and then you were convicted of treason, would you expect to be given a sentence that would release you from prison in less than one year? No? Me either.

Alas, Hitler’s 24 days of extremist right-wing ranting in his trial convinced the right-wing judges that the armed revolt represented “honourable (though misguided) motives”.


So let me state the obvious: whether we like it or not, Judges makes laws and we must personally help ensure that they are effective at delivering justice.

Your comment that “you only have privacy if you stay under the ‘radar'” is a complete contradiction of your own post. Obviously if you give up the ability to influence/determine what can show up on radar, then you give up the ability to stay out of range.

And THAT is why decisions by a judge will directly impact your security.

Savik September 26, 2005 8:51 AM


Look up socialism, communism, and fascism in the dictionary and you will notice not a whole lot is different bewteen them. They are all varients of Marxism.

View them in the looking glass of history and you will see that these three systems have been responsinble for the murder of millions in history.

They are all one in the same. As to your graphical representation as some sort of proof shows you are not familiar with communist methods. Of course they would not espouse the the terms “Nazi”. It is not politically expediant to do so. Just like the Democrats today don’t call themselves socialists or communists — because in America it is not a good idea — so they dress the same communist principles up in different terms and different names.

“So let me state the obvious: whether we like it or not, Judges makes laws and we must personally help ensure that they are effective at delivering justice.”

In a republic (what the U.S. is supposed to be) judges are not to make laws. If they are doing so then perhaps we have lost it already….and Judges are the least of our concern.

Davi Ottenheimer September 26, 2005 11:40 AM

@ Savik

“Look up socialism, communism, and fascism in the dictionary and you will notice not a whole lot is different bewteen them. They are all varients of Marxism.”

I find it odd that you just repeat yourself. What dictionary? Is this something that was published in the Michigan Militia guide to history?

Simply put, just because you can not see any differences does not mean there are no differences.

Take for example the fact that you say all three are words in the dictionary. Should we stop there and say that also means all three must therefore be the same? Please, if you can’t explain why three fundamentally unique, and historically opposed, beliefs are actually the same then what reason is there to believe your claim?

Moreover, you confuse motive with consequences. I am sympathetic to those who say we must be primarily concerned with consquences because motives are so murky, but your “murder of millions” statement is specious. After all, it took the death of millions of soldiers to defeat the Nazis. Should the Allied military leaders be accused of murder, or liberation? I think their motives are clear enough that even from a utilitarian perspective of ethics your statement is shown to be false and misleading.

“In a republic (what the U.S. is supposed to be)”

Well, perhaps what it was supposed to be two hundred or so years ago. That and the republicans were supposed to want a republic (with sovereignty invested in common people), but labels do not always match the product. As the Wikipedia points out “For most parties republican is just a name and these parties, and their corresponding platforms, have little besides their names in common.”

You should read “What’s the Matter with Kansas” by Thomas Frank for some excellent insights into whether the US is a “republic” — most would argue that “socialize the risk, privatize the profits” would fail under a true republic, but that seems to be one of the pimary tenets of the US Republican Party today.

“judges are not to make laws. If they are doing so then perhaps we have lost it already”

This is a surprise to you? Go ask any lawyer about who actually makes tort law (accidental injuries), contract law and property law. Here’s a hint, the legislature doesn’t. Moreover, what do you call it when courts can declare laws unconstitutional?

I’ll skip the obvious example here, per Bruce’s request. Instead, consider the fact that the Court’s conservative majority has interpreted the 11th Amendment (a state may not be sued by citizens of other states) to mean the US has a form of “sovereign immunity” — nobody can sue the federal or state government, even one’s own state, in state or federal court. Yes the Court definitely makes laws.

Davi Ottenheimer September 26, 2005 1:28 PM

“Just like the Democrats today don’t call themselves socialists or communists — because in America it is not a good idea — so they dress the same communist principles up in different terms and different names.”

Wow, this is amazing. On the one hand you are saying the dictionary is the litmus by which we should interpret the true meaning of political parties, and the next minute you are mixing terms that even the dictionary clearly says are quite different. Can you explain that leap of reasoning?

Obviously you are just trying to villify anyone you disagree with by associating them with whatever you happen to consider an evil and unjustified philosophy. In other words you say Democrats have the position of Communists, Communists are bad, therefore Democrats are bad. If you detested bunny rabbits then you would say “those Democrats today don’t call themselves bunny rabbits…”

This is a fallacy of logic (note the definition of “straw man fallacy” in your dictionary).

Please spare us from your rediculously liberal sprinkling of Nazi/Communist labels and try instead to point to an actual reason why Americans should/shouldn’t be concerned about Roberts’ refusal to reveal his general stand on privacy for the future.

Frank MCGowan September 27, 2005 10:50 AM

The commonly used “left == communist to right == nazi” political spectrum is using an obviously crippled model.

In fact, it was deliberately crippled by its inventor – Lenin – because he envisioned the future as completely dominated by various “socialist” parties. He placed the Bolsheviks (“majoritarians”) on one end – the “progressive” left – and the Mensheviks (“minoritarians”) on the the “reactionary” right with the Nazis. With this model, both ends result in police states of the most brutal kind. We are asked to believe that the center of this spectrum is a free and democratically run society.

Balderdash. A rainbow with red on the left and red on right is also necessarily red in the middle because you have limited your perception of the rainbow to only the red band.

A more useful model would put absolute autocracies on the left and anarchy on the right. I select this orientation because of the stated goals of the major parties in the USA – Democrats (acknowledged “leftists”) want more government intervention in the form of “assistance” while the Republicans (the American “right) purport to want less government intervention for any purpose.

Placed into this spectrum, the Bolsheviks will be near the extreme left end, the Nazis very slightly to their right, most of Europe well to the right (but still well left of center) with the US moving from center-right to center-left from its original point well to the right of center. As a historical note, the Tokugawa Shogunate, an enthusiatic user of secret police, would fall into the Bolshevik-Nazi portion of the spectrum while the feudal kindoms of Europe (in general) would fall to their right, but still well off toward the left end of the spectrum.

The right end of this spectrum representing anarchy prevents any government being placed there… The early USA – in which one could pretty must do as one chose – would be fairly close to the right end. The original taxation scheme for this federal government consisted of tariffs (on imports) and excises (on luxuries like distilled sprits). The national government had very little direct interaction with the vast majority of its citizens. Nearly all government action that impacted individual citizens we taken at the local level, followed by the state – provincial – level.

We’ve copme a long way, haven’t we? How did we get here?

The US Constitution was drawn up to preserve that arrangement. Legislators at all levels have altered that arrangement by intruding upon us (for a variety of reasons) as our judges have permitted. They have permitted much.

Judges have altered our governing arrangements even more than legislators because the legislators have not effectively chastised judges for usurping legislative authority. Impeachment is the intended remedy as evidenced by the fact it is the only remedy. Impeachment is possible so that it can be done; it is difficult to prevent its indescriminate use.

Our legislators have neglected their duty by the indescriminate disuse of impeachment. It is this legislative failure that is permitting our judges to become our kings.

Davi Ottenheimer September 27, 2005 9:28 PM

@ Frank

Ok, it took me a while to digest what you were saying, but then I found this site that seems to be saying the exact same thing:

“Chapter Twelve–Conservative Debate Handbook: THE POLITICAL SPECTRUM”


I should have suspected. Something was fishy when you said Lenin is to blame for our problems, and that Nazis are actually less extreme than Communists.

Your handbook clearly says Nazis are just one shade better than Commies and one worse than Clinton.

That’s pretty sick and twisted, really, on its own. It’s just a purely fanciful chart of why the word “left” should forever mean “bad”.

And then I noticed the examples of “Moderates (Including Republics & Monarchies With Power In A Popular Electorate”:

“America under Eisenhower, Nixon, Ford”

Um, are these people seriously trying to suggest that Nixon was a moderate in a popular electorate. I suppose his blackmail of the CIA to stop FBI investigations into his election tampering was part of the popular electorate’s demands, and he was following their lead?

I’m (almost) speechless. I’m sorry Bruce, I tried to stay on topic, but there seems to be a bunch of neo-con propaganda floating into the blog and I’ve just uncovered the sad origins.

Alas, Savik’s source material is revealed right there on the same page. Remember when I asked which dictionary, what books? Here is the quote I’ve been looking for:

“The reader will note that we have put the Nazis to the Left of the Social Democrats in the Socialist zoo on the Left side of the display. While some may question this because of the avowed “Nationalism” of the German Socialists, it may be well demonstrated not only by the attributes referred to in the chart, but by the much more detailed discussion in Chapter Seven, The Lies Of Socialism”

This utterly rediculous chart is a thinly veiled straw-man argument that just places everything left to right in terms of who extreme neo-conservatives do not think they should be associated with.

Communists obviously are the worst (just watch Red Dawn), next come Nazis and “Clinton’s puppets in Haiti” (hey, what’s the difference?), then they group together Iran/Sweden/Britain with “America under Clinton”, and finally, after a few more gratuitous columns of separation necessary to be far right of Clinton, all the way over on the “Right” (strangely next to another “Right” — there is no “Far Right” label) is the Heavenly and Puritain America of 1776.

As disturbing and disgusting as this nonsense should be to anyone familiar with those little things called “facts”, it’s even more disturbing that people have been actually posting blog entries based upon it!

I mean if anyone actually believes this handbook/site has any validity at all, then I have some swampland in Louisiana and a seat on the Supreme Court I’d like to sell them…privately, of course.

Frank McGowan September 28, 2005 4:57 PM

@Davi –
Wow! What a reaction… Dare I say “rant?”

You certainly gave me much to which I must reply. Let’s start at the top.

“Ok, it took me a while…” You may be disappointed (or incredulous) to hear it, but I have never seen either of those sites. Thanks, I will check them out. (Not really; I can read and think for myself.)

“…when you said Lenin is to blame…” If you will read my post, you will see that I said no such thing. I simply said he viewed the future as a socialist dominated prospect and modelled the political spectrum as he saw it through that prism.

“…Nazis are actually less extreme than Communists” Actually, in economic terms – they were. The (German) Nazis told the owners of capital what they were permitted to do with it and permitted them to profit (or lose) as they did so. While the capitalists were doing what there were told, the Nazis spent their time figuring out how to foment hatred of Jews to keep the populace distracted from everything else. The (Russian) communists – the Bolsheviks, actually – killed the capitalists and (mis-)managed the previously capitalist-owned resources until the regime collapsed of its own weight. Don’t forget that the Russians had their own intermittent version of Hitler’s “final solution” since the early 19th century, at least. The difference is chiefly one of degree rather than substance.

I fail to see what real difference the uniform worn by the secret police makes when they kick down your door at 3am and haul you off for “interrogation” that can last years, the rest of your life, actually. I submit that it makes no difference whatsoever; therefore, I see nazis and communists as “peas in a pod” – very nearly indistinguishable.

“…one worse than Clinton.” I defy you or anyone else to find even one reference to Bill Clinton in my post. Individuals do not make meaningful data points for this sort of model.

“That’s pretty sick…” I agree though I disagree as to the antecedent of “that.” I would substitute your completely over the top reaction to my post rather than some websites and/or books you suspect I may have seen. Your suspicion on this score is unfounded. I have read your posts here before because you – usually – have some interesting things to say, whether I agree with you on a particular topic or not. This little episode will definitely lessen my enthusiasm to read your opinions in the future.

“Um, are these people…” Are you asking about the authors of the webistes and book you cited earlier? I cannot speak for them. You know more about them that I do; as such, you are more qualified to answer your own question than I am. But, please find me one reference to Eisenhower, Nixon or Ford in my post. You can’t. Again, individuals make poor data points here because they are not systems of political thought or goverment.

“I’m (almost) speechless.” You’re kidding, right?

“Alas, Savik’s…” Alas, I am not Savik, so I will not reply in his stead.

I will assume the lengthy quote beginning “the reader will note…” is from one of the sources you mentioned earlier. I find your use of it in a “reply” to me disappointing. I find the notion that you could possibly see that as a basis for my reasoning profoundly insulting. I rather hope you are ashamed of yourself, but I suspect not.

“Communists are obviously…” Please show where you found a value judgment of this (or the contrary) sort in my post to which I assume this is intended as respose. I submit that if you can find one, you have supplied it yourself.

” …there is no ‘Far Right’ label…” Yes, there is: anarchy (and anarchists) will be found at the “Far Right” of the proposed model. No reasoning person wants that, either. You will notice that no anarchy can have a secret police force because they can’t have a police force because they can’t have a government. Contrast that to the commies to nazis common model in which everyone has secret police and you’ll see there is no room for either democracies or anarchy in the model.

Again, please analyze the models.

I will skip down your rant a bit…

“…anyone familiar with those little things called ‘facts’…” You refer to “facts” without referencing any.

“I mean if anyone…” You are the only one to cite this handbook. Uh… Isn’t this a straw man argument of the precise type you decry?

OK; new material…

I was looking at an obviously broken model of a political spectrum that describes a circle. It is useless. I was proposing a general model to replace it.

If you want to posit the “horseshoe” you alluded to in an earlier post, what are you doing – proposoing a two-dimensional model, merely bending a straight line because you find straight lines distasteful or breaking open the circle because you admit it’s a broken model?

In any case, you should explain your model a bit more copmpletely. Then we could discuss it; as it is…

I apologize for upsetting you. I only meant to call attention to the obvious deficiency of the left/right ultimately circular political model commonly used in the USA.

I notice you didn’t have much to say about judicial rewrites of the Constitution via dubious decisions… If I may paraphrase: “Those who live by the judicial decision, will die by the judicial decision.”

That is the chief danger posed by John Roberts (hello – the root topic…) or any of his predecessors or successors on the Supreme Court: the ability to invent – or deny – rights, privileges and/or obligations that are to be “found” in the Constitution as they see it instead of how it was written on paper. How do we manage that danger?

Davi Ottenheimer September 28, 2005 6:02 PM

@ Frank

Good retort. I apologize for assuming you used the same source material as Savik. Shame on me.

“This little episode will definitely lessen my enthusiasm to read your opinions in the future.”

I would say I am disappointed, but then I never really had a chance to appreciate your enthusiasm before now so I can’t really say I understand what I’ll be missing. Many people do email me to say they like my posts, but I didn’t find anything from you.

Again, I do not disagree that on a certain level negative consequences are negative regardless of who’s pulling the trigger and/or detaining suspects but as you must have read in my post above there are other considerations such as motive worth including in the analysis.

“‘…Nazis are actually less extreme than Communists’ Actually, in economic terms – they were.”

I don’t think the discussion is limited to one facet of these regimes. I don’t see the point in desribing a ruler’s platform here purely in economic terms, since social issues obviously blend and are more related to judicial issues. But perhaps more interesting is the fact that your point is the opposite of what Savik was saying when he suggested Stalin and Hitler were both just Socialists.

“If you want to posit the “horseshoe” you alluded to in an earlier post, what are you doing”

Well, it’s not my model but I thought I was doing exactly what everyone has done for centuries (long before Lenin) which is to say there is some good to be found in moderation; in other words, while the opposite extremes are very different in purpose they are equally scary in effect.

“how it was written on paper”

Cute. As much as I’d like to say, “yeah, everything’s clearer in black and white”, I think we just provided a rich example of why there will always be a lot of room for interpretation, so you’d better know something about who’d doing the interpretation before you hire them to do it forever.

Frank McGowan September 29, 2005 6:46 PM

Because I seem to be last person interested in this topic, I’ll skip straight to meat this time and we can hopefully lay it to rest…

“I don’t thnk the discussion is limited to one facet…” Nor do I. I only cited economics as one facet in which the Nazis were less extreme than the Bolsheviks because of your objection to me placing them farther left than the Nazis. The Bolsheviks were somewhat less extreme than the Nazis in their treatment of Jews, but only slightly. Jews who escaped the various ghettos and became partisans in the east were aggressively hunted by both sides.

If you “average” the “exremeness” of the two regimes, they come out fairly close in my opinion. Hence their proximity on the scale.

“… the opposite of what Savik was saying … both just Socialists.” They were different socialists, but they were both socialists. I see them as “peas in a pod” in most ways and always have. Would you choose to live in Satlin’s Russia or Hitler’s Germany? That would be a choice from hell no matter who you are.

“…some good to be found in moderation…” I agree with that much. I still contend that even if the ends are different in publicly stated purpose but are nearly identical in effect, there is little practical difference so they are equal in more than scariness.

“Cute….” You dismiss the notion of the permanence of the written word out of hand?

OK; how about we play cards? I am a notoriously bad card player; you have a better than even chance of winning. Any game whose rules appear in the book from Hoyle is OK by me; I’m equally bad at all of them.

We’ll have a third party arbitrate any disputes over the rules; an expert on card games. We’ll each chip in the same amount of money for his fee and we’ll pay him in advance so neither of us can bribe him.

His rulings are final and there can be no appeal. Does that sound fair?

What if I tell you the expert views Hoyle’s rulebook as a “living document” that must be made to fit the changing circumstances of a changing world? You know, to “stay relevant” as they always say.

And he gets to decide what to change and how much to change it?

Still like your chances?

That is exactly the case with the Court and the Constitution.

There is definitely room for interpretation; there always has been. We need to find a way to control the tendency of Supreme Court justices to do as they please rather than as the Constitution and the laws say they should.

The paper version is the one we can all share, not the “voices only they can hear” version. When the laws mean what the judges tell us they mean only because the judges have said so we have ceased being “a nation of laws” and become “a nation of men.” Right now, we have no means of controlling or even influencing the Supreme Court.

That’s why the choice of Justices is so important and so potentially futile.

Leave a comment


Allowed HTML <a href="URL"> • <em> <cite> <i> • <strong> <b> • <sub> <sup> • <ul> <ol> <li> • <blockquote> <pre> Markdown Extra syntax via https://michelf.ca/projects/php-markdown/extra/

Sidebar photo of Bruce Schneier by Joe MacInnis.