Kalt, if you can define any real difference in meaning between Posner’s exact quote and the harsher-sounding summary of it that I gave, then please proceed.
Before doing so, though, you might ponder another of Posner’s admissions. Specifically, if the names in the case had been reversed, the Court’s decision would “probably” have been the opposite. Ponder that for a moment, if you will. There’s “probably” no more damning accusation anyone could make about any court’s integrity, and it comes from it’s most thoughtful and distinguished defender.
Btw, you were trying so hard to spell Dershowitz’s name incorrectly that you actually got it right. Your comment about how much you hate him personally has nothing to do with the strength of the arguments he stated, of course, except to reduce your own credibility in trying to dismiss them.
Oh, and also btw, dismissing “American Spectator” as a “stupid little backwoods magazine” shows your lack of understanding of the connection between it, it’s existence as a Richard Mellon Scaife mouthpiece, the “Arkansas Project” Olson worked for that was devoted to digging up anti-President-Clinton dirt and even creating it on several occasions, the Paula Jones suit and its origins with another, related Scaife organization, and the Starr legal team whose collaboration with the Scaife team has been widely reported. If you want to be convincing, please show some understanding of the facts first.
The right-wing conspiracy wasn’t (isn’t) all that vast, and it’s more accurately described as a hateful cabal, but Olson was at the heart of it, even closer than his late wife. But he weaseled about it in his confirmation process instead.
I’ll even help you with the first part. Posner tried to say that the Court’s ruling “might” have been sounder if they had made a different argument for it. But they didn’t. And there’s no evidence that they even thought of doing so. The Court’s decision was what it was, and invoking an alternate universe doesn’t exonerate it.
During the confirmation process leading to Justice Rehnquist’s appointment in 1972, a memorandum entitled A Random Thought on the Segregation Cases’ came to light. It had been written by Rehnquist while he was clerk to Justice Jackson during the Brown era. Rehnquist wrote that Plessy v. Ferguson had been rightly decided and should be upheld. Rehnquist defended his action by stating that the thoughts expressed in the memorandum were not his own, but those of Justice Jackson:
As best I can reconstruct the circumstances after some nineteen years, the memorandum was prepared by me at Justice Jackson’s request; it was intended as a rough draft of a statement of his views at the conference of the Justices, rather than as a statement of my views… I am satisfied that memorandum was not designed to be a statement of my views on these cases… I am fortified in this conclusion because the bald, simplistic conclusion that Plessy v. Ferguson was right and should be reaffirmed’ is not an accurate statement of my own views at the time.
Richard Kluger, in his book Simple Justice, has argued at length that Rehnquist’s attribution of these views to Justice Jackson is not a plausible explanation of the memorandum. In Brown, Justice Jackson agreed that segregation was unconstitutional. However, Jackson died shortly after Brown I was issued; he never participated in the remedy phase.
Professor Dennis Hutchinson, who authored a biography of Jackson, has similarly concluded that the explanation is false. Finally, Philip Elman, who had written the government’s brief as Solicitor, has also stated that Rehnquist falsely attributed his own views to Jackson. The Solicitor General’s Office, Justice Frankfurter, And Civil Rights Litigation, 1946-1960: An Oral History, 100 Harv.L.Rev. 817 (1987).