Cute procedural tautology of Roberts Court
by Beverly Mann
lifted from an e-mail, used with permission of the author of the blog The Annarborist
This article in the New York Times on this one page court order by the Supreme Court elicited the following response from Beverly Mann:
“Eric M. Freedman, a law professor at Hofstra University, said that the lesson of the Supreme Court’s ruling in the Landrigan case was ‘crime pays.’
“He explained: ‘The state flatly stonewalled the lower courts by defying orders to produce information, and then was rewarded at the Supreme Court by winning its case on the basis that the defendant had not put forward enough evidence. That is an outcome which turns simple justice upside-down and a victory that the state should be ashamed to have obtained.’”
This is part of a Roberts Court trend that is, in my opinion, so very John Roberts: The erection of a cute procedural tautology that eliminates access to federal court because the specific evidence that the person trying to gain access (the “plaintiff”; the “petitioner”) will need to prove the claim is solely in the possession of the corporation or government entity that the claim is against.
Last year, in a case called Ashcroft v. Iqbal, the 5-4 crowd held it appropriate and in fact obligatory that trial-level federal judges dismiss civil lawsuits, willy-nilly, if the judge declares that the formal complaint (the document filed with the court that initiates the lawsuit) lacks evidentiary specificity sufficient to prove the case. This defies a longstanding federal statute known as Federal Rule of Civil Procedure 8(a), which explicitly bars dismissals of lawsuits in such grounds.
But no matter; the originalist/textualist/non-judicial-activist justices effectively rewrote that statute—eliminating the plaintiff’s or petitioner’s right to require the corporation or government entity to disclose the evidentiary specifics, e.g., internal memos; product test results; police audiotapes; (in the Landgrigan case) documents showing where the drug was manufactured and what it contains.
What’s most stunning about the order in Landrigan is the 5-4’s bald, deliberate conflation of the standard of proof for barring the execution using this drug and the standard for staying the execution until the state provided the evidence sought. These are—or at least were—two separate standards. And logic requires that they remain so.
This new rule of law that you have to present evidence that your opponent is keeping from you before you’re entitled to access to federal court is a dream come true for perpetrators of corporate and government malfeasance. And its quasi-legislative authors on the Supreme Court are frightening diabolical in quietly promulgating that rule of law.
The corporation has rights in civil issues. It is covered by the right to privacy and protection from self incrimination, as well as the unlimited right to hide evidence.
The truth is what can be proved by the plaintiff; closed evidence, and hidden facts do not change the lies.
Ms. Beverly has made a few similar, very astute comments about this Court and its reliance on late appearing procedural flaws in cases it hears. The distressing part of this is that Roberts takes the case knowing he’s going to slam it back on one pretext or another. The corporation gets the benefit of the Court’s ruling not to rule, which is as good as a win. This is an advantage which would be highly unlikely to be afforded to an individual in a similar case. The individual would be subject to disclosure and here, the corporation skates even on that.
It would seem to me that the corporation should not have immunities that an individual lacks. But, hey. My name isn’t John Roberts. NancyO
This is apparently becoming more common, and more noticed. There have been other mentions by court watchers of the Roberts Court ruling very near the middle of the road on the main point of cases brought before it, so as to avoid notice and criticism, while writing very “useful” stuff in the majority opinion. Future cases can be argued on the basis of “opiniions” that were not adjudicated by the Court, but rather inserted on the sly.
‘…solely in the position…” (possession)
Hi Bev:
I guess Gideon would have remained in prison under Robert’s rule because he was not entitled to a defense by competent legal authority. This is basically what the Roberts court is saying: “Damn the constitution, our view is what is law.”
kharris:
Citizenry will never see the light of day in the Roberts Court
Thanks for catching that typo and mentioning it, k. Dan’s corrected it now.
B.
Yeah, run. It dismays me that these people (presumably) think it’s in the interest of American society to erect a deliberately impenetrable labyrinth for vindication of even the most basic constitutional rights, whether in criminal cases or otherwise. For all their sanctimonious pronouncements about the Constitution and about their strict adherence to it, what they really do is quietly disassemble its guarantees.
Well, only those guarantees that Reagan-era rightists—which is what five of the current Supreme Court justices are—don’t like.
The Roberts Court is conservative–usually. It depends on how Kennedy is feeling on any given day, but I think this is a bit of a mountain out of a molehill. The Landgrigan case involved a requested stay of execution on grounds that Arizona was importing the drug for the lethal injection. Presumably, the issue was whether the drug might be defective and cause the guy unnecessary pain before death. There was no evidence or even reason to belive this was the case other than the fact that the drug was being imported. The case was decided by the pro death penalty majority outvoting the anti death penalty minority and the lack of evidence was simply the rationale applied. Ashcroft is more interesting because it changed the longstanding test of whether to dismiss a complaint in a civil law suit from “no set of facts that would establish a claim for relief” to “a statement of facts which shows a plausible claim for relief” You do not have to prove your case at the pleading stage, but you must allege sufficient facts that it is reasonable to infer the defendant has liability. Note the word “allege”. Nothing has to be proven at the pleading stage, but you can not just say “I work for a big corporation and I am sure that that they have misapplied their benefit program to my damage” and expect it to stand up. You have to allege what benefit program has been misapplied, how it was misapplied, how that damaged you and at least some measure of that damage. If you get past the pleading stage you will be able to do all the discovery that is relevant and in my experience, every court, including the Roberts court will crucify any litigant including corporations that withholds or hides discoverable information.