Our Unserious Supreme Court: “Federalism,” “Jurisdiction,” Kiobel v. Royal Dutch Petroleum Co., and Anthony Kennedy – [Typo-corrected and updated TWICE]
In the comments to my post of yesterday titled, “Welcome Back, Supreme Court Justices! (Well, for the next two weeks, anyway.),” Angry Bear colleague Dan Becker wrote:
I have read about this case. Still unclear even after reading your piece as to what the law was for, to do and how the new interpretation changes it. Would love some more expansion on it.
With that, I wonder if it will really matter if that Trans Pacific Partnership goes through.
I wrote back:
Hi, Dan. In my opinion, the biggest problem with most mainstream-media coverage of the Supreme Court is that they mainly cover only Supreme Court decisions that address what lawyers call “substantive” issues—the stuff that actually addresses bottom-line issues that most people think of as what the Supreme Court decides, such as whether something violates the First Amendment or the Fourth Amendment (e.g., search-and-seizure). But a huge, huge part of what the Supreme Court does is decide “procedural” issues, especially “jurisdictional” issues (which make up a huge, huge part of “procedural” issues—and those issues concern the threshold question of who has access to court, and under what circumstances.
The Reagan-era rightwing legal types—federal judges appointed in the 1980s and people like John Roberts and Samuel Alito, who worked as political appointees in the Reagan Justice Dept., and others who “came of age” during that period—have engaged in a decades-long, extremely effective crusade to turn federal law into mainly procedural/jurisdictional law, and to do so in a way that, in effect, lets judges interpret these procedural/jurisdictional (and, closely related to jurisdictional, “immunity”-from-liability) law to bar nearly all constitutional civil rights cases, and many other types of cases, that the ideological right disfavors on substantive grounds, while finding no such procedural/jurisdictional bars when the issue is, say, property “takings” rights or one of the other two or three type of constitutional rights favored by the right.
Anthony Kennedy and Clarence Thomas are at the very forefront of this type of thing. Kennedy’s views on this are truly bizarre and utterly unfounded in any reasonable interpretation of American law since the Fourteenth Amendment became part of the Constitution. He believes that state courts, unlike the two other branches of state government—the executive and legislative branches—are free to ignore constitutional rights, because otherwise the federal government (the federal courts) would be undermining “federalism” and thus the “dignity” of the states as “sovereigns.” But he never explains why he recognizes that the two other branches of state government have no such exemptions from the Constitution’s Supremacy Clause. Thomas, by contrast, simply doesn’t recognize the Supremacy Clause at all, except for such things as gun-ownership rights, reverse-discrimination Equal Protection rights, property “takings” rights, and the right to commandeer, say, a public school event to proselytize on evangelical Christianity.
The Supremacy Clause is at Article VI, Clause 2. It says:
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
All that said, the issues in Kiobel [v. Royal Dutch Petroleum Co.] concern only the interpretation of a federal court-jurisdiction statute—access to federal court in a personal-injury/property-damage case. The issues and arguments are so arcane (inside-baseball) that it’s hard to summarize them briefly, mainly because the issues in this go-around at the Court are different that the ones argued there last spring—but that doesn’t mean that the earlier-argued ones won’t ultimately be the issues on which the case is decided.
So, [here’s] a good article on it all, that I think is understandable to lay people.
I also posted a PS to Dan, saying:
I don’t know enough about the specifics of the Trans Pacific Partnership provisions to know whether or not it would affect the application of the Alien Tort Act*, Dan. It seems to me, from googling the pact, that it could, but I really don’t know.
Basically, what that crowd has done is erect a series of classic violations of the constitutional construct of equal protection of the law. They’ve done so in two separate ways:
First, they have effectively closed down the Supreme Court except for a tiny, tiny handful of cases, almost always only when asked by a state or local government, a state or local government official (usually a prosecutor), a crusader on some issue, represented* for free by some rightwing lawyers’ group, or a corporation or very wealthy federal criminal defendant represented by some $1,000 per hr. Supreme Court “specialist.”
They do this increasingly these days, apparently largely at the behest of Kennedy (at least when a lower court has violated the “sovereign dignity” of a state court in a state criminal case) by acting as a “court of error,” correcting what they claim is legal error by the lower court in contradicting what the good justices say is clear Supreme Court precedent, but by ignoring, year after year, so many other clear instances of lower courts ignoring Supreme Court precedent that it’s downright jaw-dropping, because, after all, they continue to claim, the Supreme Court isn’t a “court of error.” (Antonin Scalia is especially vocal on this, except, of course, when he decides that it can serve that very purpose.)
And, second, they have deliberately established such convoluted procedural/jurisdictional rules that those rules are inherently (and, surely, by design) open to whatever interpretation the lower-court judges wish. And almost always, what they wish is to dismiss lawsuits. And so that’s what they do. Most judges, irrespective of which president appointed them, do this these days, simply to lighten their civil case to, roughly, cases filed by large corporations. (State-court judges caught on to this free-for-all a while back, and do the same.)
But, as for the Supreme Court, many, many of us who actually follow it closely recognize that it’s become a perverse joke—a non-serious institution that continues to have profoundly serious control over very serious matters. Sort of like other venerable American institutions—the old, once-venerable Wall Street brokerage firms, for example—that have been commandeered, morally, by the ideological right in the last three decades. With similar results.
*Typo-corrected since original was posted. The original said “repressed for free.” It wasn’t Freudian; it was just a spell-check error. I swear.
**Added since original was posted.
SECOND UPDATE:Here’s a good discussion of the “law of nations” language in the Alien Tort Statute*, and why, at least in the opinion of environmentalists, that—i.e., this substantive issue—rather than the procedural issues that the conservatives raise, is what Kiobel should be about. The Court will address this substantive issue only if it rules against the oil company on the jurisdictional issues—are foreign corporations “aliens” within the meaning of the statute, and if so, does the statute limit its reach to cases with ties to the United States? It seems really unlikely that it will decide that the statute applies to conduct untied to the United States—even though drawing that conclusion requires—horrors!—looking beyond the text of the statute to legislative history.
Which, as luck would have it, is perfectly appropriate if that’s what it takes to rule in favor of an oil company and other mega-corporations.
*Correction, Oct. 2: The statute is known by two names: The Alien Tort Statute (ATS) and the Alien Tort Claims Act (ATCA).
The ideological spectrum is more like a horse shoe than a line. This particular horse shoe’s ends converge (near) to each other so that ideological differences are largely semantic. The ideology at the ends of the spectrum are control, power, and their maintenance. The institutions you discuss weren’t hijacked by the ideological right, they were highjacked by the ideological structure, the main function of which is to give people things to believe and argue about, like right vs left. “Religion is what keeps the poor from murdering the rich.” – Napoleon Bonaparte.
Ps. First time to your site, I like it. Thanks for the work and research, it seems extremely thorough.
“repressed for free”
I typo, I guess. But I like it. 🙂
Oosh. Thanks, Min. I just corrected it, and said the error wasn’t Freudian. I swear.
So in their effort to secure their own interests, they make the country ungovernable. Is that what I’m reading? And they see that as in their own interests?
No, this doesn’t have much to do with how governable the country is. It concerns mainly the right of access to federal court by individuals to enforce constitutional or federal statutory rights. So, to the extent that it impacts the governability of the country, it actually makes the country more governable, rather than less, if by governability you mean the ability of the government to exercise control over individuals at the whim of some government official or employee (including state-court judges and prosecutors).
The self-interest of lower-court judges in dismissing nearly every lawsuit filed by an individual, and by perfunctorily denying nearly every habeas corpus petition filed by a criminal defendant convicted in a state court—assembly-line fashion—is that it’s infinitely easier for the judges. They reduce their caseload dramatically and routinely by doing these things. And as for the Supreme Court justices, it’s long been not much of a secret to court watchers that they work only part-time, very much by their design. They set their oral argument schedule for a preset two-cases per sitting, with 35 sittings—that is, two cases on 35 days each year.
Bizarre. And outrageous. All the more so because nearly all of those cases are heard at the behest either of a state attorney general’s office or a corporation or very wealthy individual that has hired one of the $1,000 per hr. Washington-based Supreme Court “specialists” (John Roberts was one of the top ones before his appointment to the bench) whose specialty is getting the reviewing law clerk to actually consider recommending that the Court agree to hear the case, and in getting at least one actual justice read the petition for review even if the reviewing law clerk doesn’t recommend that the Court hear the case.
They do issue a very few opinions summarily each term, reversing the lower court without full briefing and oral argument, but here again, almost all of those in the last several years have been to summarily reverse a lower federal appellate court’s “insult” to the “sovereign dignity” of a states—which, it turns out, means only the sovereign dignity of state courts, not state legislatures, at least when the state legislature has enacted a statute that Republican ideologues don’t like. Montana learned that last June, when the Supreme Court summarily reversed an opinion of the Montana Supreme Court upholding a Montana campaign-finance statute. (This does tend to reverse itself, though, when, say, the legislature of Texas enacts an outrageously gerrymandered congressional-district map.)
Not to speak for Greg, but I think or at least I thought when I read his comment it was more about less governable in that there is less equality under the law. That can only lead to social inhibition at least and social disfunction to degredation at worst.
It is, as the World Bank report of 2005 suggest, distroying our ability to build wealth.