Relevant and even prescient commentary on news, politics and the economy.

What Are the Supreme Court Justices Hiding? A Lot.

The Supreme Court has long been criticized for its unwillingness to televise, or even record, its proceedings. But debate about transparency at the nation’s highest court should extend far beyond the issue of television cameras. Citizens deserve transparency from the court about how it decides which cases to hear, how justices decide whether to recuse themselves from pending cases, and how the justices’ court-related personal papers are treated after they retire.

The Supreme Court receives more than 7,000* requests a year to overturn lower-court decisions and grants only 70 to 80 of those petitions (it takes four votes to hear a case). Deciding which cases to hear is an enormously important aspect of a justice’s job. Yet the Supreme Court does not disclose which justices decide whether a case is worthy of its attention. In fact, there isn’t even an official record of the votes.

What Are the Supreme Court Justices Hiding?, Eric J. Segall, Los Angeles Times, yesterday

Okay, obviously I’ve died and gone to heaven, because in the earthbound world, no one–at least to my knowledge–other than me has written publicly about this. I’ve written repeatedly about it here at AB, most recently here and, earlier, in more depth.  But no one else seemed to care.  No one who matters, anyway. I would have died of shock this morning when I read that op-ed piece, were it not that I was, unbeknownst to me, already in heaven, even though I’ve never even attended a government meeting in the town of Greece, NY.

Segall is a law professor at Georgia State University.  He also is the author of a book called Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges. But y’all already knew that the Supreme Court is not a court and that its justices are not judges, because you religiously read my AB posts about the Court. Even though my posts aren’t part of the government-meeting opening proceedings in the town of Greece, and anyway you, like me, don’t live anywhere near that town.

Segall’s advantage over me is that he was able to ask a retired justice, John Paul Stevens, why the votes on “cert. petitions–you know what cert. petitions are, because you read my AB posts–aren’t public. Segall reports that Stevens, when asked this, “paused and then said that, in his 35 years on the court, the issue of publicly disclosing such votes had “never come up, so he had never thought about the question.”

I began posting at AB in the spring of 2010, right around the time that Stevens announced his plans to retire at the end of that Court term in June of that year.  But I’m not sure my writings on AB would qualify as “coming up” anyway.

So, what does?  I suggested recently that Congress (by which I meant, liberal members of the Senate Judiciary Committee) should propose legislation to require a formal public record of the votes on every petition for certiorari, and as a prerequisite, require an actual formal vote on every petition for certiorari. (I don’t think this would qualify as a revenue measure, so the bill could originate in the Senate.  I could be wrong, though, since it would be a mandate.)

Segall says Stevens’ “response says a lot about how the justices take for granted their secrets and the court’s lack of transparency.”  Yeah. I call it an entitlement, and it needs to be fixed.  Segall goes on to report:

After reflecting on the question, Stevens noted that the court shouldn’t continue a practice simply because ‘it’s always been done that way,’ but he also worried that if certiorari votes were disclosed, the public would assume that a justice’s vote to hear a case indicated how he or she would rule on the merits of that case.

“Confusion about what the votes mean,” Segall comments, “is not, however, a justification for keeping them secret from the American people.”  Oh, I dunno. When an extremely powerful government institution is allowed to make it’s own rules, absolutely unfettered, to suit its members’ personal needs, confusion about what the votes mean sounds like as good a justification as any.

So, apparently, does deliberate obfuscation about which justices vote to give which corporation represented by which Supreme Court Specialist, or (carte blanche) which state attorney general’s office, access to Supreme Court review, and which justices vote to give no one else access.  Except the Pacific Legal Foundation’s clients.

I, for one, sure would be interested to know which justices refused, for decades, to hear cases about Court-fabricated “jurisdictional” and “quasi-jurisdictional” bars to access to federal court to assert a violation of a constitutional right–and then voted to address exactly those issues, at the behest of ExxonMobil and Sprint Communications, narrowing the respective Court-fabricated “doctrines” exactly to the extent necessary to allow them and those nearly identically situated access to federal court, but no one else.

It’s not like, once they agreed to hear those corporations’ cases, they didn’t note in their unanimous opinions that these “doctrines” have metastasized outlandishly in the lower federal trial and appellate courts; they did. They said that, in both the ExxonMobil opinion and in the Sprint opinion.  It’s just that no major corporation had asked them to address these cancers before. But in both instances, the cancer is not full in remission. Further treatment will have to await a cert. petition by Chevron or Verizon.

Not incidentally, both of these doctrines pretty baldly violate the doctrine of separation of powers, as I said in a recent post. And the First Amendment petition clause.  Maybe Chevron’s and Verizon’s Supreme Court Specialist will point that out. Decades from now. Until then, only parties challenging a section of the ACA will have access to federal court as a matter of constitutional right and federal-court-jurisdiction statutes that say they apply to, well, everyone.  The justices are protecting are freedom. And they violated ExxonMobil’s and Sprint’s.

Segall says the current intense level of secrecy at the court can’t be justified. He’s right.  But what difference does that make?  None, best as I can tell.

Another issue that apparently never comes up at the Court is the ridiculously and, for a good many people, prohibitively expensive cert.-petition process.  The Court requires an expenditure of roughly $5,000-$7,000, paid to one of two or three private printing companies that have a cartel, for the (very) special printing of an original and 39 copies of each cert. petition, plus three for each opposing party. This to play the lottery for the perhaps three slots annually that are not allocated for petitions filed but government entities or government-employees-as-government-actors; petitions bearing the name of at least one Supreme Court Specialist on its cover; or petitions filed by some culture warrior and represented by a lawyer at one of the four or five pro bono rightwing Legal Foundation law firms.

Much better to spend that $5,000-$7,000 on state lottery tickets.  Or at a casino.  Which the Supreme Court most definitely is not.

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*Most reports I’ve read in the last several years list the number at approximately 9,000 annually, and one recent report said the number is now up to 10,000. That includes petitions filed with a court-approved fee waiver available only to indigents, and the special printing and 30 of the 40 copies also are waived. But, with the exception of the occasional death penalty case and high-profile-issue Fourth Amendment case, in which big-name counsel is serving pro bono, it is big news when one of these is granted, always during a blue moon/solar eclipse/meteorite shower event. 

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If the Justices “fail to recognize where their assumptions about society and technology break from the norm—or indeed, where they are making assumptions in the first place—we’re all in trouble.” Indeed.

  • At Crooks and Liars, Parker Higgins focuses on comments made by Chief Justice John Roberts during the oral argument in the cellphone privacy cases, in which the Chief Justice expressed skepticism that many law-abiding people carry more than one cellphone.  Higgins suggests that if the Justices “fail to recognize where their assumptions about society and technology break from the norm—or indeed, where they are making assumptions in the first place—we’re all in trouble.”

    — Monday Roundup, Amy Howe, SCOTUSblog, today

Via me; H/T this post by run75441 a.k.a. Bill H.

An important find, Bill.  And now maybe some people who actually matter will read Higgins’ post.

That’s quite a “money” quote. It transcends the issue in the two cellphone-privacy cases, and technology cases in general, and cuts to the heart of what’s wrong with the current Supreme Court. As things stand now, all of us who know that it’s no longer the 1980s or even the ’90s are in trouble.

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NOTE: The Court’s argument schedule is completed for this term, and the Court is not scheduled to “sit” again until May 19, so unless it announces an opinion-release session that is not currently scheduled–which probably won’t happen, because these folks probably have full speaking/interview schedules until then–we get a two-week break from this stuff.

Thank heavens.  I mean, praise the Lord.

 

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A final comment on Scalia’s dissent in EPA v. EMA Homer City Generation

I haven’t read Scalia’s dissents–either one of them–in EPA v. EMA Homer City Generation, and don’t plan to. Nor did I plan to post more than I already have about it. But Kenneth Jost has read it, and at his blog Jost on Justice points out another line in the first of the two:

In dissent, Scalia saw the EPA as making up the approach on its own in the face of an “unambiguous” statute. Even while calling the law “stupid,” Scalia said the episode was “a textbook example” of why many Americans believe they are governed “not so much by their elected representatives as by an “unelected bureaucracy.”

Some Americans do believe they are governed “not so much by their elected representatives as by an “unelected bureaucracy.”  Other Americans, though, believe they are governed “not so much by their elected representatives as by a radical bare majority of justices all but one of whom worked in the Reagan administration and has a quarter-century-old list of what is effectively legislation that they are hell-bent on enacting by Court fiat–largely by striking down legislation enacted by none other than the elected federal and state representatives.

Jost writes:

Scalia takes off against other parts of government in much the same way. When the court considered the Voting Rights Act two years ago, Scalia cited its overwhelming approval by both chambers of Congress as evidence that it was all wrong. When Roberts led the court in a narrow ruling on campaign finance law in 2007, Scalia accused the chief of “faux judicial restraint.” In Scalia’s disordered mind, the rest of government is so often so very wrong — and he alone is not afraid to say so.

There are by now so many examples of federal and state laws that this five-member legislature is striking down under the guise of fanciful interpretations of one or another Constitutional Amendment that it’s hard to keep track.  But the ruling last year in the Voting Rights Act case, Shelby County, Ala. v. Holder, really is in a separate category, in my opinion.  In that opinion, this group appears to have stricken down Section 2 of the Fifteenth Amendment, which expressly authorizes the type of legislation that they struck down as unconstitutional in Shelby County.

There, they concocted a constitutional theory that, best as I can tell, is that the structure of the original Constitution–the Articles, as opposed to the Amendments–is such that it supersedes constitutional amendments that alter the “federalist” power structure.  The federalist power structure being that states are sovereigns vis-a-vis the federal government, except when a state legislature enacts a law that contradicts one of the Reagan-era Conservative Legal Movement’s goals. State campaign-finance regulations, for example, even ones enacted a century ago in, e.g., Montana, are being stricken as violative of the First Amendment right to buy elected officials.

I’ve said a few times here at AB recently that I think we’re now in seriously dangerous territory, in which gimmicky redefinitions of common word and phrases, and emotionally manipulative sleights-of-hand faux analogies, are being employed casually and wholesale by this group of five people trapped in a bizarre, airtight time warp, in what amounts to a capture of this country’s legal system.

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George Will Comes Out for Single-Payer Healthcare Insurance! Again! (This time, though, it’s the Constitution’s ‘origination’ clause that made him do it.)

Updated below.

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If the president wants to witness a refutation of his assertion that the survival of the Affordable Care Act is assured, come Thursday he should stroll the 13 blocks from his office to the nation’s second-most important court, the D.C. Circuit Court of Appeals. There he can hear an argument involving yet another constitutional provision that evidently has escaped his notice. It is the origination clause, which says: “All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills.”

Obamacare’s doom, George F. Will, Washington Post, May 2

Hmmm. And y’all thought it was the antidisestablishmentarianism clause in the ACA that was going to be Obamacare’s doom, after reading that column of Will’s back a few months ago that said so. But, he promised!

Oh, well, doom is doom, whatever the sound of the death knell. So, not to worry, Chuck and Dave. Will explains:

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Roberts: Don’t Leave Home with Two Phones on Your Person; Dems and White Males; Executions, Prison, and Sentencing Costs; and WS Quotes

– I have my own personal phone and also a business phone. I am also a straight up guy, former Marine Sergeant, Scout Leader, VP on a Planning Commission for the Township, etc. etc. etc. I travel a lot and I do get out and walk the streets of the cities I visit for exercise and out of sheer boredom from being cooped-up. More than likely I will carry both of my phones as someone could call me from overseas and my family may want to get a hold of me urgently. I separate business from family as the company already knows too much about my life. For a person to carry two phones on your belt, in your purse, or in your brief case; here is an interesting take on carrying them:

Two Phones

Police suggest those who carry two phones can be suspected of selling drugs. Chief Justice John Roberts, the pillar of court activism, says there may be reasonable cause for police officers to believe that people carrying two phones are also engaged in the sale of drugs. Huh? So, don’t leave your home with two phones on your person as Roberts just (almost) made it legal for the police to stop and question you while you are walking to the nearby Chop House or Ruth Cris’s restaurant to meet clients for dinner.

It is worth the read at Crooks and Liars:”The Supreme Court’s Real Technology Problem: It Thinks Carrying 2 Phones Means You’re A Drug Dealer” Originated at: parker higgins dot net; The Supreme Court’s real technology problem

– Do Dems really need White Males when there exists a growing Hispanic population? Digsby writes a snippet of her Salon article on Hullabaloo exploring the Democrats efforts to bring back the Southern White Male into the fold.

[I]f those conservative, white Southern male voters ever wake up to the fact that their enemies aren’t feminazis, African-Americans or Latinos and figure out just who it is who’s really keeping them down, I’m quite sure the Democrats would be proud to have them back in the fold. Until then Bubba’s going to be the heart and soul of the GOP. He’s their problem now.

HT: Can the Democrats finally stop chasing their (Southern male) white whale? and GOP’s white Southern men problem: Why they can’t hold Democrats down any longer

– From my literary dungeons or a little bit of Gonzo: “Your procedure would be prohibited if applied to cats and dogs,” Justice John Paul Stevens told a lawyer arguing for Florida. John Paul Stevens comment was made when this drug-induced-death procedure was in place for the execution of prisoners:

1. Barbiturates are injected into the person to anesthetize them. This in itself could be the delivering blow to life if delivered in a massive dose. Prison officials do not want to subject the witnesses and executioner to 30 minutes of waiting for death.
2. Pancuronium bromide is injected as a paralytic agent to keep the prisoner from twitching. It is not needed to cause death. It also makes it harder to tell if the prisoner is sufficiently anesthetized and in pain from the final dose.
3. Potassium Chloride is administered which causes a painful cardiac arrest if the prisoner is not sufficiently anesthetized. Dogs are no longer put to sleep using this method as it is painful. No precautions are taken to assure a prisoner is sufficiently anesthetized and much is done to prevent knowing such.

Since then many drug companies will not sell to the state governments as they get a bad rap for supplying drugs for execution. I can personally vouch for the potassium drip as twice I tolerated them in 2012 a week at a time. It burns as it goes up your arm. There is more to this argument against the death penalty.

And if they are innocent? From 1973 through 2003, 125 prisoners have been released from death row due to wrongful convictions. In 2003 alone, 10 prisoners were released. In 2000, Illinois Governor Ryan commuted the sentences for 167 inmates on death roll to natural life in prison. His reasoning was he could not be sure of whether the convictions were legitimate after releasing the 13th inmate from death roll due to wrongful conviction. 13 of 180 or ~7% error rate in Illinois. ~3800 inmates were on death row in 2000 and up till that point, 125 were released and exonerated for a percentage of ~3.2%. While not exact (it is probably higher), the 3.2% stands in defiance of Louisiana State Prosecutor Marquis and Supreme Court Justice Scalia’s claim of less than 1% being innocent and sentenced to death.

And what about the cost of housing them? Execution could be cheaper if we were to subvert the rights of prisoners during trial and on appeal to state and federal courts. A 2003 legislative audit in Kansas revealed total costs for the death penalty at 70% more than non-death sentence cases with a median cost of $1.26 million as opposed to $.74 million. Since 1995 when the death sentence was reinstated in NY, the cost for each of 5 people condemned, not executed yet, was ~$23 million per person for a total of $165 million. The Comptroller for the state of Tennessee audit revealed that death sentences cases increased costs by 48%. These are costs associated with the trial up till and including sentencing and not taking into account appeals.

“New Jersey taxpayers over the last 23 years have paid more than a quarter billion dollars on a capital punishment system that has executed no one.” 197 capital cases, 60 convictions, 50 overturned, and no executions carried out since 1983. Average cost = ~$25 million/conviction.

And then we have the botched executions. “technician looked at Lockett’s arms, legs, feet and neck before ultimately placing the IV in Lockett’s groin area five minutes before the blinds were lifted, Patton wrote in a timeline sent to the governor. The area with the IV was covered by a sheet so that witnesses couldn’t see his groin, blocking their view of the vein where the needle was inserted.

After Lockett said he had no last words, the execution began. They administered the drug midazolam, which is meant to induce unconsciousness. Ten minutes later, they announced that he was unconscious. “This is the first execution I’ve covered that they’ve made a point of pronouncing someone unconscious before they pronounce him dead,’ Branstetter said.

Three minutes later, ‘he violent reaction’ began, she said. First, she saw his foot kick. Then his body bucked, he clenched his jaw and he began rolling his head from side to side, trying to lift his head up, grimacing and clenching his teeth. ‘He mumbled some things we didn’t understand,’ Branstetter said. ‘The only thing I could make out was when he said ‘man.’

It looked like he was trying to get up, she said.

‘He looked like he was in pain to me,’ Branstetter said. ‘How much pain, nobody knows but him.'” What it was like watching the botched Oklahoma execution

There is no living hell like being confined for the rest of your natural life in a level 4 prison with 4-8 hours out and the rest of your time in a cell. In a level 5 prison, the shower comes to you and you have 1 hour out by yourself.

Were they Wrong?

“Both give rise to a systematic aversion to government regulation of private economic activity. For him, recognition that the workings of such markets sometimes destroy asset values, jobs, or even entire industries is still not ground for interference in the economy in the aggregate, or with individual transactions to which two or more private parties voluntarily agree.”

In a “state of shocked disbelief,” the maestro of the US economy testified to Congress that he also “contributed” to the economy’s recent downfall; but, but, he did not cause it. He testified that “he made a mistake in believing that banks operating in their own self interest would also protect their shareholder and depositor’s interests.”

Waxman (soon to Retire) “My Question for you is simple. Were you wrong?; “Well partially,” the former Fed Chairman answered. Even as billions of dollars are pumped into the economy to maintain liquidity and prevent the nation and the world from plunging into a depression, Greenspan will not admit his turning a blind eye to Derivatives, telling the world to look elsewhere to invest, and keeping Fed interest rates at 1% for too long as he led the largest economy of the world off a cliff. Hard to belief this testimony and his philosophy, it is ok to have these types of recessions as long as there is no regulation to prevent them from occurring as a result of this market.

Some Comments from some of the characters who helped bring about this crisis:

Greenspan shot back that CFTC regulation was superfluous; existing laws were enough.’Regulation of derivatives transactions that are privately negotiated by professionals is unnecessary,’ he said. ‘Regulation that serves no useful purpose hinders the efficiency of markets to enlarge standards of living.'”

Senator Gramm opened a June 21, 2000 hearing calling for ‘regulatory relief:’ “ ‘I think we would do well to remember the Lincoln adage that to ask a society to live under old and outmoded laws — and I think you could say the same about regulation — is like asking a man to wear the same clothes he wore when he was a boy.'”

Levitt’s thoughts: ‘In fairness, while Summers and Rubin and I certainly gave in to this, we were not in the same camp as the Fed,’ he said.’The Fed was really adamantly opposed to any form of regulation whatsoever. I guess if I had to do it over again, I certainly would have pushed for some way to give greater transparency to products which turned out to be injurious to our markets.'”

Goldschmid, the former SEC commissioner and the agency’s general counsel under Levitt: ‘In hindsight, there’s no question that we would have been better off if we had been regulating derivatives — and had a clearinghouse for it.'”

“On Sept. 26, 2008 SEC Chairman Christopher Cox shut down the program. Cox, a longtime champion of deregulation, said in a statement posted on the SEC’s Web site, ‘the last six months have made it abundantly clear that voluntary regulation does not work.’”

“cast the shadow of regulatory uncertainty over an otherwise thriving market, raising risks for the stability and competitiveness of American derivative trading.” Summers testifying in front of Congress on the memo coming from the Cassandra of the coming crisis Brooksley Born. Congress placed a 6 month moratorium on the CFTC’s powers to regulate derivatives. Brooksley resigned June 1999.

More at another time.

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Yes, Scalia Messed Up. But He Was Right. Sort of. (Although not about his claim that in 2001 the EPA was masquerading as a trucking association and arguing both sides of a lawsuit.)

(Important update below.)

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Well, I’m sure y’all have heard by now about Scalia’s hilarious confusion of the EPA with the American Trucking Association, even if you didn’t read this post of mine about.  The two cases at issue are Whitman v. American Trucking Associations., from 2001, and EPA v. EMA Homer City Generation, the case decided earlier in the week in which Scalia, in his dissent, accused the federal gummint of trying get away with something in Whitman that in fact the Trucking Association was trying to get away with. Yikes.

At the heart of these cases is a Court-created doctrine called the Chevron doctrine. I’ve mentioned it here at AB a few times and would not be mentioning it again–trust me!–except that Harvard Law professor/Bloomberg Law writer Noah Feldman has an article at Bloomberg today that pretty much sums up the 2001-opinion-vs.-this-week’s-opinion stuff, and the doctrine he describes but does not identify by name is the Chevron doctrine.  The article is headlined “Yes, Scalia Messed Up. But He Was Right.”.

That title, though, which probably was written by a headline writer at Bloomberg, isn’t complete. Feldman says Scalia was partly right and partly wrong. (Okay, okay; what do I expect from a headline?!)  Yes, Feldman says, there is a tension between the Court’s claim about the specificity of the section of the Environmental Protection Act at issue in Whitman and the (different) section of that statute at issue in EMA, because the two sections are pretty equally specific (or nor) about what the EPA can consider.  And Scalia was right to point that out.

But, he says, the actual respective issues in the two cases were significantly different from each other.  In Whitman, the issue was whether the EPA was required to make a cost assessment before ordering compliance with EPA environmental standards. The agency said it did not, and in a unanimous opinion written by Scalia the Court said it did not.  In EMA, by contrast, there apparently was no question but that air pollution in the state downwind of the power plant at issue was higher than permissible under EPA regulatory standards, and also apparently no dispute that some of the pollution was coming from the power plant.  The EPA apparently saw the case as entirely about whether the power plant company could be forced to contribute to the cost of reducing the level of air pollution in the downwind state.

(I used all those qualifiers, like “apparently,” in that last paragraph because I have no expertise whatsoever in environmental law and because I haven’t read either the majority opinion written, by Ruth Bader Ginsburg, or Scalia’s dissent, joined by Clarence Thomas, who probably would have joined Scalia’s dissent even if it had claimed that the federal gummint back in 2001 was impersonating plaintiff Vladimir Lenin. (Okay, especially if it had.)

Someone, whether the corporate person who challenged the EPA ruling or instead the sovereign downwind state (who are people only when they want to be), was going to pay the costs to reduce the pollution.  And the EPA apparently argued that the sovereign downwind state should be assisted in this by the corporate person that was causing some of the pollution, even though that corporate person resides in another sovereign state. Remember: I don’t actually know anything about this case. But Feldman does. He explains:

The answer to why the EPA wanted to weigh costs in setting the good neighbor rule is more complicated. In her opinion, Justice Ginsburg explained the EPA was primarily concerned with allocating costs fairly among different states that might have in the past spent different amounts on reducing pollution. Considering cost was therefore a solution to what she called an “allocation problem.” Equity, not efficiency, was driving the bus. Because the EPA didn’t think of itself as setting standards to protect the environment directly, just as distributing costs among different actors, it didn’t mind weighing costs and benefits in this case.

There’s a lesson here for how the environmental community thinks about cost-benefit analysis: not as a mechanism for identifying the right amount of environmental protection, but as a tool for handing out the burdens fairly. To Scalia, this might well be a distinction without a difference; but to the EPA, it’s what separates clean air from the question of who pays for it.

But in my opinion (which isn’t worth much; I don’t know anything about the law or the case!), the tension between Whitman and the majority opinion in EMA–a tension solely concerning the specificity of the two respective statutory sections at issue in the two cases–is beside the point, if, as Feldman says, there was no dispute about excessive air pollution and that the power plant was a significant cause.  The dispute concerned only who would pay for the necessary reduction in pollution. If I understand him correctly, this is what Feldman is saying, too.

If I’m not mistaken, though–and I may well be–what Scalia really is arguing is that the EPA violated the rights of a power company that is entitled to invoke its state’s sovereignty, which could be abridged by a regulatory change allowing the EPA to consider costs, but which hasn’t been abridged because there has been no such regulatory change.

That regulatory change will have to await a Koch-sponsored White House administration.  As Feldman points out, when the issue is whether or not there will be a change ordered at all, rather than who will pay for the change, it is the corporate folks who insist that the EPA must make a cost analysis before ordering a reduction in (or bar to) pollution.

I don’t really understand this apples-and-oranges conflation of these two separate issues, in two separate, unrelated contexts that use the word “cost.”  It seems to me that the “good neighbor” provision of the statute–the statutory section at issue in EMA–has as its very purpose exactly what was at issue in that case: allocation of costs between neighbor states and communities. But what do I know?  Maybe I should read the opinion and dissent in EMA. But I probably won’t. Instead, I’ll just wait until Scalia explains this conflation the next time he speaks at some law school or to an interviewer. I’m sure it won’t be a long wait.

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UPDATE: Reader Bloix posted this terrific comment to my post this morning:

Bloix

May 4, 2014 4:32 am

Here’s the problem the EPA faced:

Suppose the permissible level of air pollution is ten. Suppose downwind State D has a level of 12, all caused by pollution sources in upwind states A, B, and C. Suppose A contributes 5, B contributes 4, and C contributes 3.

The EPA must impose regulations to bring the amount in D to 10, and it must do so by regulating the sources that contribute “significantly” to the violation. Not contribute significantly to the pollution – to the violation.

Obviously, each upwind state contributes significantly to the pollution. But do all of them contribute significantly to the violation? After all, if State A stopped polluting entirely, then B and C could keep on polluting with no reduction and D’s air would be in compliance. And the same is true for B and C.

EPA thinks that it can use cost benefit analysis to bring the level into compliance without violating the statute, even if that means requiring no reduction for some upwind states. So, if State A’s polluting sources can be reduced from 5 to 3 for a million dollars a point, but reducing State B’s contribution costs $10 million a point and State C costs $100 million a point, the EPA will require State A’s sources to cut two points from their pollution. The pollution is reduced to 10 and the problem is solved for $2 million.

But, Scalia says, “significant” means you look at the pollution, not the cost of cleaning up. So you must reduce the costs pro rata. From 12 to 10 is a 16.67% cut, so each upwind source must reduce by that much: State A must go from 5 to 4.17, State B from 4 to 3.33, and State C from 3 to 2.5.

This will cost $57.53 million, which is an insane imposition a deadweight loss of $55.53 million on private businesses. It also enacts a penalty on states that have been out front in reducing pollution – the reason it costs so much more to reduce pollution in State C is that C has already enacted regs imposing the cheap controls that State A hasn’t bothered with.

But Scalia says it must be done, because the word “significant” does not allow for costs to be taken into effect.

Does Scalia really believe this? And do the companies opposing the regs really want to force the waste of $55 million (or, in real life, many billions?)

No, of course not. What they want is to make the regulations unworkable. And requiring pro rata reductions without regard to cost would be so expensive and so obviously unfair that genuine progress in reducing upwind pollution would become very difficult if not impossible. That is the whole point of Scalia’s position.

Again: I wasn’t joking when I said in my post that I know nothing to speak of about environmental law (I wish I did), and that I know very little about this case–or did until I read about the argument in the case last week; now I know more, but not all that much more.  I do, as I said, know a bit about the Chevron doctrine, which is the Supreme Court-created doctrine that sets out the permissible parameters of federal regulatory agency regulations.  But Bloix, who to my knowledge is not a regular AB reader or comment poster, sure does know a lot about this particular case and relevant environmental law, or so it certainly appears. (And now that I’ve read his comment, I know more than I did.)

I’m not sure how he happened upon my post, but I’m glad he did.  (“Regs,” by the way, is legalese shorthand for “regulations,” as I learned the hard way when in my first year of law school one of my profs started babbling away one morning, when I still needed another cup of coffee or three, about “the regs.”  I sat there suppressing a yawn and saying to myself: “What the hell are ‘the regs?'”  And eventually, “Ahhh. The regulations.”) — 4/4

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Follow-up to “Scalia’s Curious Memory Lapse”: Is the Supreme Court about to limit its holding in Garcetti v. Ceballos?

Okay, first things first.  And the first thing is that when you (okay, when I) put the word “after” instead of “before” in a key sentence, and the error (which in this instance occurred because of a cut-and-paste sentence-edit typo in a complex sentence) makes the sentence nonsensical, you’re gonna be stepping on your own punch line.*  Which is what I did in my post Tuesday titled “Scalia’s Curious Memory Lapse,” in the first sentence of a paragraph that, corrected, reads:

Ah, but that’s because Lane was unaware of the 2006 opinion in Garcettti v. Ceballos.  The second one issued, that is, less than a month after* Samuel Alito was sworn in as Sandra Day O’Connor’s replacement; not the first one issued, in the last few days before O’Connor formally retired. (Yes, as I explain in that post of mine from last January that I linked to above, Garcettti v. Ceballos has quite an interesting little twist to it, procedurally.)

The second thing is, um … I think I’ll just quote my exchange with Robert Waldmann in the Comments section, which should suffice:

ROBERT: I was puzzled when reading the first few sentences of this post, because I had assumed it was about *another* amazing Scalia memory lapse. The other unrelated astonishing error was Antonin Scalia’s totally incorrect citation of an opinion written by eminent Jurist uh Antonin Scalia [link].

“”Scalia’s dissent also contains a hugely embarrassing mistake. He refers to the Court’s earlier decision in American Trucking as involving an effort by EPA to smuggle cost considerations into the statute. But that’s exactly backwards: it was industry that argued for cost considerations and EPA that resisted,” Farber wrote on the environmental law and policy blog Legal Planet. “This gaffe is doubly embarrassing because Scalia wrote the opinion in the case, so he should surely remember which side won! Either some law clerk made the mistake and Scalia failed to read his own dissent carefully enough, or he simply forgot the basics of the earlier case and his clerks failed to correct him. Either way, it’s a cringeworthy blunder.””

Wow. Too bad supreme court justices can’t be impeached for senility (or for the standard conduct of signing opinions and dissents actually written by their clerks). Too much worse that no Republican will be impeached ,while Republicans control the House, or convicted, while there are 34 of more Republican senators. But two amazing howlers in about a week must be one for the history books.

ME: Robert, yeah, when I wrote the post and the title two days ago, I didn’t know yet about that weird error by him in his dissent in the EPA case. I should have changed the title yesterday; I think I’ll tweak it now, even though the post is old now. [I did.]

The “memory lapse” I’m talking about in this post isn’t actually a memory lapse, though. Scalia well remembers exactly what the situation was in Garcetti, and what the result was, because it’s critical to the arguments in Harris v. Quinn, which they’re deciding this term. It’s probably already been decided, and the dissent is being written now.

Thanks, Robert, for your comment.

I want to add here that I suspect that Scalia’s comment at the argument on Monday in Lane v. Franks that was the main subject of my earlier post–“I’ve never heard of this distinction, the First Amendment protects only opinions and not facts.  I’ve never heard of it.”–suggests that the Court is about to significantly limit its holding in Garcetti.

Which would be a good thing for prosecutors who want to inform their bosses that the police officer who sought the search warrant at issue apparently fabricated the “probable cause” for the warrant, or that the police officer who obtained the confession from a suspect did so by lying to the suspect, or that the police officer who dealt with the victim or witness insist or ensure that the victim or witness identify the suspect in a lineup as the perpetrator.  Or some such.  And it probably would be pretty good for innocent suspects, too.

Not so good, though, for cops who want to frame people.  Or for prosecutors who do, and aren’t on good terms with a colleague or two or with a subordinate. And you never know who might turn out to have a conscience.

This would be a big deal.

Meanwhile, about that real memory lapse by Scalia, in his dissent in EPA v. Homer City Generation, you can read the latest on it here.  The AP’s Mark Sherman nails it.

That federal gummint is always trying to get away with something! Even impersonating a trucking association.

*Sentence edited to correct a cut-and-paste typo. 4/2. Sighhh.

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A Wisconsin federal judge today struck down as unconstitutional that state’s voter-ID law, ruling that the appearance of voter fraud, just like the appearance of political corruption, can’t justify impeding the First Amendment right to vote.

In a close and insightful  reading of Chief Justice Roberts’ opinion in McCutcheon, reproduced here with his permission from the election law listserv, Marty Lederman has called attention to this first paragraph:

“There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options.”

— Former Obama White House Counsel and eminent Washington election-law attorney Bob Bauer, on his blog moresoftmoneyhardlaw.com, Apr. 24

Bauer sums up:

While disclaiming “naiveté” about the Roberts Court’s commitment to the interests of voters, Marty asserts that if “taken seriously,” this freshly minted right to participate could “be the source of a new flourishing of voting rights and other election-related rights.”

Eminent and esteemed though they are, Bauer and Lederman are late to a party.  Specifically, my party. On Apr. 3, a day after McCutcheon was issued, I pointed out right here on this popular and acclaimed blog what “the REAL news from the McCutcheon opinion” is:

“There is no right more basic in our democracy than the right to participate in electing our political leaders.”  That’s how Roberts began the opinion.

So I guess we can now assume that the Court will strike down all those voter-ID laws that so clearly impact that most basic of rights, and will do so by unanimous vote of the justices.

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Justice Scalia’s Curious Memory Lapse. NO, not the one everyone’s talking about. [Post typo-corrected]

Clarification appended below.

—-

During oral arguments in a freedom-of-speech case out of Alabama, several justices challenged the notion that public employees who testify truthfully about an issue of significant public concern aren’t shielded from retaliation by the First Amendment.

“What kind of message are we giving when we’re telling employees, you’re subpoenaed in a trial, go and tell a falsehood because otherwise you can be fired?” Justice Sonia Sotomayor asked attorneys in the case.

The Fifth Amendment protects state employees against self-incrimination on the witness stand, but “it doesn’t protect the department he works for from being incriminated,” Chief Justice John Roberts said.

Justices suggest public employees’ testimony is protected, Mary Orndorff Troyan, USA Today, today

It’s nice to know that the Fifth Amendment doesn’t protect the department he works for from being incriminated.  It would be nicer still to know that the First Amendment, so vaunted these days by the Supreme Court as allowing the purchase of legislative votes as long as there’s no formal purchase receipt issued by the legislator/seller, that that Amendment protects the truthful speech of public-employee whistleblowers, and not just the speech of public employees who don’t want to speak in support of big government by being compelled to pay a fee to the union that is negotiating the terms of their employment (pay, benefits, working conditions) and that will represent them in disputes with the employer.  (Okay, the last part of that compound sentence is based on a comment by Alito during argument in January in a case called Harris v. Quinn.  The opinion in the case hasn’t been issued yet.)

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America’s First Fracking Trial

Re-posted from Naked Capitalism (with permission from the author) comes a well written piece on an important court case concerning damages to health and property from fracking operations in Texas (hat tip Run75441):

Texas Family Awarded $3 Million in America’s First Fracking Trial

by Lambert Strether of Corrente

$3 Million? More like this, please. Here’s some background on the suit, from Natural Gas Intelligence:

In a first-of-its-kind hydraulic fracturing (fracking) nuisance lawsuit, a Dallas Jury Tuesday awarded a North Texas family $2.95 million for physical and mental pain as well as loss of property value due to activities by Barnett Shale producer Aruba Petroleum Inc.

Plaintiffs Robert and Lisa Parr had sought $9 million in damages and alleged that 22 wells operated by Plano, TX-based Aruba within two miles of their land, about 15 miles west of Denton, TX, exposed them to toxic gases and industrial waste. The Parrs said they were forced from their home at certain times and had to live in Robert Parr’s office. The lawsuit said that exposure to volatile organic compounds from fracking made them sick and that the family’s well water had been polluted. …

The award, in Dallas County Court, did not include any exemplary damages as the jury did not find that Aruba had acted with malice.

The [Parr] family experienced chronic migraines, rashes, dizziness, nausea and chronic nosebleeds, including an incident when their daughter awoke in the middle of the night covered in blood, according to plaintiffs attorneys. Livestock and pets on the family’s ranch were also affected with nosebleeds and other illnesses. A dwarf calf was born of a cow that had delivered healthy calves before the fracking operations started.

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