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

Greece, Greece, I Tell You!

It’s not every day that a law professor has his book quoted by the Supreme Court, and so the University of Baltimore‘s Michael I. Meyerson was understandably intrigued when his 2012 work about the Framers’ views on religion made it into Monday’s decision on public prayer.

But the plug from Justice Anthony M. Kennedy, who wrote the majority opinion, was somewhat bittersweet. Meyerson says the decision misread the point of his book and took the quote out of context in a way that allowed the justices to draw an entirely different conclusion about how the Founding Fathers approached religion in public.

— Professor says Supreme Court drew flawed conclusion from book: University of Baltimore expert says Framers deliberately avoided sectarian language, John Fritze, The Baltimore Sun, May 10

No, the title of this post doesn’t refer to the bond-vigilantes/austerity/confidence-fairy crowd, but instead to (yet again) the Supreme Court’s 5-4 decision issued last week in Town of Greece v. Galloway–and to what will be the rallying cry of the pro-Christian-prayer-at-government-meetings crowd, going forward.

Before I swear off posting on AB about that Supreme Court opinion, I want to make one more point, this one about the perniciousness of the Court’s conservative majority’s pretense that in order to understand the original Constitution and the Bill of Rights, or the Reconstruction-era amendments, or anything else about the Constitution, you presume that the framers intended to freeze things the way they were before the Constitution, the Bill of Rights, the Reconstruction-era amendments, were drafted and ratified.

Which raises this question: Why engage in a laborious process of gathering a large number of people to draft a Constitution and shortly afterward draft and ratify amendments, or fight a Civil War and, after you win, draft and ratify amendments reflecting the outcome of the war, if your purpose is to solidify the pre-Constitution, pre-Bill of Rights, pre-Civil War, pre-Reconstruction-era status quo?

The answer is that you don’t, and you don’t pretend that others did.  Unless you’re a 1980s-era Conservative Legal Movement lawyer, judge or justice.*

But it also highlights what is becoming a hallmark of the Roberts Court’s conservative majority: misrepresentations of the very meaning of words, phrases, legal doctrines, and (now, apparently) academics’ writings.

I wrote here recently that we’re “witnessing here a concerted, unremitting restructuring of fundamental parts of American law under the guise of constitutional interpretation, employing medicine-man semantics gimmicks and other such tactics, including baldly false, disorienting declarations stating what others’ opinions are.”

The title of Meyereson’s book is Endowed by Our Creator: The Birth of Religious Freedom in America.  As I said here yesterday, town governments are people, my friend.

I do think the Supreme Court has crossed a threshold now.  This crowd observes no recognizable bounds of propriety in achieving the Conservative Movement’s policy goals via the Court’s transparent machinations of history, language, false analogy. Nothing–nothing–is sacred any longer. Except, of course, Christianity.

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[Next up, later this week: Why I believe that Ruth Bader Ginsburg will announce her retirement at the end the Supreme Court term in late June, pending confirmation of her replacement. And the UnElena Kagan who I expect will replace her–and why it would be a very good development, for once.]

 

*This paragraph and the one above were edited for clarity and inclusion of an inadvertently-missing clause after posting, 5/14 at 6:28 p.m.

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The Supreme Court’s Runaway AEDPA Train–And What Can Be Done About It Via Collateral Judicial Review. (Yes, this is technical language, but bear with me. I explain it.)

UPDATE: Elena Kagan served as an Associate White House Council in the Clinton administration in 1995-96, when AEDPA was being drafted and negotiated.

 

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“Freedom” does not include actual physical non-imprisonment; to the contrary, “freedom” means states’–or actually, state courts’–and prosecutors’ freedom to violate criminal defendants’ constitutional rights, to their heart’s content.

— Me, Angry Bear, Apr. 5

For about 24 hours this week, specifically between Tuesday morning and Wednesday morning, I thought that might be about to change.  The issue in Tuesday’s big affirmative action case, Scheutte v. BAMN, was not actually affirmative action.* It was instead whether a state voter initiative that amends the Constitution and that singles out minority races erects unconstitutionally high barriers to racial minorities’ practical ability to obtain a change in that policy, because it removes the possibility of gaining a change through the normal political and governmental processes.

Kennedy wrote the plurality opinion for himself, Roberts and Alito. Roberts also wrote a separate concurring opinion.  Breyer joined only in the outcome, writing a separate opinion only for himself. Scalia, joined by Thomas, wrote a separate opinion concurring in the judgment. Sotomayor, joined by Ginsburg, wrote a dissenting opinion.  Kagan did not participate.

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Welcome Back, Supreme Court Justices! (Well, for the next two weeks, anyway.)

Well, it’s that time of year again—when the Supreme Court justices interrupt their primary careers of flitting around the world (some of them), or at least around the country (the remainder of them), to teach a law school course or two, to instruct high court justices in other countries on how to feign working full-time, and to reassure us all yet again that they’re all great friends. With one another.

That last one is not least.  It is instead a perennial, and a great relief to those of us who care more about the justices’ working conditions during their occasional-days job than with, say, the fact that as a practical matter, we really have no Supreme Court.  Which we don’t, except for the 68-or-so occasions each year when they deign to answer the call of duty, usually of a state whose dignity has been affronted by a federal appeals court that has placed some importance of a constitutional magnitude upon the dignity of an individual [pdf required] who wasn’t complaining of one of infringement upon one of the three or four rights that conservatives privilege over the right of states to violate them, or by a corporation that otherwise would have to deal with a class action lawsuit.  Or by the group Citizens United.

So … no more tips to law students to stay upbeat and focused.  Not from the leading expert on such matters, anyway.  And no more sycophantic predictions of the horrors that would befall society if cameras were allowed at the Court’s arguments and the news media selected only short clips of Antonin Scalia’s snideness or Anthony Kennedy’s state-courts-but-not-state-executive-or-legislative-branches-are-entitled-to-flip-the-Supremacy-Clause-in-order-to-save-our-republican-form-of-government rants.  Not to mention in order to save our Republican form of government.  Which the court did not, in an actual oral argument, anyway, opting instead for a summary order rather than full briefing and an in-court airing.

No, sir, no more such helpful insights from the ultimate experts until at least the third week of October, anyway.  They break then, after an exhausting five full—er, five half—days of oral argument and two, count- ’em, two, afternoon conferences, but, unlike other breaks during the winter and spring, only for about 12 days.  During which time, they do read a few of the law clerk “cert. pool” one- or two-paragraph memos recommending a denial of review on virtually every petition filed by a private party who is not represented in the petition by one of the—what? ten, or so?—de facto-gatekeeper Supreme Court“specialist” lawyers, who by sheer virtue of the fact that they charge about $1,000 an hour and will guarantee that at least one actual justice will read the petition—most certainly are special.  So it’s not as if these folks don’t work during their (many, many) off hours.  (I mean, on Court business! What?  Did you think I meant on writing incessantly banal or downright misleading and deeply self-serving books?)

Anyway … the justices kick off their term this year with a bang.  Of sorts.  This particular bang was supposed to occur last term, in a case called Kiobel v. Royal Dutch Petroleum Company, that will decide whether a statute called the Alien Tort Statute, passed in 1789 to deal with piracy on the high seas, gives our country’s federal courts the authority to hear cases filed by non-Americans against foreign corporations, or foreigners at all, for injury to person or property that occurred outside the United States.  The statute provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”  The case gained a lot of attention last spring when the justices heard oral argument on it, and some of them, but surprisingly not Samuel Alito, indicated that they wanted to rule that “aliens” did not include corporations, irrespective of whether they’re offshore ones or are instead incorporated in, say, Delaware and are therefore people at least for purposes of First Amendment free-speech and free-association rights.   

But shortly after the oral argument, a majority of the justices decided that Alito, not to mention Mitt Romney, had the better argument.  Corporations should be considered people, my friend, even when that means they can be sued under the Alien Tort Statute*.  At least until Super Pacs funded by these people can put in place enough members of Congress to enact a change to that statute.  Like, to repeal it.  But as it currently exists, the Statute should apply only to corporate people who also are American corporate citizens. 

Which is what Alito had suggested. The majority, egged on by Kennedy from the very outsetof the argument, already had decided that they should rewrite the statute to limit it to actions to which the United States has some association.  “No other nation in the world permits its court to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection,” Kennedy said. The quote was itself a quote, verbatim, from an amicus brief filed by Chevron Corporation.

So … voila!  So much for textualism in judicial interpretation of statutes. The text of this particular statute requires … originalism, the first-line-of-defense fall-back for the likes of Scalia and Clarence Thomas.  Unless, of course, some of those pirates targeted by the statute back in circa 1789 weren’t Americans. 

Ooops.

Back to plan A?

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*Correction, Oct. 2: The statute is known by two names: The Alien Tort Statute (ATS) and the Alien Tort Claims  Act (ATCA).  My original post called it the Alien Tort Act. 

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John Roberts and Elena Kagan: Mirror Images of Each Other

The second biggest surprise of the day, after the survival of the Affordable Care Act, is that we’ve never really gotten over our collective crush on John Roberts. How else to explain today’s outpouring of praise, not merely for the decision but for the man himself, for his statesmanship and judicial modesty? All these years, it now appears, we’ve held it in our hearts; we’ve written it in our diaries, remembering every one of those sweet nothings he once whispered about “common ground” and “humility.” No, we never really gave up on Roberts. Not during that long judicial bender he took with the boys—Nino, Clarence, Tony, and Sam; not during the Citizens United argument, when he called the government “big brother”; not when he swept away a century’s worth of campaign finance regulations. So complete is our swoon, in the afterglow of the ACA ruling, that Bob Shrum has written that if Roberts had been Chief Justice in 2000, Bush v. Gore might have gone the other way.

To which I posted the following comment:

I write on legal and political issue issues for a left-of-center blog and have indicated there that I detest and really fear John Roberts because of his deeply diabolical nature and his checklist of ‘80s-era Federalist Society things-to-do.   Linda Greenhouse has written several columns, two or three of them within the last few months, highlighting those two quintessential John Roberts traits.  But Greenhouse, and I, predicted that Roberts would save the ACA because the case is so high-profile and the grounds for striking down the statute so utterly artificial that it would place more public scrutiny on the types of things he and his cadre normally get away with with virtually no public awareness.  I don’t think he did what he did out of a sense of statesmanship, nor in order to gut the Commerce Clause; I think the Commerce Clause ruling will have almost no practical effect, and he could have done the same thing with it simply by joining the other four conservatives in a 5-4 ruling striking down the ACA. 

I think he’s, in a way, the mirror image of Elena Kagan, who in high-profile cases usually votes liberal but who, best as I can tell, almost never goes out on a limb for the “nobody” “cert” petitioner and actually fights to get a “cert grant,” as Sotomayor does, and who I’d bet doesn’t even vote very often to hear such cases.  Her priorities seem to be her own public image and being buddies with the “in” crowd on the Court, whereas Roberts’ priority is making as many dramatic changes to the law as he can, but doing so as much under the public’s radar as possible.  (I also think Kagan is a bit naïve on some issues because of her unfamiliarity with them—see, e.g.: federal habeas review of state-court convictions—and fairly easily snowed.)

So I agree with Ken Houghton in his post below that John Roberts is not the friend of progressives.  I disagree with Ken, though, that Roberts has set up some trap through which he will later orchestrate the striking down of the ACA as a violation of equal protection because of the way in which the Medicaid expansion is administered (if I understand Ken correctly) is nil.  Roberts ended his opinion with a statement saying that the proper manner in which to determine the ultimate fate of the ACA is through the political process, not the judicial process—and I think he means it.  There are two parts of Roberts’ opinion—the part concerning Congress’s regulatory powers under the Commerce Clause and the part concerning Congress’s power to enact federal-state partnership legislation a la Medicaid—that raise serious concerns about the impact on otherlegislation.  I wrote separate posts yesterday about each of these, and I’ll be writing another one on Medicaid issue later today. 

But any lawsuits concerning some aspect of how the law is working in practice, once it gets underway, would result in the possible tweaking of an HHS regulation or in the manner in which a particular state is implementing the Act, but I just don’t foresee a successful attack on the constitutionality of some provision in the Act itself. 

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Elena Kagan vs. Pat Lykos

by Beverly Mann
originally posted at The Annarborist

Elena Kagan vs. Pat Lykos

Dahlia Lithwick, in Slate writes:

At the Citizens United [v. Federal Election Commission] argument last fall, Roberts openly criticized Kagan for abandoning one rationale for restricting corporate campaign spending and then pummeled her again in his concurring opinion in the case, dismissing the government’s argument as ‘at odds with itself.’ In an April case, Kagan took the position that U.S. attorneys speak only for their regional offices, not for the attorney general of the United States ‘That’s absolutely startling,’ Roberts replied. ‘The United States is a complicated place,’ Kagan retorted. ‘I take your word for it,’ Roberts snapped back. …

“Then Roberts took yet another whack at Kagan in his opinion in Holder v. Humanitarian Law Project, over a statute criminalizing the provision of ‘material support’ to terror groups. Roberts, while handing the victory to Kagan, repeatedly called out the government position for going ‘too far’ and running ‘headlong into a number of our precedents.’”

The point of Lithwick’s article—its title and subtitle are “Roberts v. Kagan? Will there be friction between the chief justice and Elena Kagan on the Supreme Court?”—is that in most of the six cases before the Court this past term in which Kagan was lead counsel, apparently drafting the briefs largely herself, and then representing the federal government at oral argument—Roberts implied that he thought her handling of the respective case bordered on the incompetent.

Lithwick links to a more in-depth report and analysis of the exchanges by New York Times Supreme Court correspondent Adam Liptak published in the Times on April 14, before the close of the Court’s term. And in reviewing the instances that Liptak mentions, Roberts’ oral and written critiques of Kagan’s judgment calls strike me as suggesting that Kagan failed to recognize that the Office of Solicitor General is not some regional insurance-defense law firm or a regular local presence on behalf of state and municipal governments and their employees in run-of-the-mill lawsuits alleging violation of civil rights. Or, for that matter, a county prosecutor or state assistant attorney general.

All of whom always, always make arguments on behalf of their clients that are at odds with itself, or at least at odds with the argument they made successfully during the last round of motions and now find it expedient to pretend they had not. And who casually assert facts or positions of law that are every bit as transparently silly, or to borrow from Roberts, absolutely startling, as Kagan’s claim that U.S. attorneys speak only for their regional offices and not for the attorney general of the United States.

I loathe Roberts, whose personal hallmarks as a justice (and before that as a nominee) are, best as I can tell, trickery and duplicity. So it’s a pleasant surprise that he found Kagan’s no-position-is-beyond-the-pale style of advocacy intolerably amateurish for a United States Solicitor General. But Roberts was truly a top appellate litigator, who regularly argued against other truly top appellate litigators, usually on behalf of very important clients, making awfully significant arguments about major issues of law. So he apparently thinks that there is a level of situational importance at which the cheap gimmicks should not be employed. And key First Amendment cases before the Supreme Court are among them, and the Solicitor General is someone who should recognize that. Most past solicitor generals did, after all.

So Roberts is right, but he does not go nearly far enough. It is by now deeply institutionalized throughout this country that attorneys who represent the government, and therefore, ostensibly, “the people,” use the same type of obstructionist, dilatory and even flagrantly dishonest tactics and gimmicks as attorneys representing private parties. Even—perhaps especially—in the service of preserving criminal convictions in the face of hard evidence that the conviction was wrongful, sometimes obtained in honest error, other times obtained through police or prosecutorial misconduct.

Which brings me to Pat Lykos, the current Harris County, TX district attorney, who upon being sworn in established a Post Conviction Review Section whose purpose is to actually investigate cases of possible wrongful convictions. An article published last week in the Houston Chronicle is about the release, after 27 years’ imprisonment, of a man convicted of rape upon the sole basis of the victim’s ostensible identification of him.

But actually the ones who identified him—Michael Green is his name—were the police officers who arrested him on the night of the rape; he was walking in the area, the officers detained him, and when the victim did not initially identify him in a lineup, she was shown suggestive photos to ensure that in a second lineup, she did. According to the article, the attorneys and investigators in the newly-created Post Conviction Review Section who were assigned to the case found “a pair of jeans stored in a warehouse that had been worn by the victim during the crime, then testing it for DNA evidence. The results excluded Green.”

Three men committed the rape. The article says Lykos’ office “has identified all four men suspected in the crime, including the three believed to have sexually assaulted the victim.” But the statute of limitations prevents their prosecution.

The article quotes from comments by Lykos’ first assistant, a man named Jim Leitner, in a news release about Green’s release: “The evidence in this case had been sitting in the District Clerk’s Office for 27 years, and no one had taken the initiative to do anything with it in the past. The difference now is that you’ve got the Post Conviction Review Section looking into it – and that made all the difference in the case of Mr. Green.”

The Chronicle writer characterized Leitner’s statement as a “slam [against] prior district attorney administrations for the length of time the case stalled.”

The article mentions that another prisoner, someone named Allen Porter, was released from prison a few days before Green’s release. He had been imprisoned for 19 years. Lykos’ office had uncovered evidence of his innocence, too.

John Roberts is hardly a probable crusader against the modern, but by now deeply-rooted, culture among government lawyers in which they role-play as mechanically and mindlessly as, say, a lawyer representing a mob figure, or one representing BP. And in recent decades, unabashed sleaze is as much the purview of big-name law practice as it is some of the old-style ambulance chasers; Roberts surely knows that.

But unless his distain for the phenomenon of government lawyers as over-the-top-and-under-the-sewer-line litigators is limited to those who by dint of their very high office cannot hide under the radar, or whose opponents or victims just don’t matter to him, he may, however improbably, prompt a major change in the very nature of government law practice. And of what it means to represent “the people.”

As for Kagan, well, who knows? Liptak’s article is titled “Stints in Court May Yield Clues to Style.” Hopefully, those stints aren’t clues to her substance as a justice, as well.

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