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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:

Hi Bev, 

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). 

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To the general public, all that matters are the headlines, reflecting the bottom line.  The universal consensus among reporters who attended the 90-minute Supreme Court argument yesterday on whether an 1867 law called the Anti-Injunction Act bars the Court from considering challenges to the constitutionality of ACA’s individual-mandate provision was that the justices will decide the constitutionality of the mandate provision despite the AIA.  

But law geeks like me know that what also matters is how they conclude that the court has “jurisdiction”—legal authority—to decide the constitutionality of the mandate provision. That’s because federal judges are incessantly, and often spontaneously, throwing lawsuits out court, claiming that they lack jurisdiction to hear the case—a trend begun in the 1980s and accelerated exponentially, explicitly and by malignant (as opposed to benign) neglect to reverse lower appellate court rulings, by the conservative legal movement to which a majority of the Roberts and Rehnquist courts adhere. 

A key part of the conservative-movement’s federal-courts-have no-jurisdiction-to-hear-any-constitutional-claims-except-the-ones-that-conservatives-want-them-to-hear jurisprudence is that federal-court jurisdiction either exists or it doesn’t, and if it doesn’t it can’t be waived by the parties.  So even if neither party claims a lack of federal jurisdiction, the judge, judges or justices in each case must raise the issue themselves if they believe jurisdiction may be lacking. Under the Constitution, Congress decides what types of cases the federal courts have jurisdiction to hear, by enacting “jurisdictional” statutes that either grant or remove federal-court jurisdiction in specific categories of cases, subject only to requirements or prohibitions in other parts of the Constitution.  (Actually, the Supreme Court has created several legal “doctrines” out of whole cloth that remove federal-court jurisdiction in various cases, but I’ll leave that for another day.)

The AIA  provides that “no suit for the purpose of restraining the assessment or collection of any tax may be maintained in any court by any person.”  The ACA’s individual-mandate provision does not become effective until 2014 and the penalty for failure to obtain the minimum insurance will not be assed until April 2015, through income tax filings.  Early on in the ACA litigation, the Obama administration claimed that the ACA penalty was a tax and that the AIA therefore removes federal-court jurisdiction to hear the challenge to its constitutionality until 2015, but it soon retracted that claim and now argues that the penalty is, well, just a penalty, not a tax, and that therefore the AIA doesn’t remove federal-court jurisdiction to decide the constitutionality of the mandate and penalty for non-compliance with the mandate until 2015; the Court can decide the issue now.  

Three of the four lower federal appellate court panels that have issued rulings in ACA litigation, including the one in the case that the Court is hearing this week that ruled the mandate unconstitutional, agreed. The Supreme Court, in deciding to hear the AIA claim anyway, appointed a private lawyer to argue that the AIA does apply here, because the Justice Department joined the ACA’s challengers in saying that it doesn’t.

Everyone, certainly including me, assumed that the outcome of this “jurisdictional” issue—of whether or not the AIA barred the Court’s consideration of the challenges until 2015—would depend upon whether the Court thinks the penalty is a penalty or instead a tax.  And that may prove accurate.  But, stunningly (in my opinion), the Court, at the urging of Roberts, might instead say that it doesn’t matter whether the penalty is actually a tax, because the government has waived the jurisdictional claim. “It’s a case quite similar to this in which the constitutionality of the Social Security Act was at issue, and the government waived its right to insist upon the application of this [Anti-Injunction] Act,” Roberts said, referring to Helvering v. Davis, the 1937 case in which the Court upheld the Social Security Act.  “So,” Roberts asked, “are you asking us to overrule the Davis case?” 

Hmmm.  I thought they already had done that.

SCOTUSblog’s incomparable Lyle Denniston provides invaluablereportage and analysis of the different options that emerged from yesterday’s argument on how the Court will remove the AIA as a bar to deciding the constitutionality of the mandate provision. 


This will be cross-posted later today to the Firedoglake blog.

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