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

The Rightwing Supreme Court Justices’ Fair-Weather "State Sovereignty” Canard

Two days ago, Dan posted an entry by run75441 titled “SCOTUS Chastises Congress and the Executive Branch.”  The post’s title wasn’t quite accurate; run’s post was about Chief Justice John Roberts’ annual state-of-the-judicial-branch report, in which he was writing in his capacity as administrative head of that branch, not in his actual judicial capacity, and not for the other justices.

Run (who didn’t title the post; Dan did) deeply criticized Roberts for bragging about the austerity of the federal courts in recent years, including his own court, which, he also bragged, had decided on 64 cases in its last term.  That was down from, I think, 70 the term before, and the main reason for that reduction was that the ACA case consumed a full week of oral-argument slots– the full week at issue normally consisting of arguments in six–count ‘em, six!–cases; some full weeks consist of four arguments, leaving the justices slightly less exhausted than they are after the six-argument work weeks.

Roberts implied–he did not say so, expressly, but he did imply–that Congress and the White House take a cue from the justices and force the federal government to make do with less money.  To which I suggest that the justices really lead by example, and get rid of their four-justices-apiece law clerks, who do most of their work for them and start doing their legally-mandated jobs themselves.  After all, the federal government at least doesn’t pay salaries to congressional lobbyists–the equivalent of Supreme Court law clerks.

Anyway, I posted a comment to run’s post, and then asked Dan to add it as an update to run’s post, which he did.  My comment said:

The Supreme Court is rarely in session.  It’s seasonal, part-time work.  They usually hear argument in 10 cases a month, seven months a year.  In December, they didn’t hear even that many.
There’s really sooo much that can, and should, be said about the issue of (virtually universal lack of) access to the Supreme Court, and its repercussions.  Roberts’ bizarre, cutesy annual report is … oh … I don’t know …characteristically hubristic?

Run responded to my comment, and I then responded to his, writing:

What’s especially outrageous is the type of situation you’re talking about [a federal habeas corpus case challenging the constitutionality of aspects of the proceedings in a state-court criminal case]: The Supreme Court almost never agrees to hear cases on “direct appeal” (a legal term of art) from state supreme courts, in criminal or civil cases, with the major exception that they do often agree to do so in criminal cases when it is the state (i.e., the prosecution) that is asking them to hear hear the case in order to overrule a (rare) state supreme court ruling in favor of the criminal defendant. In state-court criminal cases, when it is the defendant who is asking the Supreme Court to hear the case in order to overturn a conviction, on constitutional grounds, the Supreme Court seems to figure that the criminal defendant can file a habeas corpus petition in a lower federal court.
Which they can, but the Supreme court has made that right an all-but-empty one–just a shell game, really–by interpreting a 1996 “jurisdictional” statute in a way that bars the lower federal courts from throwing out the state-court conviction on constitutional grounds in almost every case. With each passing Supreme Court term, the right to federal habeas review becomes even narrower, a seeming impossibility until it happens. In the last two years, the Supreme Court has treated that right as all but nonexistent. So the almost-total lack of access to the Supreme Court on direct appeal by state-court criminal defendants effectively removes access to constitutional review in federal court.
This is even truer in civil cases [including some that involve incredibly important, truly fundamental rights of the sort protected under international human rights laws, although they have nothing at all to do with, say, prison inmates; really–trust me on this], thanks to a set of perverse, gimmicky Supreme Court-created “jurisdictional” doctrines, which the Supreme Court has stood by and watched metastasize to remove any access to federal court in order to make a constitutional challenge, except for ExxonMobil, which asked the Supreme Court to limit the doctrine at issue, which the Court did, so narrowly as to apply in almost no other case, especially since the other, related doctrine actually bars access in the circumstance in which ExxonMobil was allowed to have it. (Sort of like Bush v. Gore.)
Anthony Kennedy, the leader of this state-courts-have-sovereignty-and-dignity! juggernaut, likes to say this is done in the name of liberty. (Isn’t everything the rightwing wants done in the name of liberty?!) Which reminds me of a political science class I once took on Maoism. [Maoism] included, basically, the routine use of Orwellian language, in which everything is the opposite of what its name or description indicates.
Of course, the current Supreme Court’s goal–the goal of the legal right since the early 1980s–is to turn the law into nothing but circuitous yellow-brick-road procedure: a dead-end labyrinth whose very purpose is its circuitry and fruitlessness. They’ve come incredibly close to succeeding.

There’s a whole lot more about this that can, and should, be said, and I plan to write in more depth about it.  Which will make me the only one writing for public consumption about it; the general news media covers only “substantive” legal issues (“substantive” being another legal term of art; legal issues are either “substantive” or “procedural.”)  And rarely covers even substantive issues that aren’t part of the culture wars debate.  Which is really nice for the legal right, because their justices and judges can, and do, do just about anything they want, completely under the radar.

But for now, I’ll just add that the judicial right, lead on this by Kennedy and Clarence Thomas, conflate state sovereignty with freedom, but, at least regarding those two and their wingy three colleagues and some (but not all of their lower-court compadres), do so only with respect (pun most definitely intended) to state courts.  To them, state legislative- and executive-branch actions (e.g., state statutes) are fair game for constitutional challenges, and they harbor no inhibition whatsoever about impinging upon state “sovereignty” in recognizing the Constitution’s Supremacy Clause when striking down as unconstitutional state statutes that the political right doesn’t care much for; Texas’s colleague-admissions affirmative action law, say.  (Sit tight for the upcoming oral argument there in that case.)  And their summary reversal of the Montana Supreme Court’s ruling late last year upholding the constitutionality of Montana’s longstanding campaign-finance statute is another example that comes (very) quickly to mind.  My mind, anyway.

To be fair to Kennedy, and certainly to his credit, he–and he alone, among the Fab Five–does extend this principle to state statutes that liberals don’t like.  Texas’s criminal anti-sodomy statute is one example, but there are other important ones as well.

But, in what appears to me to be nothing more than just old-fashioned professional courtesy, Kennedy effectively exempts state judicial branches from Supremacy Clause mandates to honor constitutional rights of individuals.  And state courts violate individual procedural and substantive rights, in criminal cases and in certain types of civil cases, with absolute abandon, comfortable in the knowledge that they can.  The result, far, far more often than not, is the very antithesis of freedom.  Except in the Matter Hatter-esque language that the legal right has found so useful.

So, next time Kennedy or Thomas writes an opinion singing the praises of state sovereignty–by which they almost always just mean state-court sovereignty–as advancing “freedom,” ask them (rhetorically, of course; they won’t actually hear you unless you retain Paul Clement to speak to them for you, which was basically run75441’s point) whether they think that, say, German Jews in the mid- and late 1930s were freer because Germany was a sovereign state.

I will, anyway.  Or maybe I’ll just ask the Mad Hatter. Orwell lives. These days, though, in this country it’s called “federalism.”


Occasionally, one of my AB posts goes viral (relatively speaking), racking up a couple thousand views on statcounter.  This is one that I hope does.  Actually, I hope it gets a million hits.

Yeah. A million hits would be good.

Is there such a thing as hitting the Supreme Court in effigy?

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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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