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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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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. 


Back to plan A?

*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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