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My Comments-Thread Comment to Robert Waldmann’s “From Small Town to Prison” Post

Robert Waldmann did something this morning that I’d planned to do: He posted an in-depth post about the NYT’s awesome article in yesterday’s paper titled “From Small Town to Prison,” by Josh Keller and Adam Pearce.

Robert makes a critical point about the fiscal cause of the phenomenon that the Times article reports on, and my rather lengthy comment to Robert’s post adds some things that I’d planned as the key point to my post.

Here is my comment in the Comments thread to Robert’s post:

“It is caused by prosecutorial discretion with laws which allow extremely long sentences combined with plea bargaining. If the sentence for the actual crime committed weren’t absurdly long, DAs would not be able to help their counties at the expense of the state.”

That certainly is true, but it also is caused by the complete takeover of the U.S. Supreme Court by the Conservative Legal Movement, which has removed any access to federal court in order to challenge through the habeas corpus process anything—and really, I do mean, as a practical matter, anything—that occurs in state or local court proceedings, however flagrantly violative of even basic constitutional rights.

For state-court criminal cases, these Supreme Court justices (not to be confused with justice; they’re justices, a title, nothing more) these people took an already awful federal-court jurisdictional statute that Bill Clinton cravenly signed in 1996 in order to avoid, y’know, soft-on-crime attacks during his campaign for reelection, and (very) effectively rewrote it to actually completely preclude federal habeas review of ANYTHING that transpires in ANY state or local court.

This was done in the name of states’-rights-to-violate-individual-rights-except-religion-gun-ownership-and -real-property constitutional rights. Er—I mean—in the name of FREEDOM. A.k.a., LIBERTY.

What I hadn’t realized, though, Robert is that because it’s the states that pay for state prisons, there is an incredibly strong incentive for these county DAs and judges to put everyone they can in prison, and or as long a time as is allowed—which according to the Supreme Court is as long as they want. One major achievement of the Conservative Legal Movement is that the Supreme Court has nullified the Eighth Amendment’s prohibition against cruel and unusual punishment.

A 12-year sentence for selling a handful of narcotic prescription painkillers, admittedly highly addictive drugs, is both cruel and (happily) unusual, and should be challenged as violating the Eighth Amendment. But under Supreme Court precedent from the current crowd+Antonin Scalia the lower federal courts probably would reject the argument.

I’m so glad you posted this post, Robert. I read the Times article yesterday and planned to include it in a post I plan to write soon whose main subject is my anger about the push by some progressive senators* and by some other progressives to get the Senate to confirm Merrick Garland to fill Scalia’s seat. This is beyond misguided. And it makes no sense.

The big, big progressive complaint about Garland is that he is pro-law enforcement, and especially pro prosecutor—and not all that concerned about such matters as specific constitutional rights such as Fourth Amendment search-and-seizure limitations and, well, other things. But Garland is, I guess, progressive on the kinds of things that corporate conservatives and culture-wars conservatives care about. In other words, he’s fine for conservatives on law-and-order stuff that is politically passe even among most Republicans, but is from the perspective of the Republican donor base and culture-wars base he’s not fine. So why push this guy? Why the hell was he even nominated, in the first place?

(Okay, he was nominated because Obama, like so many other political types, thinks it’s still 1988. But actually it’s not still 1988.)

There are more than a fair share of former prosecutors and other former government lawyers on the Supreme Court and the lower federal benches. There are almost no former criminal defense lawyers and civil rights lawyers on the federal bench at any level, and it’s been, like, forever since there’s been on the Supreme Court unless you count Ginsburg’s Women’s Issues legal background. It’s really, really, REALLY time for one. Or, hey, even two!

Hillary Clinton owes her nomination to African-Americans, and she may well owe her election to them. At a minimum, she’ll owe her large margin of victory to them, if it materializes. So I’ve been wondering: Who will be her first Supreme Court nominee? And her second one?

Everything about Hillary Clinton suggests that if she decides to pay attention to Blacks in her Court selections, she’ll go with appointing a second Black to the Court. I mean, hey—another first! Which she will conflate with, Hey! Someone who will actually matter to a significant numbers of African-Americans in what he or she DOES on the Court.

Which is not to say that that there are no African-Americans who would be terrific for the position; one I know of is an Obama appointee to the Fourth Circuit Court of Appeals, based in Richmond, VA. Or I should say, that’s my impression, although I don’t know all that much about him. But Clinton likely will just operate on the assumption that the specifics of the nominee don’t matter, other than the specifics of race.

My strong, strong preference would be Jeffrey L. Fisher, who was highlighted in one of NYT Supreme Court correspondent Adam Liptak’s occasional Sidebar articles last month titled “Criminal Defendants Sometimes ‘Left Behind’ at Supreme Court, Study Shows.”

And to replace Ginsburg when she retires next July, the drop-dead awesome Vanita Gupta, Obama’s current Justice Dept. Civil Rights Division chief. (Kudos, Mr. President!) Gupta would be the first Asian-American on the Court, which means Clinton actually might appoint her! She won’t appoint Fisher, although there’s no one in the country who could come close to having the impact that Fisher would have on the Court because of his victories at the Court in gaining Scalia’s vote on some major constitutional-criminal-law issues.

Anyway … I’ve inserted into your post a link to the Times article, and corrected a typo (“2006”, rather than “206”). Your posts get a lot of readers, and I hope this one will be no exception even though it’s not on economics, except of course indirectly.

And I want to add this: I would love to see Pence asked about this at his debate with Kaine. And if he’s not asked about it by the moderator, Kaine should raise the point.

Okay, so I guess I’ve now posted that post I’ve been planning to post about progressives trying to push through Garland’s confirmation.  Good; one more thing I can check off my to-do list.

Oh. The title I’d planned for it: “The Really Awful Advice That Some Dem Senators Are Giving to Clinton.” They want her to announce now that she will renominate Garland to the Court–the idea I guess being that the Republican senators might as well confirm him now, although I have no idea why, since she’d be promising to nominate him rather than a young liberal. Garland is in his mid 60s.

Even more bizarre than that argument, Harry Reid also advised Clinton** that she should renominate Garland even if she doesn’t promise, pre-election or pre-inauguration, to do so, because, they say, she’ll be too busy in the first few months of her term to have someone new vetted and then have her administration shepherd the nomination through the Senate.

Seriously; that’s what that article about this that I linked to above  says.* The theory being that the new administration won’t be able to chew gum and walk backward at the same time, and Supreme Court appointments aren’t important.

So there we have it. Some Senate Democrats’ advice to Clinton is to throw away a Supreme Court appointment because it’s just easier that way.


NOTE: The last five paragraphs were added after original post was posted. 9/3 at 4:20 p.m.


UPDATE: Reader Nihil Obstet posted this comment in the Comments thread:

One of the great successes of the elite is to weaponize the Supreme Court nomination process by limiting it to culture war issues. We have to vote for our party’s candidate because of abortion, affirmative action, religious freedom, gun regulation, and sexual orientation. Both Democratic and Republican politicians are very happy with those issues. When I’m told that the election is all about the Supreme Court appointment, my reaction is, “You’re not helping your cause by saying that it’s crucial to get more Merrick Garlands on the court.”

I’m not seeing any focus among progressives about the need to reverse the erosion of personal rights with regard to the power of the state and of the corporations.

I responded: Exactly.

Added 9/3 at 4:44 m.


* Link corrected. 9/3 at 4:56 p.m.

** I erroneously said originally that “these senators” advised this.  But it was only Harry Reid who did, according to the article.  Apologies to Dick Durbin, Chris Coons and Chuck Schumer, the other senators the article mentions.  Also: Durbin apparently is playing a role in this because he is minority whip.  He’s one of my favorite senators, and so I’m a bit disappointed, but I guess he feels that as whip he has to participate in pushing for Garland’s confirmation. 9/3 at 5:08 p.m.

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You read it here first, AB readers. … [Important addendum added.]

I scooped everyone!


ADDENDUM: I would note that Ruth Bader Ginsburg will turn 83 on March 15 and that, while clearly still mentally very sharp, does not appear to be in good physical health.  There’s been a lot of speculation that if the Dem nominee, very likely now Hillary Clinton, wins the general election, and the Republicans retain control of the Senate (very unlikely, in my opinion, but probably not in theirs), they will continue to refuse to allow hearings on a Supreme Court nominee to fill Scalia’s seat.

I (strongly) suspect that the Republican idea is that Ginsburg will leave the Court fairly early into the next administration because of physical disability or death, and that the two overtly political cases currently before the Court, whose clear purpose is simply to skew elections to Republicans—and which now are deadlocked 4-4, and which the Court, rather than affirming by deadlock in a non-precedential ruling the lower appellate courts’ ruling not in favor of the Republican Party’s bald political interests, will instead be reargued next term.  Voila! Precedential opinions, by a 4-3 vote, profoundly skewing elections to favor the Republican Party.

The Federalist Society has gamed this out.  Trust me.

Meanwhile, the wingnut “legal foundations” that represent the petitioners in those two cases and that regularly fabricate cases for the Supreme Court to employ by a one-vote margin as their quiet-coup mechanism, will be working overtime (no, I mean even more so than usual) cooking up other cases on the wingy to-do list.

They know that this is not sustainable forever.  But they think it is sustainable long enough for them to accomplish their top priorities.

The Dem presidential candidates should talk about this.  I call this the Republicans’ wing-and-a-prayer strategy.  The Dem candidates, and Obama as well, should call it this, too.

They also should call it this: an attempt to orchestrate a silent coup.  I’ve been wondering whether issues other than the damn culture-wars ones that are at issue in Supreme Court appointments will ever get any attention from the Dem candidates.

I don’t think Clinton has the intellectual capacity to discuss, or the interest in discussing, anything but the culture-wars issues when mentioning the importance of Supreme Court appointments.  And Sanders, unlike Clinton, has no background in law.  But he should get information about both of the current Supreme Court cases I am referring to–Evenwell v. Abbott and Friedrichs v. California Teachers Assoc.–from people who know quite a bit about them.  And then he should discuss these.  These are the very types of things that his candidacy is about.

Added 3/3 at 12:15 p.m.

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What I Want Bernie Sanders to Know Before Tuesday’s Debate

A few weeks ago Mike Huckabee made minor news by telling an interviewer that slavery has never been made unconstitutional.  Or, to be precise, he told radio interviewer Michael Medved that “the Dred Scott decision of 1857 still remains to this day the law of the land which says that black people aren’t fully human.”  He then asked, “Does anybody still follow the Dred Scott Supreme Court decision?”

That was a rhetorical question because no one follows the Dred Scott Supreme Court decision anymore.  No one has since December 18, 1865, when the Thirteenth Amendment was certified by the secretary of state as formally a part of the Constitution.  At least no one admits to following the Dred Scott Supreme Court decision anymore, and no one follows the part of it that treated slave ownership as a property right, since everyone but Huckabee knows about the Thirteenth Amendment.  It provides:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

But the Dred Scott opinion did not actually address the constitutionality of slavery; slavery clearly was constitutional then and Mr. Scott did not claim otherwise.  What Dred Scott addressed was whether under the Constitution, the right of states to trump the rights of individuals, including even the most basic human rights, extended beyond the borders of the states whose laws authorized the profound violations of human rights.  That is, whether the rights of those states to violate individuals’ human rights extended beyond those states’ borders and into other states.  The Supreme Court said it did.

And it is a fundamental tenet of the modern Conservative Legal Movement begun in the late 1970s, that has a stranglehold on the current Supreme Court and until recently thoroughly controlled the lower federal courts and continues to rage unabated in state courts, that despite the clear language and purposes of the two additional Reconstruction amendments, the Fourteenth and the Fifteenth, the essence of Dred Scott indeed remains the law of the land.  And just as in Dred Scott, it is given the name “Freedom”, its source of constitutional legitimacy nothing actually specified in the Constitution but instead the Constitution’s supposed “design”, which is federalism, the technical term for states’ rights.

The idea is that a separation of powers between types of governments means freedom. Balances between the powers of the federal government and state (and local) governments.  No checks, though; only balances.  Unless, of course, a state legislature enacts, say, a campaign-finance law, or a municipality a gun-restriction ordinance.

Trickle-down freedom, in other words.  Freedom derived by virtue of your state’s right not to be confined by federal constitutional rights that explicitly accrue directly to individuals.  Even though the Fourteenth Amendment begs to differ.

If you were a slave owner back before the Emancipation Proclamation, you were free to reclaim your escaped slave from a state that outlawed slavery, courtesy of your state’s freedom vis-à-vis the federal government.  And if you are a state or local judge, a state or local law enforcement officer, a state or local prison guard, you are unconstrained by that pesky Bill of Rights and that Fourteenth Amendment.  Those do limit state legislators’ and municipal lawmakers’ powers to, say, legislate campaign-finance laws and gun-ownership ordinances, but do not limit the brute power of government actors invested with actual and direct police powers over specific individuals.  It is only in the rarest of circumstances that individuals have freedoms derivative of their state’s rights, and therefore only in the rarest of circumstances does “Freedom” concern actual physical freedom.

It never concerns the right to be treated humanely when in the custody of the state.  Or the right to survive a traffic stop.  Or to not be incarcerated for days, weeks or months because you can’t afford to pay the hundreds or thousands of dollars in fines and fees whose purpose is to fund the municipality’s government, especially its law enforcement complex.  Or to be brutalized while in jail awaiting trial.

Then, freedom means state or local government’s freedom to violate individuals’ constitutional rights.  Federalism, in other words, defined by the Constitution’s design.

Dred Scott forever!

Most people who read about Huckabee’s pronouncement that Dred Scott remains the law of the land reacted as Medved did: with disbelief.  Me?  I said to myself, “Well, he’s in good company.  Or at least extremely powerful company.”

He is.

Five of the nine Supreme Court justices believe that Dred Scott accurately describes the Constitution’s design not only before ratification of the Fourteenth and Fifteenth amendments but after those amendments became a part of the Constitution.  The Fourteenth Amendment didn’t alter the Constitution’s design one whit, except when it can be invoked to advance an item on the Conservative Legal Movement agenda.  Uh-uh. No way, no how.  See?

John Cornyn, a high-ranking member of the Senate Judiciary Committee, agrees.  Late last fall,shortly after President Obama announced that his choice for Attorney General was Loretta Lynch, the U.S. Attorney for the federal judicial district in New York that includes Staten Island, Cornyn publicly licked his chops.  Lynch earlier had announced that her office was conducting an investigation into possible violations of federal criminal rights law by the police officer who killed Eric Garner, and the other officers who were present, as Garner was being arrested for selling single cigarettes in violation of state law.

This is a local matter, Cornyn said, and indicated that he planned to question Lynch about her use of her federal office to infringe upon the obvious constitutional right of state and local law enforcement—police, judges, prison guards (those directly employed by state and local governments and those employed by corporations under contract with state and local governments in exchange for massive political contributions)—to baldly violate individuals’ most basic civil and human rights.  But it turned out that large swaths of Republicans who are not members of a local Patrolmen’s Benevolent Society actually disagreed. Within 24 hours of Cornyn’s declaration, many of them, including, if I recall correctly, Senate Judiciary Chairman Charles Grassley, and in any event informal Internet commenters and a couple of formal ones, indicated support for the federal probe into the death of Eric Garner.  Cornyn did not question Lych hostilely about infringements of state and local government rights in the federal Garner probe; at least nothing I read about. Neither did any other senator.


So there is a limit to the Mad Hatter definition of freedom, even in the opinion of most Republicans.  Who knew?  (Not Cornyn.)

The Supreme Court, beginning in the late 1970s, has erected a bizarre series of ostensible jurisdictional and quasi-jurisdictional, but fabricated-out-of-whole-cloth, bars to access to federal court in order to challenge as unconstitutional actions by, and occurrences in, state and local court by judges in criminal and life-altering civil matters and by courts, prosecutors, law enforcement officers in criminal and quasi-criminal matters.

Such as minor traffic violations. Such as inability to pay child-support payments in the amounts ordered.  Such as adult-guardianships and conservatorships and child-visitation. And letting your nine-year-old spent time in a nearby park alone.  Even profoundly unconstitutional actions.

These court-fabricated jurisdictional and quasi-jurisdictional bars to access to federal court in order to enforce provisions of the Constitution itself are odd invocations of the Constitution’s design, since the Constitution’s actual design explicitly assigns to Congress, not the judicial branch, the obligation and sole authority to write the parameters of federal-court jurisdiction, and Congress has done so, or rather attempted to do so, in, for example, this statute.  And this one.

Under the Constitution’s actual—actually explicit—design, the sole role of the judiciary branch in determining federal-court jurisdiction is to consider whether a federal-court jurisdictional statute is constitutional, and whether Congress’s failure to provide for federal-court jurisdiction regarding circumstances is itself unconstitutional.  This is of particular importance concerning an infamous jurisdictional statute enacted in 1996 and signed by President Clinton because he feared that Bob Dole would run Willie Horton ads against him in the upcoming campaign if he did not.  The Supreme Court in the last decade—i.e., the Roberts Court era—has (very) effectively rewritten the statute to categorically eliminate the right of habeas corpus in state criminal matters.  Completely.  Ever.

This is a completely unabashed obsession of certain members of the current Court—an unremitting juggernaut lead originally by Anthony Kennedy, in the name of Freedom, and lately by Samuel Alito, in the name of Fascism.  Freedom and Fascism are converging these days.

States’ rights, according to the current Supreme Court, as I’ve said many times here at AB, mainly state-courts’ rights to violate individuals’ rights.  State legislative and executive branches don’t have that right.  The Supreme Court justices never explain why this is so, but as I’ve said before, I think it’s just good old-fashioned professional courtesy.  Affinity fraud, albeit on the public rather than on those with the affinity.  Masquerading as the Constitution’s design.  The Constitution’s habeas corpus provision, like the Constitution’s assignment to Congress rather than the judicial branch of the power to determine the scope of federal-court jurisdiction, is part of the original Constitution.  These provisions are not in Amendments; they are in the original Articles.  In contrast to the Bill of Rights.  And to the Reconstruction Amendments.

The most important of which, for purposes of this post, is the Fourteenth.  Which provides in the two sections that are at the heart of post-Civil War constitutional civil rights:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Meaning that contrary to what (I suspect) most Americans believe, Congress indeed has broad authority to outlaw the slew of local and state laws and practices that brazenly render the United States Constitution’s vaunted civil rights provisions a Potemkin Village.  They actually protect almost no one against even the most arbitrary and absurd,  and even the most corrupt or brutal, police, prosecutorial, judicial and prison-guard and prison-official actions. Even against judges who openly and routinely violate their own state’s laws concerning bail and fines and fees.

Constitution-as-fraud.  How American.  Presumably, the next time Ruth Bader Ginsburg uses one of her month-long vacations during the Court term, or maybe her months-long summer break as she reportedly did this past summer when she spoke at a conference in Australia on the subject of human rights, to flit around the world and lecture other countries’ leaders in government and law about human rights and civil rights, she’ll explain the relationship between, say, this, and this, and this,  and this, and Supreme Court-created federalism. And Freedom, of course.

She might also identify the constitutional authority that her court has for its admitted venture into policy, entirely absent any claim of constitutional or federal statutory interpretation as a pretext, that exempts law enforcement folks—police, prosecutors, prison guards—from civil rights monetary liability to their victims for blatant violations of their federal civil rights. The Constitution’s design, perhaps?  Nah. The justices themselves concede that this is simply a policy of the sort normally reserved for legislative bodies.  But they think the policy is a wise one.  So, no matter that under the Constitution’s design, they have no authority to simply invent a policy.  In the absence of actual constitutional authority, Ginsburg might identify her reason for failing to mention this in her dissents in these cases.  Maybe she will when she visits Canada or Sweden to lecture them about human rights and civil rights.  They’re northern-climate countries, though, so she’ll have to wait until next summer.  Especially since she has no clothes.

As a supporter of Bernie Sanders’ candidacy and a recipient of his campaign’s listserve notices, I received an email message that discusses a bill he recently introduced in the Senate that would end for-profit prisons.  I had heard about the bill but was under the disappointing impression that it prohibited only the federal government’s use of private privately-owned or privately-run immigration detention centers—the only use the federal government makes of prisons not owned and run by the federal government.  And I had assumed that Sanders limited his bill to the federal government because he thought, as so many people do, that Congress is powerless to address issues of that sort pertaining to state and local governments.  But, happily, I was wrong.  The email says the bill “will bar federal, state, and local governments from contracting with private companies who manage prisons, jails, or detention facilities.”  It will not get Marco Rubio’s vote.

The email goes on to say:

The private-for-profit prison racket is a $70 billion industry, and with so much money at stake, it’s not surprising they’ve corrupted our political process.

The industry has contributed millions of dollars to candidates in pursuit of laws that increase incarceration of nonviolent offenders — a practice that disproportionately impacts people of color in the United States. We must stop the practice of governments guaranteeing prison occupancy as part of deals with private corporations that incentivize states to keep prison cells filled. And we must stop the practice of private companies charging exorbitant rates for prisoners to contact their families by phone — sometimes up to several dollars per minute to talk with loved ones, and charging outrageous service fees to prisoners trying to access their money upon release. That kind of exploitation takes an already difficult family dynamic between husbands, wives, parents and children and strains it even further.

It is wrong to profit from the imprisonment of human beings and the suffering of their families and friends. It’s time to end this morally repugnant process, and along with it, the era of mass incarceration.

I wrote here at AB three or four months ago, shortly after I first learned of contracts with private prison companies that guarantee occupancy, that these contracts strike me as flagrantly unconstitutional.

The Sanders bill, if enacted, will be challenged as an unconstitutional abridgment of states’ rights and, indirectly, of the prison corporation’s Freedom; separation of powers equals Freedom, see, when the separation is between the federal government and state or local governments and it advances some Conservative Legal Movement goal.  Or Republican Party donors’ financial interests. But actually the bill is authorized by none other than the Constitution.  Albeit the Fourteenth Amendment, sections 1 and 5, which don’t actually count.  See Dred Scott v. Sandford, 60 U.S. 393 (1857).*

In fact, the entire panoply of violations that the general public now, finally, is aware of can be addressed by national legislation that indeed controls state and local courts, lawmakers, police and prison guards.  That is what I want Bernie Sanders to know before Tuesday’s debate.   I will recommend some in a (much shorter) follow-up post tomorrow.  It is imperative to expose the states’ rights canard for what it is: a key component of the Conservative Legal Movement’s commandeering of constitutional law, via procedural and fabricated jurisdictional gimmicks, to so completely remove constitutional protections from the vulnerable that, objectively, this country cannot be thought of as a civilized society.  Civilized societies don’t conduct themselves in this manner.  Civilized societies don’t uncouple the word freedom from its objective meaning; their highest court and their legislative bodies don’t use the Mad Hatter’s dictionary.

I also will insert several web links into this post tonight or tomorrow.**  Meanwhile, maybe Bernie Sanders can think about proposing a constitutional amendment that will once and for all end the part of the Dred Scott decision of 1857 that still remains to this day the law of the land which says that black people aren’t fully human.  Or an amendment that says that Mike Huckabee is fully human.  There seems to be a lot of support for the first of these, if not for the latter one.


*Paragraph edited for typo correction and clarity.  Post edited slightly elsewhere, also.  10/11 at 11:10 p.m.

**I’ve added several links. 10/12 at 1:47 p.m.

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Anthony Kennedy Adds the Fifth Vote in the Citizens United Against Gerrymandering Opinion

Tomorrow, in addition to the predictable ruling in the EPA/mercury-emissions case, and in addition to a declaration of a constitutional right to same-sex marriage—another 5-4 ruling, in Obergefell v. Hodges—the Court will issue an opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission, a case that could directly implicate continued Republican control of the House of Representatives.  So the only question is, which way will Kennedy vote—and most people expect that he will vote Republican.

Which is to say, most people think he’ll make up the fifth vote to strike down as unconstitutional an amendment to Arizona’s state constitution, passed by the state’s voters in 2000, that removed the legislature’s authority to draw boundaries for federal congressional districts away and placed that authority with an independent redistricting commission.  The legislature is challenging the amendment’s constitutionality under the Elections Clause, which states: “Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof.”  (Scotusblog notes that California has a similar setup.)

Obviously, since state legislative gross gerrymandering is largely responsible for Republican control of the House, presumably until after the next census in 2020, the Republican justices don’t want to invite, say, Pennsylvania voters to push through something similar in a voter referendum, reversing the extreme gerrymandering there by the Republican-controlled legislature in 2011. That includes Kennedy.  But Kennedy authored Citizens United and reportedly was the one who encouraged his cohorts to take on issues that had not been raised in the case, in order to destroy the McCain-Feingold law, and he’s been on the extreme defense about it ever since.  He could see this as some sort opportunity to regain some semblance of credibility on the nonpartisan front.  I mean, you never know.

Okay, you probably do know.  It won’t happen. The CW will prove right.

— In its ACA opinion today, the Court significantly narrowed its “Chevron-deference” doctrine.  I’m glad. Even despite the immediate repercussions for EPA authority., Me, Jun. 25

Okay, well, the EPA/mercury-emissions opinion, in Michigan v. EPA, and the Arizona Independent Redistricting Commission opinion were released today rather than on Friday.  As expected, both were 5-4 opinions with Kennedy as the swing vote.

Also as expected—by me and pretty much everyone else—the EPA’s interpretation of a phrase in the Clean Air Act was stricken as beyond the reasonable meaning of that phrase within the context of the Clean Air Act.  This is a big, big win for power plants and the Koch brothers.

But as not necessarily expected, by me or (to my knowledge) many other people, was the result in the Arizona Redistricting Commission case.  Which is to say, Kennedy’s decision to join Ginsburg’s opinion interpreting the Constitution’s Elections Clause as referring not to the actual legislative body but to a state’s general authority—vis-à-vis the federal government’s—to determine such matters, in this case via a voter-led referendum in 2000 that established a bipartisan state commission for the purpose of redistricting congressional districts.

“Arizona voters sought to restore the core principle that the voters should choose their representatives, not the other way around,” Ginsburg said in a statement she read in the courtroom.  The full provision in the Constitution’s Article I, Section 4, Clause 1, states:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but Congress may at any time make or alter such Regulations, except as to the Place of chusing Senators.

“Arizona voters sought to restore the core principle that the voters should choose their representatives, not the other way around,” Ginsburg wrote.

What I find curious is the majority’s interpretation of “The Times, Places and Manner of holding Elections for Senators and Representatives” as referring to redistricting methods at all.  And theoretically, it’s interesting that Scalia, Thomas and Alito, after all the venom they spilled last week in their King v. Burwell dissents—words no longer have meaning, etc., etc.—think “Times’ means something other than “times”; “Places” means something other than “places”; and “Manner” means something other than, well, “manner”.  I haven’t read the Ginsburg opinion yet, and I don’t know whether it addresses this. And while Ginsburg wrote the opinion, Kennedy controlled the basis for it.

But in my opinion, the grounds that the majority settled on are broader and better than a decision limited to the issue of gerrymandering. Which, it seems to me, this isn’t.  I’m certainly no expert in election law, but off the top of my head the ground on which the opinion is based—that the Elections Clause as referring not to the actual legislative body but to a state’s general authority to determine such matters, including by voter-led referendum—then states (Think: Wisconsin; North Carolina; but not, of course, Texas) might reverse the uber-restrictive voter-ID laws enacted the moment that the Tea Party gained control over the state’s legislative and executive branches together.

Well, we’ll have to see what the experts say about that.  Sit tight.  But even if limited to voter referendums on creation of anti-gerrymandering commissions, this opinion is a very big deal.  I think.

Citizens united in Arizona in 2000 against extreme gerrymandering. Now citizens can unite in other states to do the same.


UPDATE: Richard Hasen, a professor at UC-Irvine law school and a leading liberal election law expert (he blogs on election law at, just published an article on Slate on the opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission, in which he conjectures about the reasons for Kennedy’s surprising vote and notes that, as in King v. Burwell, Kennedy seems to have changed his mind after the argument in the case this spring.  Slate notes at the bottom of the article that he has a book forthcoming called Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections.  Cool.

Added 6/29 at 3:42 p.m.


SECOND UPDATE:  Hmm. Two terrific articles about the actual effect of the EPA decision on coal-powered power plants. One, by Michael Grunwald in Politico, discusses both the specifics of the ruling and the quickly progressing demise of the coal industry, which is rapidly being replaced by gas and solar and wind power. His article is titled “A great day for coal? Not exactly.” It’s subtitled “Why the Supreme Court’s strange EPA decision won’t matter as much as people think.”

The other, by Eric Holthaus in Slate, is called “Bad News: Supreme Court Blocked Power Plant Rules. Good News: The Era of Coal Is Over.

Since I’m one of the people referred to in Grunwald’s subtitle, I thought I should mention these articles.   This is just a  big win for coal-powered power plants, not a big, big win for them.  The Koch brothers are still pretty happy tonight, though.

Added 6/29 at 9:40 p.m.

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The appalling failure today of Sonia Sotomayor, Elena Kagan, Stephen Breyer, Anthony Kennedy, John Roberts and Samuel Alito [Updated]

This speaks for itself.  I’m sure that Kennedy, Roberts and Alito call this ‘freedom’.  I won’t guess at what Sotomayor and Kagan call it.  But what Breyer calls it, or should, is conflict of interest.  Back when Breyer was lead counsel for the Senate Judiciary Committee, he helped draft the Federal Sentencing Guidelines—a really appalling policy—and has spent the remainder of his career serving as rear-guard protector of it.

Breyer makes me sick. Then again, so does Kagan (nothing new there) and now Sotomayor.

But let’s hear it for Ginsburg, Scalia and Thomas.


UPDATE: Anyone who’s interested in this subject–and anyone who’s interested in the broader subject of an increasingly important chasm between rightwing libertarianism that is limited solely to taxes/economic-regulation/the-47% schtick and right-wing libertarianism that actually also considers the issue of denial of actual physical freedom to be within the definition of Freedom! Liberty!, presumably even when the denial of physical freedom is by a state or local government rather than by the federal gummint–should read this blog post on the rightwing-libertatian Cato Institute’s web site, about this “cert.” denial.

Of particular interest to me is the comment about Kagan’s decision (evident throughout her tenure on the Court) to be part of the “pragmatic” wing.  As the Cato post implies, Kagan has a pretty curious idea of “pragmatism.”

The case at issue, Jones v. United States, was a case prosecuted federal court and subject to the Federal Sentencing Guidelines.  But the ground on which cert. was sought was one under the Sixth Amendment, and a ruling finding the judicial practice at issue unconstitutional would have applied to state prosecutions as well as to federal ones.

10/16 at 12:25 p.m.

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The Affliction of Judicial Affluenza [Updated]*

I normally don’t post here about high-profile news stories on which I have nothing, really, to add to what has been reported extensively in news stories or argued in opinion pieces in the mainstream media.  So my first inclination when I saw an email from Dan Crawford yesterday suggesting that I post on the affluenza manslaughter-defense news story out of Texas on Thursday, I said to myself, “Nah. Why bother to repeat the obvious.”

But I clicked the link Dan had sent me anyway.  It was to an article on the ThinkProgress website, titled “How A Teen Successfully Used His Wealth As A Defense For Killing Four People,” by Nicole Flatow and Judd Legum, posted there on Thursday.  I already knew how that teen successfully used his wealth as a defense for killing four people.  I already had read a couple of articles about it, so I knew the specifics of the successful argument made to the judge.  And I know enough about the judicial system in this country to recognize that the reason this argument succeeded was not that the teen has affluenza but that the judge does.

It is a common affliction among American judges and justices in many, many American legal jurisdictions, state and federal, and has been at epidemic levels since the Reagan Revolution of the 1980s.  It is, as it turns out, highly contagious, spreading to state courts and from one federal judge to another from various high-profile members of the federal judiciary, most prominently but of course by no means exclusively, the members of the United States Supreme Court.  The latter have effectively limited access to that court to rightwing state attorneys general challenging grants of habeas corpus petitions by the only two federal appellate courts that still grant them (the Ninth Circuit, based in San Francisco, and the Sixth Circuit, based in Cincinnati) and to corporations and very wealthy individuals represented by one of a handful of Washington, D.C.-based Supreme Court “specialists” whose actual specialty is gaining automatic attention initially from the justices’ law clerks and then from the justices themselves.

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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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Sorta Interesting … (Updated!)*

Thought y’all would enjoy this post, on one of THE BIG DEAL law-profs’ blogs.  It’s bloggers are right- to center-right libertarians, all (or at least most) of them former law clerks to one of the conservative Supreme Court justices.

Ah. And this is even moreinteresting.  Woo-hoo!

UPDATE: Welll.  Hmmm.  As I said earlier today in a comment in response to JackD’s comment about my post, I was surprised to read the original law-prof blogger’s interpretation of Ginsburg’s weekend comments, because on Monday I had concluded the opposite after reading a quote from Ginsburg’s speech. 

The quote was:

As one may expect, many of the most controversial cases remain pending. So it is likely that the sharp disagreement rate will go up next week and the week after.

As I noted in my comment to Jack, “Sharp disagreement,” in Supreme Court coverage, usually means 5-4 decisions, although sometimes it means “fractured,” as in, there were a zillion separate concurring and dissenting opinions, and no one can actually figure out what the hell the actual result was. 

As I also said, the ACA case, of course, isn’t the only high-profile case the Court will decide in the next 10 days or so.  But I still read that comment as suggesting a 5-4 result in the ACA case.  The CW is that if the ACA is stricken down, it will be 5-4, but that if it’s upheld it will be 6-3.  But Kerr could be right.  Ginsburg might have just been sending out a red herring.  Who knows?  Or: Oh, what the hell.

Ooooh.  This is more nerve-wracking than betting on your Kentucky Derby favorite, who’s no one else’s favorite; your odds are even worse. And there’s no “place” or “show” here.  Unless ….

As I also said in responding to comments to my post—JackD’s and run’s—the impact of the poll I linked to in the last sentence of my post is, I think, that it suggests that, contrary to the CW of the last two years, the healthcare-insurance issue could be a big positive, rather than a negative, for the Dems in November, if the Court does strike down the entire ACA or the mandate part of it.  (And even if it doesn’t, since by the election most people finally will actually know what’s in the law, what’s not in the law, and what the purpose of the mandate is and how it relates to the preexisting-conditions provision.)  The Repubs want the status quo.  The Dems and a substantial majority of the public don’t.

*In response to a comment by Gary, in the Comments to this post, asking what “CW” is, I wrote:

Conventional wisdom.  I’m sorry.  I did exactly what I hate when other people do that.  Especially mainstream-media bloggers like Matthew Yglesias, who regularly drops names of people I’ve never heard of, and the like, on his blog on Slate.  I guess now I qualify to blog on Slate.    
Again, sorry.

Beverly, 6/21

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