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Finally … a growing public awareness and concern about the ‘attitudinal model’ of Supreme Court votes. [Expanded repost]

Correction appended below.

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Scott Lemieux weighs in at The Week, writing that, although “Supreme Court voting is too complex to be explained by any single factor,” the “attitudinal model” – which posits that “Supreme Court votes are explained by what judges consider desirable policy” – “still contains a good deal of truth.”

— Amy Howe, SCOTUSblog, Friday Roundup, May 16 this morning

Lemieux’s article is a must-read–for his own excellent commentary and because it mentions recent articles and empirical studies that not only make the substantive point but also illustrate that we’ve reached, or are about to reach, the point at which, having broken through to the larger, general news media, it becomes a subject of discussion among, y’know, ordinary folk. The sort of people whose cert. petition, should they file one, the Court wouldn’t be caught dead actually considering granting.

Lemieux’s statement that “Supreme Court votes are explained by what judges consider desirable policy” is profoundly accurate.  During the 1980s and ‘90s the justices were quite open about this, at least regarding access-to-federal-court issues.  By which I mean that they engaged in wholesale fabrications of jurisdictional, quasi-jurisdictional, and “immunity” doctrines, and the rewriting of procedural statutes (the Federal Rules of Civil Procedure are statutes)–in an unremitting juggernaut to deny federal-court access to pretty much everyone who isn’t a corporation, a state (states are now people, just like corporations, except when someone wants to sue them), a public official or employee acting in the course of his or her employment, or a rightwing culture warrior.

The Roberts Court has continued this, in spades, except when a mega-corporation or a multi-millionaire represented by a $1,000/hr. Washington-based Supreme Court Specialist asks that they narrow the doctrine.  There was a very, very recent (May 5), stunning exception to this hard-and-fast qualifications-to-have-your-cert.-petition-considered prerequisite list, in an opinion that I would consider the second-most-significant opinion of this term  (McCutcheon v. FEC is the most important, in my opinion), except that I already know that the lower courts will ignore the opinion–simply pretend that it doesn’t exist–and get away with it. The Court, as currently constituted, won’t grant another cert. petition to enforce the two (equally important) rulings in that case, Tolan v. Cotton, unless a mega-corporation needs it–a highly unlikely event.

If you doubt that, please read the dissent from the decision to hear that case.*  It will be educational, I trust.

The Roberts Court’s contribution to the Court’s wholesale self-conferred policymaking role is to purport to justify their policymaking as mandated by the Constitution–by its structure, its history, its … whatever.  Whatever, usually being some comment by one of its framers (almost always James Madison, the unwitting mascot of today’s far right), or a pre-Civil War Supreme Court opinion.

That the actual structure of the Constitution, as well as its explicit provisions, include, for example, a clear separation-of-powers bar to judicial-branch fabrication of jurisdictional and other procedural bars to access to federal court has, since the early 1980s mattered not one whit.  So the Court no longer adds to the a veritable avalanche of fiats that the justices themselves justified in some instances as simply their idea of good policy.  The fiats these days come clothed as alleged personal dictates of Madison or of Congress, notwithstanding the chasm between Madison’s (and other framers’) actual expressed beliefs–or Congress’s actual clear intent, as per the statute’s or procedural Rule’s words as those words are commonly understood (or were, at the time of enactment)–and the Court’s suspiciously rightwing interpretation of them. And now, finally, the general news media and the larger public are catching on.

Progress.

Another terrific article about this is an op-ed by journalist Michael McGough in Thursday’s Los Angeles Times, in which he says he’s “struck by how the controversy over whether the Supreme Court justices have become more partisan in recent years parallels a phenomenon I discovered when writing about the Church of England: the ‘party bishop.’”

Relatedly, another terrific article in The Week, this one by Matt Bruenig, argues for term-limiting Supreme Court justices, and is subtitled “Lifetime appointments were meant to preserve judicial independence. But the high court has devolved into a political body with too much power.”  That article is similar to one by law professor Eric Segall published at CNN.com earlier this week, except that Bruenig’s article details some specific amendment proposals.

These are matters whose time finally may have come as issues worthy of serious attention, with real possibility for change.

Like this one.

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NOTE: This is an edited and expanded version of a post I posted yesterday and have now deleted.

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CORRECTION: I received the following email this morning from a law clerk to a federal magistrate judge:

Greetings,

I read your article, “Finally . . . a growing public awareness and concern about the ‘attitudinal model’ of Supreme Court votes” this morning after linking to it from SCOTUSblog.  In it, you referenced Tolan v. Cotton from the current Supreme Court term saying, “The Court, as currently constituted, won’t grant another cert. petition to enforce the two (equally important) rulings in that case, Tolan v. Cotton, unless a mega-corporation needs it — a highly unlikely event.  If you doubt that, please read the dissent in that case.  It will be educational, I trust.”

Upon linking to Tolan v. Cotton, however, I found no dissent, only a concurrence by Justice Alito, joined by Justice Scalia. Did I misread your comment?

I responded:

I am sorry; you are right that the Alito opinion, joined by Scalia, is a concurrence in the judgment.  It was a dissent from the decision to grant cert., but a concurrence in the two substantive rulings–one concerning summary-judgment jurisprudence, the other concerning “qualified immunity” federal common law. Once the Court decided, 7-2, to grant the cert. petition, Alito and Scalia did agree that the Court of Appeals had ignored the mandate of Rule 56 and the Court’s own summary-judgment and qualified-immunity jurisprudence. But since petitioner Tolan was neither a state trying to have the Court overturn a federal habeas grant nor a mega-corporation asking the Court to rein in the rampant and breathtaking misuse by the lower federal courts of the Court-fabricated jurisdictional/quasi-jurisdictional “federalism” doctrines, Alito and Scalia objected to the majority’s decision to grant the petition.

The part of my post in which I (briefly) discussed Tolan addressed the issue of who has access to Supreme Court “error review”, and when, and why. So I used the word “dissent,” but should have explained that the opinion was only a dissent to the part of the opinion granting cert. and stating why, and not to the substantive outcome.

I’ll add a correction to my post.

Beverly Mann

Some of this is technical language, and sometime later today or tomorrow I’ll post separately about this, explaining it.  But I wanted to post this correction here as soon as possible.  The emailer said she serves as the death-penalty law clerk to the magistrate judge she works for. 5/21 at 1:21 p.m.

* Sentence corrected, 5/21 at 1:47 p.m.

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The Supreme Court’s opinion in Bond v. U.S. will be about separation of powers. But about separation of WHICH powers?

Update appended. 5/17 at 1:37 p.m.

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I’ve written several times in the last three-plus years about a Supreme Court case called Bond v. U.S. Actually, to be precise, Bond v. U.S. is two Supreme Court cases, although it’s only one lower-court case. This is not unusual, but the case itself is; both the facts and the legal issues are downright weird.

The case first came to the Court in 2010 as a “federalism” (states’ rights!) case, albeit a highly unusual one: Unlike virtually every other criminal-law-related case ni which federalism is at issue, the criminal defendant in this case was prosecuted not in state court but in federal court.  She argued, successfully, to the Supreme Court, on “direct” rather than “collateral” review–a distinction that gives federal criminal defendants an actual shot at Supreme Court review in order to clarify, broaden or narrow criminal or constitutional law; state-court defendants have virtually no chance, and are (very) effectively precluded, by the Supreme Court’s extreme (absurd) interpretation of a federal “jurisdictional” statute, from any such opportunity in the lower federal courts–that she herself had “standing” under the doctrine of federalism to challenge the constitutionality of her federal prosecution. Notwithstanding that she is not a state. But she had been prosecuted under a ridiculously broad reading of a federal anti-terrorism statute, of what should have been a state prosecution.

You have “standing” to sue if there is a direct, actual or imminent injury to you that could be rectified by a favorable court ruling on the issue you want to raise.

Kennedy wrote the opinion, in which he wrote: See, I told you that federalism equals freedom! (Okay, I’m paraphrasing. But you figured that out by yourself.)  Federalism , Kennedy said, is the separation of powers between the federal and the state governments.  Which makes us freer.  Even when it means that state courts (in criminal and civil cases) and prosecutors are free to violate individuals’ constitutional rights. (Okay he didn’t say that latter in that opinion, but he and his colleagues say it regularly in other opinions.)

The Court send the case back to the lower federal appellate court for review of Bond’s substantive claim: Was her prosecution under a ridiculously broad reading of a federal anti-terrorism statute instead of as a run-of-the-mill assault under state criminal law unconstitutional under the doctrine of federalism?  And while her case was in the lower appellate court, she argued that the Chemical Weapons Convention Implementation Act–the statute under which she was prosecuted, and which Congress had enacted under it’s “enumerated” constitutional power to enforce and interpret treaties– was unconstitutional because, well, the part of the treaty that Congress had enacted the statute to enforce, at least as interpreted by Congress in enacting that statute, was an unconstitutional power grab by the executive branch, which had negotiated the treaty.  At least as interpreted by Congress in enacting that statute.

Something like that. I am, I hope it suffices to say, not an expert on international law.  I’m, I just say, way more comfortable discussing the usual federalism (states rights!) controversies than even mentioning, say, treaty law. But I will note that the Constitution’s Article II, Section 2, Clause 2, enumerates that the President “shall have Power, by and with Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

Bond lost in the lower court on both her grounds, and the Supreme Court agreed to hear the case again.  The case was argued last November, in the same group of argument “sittings” as Town of Greece v. Galloway.

I had assumed until last week, when Town of Greece was released, that Kennedy would write the opinion in Bond–another ode-to-federalism-because-it-means-freedom opinion–and that Roberts would write the opinion in Town of Greece. (They sort of balance things that way.)  But I was wrong about that. Kennedy wrote Town of Greece and Roberts is writing (or has written; the opinion might be issued on Monday) Bond.  And Vanderbilt law prof. Ingrid Wuerth, who is an expert on international law, writes that she expects it to be a blockbuster.

Wuerth says, if I understand her correctly, that she expects that the opinion will substantially rewrite (i.e., limit) the extent of the federal government’s treaty powers–under some theory of the “structure” of the federal government under the original Articles.

I think it will use a different part of the original Constitution, though, than the one that structures the federal government so that Section 2 of the Fifteenth Amendment, and the habeas corpus provision in the Constitution’s Article I and much of the Fourteenth Amendment (as necessary), are largely nullities. This part of the Constitution, I expect, will have been written not by James Madison, or by Oliver Wendell Holmes (to whom credit will be given, nonetheless), but instead by the Koch brothers, who await this ruling.  The purpose of which will have nothing much to do with terrorism–except the environmental kind that Koch Industries, ExxonMobil, and coal-fired power plants perpetuate.

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UPDATE: Reader Mike Hansberry and I exchanged the following comments in the Comments thread to this post:

HANSBERRY:  Your comment puzzles me. If the Court rules that the federal government overreached in prosecuting Ms Bond, that will strengthen Reid v. Covert, which teaches that the Treaty clause does not empower the Pres. and Senate to override Const,. protections, rather than weaken it. In my opinion, the court ought to expand on Reid and say that the Treaty clause does not empower the Pres. and Senate to violate structural principles any more than it allows them to violate enumerated protections.

Moreover the Court could simply say that the treat power extends as far as Missouri v Holland, but no further. So there is no need whatever to for this ruling to have an impact on the law as it stands.

ME:  Your comment indicates that you understand perfectly the point of my post, Mike.  Reid v. Covert indeed teaches that the Treaty clause does not empower the president and Senate to override the Constitution’s protections guaranteed to individual American citizens, in that case, to a U.S. citizen living abroad and tried and convicted, by a military tribunal, of murdering her husband.

I do understand that a major part of the Conservative Legal Movement is to privilege states’ alleged rights over the rights of the federal government and the rights of individuals who aren’t rightwing culture warriors, and attribute this to, as I put it in a new post on this blog, “the Constitution–by its structure, its history, its … whatever.  Whatever, usually being some comment by one of its framers (almost always James Madison, the unwitting mascot of today’s far right), or a pre-Civil War Supreme Court opinion.”

You acknowledge that a ruling in Bond that expands Reid’s “teaching” that the Treaty clause does not empower the president and Senate to override the Constitution’s protections guaranteed to individual American citizens–a ruling that expands it to a “teaching” that the Treaty clause does not empower the president and Senate to override the Constitution’s alleged sovereignty guaranteed to individual states American citizens–would be a clear expansion of Reid’s teaching.  It would, in fact, be not just an expansion but an alteration of the purpose Reid’s teaching, which was to protect individuals, not states, from evisceration of the Constitution’s direct guarantees to individuals.

The question is not whether a treaty can supersede the Constitution’s structure, but instead the right’s claim that the Constitution’s structure is, in essence, the right’s legislative agenda.  That is, the question is: What actually is the Constitution’s structure. In this case–and, really, this case only–a ruling for Bond based on the right’s claims about the Constitution’s structure also would reflect the left’s idea of the Constitution’s structure, but in an entirely different respect.  Carol Bond should win, but because her own individual constitutional rights were violated by a bizarre application of a federal statute.  She should not have to piggyback on some rightwing claim that states, and especially state courts and state prosecutors, are sovereigns whenever they choose to be, including whenever they choose to violate a criminal defendant’s constitutional rights.

THAT would avoid a de facto reversal of what Holmes actually wrote in Missouri v. Holland, as I read that opinion.

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Greece, Greece, I Tell You!

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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Town Governments Are People, My Friend.

For citizens against the prayers, the decision sets dangerous church-state precedent. For the town of Greece, court’s ruling is a victory for religious freedom.

— Brett Harvey, senior counsel at Alliance ­Defending Freedom, which represented the town of Greece, in Town of Greece v. Galloway, at the U.S. Supreme Court, writing as a guest in the National Law Journal.

That’s right. States are people entitled to equal protection of federal law under the Constitution’s Fifth Amendment. Corporations are people entitled to freely practice their religion under the First Amendment’s free exercise clause, and to use the fund of their unwitting shareholders to exercise their CEO’s First Amendment right to free speech.

And town governments are people entitled to exercise their religious majority’s right to freely practice their religion under the First Amendment’s free exercise clause.

The Alliance has successfully defended freedom.  The decision “not only protects the ability of the government to accommodate the faith of the people, but it adds further protection for people to publicly pray and express their own faith,” Mr. Harvey writes.

Which is good, because of all those people–right here in America–who were being arrested for praying publicly and expressing their own faith. No longer will Americans have to worry about being able to make bail and retaining criminal counsel after praying outside.

And now they can even go Christmas caroling around their neighborhood each December while carrying two cell phones, and make it home unmolested by arrest.

 

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Michael Hiltzik: “‘If I had to guess, this case won’t go well for retirees,’ [U. Mich. law prof. Nicholas] Bagley writes.”

In an era in which corporations have been trying every possible stratagem to cut employee benefits (see our look at the Obamacare employer mandate earlier today), a new threat to retirement benefits has just arisen.

The source of the threat is the Supreme Court, which earlier this month agreed to rule on when or whether employers can unilaterally end retiree healthcare benefits, even when they’re negotiated as part of a union contract.

– The Supreme Court saddles up for an attack on retiree benefits, Michael Hiltzik, LA Times, May 12

The article, which explains the situation and includes the quote in the title of this post, links to Bagley’s post about the Supreme Court case at issue on his Bagley’s blog.  The blog is called The Incidental Economist, and is devoted to discussion of healthcare reform.

The case has already been decided, of course, 5-4, at the Court.  All that remains are the formalities: the briefing, argument, and the opinion written by Samuel Alito.

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Ah, federalism. Which is in the eye of the beholders. The beholders being Clarence Thomas, Antonin Scalia, Samuel Alito, Anthony Kennedy, John Roberts … and the Koch brothers.

(Correction appended.)

(Clarence Thomas in his separate concurrence]* adds that in his view the First Amendment religion clauses don’t apply to the states in the first place. And it only probably bars the establishment of a national church—leaving open the question for another day.

Let Us Pray:The Supreme Court gives its blessing for prayer at town meetings. Get ready for a lot more Jesus in your life., Dahlia Lithwick, Slate, yesterday

That’s right; the First Amendment religion clauses don’t apply to the states in the first place. No Sir. No way. No how. It’s only the First Amendment’s speech clause that applies to states in the first place.

In the last two years, Thomas and Scalia have voted with their three compadres to strike down Montana and Arizona campaign-finance laws as violative of the First Amendment’s speech clause–in the Montana case in a summary reversal of a ruling by the Montana Supreme Court; that is, without briefing and argument.  The vaunted freedom conferred by federalism (a.k.a., states’ rights!) is somewhat temperamental.  But, whatever.

I strongly recommend the entire Lithwick article, which discusses several parts of the Kennedy plurality opinion, a concurring opinion by Alito, and the Thomas concurrence.  The statements these people make go well beyond the issue in that case, and are truly breathtaking.

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*CORRECTION: Originally this post said that Scalia joined Thomas’s concurrence in full. That was incorrect; he joined all of it except the part in which Thomas repeats his belief that the First Amendment’s two religion clauses are not properly viewed as applying limitations to states via the Fourteenth Amendment, through what’s known as “the incorporation doctrine.”  Thomas is the only justice, to my knowledge, to express or support such a view–ever.

As I understand Thomas’s claim, it’s that the Framers’ intent in drafting the religion clauses was to prevent the federal government from stopping the states from adopting a state-sponsored religion. It’s utter nonsense–absolutely fanciful–but it is part and parcel of a key premise of the Conservative Legal Movement’s “federalism” claim: that the very structure of the Constitution itself as set forth in the original Articles is that the Constitution makes states sovereigns and that a threshold purpose of the document is to protect state’s prerogatives from incursion by the federal government–and that this includes the right of state courts in criminal and civil cases, and the right of state prosecutors, to infringe at will upon the rights of individuals.

Kennedy, in fact, actually has written that the structure of the original Constitution trumps Amendments that alter the relationship between the states and the federal government.  Roberts,for his part, made clear last year in his opinion striking down a key section of the Voting Rights Act that he agrees wholeheartedly with this; his opinion in that case, Shelby County, Ala. v. Holder, effectively holds that these folks’ concept of the structure of the original Articles trumps Section 2 of the Fifteenth Amendment.  And it explains the bizarre juggernaut that I wrote about here.

We’re witnessing here a concerted, unremitting restructuring of fundamental parts of American law under the guise of constitutional interpretation, employing medicine-man semantics gimmicks and other such tactics, including baldly false, disorienting declarations stating what others’ opinions are.  The Articles of the Constitution are viewed as really the Articles of Confederation, except when that would limit rather than advance this crowd’s lawmaking or outright partisan agenda.** And they’re getting away with it–and will until the Democrats actually start making it an issue.  My suggestion: that the Dems run ads this election year actually quoting from the opinion in McCutcheon v. FEC and also note the striking down of Arizona’s and, especially, Montana’s campaign-finance laws.  Montana’s statute was enacted in the early part of the last century. – 4/7 at 11:04 a.m.

**I just updated this post again to add “and outright partisan” to that sentence and to link to Thomas Edsall’s terrific op-ed about this in today’s New York Times. This issue is finally getting some mainstream-media attention.  Hurray. – 4/7 at 12:57 p.m.

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Do take advantage of your brand new prayer opportunities. Along with your newly created job opportunities and all your new freedoms.

The most important turn in Monday’s Supreme Court ruling in Town of Greece v. Galloway—a case that probes the constitutionality of explicitly religious prayer in legislative sessions—isn’t that the courts no longer have a role in policing the Establishment Clause, or that pretty much any sectarian prayers can be offered at town meetings so long as they do not “threaten damnation, or preach conversion” to minority religions. No, I think the interesting change in the court’s posture today is that sectarian prayer in advance of legislative sessions is no longer characterized merely as “prayer.” In the hands of Justice Anthony Kennedy, who writes for five justices, these benedictions are now free and unfettered “prayer opportunities.” And “prayer opportunities” are, like “job creators” and “freedoms,” what make America great.

Let Us Pray:The Supreme Court gives its blessing for prayer at town meetings. Get ready for a lot more Jesus in your life., Dahlia Lithwick, Slate, yesterday

My Polish-Jewish-immigrant grandmother, who’s been spinning in her American-cemetery grave since yesterday morning (trust me on that), might calm down once she realizes the benefits of this new all-in-one-case body of law.  Which are that town residents who’d rather not take advantage of their prayer opportunity but who do want to attend a town-government meeting can plug their iPhone earphones into their ears and enjoy some music until the policymaking stuff begins. And not have to worry about appearing rude.

Hopefully, someone will give some visual signal that the prayer opportunity is over and that everyone who didn’t grab the opportunity when it was available will have to wait until Sunday church service for another one. Although there probably isn’t a prayer that that will happen. And if all hell breaks loose before Sunday, like during the policymaking debate, that missed prayer opportunity will be regretted. My grandmother would have appreciated being forewarned.

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What Are the Supreme Court Justices Hiding? A Lot.

The Supreme Court has long been criticized for its unwillingness to televise, or even record, its proceedings. But debate about transparency at the nation’s highest court should extend far beyond the issue of television cameras. Citizens deserve transparency from the court about how it decides which cases to hear, how justices decide whether to recuse themselves from pending cases, and how the justices’ court-related personal papers are treated after they retire.

The Supreme Court receives more than 7,000* requests a year to overturn lower-court decisions and grants only 70 to 80 of those petitions (it takes four votes to hear a case). Deciding which cases to hear is an enormously important aspect of a justice’s job. Yet the Supreme Court does not disclose which justices decide whether a case is worthy of its attention. In fact, there isn’t even an official record of the votes.

What Are the Supreme Court Justices Hiding?, Eric J. Segall, Los Angeles Times, yesterday

Okay, obviously I’ve died and gone to heaven, because in the earthbound world, no one–at least to my knowledge–other than me has written publicly about this. I’ve written repeatedly about it here at AB, most recently here and, earlier, in more depth.  But no one else seemed to care.  No one who matters, anyway. I would have died of shock this morning when I read that op-ed piece, were it not that I was, unbeknownst to me, already in heaven, even though I’ve never even attended a government meeting in the town of Greece, NY.

Segall is a law professor at Georgia State University.  He also is the author of a book called Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges. But y’all already knew that the Supreme Court is not a court and that its justices are not judges, because you religiously read my AB posts about the Court. Even though my posts aren’t part of the government-meeting opening proceedings in the town of Greece, and anyway you, like me, don’t live anywhere near that town.

Segall’s advantage over me is that he was able to ask a retired justice, John Paul Stevens, why the votes on “cert. petitions–you know what cert. petitions are, because you read my AB posts–aren’t public. Segall reports that Stevens, when asked this, “paused and then said that, in his 35 years on the court, the issue of publicly disclosing such votes had “never come up, so he had never thought about the question.”

I began posting at AB in the spring of 2010, right around the time that Stevens announced his plans to retire at the end of that Court term in June of that year.  But I’m not sure my writings on AB would qualify as “coming up” anyway.

So, what does?  I suggested recently that Congress (by which I meant, liberal members of the Senate Judiciary Committee) should propose legislation to require a formal public record of the votes on every petition for certiorari, and as a prerequisite, require an actual formal vote on every petition for certiorari. (I don’t think this would qualify as a revenue measure, so the bill could originate in the Senate.  I could be wrong, though, since it would be a mandate.)

Segall says Stevens’ “response says a lot about how the justices take for granted their secrets and the court’s lack of transparency.”  Yeah. I call it an entitlement, and it needs to be fixed.  Segall goes on to report:

After reflecting on the question, Stevens noted that the court shouldn’t continue a practice simply because ‘it’s always been done that way,’ but he also worried that if certiorari votes were disclosed, the public would assume that a justice’s vote to hear a case indicated how he or she would rule on the merits of that case.

“Confusion about what the votes mean,” Segall comments, “is not, however, a justification for keeping them secret from the American people.”  Oh, I dunno. When an extremely powerful government institution is allowed to make it’s own rules, absolutely unfettered, to suit its members’ personal needs, confusion about what the votes mean sounds like as good a justification as any.

So, apparently, does deliberate obfuscation about which justices vote to give which corporation represented by which Supreme Court Specialist, or (carte blanche) which state attorney general’s office, access to Supreme Court review, and which justices vote to give no one else access.  Except the Pacific Legal Foundation’s clients.

I, for one, sure would be interested to know which justices refused, for decades, to hear cases about Court-fabricated “jurisdictional” and “quasi-jurisdictional” bars to access to federal court to assert a violation of a constitutional right–and then voted to address exactly those issues, at the behest of ExxonMobil and Sprint Communications, narrowing the respective Court-fabricated “doctrines” exactly to the extent necessary to allow them and those nearly identically situated access to federal court, but no one else.

It’s not like, once they agreed to hear those corporations’ cases, they didn’t note in their unanimous opinions that these “doctrines” have metastasized outlandishly in the lower federal trial and appellate courts; they did. They said that, in both the ExxonMobil opinion and in the Sprint opinion.  It’s just that no major corporation had asked them to address these cancers before. But in both instances, the cancer is not full in remission. Further treatment will have to await a cert. petition by Chevron or Verizon.

Not incidentally, both of these doctrines pretty baldly violate the doctrine of separation of powers, as I said in a recent post. And the First Amendment petition clause.  Maybe Chevron’s and Verizon’s Supreme Court Specialist will point that out. Decades from now. Until then, only parties challenging a section of the ACA will have access to federal court as a matter of constitutional right and federal-court-jurisdiction statutes that say they apply to, well, everyone.  The justices are protecting are freedom. And they violated ExxonMobil’s and Sprint’s.

Segall says the current intense level of secrecy at the court can’t be justified. He’s right.  But what difference does that make?  None, best as I can tell.

Another issue that apparently never comes up at the Court is the ridiculously and, for a good many people, prohibitively expensive cert.-petition process.  The Court requires an expenditure of roughly $5,000-$7,000, paid to one of two or three private printing companies that have a cartel, for the (very) special printing of an original and 39 copies of each cert. petition, plus three for each opposing party. This to play the lottery for the perhaps three slots annually that are not allocated for petitions filed but government entities or government-employees-as-government-actors; petitions bearing the name of at least one Supreme Court Specialist on its cover; or petitions filed by some culture warrior and represented by a lawyer at one of the four or five pro bono rightwing Legal Foundation law firms.

Much better to spend that $5,000-$7,000 on state lottery tickets.  Or at a casino.  Which the Supreme Court most definitely is not.

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*Most reports I’ve read in the last several years list the number at approximately 9,000 annually, and one recent report said the number is now up to 10,000. That includes petitions filed with a court-approved fee waiver available only to indigents, and the special printing and 30 of the 40 copies also are waived. But, with the exception of the occasional death penalty case and high-profile-issue Fourth Amendment case, in which big-name counsel is serving pro bono, it is big news when one of these is granted, always during a blue moon/solar eclipse/meteorite shower event. 

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If the Justices “fail to recognize where their assumptions about society and technology break from the norm—or indeed, where they are making assumptions in the first place—we’re all in trouble.” Indeed.

  • At Crooks and Liars, Parker Higgins focuses on comments made by Chief Justice John Roberts during the oral argument in the cellphone privacy cases, in which the Chief Justice expressed skepticism that many law-abiding people carry more than one cellphone.  Higgins suggests that if the Justices “fail to recognize where their assumptions about society and technology break from the norm—or indeed, where they are making assumptions in the first place—we’re all in trouble.”

    — Monday Roundup, Amy Howe, SCOTUSblog, today

Via me; H/T this post by run75441 a.k.a. Bill H.

An important find, Bill.  And now maybe some people who actually matter will read Higgins’ post.

That’s quite a “money” quote. It transcends the issue in the two cellphone-privacy cases, and technology cases in general, and cuts to the heart of what’s wrong with the current Supreme Court. As things stand now, all of us who know that it’s no longer the 1980s or even the ’90s are in trouble.

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NOTE: The Court’s argument schedule is completed for this term, and the Court is not scheduled to “sit” again until May 19, so unless it announces an opinion-release session that is not currently scheduled–which probably won’t happen, because these folks probably have full speaking/interview schedules until then–we get a two-week break from this stuff.

Thank heavens.  I mean, praise the Lord.

 

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A final comment on Scalia’s dissent in EPA v. EMA Homer City Generation

I haven’t read Scalia’s dissents–either one of them–in EPA v. EMA Homer City Generation, and don’t plan to. Nor did I plan to post more than I already have about it. But Kenneth Jost has read it, and at his blog Jost on Justice points out another line in the first of the two:

In dissent, Scalia saw the EPA as making up the approach on its own in the face of an “unambiguous” statute. Even while calling the law “stupid,” Scalia said the episode was “a textbook example” of why many Americans believe they are governed “not so much by their elected representatives as by an “unelected bureaucracy.”

Some Americans do believe they are governed “not so much by their elected representatives as by an “unelected bureaucracy.”  Other Americans, though, believe they are governed “not so much by their elected representatives as by a radical bare majority of justices all but one of whom worked in the Reagan administration and has a quarter-century-old list of what is effectively legislation that they are hell-bent on enacting by Court fiat–largely by striking down legislation enacted by none other than the elected federal and state representatives.

Jost writes:

Scalia takes off against other parts of government in much the same way. When the court considered the Voting Rights Act two years ago, Scalia cited its overwhelming approval by both chambers of Congress as evidence that it was all wrong. When Roberts led the court in a narrow ruling on campaign finance law in 2007, Scalia accused the chief of “faux judicial restraint.” In Scalia’s disordered mind, the rest of government is so often so very wrong — and he alone is not afraid to say so.

There are by now so many examples of federal and state laws that this five-member legislature is striking down under the guise of fanciful interpretations of one or another Constitutional Amendment that it’s hard to keep track.  But the ruling last year in the Voting Rights Act case, Shelby County, Ala. v. Holder, really is in a separate category, in my opinion.  In that opinion, this group appears to have stricken down Section 2 of the Fifteenth Amendment, which expressly authorizes the type of legislation that they struck down as unconstitutional in Shelby County.

There, they concocted a constitutional theory that, best as I can tell, is that the structure of the original Constitution–the Articles, as opposed to the Amendments–is such that it supersedes constitutional amendments that alter the “federalist” power structure.  The federalist power structure being that states are sovereigns vis-a-vis the federal government, except when a state legislature enacts a law that contradicts one of the Reagan-era Conservative Legal Movement’s goals. State campaign-finance regulations, for example, even ones enacted a century ago in, e.g., Montana, are being stricken as violative of the First Amendment right to buy elected officials.

I’ve said a few times here at AB recently that I think we’re now in seriously dangerous territory, in which gimmicky redefinitions of common word and phrases, and emotionally manipulative sleights-of-hand faux analogies, are being employed casually and wholesale by this group of five people trapped in a bizarre, airtight time warp, in what amounts to a capture of this country’s legal system.

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