Thursday, December 2, 2010

Wealthy people hire people? I didn’t know that.

"Unemployed people hire people? Really? I didn't know that. The truth is the unemployed will spend as little of that money as they possibly can."
—Rep. John Shadegg of Arizona and Economics Nobel Prize laureate

Actually, of course, since Shadegg is right that is the unemployed will spend as little of that money as they possibly can, and since as little of that money as they possibly can is, for most of the unemployed, all of the unemployment compensation they receive, unemployed people who receive unemployment compensation, unlike unemployed people who don’t, do hire people. Or at least prevent the layoffs of people.

Shadegg might want to consult the waitress at the coffee shop he stops at in the morning. Or better yet, the real estate agent who’s trying to sell that house down the street from his that isn’t quite yet in foreclosure.

Shadegg’s economics theory, of course, would make a perfect subject for our president to use as an object lesson for the public about the Republicans—and as a call to action, or rather anger, by the public. But then, he’d have to actually speak to the public about policy. And since that’s not in his repertoire of things he thinks a president should do, or is not in his repertoire of things he’ll trouble himself to do, Shadegg & Friends will win, on the policy itself and politically; when the economy begins to collapse again, no one will know why, and even then Obama won’t explain or remind them.

I would so love to see a Howard Dean-type Dem come out of the blue and challenge Obama for the 2012 nomination—and start now to educate the public and vociferously push back against the Republicans by turning the tide of public opinion. This Dem also could make the Afghanistan-war bottomless money-and-lives pit a hot topic, too.

This uninterrupted rightwing monologue we’ve endured throughout the last 20 months or so will continue uninterrupted until a countervailing force of that sort emerges.

Any takers?

Oh, and as for wealthy people: They hire people? I didn’t know that.


UPDATE: I just read an interview of outgoing Ohio Governor Ted Strickland interview by Sam Stein published on Huffington Post on Dec. 1, I think I’ve found my candidate—if only he would consider doing it. The interview is at


SECOND UPDATE (12/9): Upon further thought, I think a better candidate would be outgoing Virginia congressman Tom Perriello.

Washington Post columnist E.J. Dionne, in his Dec. 6 column, quotes Perriello as saying that voters are less interested in "bipartisanship" than what he calls "postpartisanship," noting that "[w]hat they're looking for is someone who solves the problem, not for a solution that happens to be halfway between the two parties." Indeed.

Thursday, November 4, 2010

Laundering of Tax Money, and James Madison on Legal ‘Standing’

"This money has never been in the government's coffers. The government has declined to take this money."
—Antonin Scalia, at oral argument yesterday on a case called Arizona v. Winn, a case about whether a particular Arizona statutory scheme violates the First Amendment establishment clause’s prohibition against government establishment of religion.

"I have some difficulty that any money that the government doesn't take from me is still the government's money. … If you reach a certain age, you can get a—a card and go to certain restaurants and they give you 10 percent credit. I think it would be rather offensive for the cashier to say, 'and be careful how you spend my money.' "
—Anthony Kennedy, at the same oral argument.

The statute at issue provides for in-kind tax credits in exchange for donations to a state-created student tuition organization that in turn funnels the money to parents only for tuition to religious schools, and only to those religious of the agency’s choosing.

To answer Justice Kennedy’s rhetorical question, would indeed be offensive for the cashier to say, “and be careful how you spend my money." It would be even more offensive if the cashier said, “The discount is good only if you agree to pay that 10 percent to the non-profit organization we and other restaurants have set up to funnel the money to the Catholic Church (or to the Presbyterian Ministries, or to the School for Torah Studies, or to the Koran Children’s Education Fund). And the restaurants aren’t even government agencies. You don’t get the discount immediately; instead, you get a refund when you bring us the receipt for your donation.

How hard is it, really, to understand that under Arizona’s scheme, the government is taking the money from you? It’s just offering you the option of paying it directly to the government or instead allowing the government to use you to launder the tax money by giving it to an organization set up under state law for the very purpose of receiving it and distributing it in a manner that the government is prohibited under the Constitution from doing.

Does Kennedy think that Arizona is allowing the taxpayer to use the money as he or she wishes? It is not. The government is requiring that you pay the money either to it or to one of these organizations. "This money has never been in the government's coffers. The government has declined to take this money," Justice Scalia said. Well, yes; the state declined to take the money only upon the condition that money already was paid to one of these state-created agencies.

This is a classic laundering operation, a run-of-the-mill end run around the law. If this is OK, then such government-established laundering operations will be established for the purpose of evading other constitutional restrictions on government expenditures, too. Bet on it.

But before the Court decides whether to decide the establishment-clause issue—that is, the “substantive” First Amendment issue—it first must decide an arcane procedural one: Whether the people who filed the lawsuit challenging the constitutionality of the statute have legal “standing” (the legal authority) to bring the issue to court. To have “standing” to sue, you have to have some direct interest in the outcome of the lawsuit, and the Supreme Court has long held that people who, like the ones suing in this case, challenge the constitutionality of laws or government policies claiming as their interest in the outcome that they are taxpayers and that their taxes are being used for an unconstitutional purpose, don’t have a direct enough interest in the outcome to be able to bring the issue to court in the first place. You can’t sue to stop, say, the use of the military for what you claim is an unconstitutional purpose of your claim to legal standing is that your tax payments are being used to pay for it.

But there is an exception to this rule: If, by the nature of the statute or policy at issue, there is no one who would have standing to raise the issue in court either, then you will have standing to sue merely as a taxpayer. And the primary type of issue that falls within this exception is establishment-clause litigation, because otherwise, with respect to certain types of establishment-clause violations, no one would have standing to challenge the constitutionally of the government’s action. The government would be free to use tax money to build churches, for example, even though this clearly would violate the establishment clause, because no one would have standing to challenge the constitutionality of that use of tax money in court.

Or so that has been the law since 1968, when the Supreme Court said so, in a case called Flast v. Cohen. By the end of the Supreme Court’s current term next June, though, it may not be. And if it is not, it will be largely thanks to Neal Katyal, the Obama Justice Department’s acting solicitor general, who was allowed to participate in the case and in the oral argument on Wednesday in order to ask the Court to rule that these taxpayers have no standing to challenge the constitutionality of the Arizona statute. And, it turns out, to argue, to the apparent astonishment of several of the justices, including Kennedy, that Flast was wrongly decided and should be reversed, and that the Supreme Court had no jurisdiction (no legal authority) even to agree to hear the five other cases since Flast that the Supreme Court did hear in order to decide the substantive establishment-clause issue raised by the taxpayers who challenged the constitutionality of a statute or government policy in court.

In making this argument, Slate’s Dahlia Lithwick points out, Katyal invoked James Madison. Because, as Lithwick observes, well, he’s the go-to framer—for Reagan-era-brand conservatives.

Denial of access to court through the erection of procedural buriers has been a hallmark of modern-era movement-conservative lawyers and judges. So it was somewhat startling to read Katyal’s dogmatic, absolutist “standing” argument—made, according to several reports on the oral argument, with a near-religious fervor. But only somewhat startling. Katyal, who in his earlier carnation as a liberal Georgetown law professor who aggressively represented several Guantanamo prisoners, has, as chief deputy solicitor general under Elana Kagan and now as her acting replacement, become a Federalist Society wannabe.

Which raises the question of why he doesn’t just make it official.

As for his invocation of James Madison as his primary source for the idea that the Constitution’s prohibitions against certain government actions are all fine and good but that they exist only in theory because no one has access to court in order to enforce those prohibitions, he should check his history. Actually it’s not James Madison that invented that view of access to the courts. It’s the members of the modern rightwing bar group, The Federalist Society, of which Justice Scalia is a founding member and which Justices Thomas, Alito and Roberts are or were closely affiliated, that hold the view that most constitutional limitations on the powers of government are unenforceable in court because, for one procedural reason or another, no one has the right of entry to court in order to litigate the issue.

Unless, of course, it’s an issue that the ideological right really cares about. Then access to court usually isn’t a problem.

Wednesday, October 20, 2010

The National Review: Christine O’Donnell Wants the Koran Taught in the Public Schools

O’Donnell stressed that preventing schools from the possibility of teaching intelligent design would violate the First Amendment clause that Congress could not prohibit ‘the free exercise thereof’ of religion. ‘He [Coons] forgot to quote [that] part,” she said.
—The National Review, today

So Christine O’Donnell thinks the Constitution requires that public schools teach religious beliefs and represent those beliefs as science. That, presumably, means that public schools are required to teach, say, the contents of the Koran as fact, too.

Unless, of course, she thinks the First Amendment guarantees only Christians the right of free exercise of religion. In which case she forgot to quote that part of the First Amendment.

Monday, October 11, 2010

Ginni Thomas v. Clarence Thomas

“The Supreme Court, issuing its first orders accepting cases for the new Term, on Tuesday edged toward analysis of the government’s authority to label information it has as a “state secret” and thus to prevent its disclosure in court. It will do so, though, only in a narrow context: the rights of defense contractors. The issue in two cases brought by major defense contractors is whether it is unconstitutional for the government to invoke the “state secrets” doctrine in a way that prevents a contractor from defending itself against a claim it did not live up to its contract.”
—SCOTUSblog, Sept. 28, 2010

In an article featured today on Slate, Dahlia Lithwick reports on Justice Clarence Thomas’s wife Ginni’s appearance at the Virginia Tea Party Patriots Convention on Friday. Ginni Thomas is an activist in the Tea Party and has started a web site called Liberty Central that accepts (apparently large) donations from secret donors that probably include CEOs and other top executives of large corporations. It also undoubtedly includes lobbyists. As in, Washington lobbyists.

Lithwick’s article is titled “The Battle Cry of a Supreme Court Wife” and subtitled “When Ginni Thomas rails against Washington elites, does it include her husband?” The gist of Thomas’s speech on Friday was screed was that powerful Washington elites see “the Constitution as an impediment to having power over our lives." And at least with regard to the conservatives on the Supreme Court, she’s right. Thomas’s husband regularly joins with his conservative colleagues to undermine some of the most basic protections afforded to individuals by the Constitution.

An outsized percentage of the tiny number of cases that the Court agrees to hear each year are cases that a government entity—the federal government or a state of local government—or a government official or employee has asked the Court to hear, and in which the Court almost always has agreed to hear he case with the intent to rule in favor of the government or government official in a way that narrows or eliminates individuals’ rights to, say, be free of unreasonable searches or seizures of the individual by the government, or that further increases the already expansive Court-created immunities that governments and their employees have from lawsuit liability, or—a personal favorite or Ginni’s husband’s—removes constitutional restraints against states vis-√†-vis individuals because Justice Thomas and his conservative colleagues believe that, as he has put it, the “dignity” of the states trumps the dignity of the individual.

In the view of that crowd, the Constitution is not an impediment to the governments’ power over our lives only if the power that the government wants to have over our lives concerns a “taking” of our real estate by, say, environmental rules; infringement of our right to practice our religion by, say, cooping a public school classroom to do it; or buying or owning a gun.

Or if the lives over which the government wants power are corporate lives.

As those of us who watch the Supreme Court closely know, the Court (by its own admission) looks the other way year after year, sometimes for a decade or two, as the lower courts interpret particular procedural or substantive rules of law in a way that violates the constitutional rights of parties to litigation, suddenly agreeing to hear a case that presents that issue only because it is, say, an oil company, or a tobacco company, or a defense contractor, represented by a member of a tiny claque of highly prestigious and extremely expensive Washington-based Supreme Court “specialists”, most of whom once served as law clerks for a Supreme Court justice.

Like standard-issue lobbyists who pedal access to legislators or members of the executive branch, these lawyers sell access to the justices; petitions bearing their names as counsel will be read by some of the justices; few other petitions, in civil cases or criminal ones, will be.

Except, of course, those filed on behalf of a government or government official or employee. Especially if they are asking the Court to limit yet further the constitutional rights of individuals or to expand still more the immunity from liability for governments and their employees.

It is no coincidence that the Court has agreed at the request of General Dynamics and Boeing, in petitions field for them by members of the Supreme Court specialist crowd, to consider whether the government’s lawsuit against these companies should have been dismissed on constitutional-due-process-of-law grounds, once the trial court ruled that under the state-secrets privilege the government could withhold information that might have helped these companies defend themselves in breach-of-contract cases filed by the government.

The Court has refused to hear constitutional challenges to trial courts’ dismissals of lawsuits by individuals because of the expansive state-secrets privilege; the government claimed that in order to defend itself against the claims, it would have to disclose state secrets, so the lawsuits must be dismissed. The Court’s agreement to hear the General Dynamics and Boeing cases, in which the two corporations were defendants in lawsuits filed against them by the government, is not inconsistent with its refusal to hear the cases of the individuals whose lawsuits against the government were dismissed under the state secrets privilege. But it is a safe bet that when the Court rules in favor of the corporations next spring, it will do so in an opinion so narrow that it applies only to corporations sued by the government in a breach-of contract case.

Or at least, that that is how the lower courts will interpret the ruling, and will be allowed to interpret the ruling, for years and years. Until another mega corporation, represented by a Supreme Court specialist, asks the Court to clarify that the rule of law also applies in other types of cases in which corporations are sued by the government.

Friday, October 8, 2010

What a Recent In-Chambers Order by Justice Scalia Illustrates About the Supreme Court

In a recent court order issued from his chambers that garnered attention in the legal blogosphere but not in the mainstream media, Justice Antonin Scalia stopped immediate enforcement of a Louisiana state appellate court ruling requiring several major tobacco companies to pay more than $240 million to fund a state program to help smokers quit the habit.

The Louisiana court ruling came in a lawsuit filed on behalf of all smokers who live in that state. The case is a class action filed under Louisiana state class-action procedural law, rather than under federal class-action law. The smokers allege that the companies violated Louisiana’s civil fraud law by distorting public and scientific knowledge about the addictive properties of nicotine.

In Louisiana as in most states, the claim of fraud in a civil lawsuit normally requires proof that the plaintiff relied, to his or her detriment, on the defendant’s misrepresentations. But in this case, the Louisiana appellate court ruled that class lawsuits alleging fraud are exceptions to that rule; under Louisiana class-action law, the class does not have to prove detrimental reliance on the part of the members of the class. So the smokers in this case had to prove only that the companies lied about whether the great body of scientific research showed conclusively that nicotine is highly addictive. Which they proved.

The companies asked the Louisiana Supreme Court to hear the case, claiming numerous violations of their constitutional right to due process of law, including that the right to “an opportunity to present every available defense.” Specifically, here, the defense that the smokers did not rely on the distortions of scientific fact. The companies asked the Louisiana Supreme Court to hear the case in order to decide (among other things) whether states can change the normal substantive or procedural requirements for proving the claim alleged, simply because the case is a class lawsuit rather than on in which one or just a few people are suing. The state supreme court declined to hear the case.

Under the Supreme Court’s procedural rules, once a state’s highest court has refused to hear a case, or a lower federal appellate court has issued a ruling, the losing party can ask a single justice to put the lower court’s ruling on hold while the party has a chance to ask the Supreme Court to hear the case. Each of the justices is assigned to one or two regions of country for purposes of considering such requests. Scalia is assigned to the region in which Louisiana is located. The tobacco companies asked him to “stay” the Louisiana state court’s ruling until sometime next winter or spring, when the Court decides whether it will grant the companies’ by-then-filed request to hear the case.

As Scalia acknowledges in granting the stay, these requests are almost never granted. The party requesting it must convince the justice that there is a reasonable probability that Court will decide that that case will be among the roughly 70 cases the justices will hear that annual term; the Court receives approximately 9,000 petitions a year. The party must also show a significant possibility that the Court, once it agrees to hear the case, will reverse the lower-court ruling, and that irreparable harm will result if the lower-court ruling is enforced before the Court decides the case. And even then, Scalia said, repeating language he wrote in another ruling on another such request 20 years ago, “sound equitable discretion will deny the stay when ‘a decided balance of convenience’” weighs against it. The internal quote is from a 1923 opinion in a case in which, presumably, the irreparable harm that resulted when the lower-court ruling was enforced before the Court decided the case did not trump the inconvenience caused by the stay.

For all the high hurdles Scalia says the tobacco companies had to scale in order to persuade him to issue the stay, what’s striking is not that he thinks they scaled them but rather why he thinks they did. He cites as sufficiently important the issue of “[t]he extent to which class treatment may constitutionally reduce the normal requirements of due process. He also cites what he says is “[n]ational concern over abuse of the class-action device” and says thus national concern “induced Congress” to allow most major class actions—but not this lawsuit, because the smokers all are residents of a single state— to be litigated in federal court so that these lawsuits “would be subject to important procedural limitations.” And he says that, because this particular case had to be litigated in state court under state laws, the tobacco companies will have no opportunity to have any federal court hear their claims that a state court violated the companies’ federal constitutional rights.

“T]he constraints of the Due Process Clause will be the only federal protection” against violations of the companies’ due process rights by the state courts, he says, sounding appalled.

Unless, that is, the Supreme Court agrees to hear the case. The Supreme Court should, and probably will, agree to hear the case, he says, because, well, otherwise “the constraints of the Due Process Clause will be the only federal protection” against violations of the companies’ due process rights by the state courts. He sounds appalled.

Which is itself notable. Whether the federal legislation enacted earlier this decade that allows defendants in most class actions to have the case litigated in federal rather than state court, and that indeed places to important procedural limitations on class lawsuits—limitations that make it, let’s say, challenging to litigate the case as a class action at all—or whether instead the legislation was the culmination of intense lobbying efforts by business groups, the admission by a Supreme Court justice that the extent to which a state may constitutionally reduce the normal requirements of due process in any particular type of case (or in any one case at all) depends, as far as the Supreme Court is concerned, on the popularity of one side or the other in the litigation is startling. But it also is accurate.

Or, rather, what is accurate is that what matters to the Supreme Court is the popularity among the justices themselves of the party, or of the underlying cause of the party, who’s claiming a violation of the right to due process of law or any other constitutional right by a state court.

The origin of this lies in a legal theory known as legal federalism, which in this context is a theory of law that holds that the lower federal courts should have only severely-limited (and in many instances no) authority to force state courts to comply with constitutional provisions that guarantee individuals certain rights, limitations similar in key respects to those that existed before the Civil War and the post-Civil War constitutional amendments and civil rights legislation.
The theory, in its most extreme version, is that the states are similar to sovereign nations in their right to determine their own laws and policies, almost completely unobstructed by federal laws, including constitutional rights. The term “federalism,” in other words, has a counterintuitive meaning; it is an “ism” that holds that the 50 states are merely a loose federation of separate sovereign governments, joined together in an association for the very limited purposes, such as defense against foreign nations. It is a longstanding cause of the ideological right and was a decades-long cause of William Rehnquist, who crusaded for this ideology throughout his career, as a lawyer, an associate Supreme Court justice, and finally as chief justice. Retired Justice Sandra Day O’Connor, and justices Anthony Kennedy and Clarence Thomas are vocal advocates of this ideology, the latter expressly adopting the most extreme view it: that states are sovereigns for nearly all purposes, that what is at issue is the states’ “dignity,” and that maintaining the dignity of the states trumps maintaining the dignity of individuals.

So it’s surprising that in the 1970s and ‘80s, liberal justices such as Thurgood Marshall, Hugo Black and William Brennan (unlike John Paul Stevens and William O. Douglas) joined conservative colleagues to create a legal-federalism juggernaut that indeed appears to require the lower federal courts to categorically dismiss virtually all lawsuits filed in federal court that allege a violation of a constitutional right by a state court.

At least as the lower federal courts have for decades interpreted these Supreme Court pronouncements, those courts must summarily dismiss these lawsuits because the court lacks “subject-matter jurisdiction” (the legal authority) to hear cases alleging violations of due process or other constitutional rights by state courts, or must accommodate the state court—or, as the Supreme Court phrases it, accord the state court “comity”—by “abstaining” from these cases even if those courts do have jurisdiction to hear the claim.

“Doctrines,” the courts and lawyers call these Supreme Court procedural pronouncements. By which they mean procedural rules that the Supreme Court fabricates, usually in order to keep certain parties or classes of parties out of federal court, or to protect certain potential defendants from becoming defendants in a particular lawsuit or type of lawsuit. These doctrines, which have the force of jurisdictional statutes, disregard actual federal jurisdictional statutes, in apparent contravention of the Constitution. And because the doctrines, unlike the actual jurisdictional statutes that the doctrines flout, are notoriously imprecise and malleable and have exceptions and multipart tests that the lower-court judges can opt to acknowledge the existence of or not, the application of these quasi-statutes varies depending on whether the judge or judges want the case to be litigated in federal court, or, for that matter, at all.

The one that is interpreted to decree that federal courts have no authority to hear such challenges is known as “the Rooker-Feldman doctrine,” named for a 5-4 Supreme Court opinion (District of Columbia Court of Appeals v. Feldman) issued in 1983 that vastly expanded a then-60-year-old Supreme Court opinion (Rooker v. Fidelity Trust Co.). The one that requires the lower federal courts must “abstain” from hearing (simply refuse to hear) these challenges as long as the underlying case remains pending in state court, irrespective of whether or not the lower federal courts have jurisdiction to do so, is known as the “Younger abstention doctrine.” It’s named for 1971 Supreme Court opinion called Younger v. Harris. Originally a doctrine that applied only to prohibit the lower federal courts from enjoining an ongoing state criminal case, it quickly became one that applied to all cases, and whose exceptions the lower federal courts almost never call upon. Although it is unlikely that either Marshall or Brennan foresaw that the wild metastasizing of these doctrines, the lower federal-court judges have found these doctrines extremely useful as a way to reduce their caseload by summarily dismissing a good number of civil rights lawsuits. So nearly all such lawsuits are spontaneously dismissed shortly after they’re filed. Which, with but one express exception and another de facto one, has suited the Supreme Court just fine thus far.

An odd position for self-styled constitutional originalists and textualists to take. Not to mention justices who think that constitutional protections beyond, say, the right to own a gun, or the right to keep the government from exercising eminent domain over their real property, are important too.

Under the Constitution, it is Congress that decides the types, or subject matter, of cases that the federal courts have the legal authority to hear, although of course Congress can’t give the federal courts authority, or remove the authority, to hear types of cases that the Constitution bars federal courts from hearing or that requires the federal courts to hear.

Absent some specific constitutional bar to federal-court subject-matter jurisdiction, the Constitution requires the federal courts to hear the types of cases that Congress, in legislation (“jurisdictional statutes”) says those courts must hear. Or so it would seem, especially to self-styled constitutional originalists and textualists. Like Scalia.

The basic, generic jurisdictional statute that gives the lower federal courts the authority to hear cases challenging the constitutionality of laws, government policies, or actions by a government official or employee says simply that the federal courts have jurisdiction to hear any case that concerns a question of federal law. The statute applies to issues of constitutional, statutory and regulatory law. Because constitutional protections apply not only to the federal government but also, under the Fourteenth Amendment (which was adopted in 1868 in the aftermath of the Civil War), to the states and local governments, the statute that gives the lower federal courts the authority to hear cases that claim a violation of constitutional or federal statutory law by a state or local government or state- or local-government official. The first section of that Amendment bars states from making or enforcing any law that “abridge[s] the privileges or immunities of citizens of the United States,” and from “deprive[ing] any person of life, liberty, or property, without due process of law; nor deny[ing] to any person within its jurisdiction the equal protection of the laws.”

But there’s a more specific jurisdictional statute than the generic one, the Civil Rights Act of 1871, which deals only with alleged violations of a constitutional right by a state or local government or an official or employee of one. The explicit purpose of its main section, 42 U.S.C. § 1983, is to give the federal courts the authority to hear cases that allege violations constitutional civil rights by state or local governments or their officials or employee. It is clear and direct and until it was amended in 1996 contained no limitation at all on the authority of the federal courts to hear cases that allege violations of constitutional rights by any of the three branches of state government, and for the first century of its existence was thought to treat constitutional violations by state courts the same as it treated constitutional violations by state legislatures ( in, say, enacting an unconstitutional statute) or by the state’s executive branch.

In 1996, Congress amended the statute to place certain minor limitations on the jurisdiction of the lower federal courts to hear cases alleging constitutional violations by state courts. But the language of the amended statute makes clear that except for those exceptions, the lower federal courts may hear challenges to the constitutionality of state-court actions.

No matter. The more moderate of the federalist justices have acknowledged that nothing in the Constitution prevents the lower federal courts from hearing cases that challenge the constitutionality of state-court procedures, rulings or declarations of state law. Instead, they invoke the comity ground or say that the lower federal courts have no statutory authority to hear these cases, the federal-question jurisdictional statute and the Civil Rights Act of 1871, notwithstanding.

The latter is particularly curious; it’s based on the Court’s opinion in Feldman that said, for mysterious reasons, that a jurisdictional statute that gives the Supreme Court the authority to hear cases that a state’s appellate courts have considered, if the state courts’ rulings raise federal constitutional or federal statutory issues also prohibits the lower federal courts from hearing those claims. The statute says nothing of the kind—something the Supreme Court finally admitted, in a 2005 unanimous opinion that acknowledged amid expressions of dismay that the lower federal courts had been routinely misinterpreting the Feldman opinion since it was issued 22 years earlier.

But the former—comity—is odd, too. Never explained by those who sing the praises of a judicially induced policy of this type of comity to state courts, a policy that requires the lower federal courts to defy federal jurisdictional statutes, is why the states’ judicial branch is entitled to more comity than the states’ legislative and executive branches. There is little question but that the lower federal courts have jurisdiction under the generic federal-question statute and the Civil Rights Act of 1871 to hear the case. Unless, of course, the challenge to the constitutionally of the statute, enacted by the state legislature, or the executive-branch policy or edict ties in somehow with a state-court case involving the party that wants to challenge its constitutionality. Then, well … uh- oh.

Rehnquist, the most virulent federalist justice in recent decades, explained this by noting that state courts are courts of “competent jurisdiction” to consider constitutional issues. Which is true, but beside the point. The federal courts are, under acts of Congress, courts of competent jurisdiction to hear these cases, too. But, more important, when it is the state court itself, rather than a state legislature or state executive branch, that commits the constitutional violation or creates an unconstitutional rule of law, there is especially no legitimate reason for the Supreme Court to decree the state courts, as a matter of comity and in defiance of federal statute—not to mention the Constitution’s supremacy clause, which requires the states to comply with federal law—free to violate constitutional rights. Unless professional courtesy is considered a legitimate reason.

Since these Court-created doctrines are, by the Court’s own admission, simply policy choices made by the Court itself, and since the doctrines defy clearly-constitutional federal statutes, the question is why the Court decreed them in the first place. And why it sat back, year after year, for more than two decades, as it watched the lower federal courts deny access to those courts in case after case. After case. It wasn’t as if the Court had not been asked during those 22 years to review those lower-court opinions. Suffice it to say that it had been asked, more than once.

What was different this time was who it was that was asking the Court to hear the case, and who was representing that party in the petition asked the Court: Exxon Mobil Corporation was the petitioner to the Court. Its lawyer was former Clinton administration solicitor general Seth Waxman, the Justice Department official that heads the Department’s appellate and Supreme Court litigation office, who is now a partner at mega-power-firm Wilmer Cutler Pickering Hale and Dorr.

And as those of us who closely watch the Supreme Court’s actions know, nearly all of the civil cases that the Court agrees to heart each term are those filed by a member of tiny claque of ultra-prestigious Washington, D.C.-based Supreme Court practitioners, most of whom once served as a law clerk to a Supreme Court justice, all who now have highly lucrative practices based largely on their ability to gain the attention of the Court. The Court waits years and even decades to agree to address a procedural or constitutional issue until just the right party, represented by just the right, lawyer asks it to decide the issue. To a surprising degree—surprising at least in objective terms—the Court treats these lawyers as its de facto case screeners in civil cases and in white collar criminal cases. In any event, few petitioners whose case falls into one of those categories and who are not represented by a member of this tiny, elite cadre has access to Supreme Court review.

When after its 22 years of objectively inexplicable passivity, the Court finally agreed at the behest of Exxon Mobil to rein in the lower federal courts’ blanket use of the Rooker-Feldman doctrine, it did so in a manner so unintelligible that one of its members, Justice Stevens (who had written a stinging dissent in Feldman), mistakenly proclaimed the doctrine dead, in two separate opinions he wrote the next year, once in a dissent on other grounds, the other a concurrence, both times writing only for himself. The Rooker-Feldman and Younger doctrines don’t apply just to cases that raise constitutional issues; they apply equally to any case in which there is or was a related state-court case. In the Exxon Mobil case, the company was suing an oil company owned by the Saudi government. The company invoked a federal jurisdictional statute that gives the federal courts jurisdiction over foreign states in business and certain other types of cases, under certain circumstances.

But Exxon Mobil had filed its federal lawsuit while a state-court case filed by the Saudi oil company involving the same business transaction was pending in state court, so the lower federal courts dismissed the case, saying that under Rooker-Feldman those courts lacked jurisdiction to hear the case. The Supreme Court, after chastising the lower courts throughout the country for improperly interpreting that doctrine throughout the previous two decades and routinely dismissing any lawsuit related to a state-court one, held the lower federal courts indeed had jurisdiction to hear the case. But it did so in an opinion so imprecise, and containing mutually contradictory language, that the lower federal courts now routinely dismiss lawsuits under the Rooker-Feldman doctrine unless the federal lawsuit was filed before all the appeals in the state-court case ended. The rational is that the Court did, after all, appear to say that the real purpose of the doctrine was to comply with the Constitution’s Full Faith and Credit Clause and the federal Full Faith and Credit Act, both of which require the federal government and all the states to treat any one state’s court orders just as that state would treat them. And states don’t treat their own court’s orders as enforceable until the case is over.

Which renders the Court’s ruling effectively worthless except to Exxon Mobil. Coupled with the Younger doctrine, after all, which the Court continues to reaffirm every chance it gets, the opinion does nothing to remove the conundrum that the two doctrines combine to create: In comity to the state courts, and so as to not interfere with ongoing state-court proceedings, the lower federal courts cannot hear these cases as along as the state-court case is pending. And once the state-court case is over, the federal courts cannot hear these cases, because of the Full Faith and Credit Clause and the Full Faith and Credit Act.

Except that the Full Faith and Credit Clause and the Full Faith and Credit Act should have no such effect. Or, if they do, then they also prohibit the lower federal courts from hearing cases that claim that a state statute violates federal constitutional or statutory law. The Full Faith and Credit Clause and the Full Faith and Credit Act require the federal government and all the states to treat any one state’s statutes just as that state would treat them. These federal laws should no more bar federal-court jurisdiction to hear claims that a state-court action or pronouncement violates the Constitution then they should bar federal-court jurisdiction to hear claims that a state statute violates the Constitution.

The issue of access to a federal court to ask for relief from a final state-court judgment that violates a fundamental constitutional right, whether because of the nature of the judgment or because due process was denied in the process of arriving at the judgment is a tremendously important one if state governments really are not free to violate constitutional rights. This is especially true in cases such as child custody, child visitation, adult guardianship and adult conservatorship cases—cases that are perhaps the most susceptible to constitutional violation, ranging from inappropriately intrusive overreach into family relationships, to bald, jaw-dropping violations of even the most basic due process. These cases normally end only when the child reaches the age of majority or the adult dies. Although the Younger doctrine ostensibly has exceptions for irreparable injury and for cases in which the state court system has no method of access to quick appellate rectification, the federal courts—which unlike state-court systems are set up to hear emergency matters—the federal courts invariably claim that the doctrine requires the court to “abstain.”

These cases usually involve the rights of ordinary individuals. And as with tobacco companies in the case in which several tobacco companies asked Justice Scalia to stay the judgment temporarily and in which he obliged, the constraints of the Due Process Clause will be the only federal protection against violations of even the most basic of due process rights by the state courts. Except that for them, those constraints are meaningless. The Supreme Court almost certainly won’t be asked to hear their cases—the costs involved in filing such petition, even apart from attorneys’ fees, runs several thousand dollars—and wouldn’t agree to hear their cases even if asked.

This is not to ignore the possibility that given the large number of cases of that type in state family-law and probate courts, federal courts could be overwhelmed with petitions for temporary or permanent relief in these cases. It is instead to say that the decades-long categorical removal of any actual federal process by which to enforce the requirement that states comply with the Constitution serves to effectively remove the requirement that states comply with the Constitution. The Court lacks the authority under the Constitution to order the lower courts to refuse to comply with a clear statute that itself is constitutional, even if the Court fears that compliance with the statute would overwhelm those courts; that is a matter for Congress, not the Supreme Court, to address. But it is in any event unlikely that a restoration of the right to access to lower-federal-court review for those whose theoretical access to Supreme Court review borders on cruel sham (in other words, virtually everyone) would be unlikely to overburden the lower federal courts. The restoration of the availability, as required by the Civil Rights Act, of a quick federal-court process by which continued profound irreparable injury can be ordered halted—the recognition by state-court judges that this process is available—likely would itself reduce dramatically the number of instances in which the process would be legitimately used, especially because many of the violations in these cases occur through de facto policies of the local or state court system (policies that sometimes violate the state’s own statutes as well as clear constitutional law). Once a policy is held unconstitutional by a federal court, the state courts are unlikely to continue the policy.

Ultimately, what’s at issue here is not simply who, theoretically, has access to federal court but who has enforceable constitutional protections, and under what circumstances.

In 2006 the Supreme Court recognized in a high-profile bankruptcy case that the federal Bankruptcy Act gives federal bankruptcy courts the authority to consider challenges to final state-court judgments that are relevant to issues in the bankruptcy case. But, well, that was a bankruptcy case, not a challenge to the constitutionality of a state-court ruling, and the Court skirted the Rooker-Feldman doctrine by not even mentioning it. And of course the Exxon Mobil case, in which the Court did discuss that doctrine, was a standard business-law case. I figure it will take another oil company to ask the Court recognize that the Civil Rights Act of 1871, like the Bankruptcy Act and like the statute that gives the federal courts jurisdiction over foreign states, gives the federal courts the authority to review the constitutionality of state-court actions, before the Court agrees to do that.

Or maybe the same oil company. Unless some other type of large corporation hires a member of the prestigious Supreme Court bar to ask the Court to do so.

Monday, August 16, 2010

A Curious Choice for a Sunday New York Times Op-Ed

According to Republican pollster Whit Ayres in an op-ed piece, “It’s Still the Year of the Outsider,” published yesterday in the New York Times, it will be extremely difficult for Democrats to use their “failed policies of the George W. Bush administration” strategy against Republican Senate candidates who were nowhere near Washington during the Bush years.

So Mr. Ayres thinks that what matters is that it would be new lawmakers rather than the same old ones who would reinstate failed policies, not that the policies themselves failed.

He also thinks that because his recent poll shows that a majority of independents think that “[h]aving a president and Congress controlled by the Democrats has not worked well for the country because, from the economy to the deficit and the debt, the Democrats have not gotten the job done”—one of two options respondents were asked to choose from—they also think that having a president and Congress controlled by the Republicans worked well for the country because, from the economy to the deficit and the debt, the Republicans brought the country to its current state.

But he has to just guess about this, because his poll didn’t offer it as an option. Maybe next time.

Tuesday, August 10, 2010

Ross Douthat To the Rescue

If you can't base a gay-marriage ban in tradition or in a religious objection—because laws have to have a secular purpose—and you also can't ground it in the claim that children raised by same-sex couples are worse off, because the research shows just the opposite, than what rational-basis argument can you make? The Proposition 8 proponents are taking heat for their crappy trial record. But what evidence could they have put on instead?
—Emily Bazelon, in Slate

I was as dumbstruck by conservative New York Times columnist Ross Douthat’s piece in yesterdays’ Times as law professor and author Linda Hirshman makes clear in a Slate piece today that she is. But not only because Douthat uses pseudo anthropology to conclude that it is in society’s interest to promote heterosexual marriage. Or even Douthat’s concession that heterosexuals now have the culturally accepted options of serial monogamy and procreation outside of marriage.

Instead, what really knocked me over was his conclusion that precisely because heterosexuals in such large numbers now choose these options, and therefore threaten to vanquish—his word—the older marital ideal, and because the older marital ideal is still worth striving to preserve because it is the most likely to be a foundation for happiness, the government must preserve it as the ideal to strive for by denying the option of marriage to one, but only one, category of couples who cannot attain it: homosexuals.

The claim is a bald non sequitur. The ideal is still worth honoring, and still worth striving to preserve, he says. Therefore, preserving it ultimately requires some public acknowledgment that heterosexual unions and gay relationships are different: similar in emotional commitment, but distinct both in their challenges and their potential fruit, he says. As if the latter concept logically follows the former. No need even to explain this. His next sentence: “But based on Judge Walker’s logic — which suggests that any such distinction is bigoted and un-American — I don’t think a society that declares gay marriage to be a fundamental right will be capable of even entertaining this idea.”

In other words, we should continue to deny homosexuals the right to marry because we want the government to encourage straights to strive for the ideal of a single decades-long marriage in which husband and wife remain faithful throughout, because this is the most likely to bring them and their children happiness.

All the evidence that is necessary for the higher federal courts to reverse Judge Vauhan Walker’s already-iconic opinion, which held that California’s Proposition 8 prohibition of gay marriage violates the Fourteenth Amendment’s due process and equal protection clauses precisely, is that heterosexuals are en masse undermining the older ideal of marriage.

No evidence upon which to overturn Walker’s opinion? Of course there is! And Ross Douthat provides it.

Makes sense if you’re Ross Douthat, I guess. But not if you’re not.

Monday, August 2, 2010

Elena Kagan v. Pat Lykos

“At the Citizens United [v. Federal Election Commission] argument last fall, Roberts openly criticized Kagan for abandoning one rationale for restricting corporate campaign spending and then pummeled her again in his concurring opinion in the case, dismissing the government's argument as ‘at odds with itself.’ In an April case, Kagan took the position that U.S. attorneys speak only for their regional offices, not for the attorney general of the United States ‘That's absolutely startling,’ Roberts replied. ‘The United States is a complicated place,’ Kagan retorted. ‘I take your word for it,’ Roberts snapped back. …

“Then Roberts took yet another whack at Kagan in his opinion in Holder v. Humanitarian Law Project, over a statute criminalizing the provision of ‘material support’ to terror groups. Roberts, while handing the victory to Kagan, repeatedly called out the government position for going ‘too far’ and running ‘headlong into a number of our precedents.’”

—Dahlia Lithwick, in Slate

The point of Lithwick’s article—its title and subtitle are “Roberts v. Kagan? Will there be friction between the chief justice and Elena Kagan on the Supreme Court?”—is that in most of the six cases before the Court this past term in which Kagan was lead counsel, apparently drafting the briefs largely herself, and then representing the federal government at oral argument—Roberts implied that he thought her handling of the respective case bordered on the incompetent.

Lithwick links to a more in-depth report and analysis of the exchanges by New York Times Supreme Court correspondent Adam Liptak published in the Times on April 14, before the close of the Court’s term. And in reviewing the instances that Liptak mentions, Roberts’ oral and written critiques of Kagan’s judgment calls strike me as suggesting that Kagan failed to recognize that the Office of Solicitor General is not some regional insurance-defense law firm or a regular local presence on behalf of state and municipal governments and their employees in run-of-the-mill lawsuits alleging violation of civil rights. Or, for that matter, a county prosecutor or state assistant attorney general.

All of whom always, always make arguments on behalf of their clients that are at odds with itself, or at least at odds with the argument they made successfully during the last round of motions and now find it expedient to pretend they had not. And who casually assert facts or positions of law that are every bit as transparently silly, or to borrow from Roberts, absolutely startling, as Kagan’s claim that U.S. attorneys speak only for their regional offices and not for the attorney general of the United States.

I loathe Roberts, whose personal hallmarks as a justice (and before that as a nominee) are, best as I can tell, trickery and duplicity. So it’s a pleasant surprise that he found Kagan’s no-position-is-beyond-the-pale style of advocacy intolerably amateurish for a United States Solicitor General. But Roberts was truly a top appellate litigator, who regularly argued against other truly top appellate litigators, usually on behalf of very important clients, making awfully significant arguments about major issues of law. So he apparently thinks that there is a level of situational importance at which the cheap gimmicks should not be employed. And key First Amendment cases before the Supreme Court are among them, and the Solicitor General is someone who should recognize that. Most past solicitor generals did, after all.

So Roberts is right, but he does not go nearly far enough. It is by now deeply institutionalized throughout this country that attorneys who represent the government, and therefore, ostensibly, “the people,” use the same type of obstructionist, dilatory and even flagrantly dishonest tactics and gimmicks as attorneys representing private parties. Even—perhaps especially—in the service of preserving criminal convictions in the face of hard evidence that the conviction was wrongful, sometimes obtained in honest error, other times obtained through police or prosecutorial misconduct.

Which brings me to Pat Lykos, the current Harris County, TX district attorney, who upon being sworn in established a Post Conviction Review Section whose purpose is to actually investigate cases of possible wrongful convictions. An article published last week in the Houston Chronicle is about the release, after 27 years’ imprisonment, of a man convicted of rape upon the sole basis of the victim’s ostensible identification of him.

But actually the ones who identified him—Michael Green is his name—were the police officers who arrested him on the night of the rape; he was walking in the area, the officers detained him, and when the victim did not initially identify him in a lineup, she was shown suggestive photos to ensure that in a second lineup, she did. According to the article, the attorneys and investigators in the newly-created Post Conviction Review Section who were assigned to the case found “a pair of jeans stored in a warehouse that had been worn by the victim during the crime, then testing it for DNA evidence. The results excluded Green.”

Three men committed the rape. The article says Lykos’ office “has identified all four men suspected in the crime, including the three believed to have sexually assaulted the victim.” But the statute of limitations prevents their prosecution.

The article quotes from comments by Lykos’ first assistant, a man named Jim Leitner, in a news release about Green’s release: “The evidence in this case had been sitting in the District Clerk's Office for 27 years, and no one had taken the initiative to do anything with it in the past. The difference now is that you've got the Post Conviction Review Section looking into it - and that made all the difference in the case of Mr. Green.”

The Chronicle writer characterized Leitner’s statement as a “slam [against] prior district attorney administrations for the length of time the case stalled.”

The article mentions that another prisoner, someone named Allen Porter, was released from prison a few days before Green’s release. He had been imprisoned for 19 years. Lykos’ office had uncovered evidence of his innocence, too.

John Roberts is hardly a probable crusader against the modern, but by now deeply-rooted, culture among government lawyers in which they role-play as mechanically and mindlessly as, say, a lawyer representing a mob figure, or one representing BP. And in recent decades, unabashed sleaze is as much the purview of big-name law practice as it is some of the old-style ambulance chasers; Roberts surely knows that.

But unless his distain for the phenomenon of government lawyers as over-the-top-and-under-the-sewer-line litigators is limited to those who by dint of their very high office cannot hide under the radar, or whose opponents or victims just don’t matter to him, he may, however improbably, prompt a major change in the very nature of government law practice. And of what it means to represent “the people.”

As for Kagan, well, who knows? Liptak’s article is titled “Stints in Court May Yield Clues to Style.” Hopefully, those stints aren’t clues to her substance as a justice, as well.

Monday, July 5, 2010

For Alan, in Memoriam

A dear friend of mine died yesterday morning. He died at his home in Plymouth, MI, although for several days last week he was in respite care at a lovely hospice, where I visited him on Tuesday and Wednesday. I visited him at home on Sunday morning and didn’t expect that that would be the last time I would see him.

I’m still getting used to the fact that he’s gone, so I can’t yet write much about him other than that he died yesterday and that I’ll miss him.

Alan. My friend. Who shared my sense of humor and, even more than that, my sense of irony. RIP. I can't believe you're gone.

Sunday, July 4, 2010

Grasping the Concepts of Mutual Exclusivity and Industry Capture

“With polls showing voters deeply concerned about the economy and government spending and souring on Democrats, Obama and his party are seizing on gaffe after GOP gaffe, intent on making the election anything but a referendum on the majority.

“That means an obsessive, hour-by-hour focus on a micro-message—grasping every opportunity to shift attention away from their unpopular or tepidly-supported policies and toward anything that smacks of Republican extremism.”

—Jonathan Martin, in Politico

OK, well, the big-name punditry, of the left as well as the right, finally has stopped reflexively pronouncing the BP oil-spill disaster a political plus for the small-government/no-government crowd, having realized at last that the public actually does understand that it was the deregulation juggernaut of the past 30 years that allowed BP and the other oil companies to cut any corner they wished and take any risk they wanted in order to lower their operating costs and accelerating the rig-construction process. The fact that the government is unable to stop the leak is hardly an argument for small government, and the public’s objection to Obama’s handling of the matter is not that he ordered too much government interference and control but that he ordered too little and waited too long to involve the government at all, the big-name commentators finally recognize.

Congratulations to them.

And now that they’ve weaned themselves from the illogical CW on that issue, maybe they—and, in turn, Obama and the congressional Democratic candidates—can reexamine the axiom that because voters are deeply concerned about the economy and government spending, the voters are incapable of understanding that the government cannot both prompt a hiring spurt, or even halt the torrent of lay-offs and small-business failures, and at the same time reduce the current and immediate budget deficit.

What, exactly, does the public want the government to do about the unemployment rate? Nothing? If not nothing, then how, exactly, would the government spur economic growth and hiring without spending money?

The Senate Republicans have blocked the current proposed extension of unemployment benefits to millions of laid-off workers whose benefits have expired. It is unlikely that when these people’s homes fall into foreclosure, and when they stop buying even many basics, this will help lower the unemployment rate, raise home values, and help small business in their local communities.

For that matter, when firefighters, teachers and police officers join the ranks of the unemployed because the Republican senators have blocked additional financial aid to states and municipalities, this won’t boost the economy either. The vilified 2009 stimulus law kept a huge number of public employees and employees of some private contractors as well from joining the ranks of the unemployed, and their continued salaries were put back into the economy via mortgage and car payments, restaurant visits and the like. With the coming massive layoffs of state and municipal public employees, we’ll see just how terrific the Republican senators’ austerity choices are for economic recovery.

And then, of course, there’s the bailout of GM and Chrysler, which saved the jobs, directly, of probably well more than 100,000 employees of those companies and the companies’ supplier-manufacturers in Michigan, Ohio, Indiana, certainly, but also in may other states as well. And those bailouts indirectly saved the jobs and the homes of a huge panoply of other workers.

But since we have a political punditry that thinks only in slogans, and since we have a Democratic president and a slew of Democratic candidates for election or reelection who happily acquiesce in the de rigor clich√©-only style of politics and who can’t even image actually arguing specifics—including pointing out that mutually exclusive policies are, well, mutually exclusive, and that voters therefore need to pick one or the other policy to support, because they can’t really have both—we may well end up with a Congress of Sarah Palinites.

The answer for the Democrats, I think, is for the true head of the Democratic Party to step forward and campaign aggressively nationwide. She—Nancy Pelosi—who is the de facto president regarding domestic-policy issues, is both capable of explaining to the public what needs to be explained to the public and willing to do so.

What the news media is billing as Republican gaffes are gaffes only in that they tell the public what it is that the current Republican Party actually stands for—what their policy positions are. That the statements are considered gaffes rather than deliberate enunciations of ideology is testament to the sweeping acceptance of the most dangerous of all political truisms: that everyone lives inside the Palin-Beck bubble and that therefore the only way to win an election is to accept that this cannot be successfully explained to the public because politics cannot be anything other than generic slogans.

Small government, as the Republicans mean it, means no regulation of private industry and large corporations and no government monetary expenditure to spur economic growth and lower the unemployment rate.

They accomplish near-complete deregulation not only by repealing or amending regulatory statutes—a method that, for political reasons, they cannot use to completely deregulate—but also by the far quieter technique of what they themselves call “industry capture,” a concerted scheme to turn regulatory agencies over to the industries that the respective agency was created by statute to regulate. So the Minerals Management Bureau, for example, may be run by former oil company lobbyists. Most people don’t really want this.

And, since deficit reduction at a time of high unemployment is simply incompatible with what most people want the government to do, which is take strong measures to spur rather than hamper economic recovery. (Paul Krugman explains this clearly and bluntly in his New York Times column today.)

This is small government, Republican Party style. And it’s not very hard to explain. Yet only Nancy Pelosi seems willing to say it and can say it straightforwardly without some silly “concession” to the right that undercuts this truth.


[This post and its title were amended on July 5.]

Saturday, July 3, 2010

Elena Kagan v. Sonia Sotomayor

“Questioned by Sen. Richard Durbin about Marshall's approach to capital cases, [Kagan] clarified: Marshall believed "the death penalty was unconstitutional in all its applications," she said, but he also felt he had "a special role in each death penalty case to make sure that there were no special problems in the imposition of the death penalty." Again, and unlike Marshall, Kagan apparently has more confidence in the capital-punishment system and sees no special role for herself in policing the facts of every last execution. …
“Now, soon-to-be Justice Kagan and President Obama sometimes seem to be of the view that this is a sweet but generally outdated view of the courts, an approach that had its time and place 56 years ago. Elections matter, they say. Courts should know their place. But Sen. Al Franken disagreed. He used the hearings to remind Americans that the Roberts court's pro-business rulings have "consistently and intentionally protected and promoted the interests of the powerful over those of individual Americans," when the Supreme Court ought to be doing precisely the opposite. Now, this doesn't mean—as it's fashionable to suggest—that Franken believes the justices should always have a thumb on the scale for "the little guy." But it does mean, as he illustrated at the hearings, that when Supreme Court rulings make it all but impossible for the little guy even to get through the courthouse door, Americans have lost their last refuge.”

—Dahlia Lithwick, in Slate

I wanted to juxtapose those two paragraphs in the article because they illustrate that, while what Sen. Franken said is true of the Roberts court’s rulings in business-litigation cases, it’s also true of the Roberts court’s rulings in most (but, significantly and surprisingly, not all) of the cases that pit the government’s police powers against the individuals. Four three decades now, the ideological right has had three distinct threads concerning the courts and court rulings—pro-business, rote pro-police-powers, and pro-government-powers-in-the-service-of-rightwing-culture-wars-goals.

The rightwing Supreme Court appointees are almost completely pro-business, rote-pro-police-powers, and pro-government-powers-in-the-service-of-rightwing-culture-wars-goals.

Outside the judiciary, there is a strain of thought that is fully libertarian; it is pro-business but also anti-rote-police-powers and anti-government-powers-in-the-service-of-rightwing-culture-wars-goals, but (suffice it to say) this strain of thought is almost entirely unrepresented in the federal judiciary, at each of the three levels of the federal court system. The pro-, pro-, pro- crowd has held a near-stranglehold on Republican judicial selections since 1981.

What Kagan reflects, I think, when she proudly pronounces herself free of Thurgood Marshall’s skepticism about not just the constitutionality of the death penalty itself but also of the constitutionality of its imposition in certain cases is a bias held by many who are and all their lives were sufficiently advanced by race and socioeconomic status to find the criminal (and, for that matter, the civil) justice system reasonably hospitable to their own exercise of their legal rights. She’s speaking not just about certain categories of cases (for example, people who have a very low I.Q. or people who committed the crime when they were younger than, say, 18), but also about particular cases in which there was some serious denial of due process because of the incompetence of court-appointed counsel, or because facts have emerged that place in serious doubt the actual guilt of the defendant. Most of the problems that arise in particular death penalty cases arise on a routine basis in non-death-penalty cases, too.

Sonya Sotomayor seems to understand what Marshall understood, and I expect that Sotomayor will pick up Marshall’s mantle. It won’t be Kagan who does. She’s now made that clear.

Thursday, July 1, 2010

One-Note Charlene and Kaleidoscope Charlie (and Tom)

“[Minnesosata Senator Amy] Klobuchar probably could have added that [in addition to the progress of woman in the workplace and in gaining political office, which is all Klobuchar mentioned] more Americans are "more free" today because of Thurgood Marshall, too. And she could have added this partial list of congressional statutes and Supreme Court decisions that have arguably made a lot more Americans freer since 1980: the Civil Rights Restoration Act (1988), Hustler Magazine v. Falwell (1988), Texas v. Johnson (1989), the Americans with Disabilities Act (1990), the Civil Rights Act of 1991, National Voter Registration Act (1993), the Religious Freedom Restoration Act (1993), United States v. Lopez, (1995), Rosenberger v. University of Virginia (1995), United States v. Virginia (1996), Romer v. Evans (1996), Lawrence v. Texas (2003), Roper v. Simmons (2005), the Voting Rights Reauthorization and Amendments Act (2006), Georgia v. Randolph (2006), D.C. v. Heller (2008), the Lily Ledbetter Fair Pay Act (2009), Graham v. Florida (2010), and McDonald v. City of Chicago (2010).”
—Dahlia Lithwick, writing in Slate about Day 3 of the Elena Kagan confirmation hearing.

No, Dahlia, sadly, she couldn’t have. Not because these things didn’t expand personal freedoms, in some instances exponentially, for many, but because Klobuchar is one of those boomer careerist women for whom it will always be the 1980s and ‘90s—the age of careerism, meshed with the women’s movement.

Yeah, sure, black public-school children, male and female, no longer are relegated to “separate-but-equal” schools, nor are refused service at lunch counters because they’re black, and, sure, statutes and court rulings have conferred or expanded freedoms in a variety of other respects. But none of this matters, because some of the beneficiaries of those additional freedoms aren’t women.

I guess Klobuchar is the new Dianne Feinstein, now that Dianne Feinstein (who is not a boomer) has finally realized that there are really important issues that have nothing to do with culture-wars “women’s issues.” I remember being really surprised last year that Feinstein actually was posing substantive questions to Sotomayor during Sotomayor’s confirmation hearing that had nothing to do with “women’s issues,” as such. Surprised and impressed; her questions were about other important issues, and some were quite discerning.

It’s one thing to dance with the woman that brung ya. But only with the woman that brung ya? These people are senators. And, really, it’s not the Reagan era any more.

Or maybe it is. After all, based on Lithwick’s reporting [I haven’t watched any of the hearing] at least one Republican senator still confuses the Declaration of Independence with the Constitution—which grants rights, whether or not those rights were endowed by our creator—and another confuses the Commerce Clause (part of the original Constitution, the part that gives Congress the right to regulate interstate commerce) with the Due Process Clause in the Fifth Amendment, one of the parts of the Constitution that limit government authority to, say, force-feed us fruits and vegetables.

Together, One-Note Charlene and Kaleidoscope Charlie and Tom could retread the ‘80s and ‘90s indefinitely, I guess. Or at least they plan on trying to.

Wednesday, June 30, 2010

Earning a Culture-Wars Purple Heart

“[Elana Kagan] seems fully comfortable standing before this committee and suggesting something which no recent nominee has ever dared suggest: Supreme Court justices should be among the nine smartest people in the land, and guess what? I'm one of 'em!”
—Dahlia Lithwick, in Slate, discussing the second day of the Kagan confirmation hearing.

One of the most important, and surprising, things Kagan could accomplish through these hearings and, maybe, by speaking out about it publicly through, say, op-ed pieces once she becomes a justice, is to prompt a reversal of the aggressive, concerted, and near-complete quarter-century movement, initiated and promoted by Republican federal judicial appointees but now omnipresent among federal and state-court judges, to glorify stupidity by judges.

That trend has served, along with the related concurrent trend among judges to mock and defame litigants and their attorneys, to render the federal and state courts playgrounds for the judicial elite and the judges who envy and try mightily to emulate the judicial elite. “If I casually dismiss lawsuits and ridicule and denigrate the pro se (unrepresented-by-counsel) plaintiff or the attorney for the plaintiff or criminal defendant, I too can be admired by my colleagues. Just like elite Judge So-and-So.”

Not even to mention reducing my civil-litigation workload to almost nothing, except of course civil litigation filed by large corporations represented by partners at mega law firms.

Time was when judges—at least federal judges—gained status among their peers by demonstrating genuine intellect. And, as Kagan said in discussing Justice Thurgood Marshall yesterday, “seeing courts take seriously the claims that were generally ignored anywhere else."

These days, instead, it is sheer nastiness, palpable condescension, and a rote dismissal of every civil rights case that doesn’t allege a violation of the Fifth Amendment’s “property takings” clause, or a violation of the Second Amendment or of the first Amendment’s Free Exercise (of religion) clause, or a so-called reverse-discrimination violation of the Fourteenth Amendment’s equal protection clause. This is, by choice now, almost as true among Democratic appointees as among Republican ones. There are some exceptions, but not many.

If Kagan is willing to try to reverse this, she will be using her judicial celebrity toward an end worthy of Thurgood Marshall himself. If she tries and actually succeeds, she will be a justice worthy of a Culture-Wars Purple Heart.

Paul Clement, In Appreciation

Each year as the Supreme Court’s term ends in late June, Slate’s main legal-issues writer, Dahlia Lithwick joins with Walter Dellinger, head of mega law firm O’Mebeny & Meyers’ national appellate practice, and a former head of the Office of Legal Counsel in the Clinton administration, in a weeklong discussion about the Court’s recent opinions, their effects, and the apparent internal dynamics among the justices during the term. This year, they’re joined by Paul Clement, head of mega law firm King & Spaulding’s national appellate practice and solicitor general during George W. Bush’s second term.

Dahlia began the discussion last week by welcoming Clement to the group and expressing her deep admiration for him.

I share Dahlia’s admiration of Paul Clement, but not just because he is a brilliant legal analyst and has an uncanny ability to argue that analysis incredibly cogently—both traits he shares with my favorite Supreme Court litigator, Jeffrey Fisher—but also because as solicitor general he occasionally had the government take positions as an amicus that departed from robotic Republican ideology, and did so also in at least one case recently as a private practitioner.

I still recall vividly the elation that I and (I know) others felt in 2006 when as solicitor general he filed an amicus brief for the government urging the Court to grant a certiorari petition filed on behalf of an autistic child and his parents in a case called Winkelman v. Parma City School District. The case presented the issue of whether the parents of a handicapped child could serve as surrogate parties on behalf of their child in a lawsuit against a school board, claiming a violation of the Individuals with Disabilities Education Act, when the parents and child were not represented by an attorney because (although middle class) they could not afford one. Legal fees would have cost tens of thousands of dollars. The lower federal appeals court had threatened to dismiss the lawsuit unless the parents retained counsel to represent the child.

The Court did grant the certiorari petition. Clement then filed an amicus brief for government supporting the Winkelmans’ claim that they and their son were entitled to access to court without having to retain counsel first.

Justice Kennedy wrote an eloquent and unanimous opinion for the Court ruling in favor of the parents and the child.

Later Clement, as a lawyer in private practice, brought his very considerable personal prestige to a case called Perdue v. Kenny A, in which he represented Kenny A., one of 3,000 abused and neglected children in Georgia’s foster-care system, and the children’s lawyer, who a lower federal court had awarded a larger-than-normal attorney’s fee under a federal statute that provides for the award of attorneys’ fees in successful civil rights lawsuits such as that one. The Court effectively ruled against the Kenny A. petitioners, in an opinion that barely disguises that that is what the Court did.

So much of conservative Republican jurisprudence—far, far more than the general public is aware—centers around simply (very simply, actually) denying most people access to court at all in constitutional or statutory civil rights cases. Paul Clement obviously does not share the right’s affection for that agenda.

Saturday, June 26, 2010

A Caveat, Walter Dellinger

“In Skilling (ably explained by Paul's posting), my law firm colleagues pressed the argument that the statutory crime of denying anyone of the "intangible right of honest services" was unconstitutionally vague unless it was sharply limited to bribery and kickbacks. Given that the honest-services statute had been the basis of hundreds of prosecutions that had been upheld in every federal court of appeals, it may have seemed an unlikely gambit to challenge its constitutionality at this late date. The fact that all nine justices agreed that this long-standing and frequently invoked law was unconstitutionally vague suggests once again that litigants should not take law "settled" by court of appeals as a given.”
—Walter Dellinger,* writing in Slate

Well, no, with due respect to Walter Dellinger—and a great deal of respect is due here; this post and his others thus far are outstanding in their analysis not just of the narrow substantive issue that the Court decided in the cases he’s discussing, but also in their underlying indications— the fact that all nine justices agreed that this long-standing and frequently invoked law was unconstitutionally vague suggests once again that litigants who fall within one of the privileged classes of parties whose petitions to the Court will be given actual consideration by the justices should not take law "settled" by court of appeals as a given.”

The Skilling case and the related Black and Weyrauch cases decided in concert, all of them challenging as unconstitutionally vague the “honest services” statute, illustrate, as does another high-profile opinion the Court issued within the last two weeks, Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, that these justices will look the other way for many years (some of the justices, for decades), rejecting one after another after another request that the Court consider a challenge to the constitutionality of, or a challenge to a lower federal courts’ interpretation of, some statute or court-created procedural or jurisdictional “doctrine” (e.g., a court-created rule that determines whether the federal courts have “subject-matter jurisdiction” to hear the case at all), until some zillionaire CEO or some Fortune 100 corporation or some group or individual challenging as unconstitutional some government-caused diminishment of the value of their property or some other government action opposed by the Republican Party’s base.

Or at least until some other private litigant has the sophistication and financial wherewithal to hire a member of the elite group of regular Supreme Court litigators. Or until some government or government official or employee asks the Court to consider the issue.

In a remarkable admission five years ago in an opinion written by Justice Ginsburg in a case called Exxon Mobil Corp. v. Saudi Basic Industries Corp., the Court actually conceded that a subject-matter jurisdictional doctrine known as the Rooker-Feldman doctrine, created by the Court in 1983, had been routinely and profoundly misinterpreted by the lower federal courts for more than two decades. That Court-created doctrine impliedly inserted a word—the word “only”—into a particular jurisdictional statute, 28 U. S. C. §1257, so that, with that word inserted, the statute removed from the lower federal courts the authority to hear cases that challenged the constitutionality of state-court procedures or interpretations of state laws and policies.

Until last week, that is. The opinion five years ago in Exxon Mobil Corp. limited the use of the doctrine only to the extent necessary for Exxon Mobil to win. No matter that that particular limitation on the use of the doctrine was nonsensical. The limitation was that the lower federal courts indeed could consider such cases as long as the case was not completely over in the state courts, including in the appellate courts, at the time that the federal lawsuit was filed. Exxon Mobil’s case was still pending in the state courts, so—voila!—the federal courts could (no, make that, must) hear Exxon Mobil’s federal lawsuit. That ruling enabled the lower federal courts to continue to refuse to hear such lawsuits except in cases that were still pending at some level in the state-court system.

Until this month, that is. Actually, first, on June 1, the Court issued a majority opinion by Justice Ginsburg in a case called Levin, Tax Commissioner of Ohio v. Commerce Energy, Inc., holding that in the particular type of case—cases in which a party is challenging the constitutionality of a particular state tax—the party must first litigate that issue to its full conclusion in, um, state court. The case subtlely killed Rooker-Feldman in its Exxon Mobil reincarnation. But the opinion didn’t mention Rooker-Feldman.

Three weeks later, in Stop the Beach Renourishment, Inc., though—much to my surprise—it did. In an opinion by Justice Scalia, who referred derisively to Rooker-Feldman (to his credit, not for the first time during his tenure on the Court) as “the so-called Rooker-Feldman doctrine), the Court overturned the doctrine in total. The Scalia opinion doesn’t actually say that that is what the Court was doing, opting instead to say that the doctrine is not after all a subject-matter-jurisdiction doctrine but is just a reiteration of another legal doctrine called the doctrine of res judicata. The doctrine of res judicata is one that predates the Rooker-Feldman doctrine by roughly two hundred years. It bars litigants from re-litigating issues or claims that they lost on in earlier litigation—but its application is unequivocally limited by four specific requirements of constitutional due process of law.

Justice Stevens, incidentally (or maybe not incidentally), is a longtime, vociferous critic of Rooker-Feldman, and has advocated its demise.

Because this particular case challenged the constitutionality of what the petitioners to the Court called a “judicial taking” via a state court’s ruling in their case, and because these litigants had filed their Fifth Amendment “property takings” challenge in the lower federal courts after the state-court case was completed, the Court needed to effectively kill the Rooker-Feldman doctrine in all its incarnations in order to hear the case.

I wrote a few months ago on Slate's "The Fray" discussion board that the Court would decide the case on the merits of the substantive constitutional issue, but I doubted that the Court would even mention Rooker-Feldman. I expected the justices to silently treat this as a one-case instance. So I’m surprised. And deeply gratified.

This is, of course, not to say that the lower federal courts will stop invoking Rooker-Feldman to dismiss lawsuits that challenge the constitutionality of state-court procedures or state-court rulings. But it is to say that next time some CEO, mega-corporation, or group or individual challenging the constitutionality of some state-court ruling that offends the Republican base, the Court may actually finally expressly say that it is killing Rooker-Feldman. But only if that is absolutely necessary in the particular case.

* Walter Dellinger is a partner at O'Melveny & Myers in Washington, D.C., and head of the firm's national appellate practice, and earlier served as head of the Office of Legal Counsel and as acting solicitor general.

Tuesday, June 15, 2010

The Fair-Reading Model of Constitutional Interpretation? Or the Fair-Weather Model of Constitutional Interpretation?

It saddens me to think that it took Justice Souter 19 years of heavy constitutional lifting and departure from the court before he could turn to the American people and explain clearly that much as we might want judging to be easy, it never can be.”
—Dahlia Lithwick, “It's Complicated: David Souter finally tells Americans to grow up,” in Slate

Lithwick’s article is about the retired justice’s now-famous commencement address to Harvard’s graduation class two weeks ago, in which he showed for the nonsense it is the right’s wildly politically successful solipsism that the role of judges and Supreme Court justices is, like that of baseball umpires, limited to calling balls and strikes—an easy job because the provisions of the Constitution are clear, specific, narrow, easily interpreted, and never mutually exclusive of other provisions in the Constitution. Souter calls this the “fair-reading” model of constitutional interpretation.

Souter noted what everyone who actually deals with constitutional interpretation, as a judge, a lawyer or a law professor knows, but which many who do find it useful and easy to sell the snake oil that the provisions of the Constitution are clear enough to simply “apply.” Some are, most aren’t, and some that are conflict with some provision.

Meaning that judges and justices must choose one provision over another. Or, as Souter phrased it, they must choose between two conflicting values expressed in the Constitution. Judges and justices who cite only the value, or the provision, that they choose to privilege, and fail even to acknowledge the competing one are intellectually dishonest.

And then there are judges and justices who claim to be constitutional “textualists” whose invocation of clear constitutional text follows, let’s just say, not a fair-reading model of constitutional interpretation but rather the fair-weather model of constitutional interpretation. An undeniable example of this is the weird rewriting of the Eleventh Amendment by the conservative five members of the Rehnquist Court, including Antonin Scalia and Clarence Thomas, during a roughly-10-year period beginning in the mid- 1990s. That Amendment reads:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

In a series of Supreme Court opinions, the Fab Five of that era, effectively rewrote the Amendment to read:
The Judicial power of the United States or of any state shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or against one of the United States by Citizens of his or her own State, or by Citizens or Subjects of any Foreign State.

The immediate purpose and effect was to broaden exponentially the legal immunity that states and, under some circumstances, state officials have from liability for violations of constitutional and statutory civil rights and for personal injury. But that line of opinions was only one part of a blatant and aggressive restructuring of federal jurisprudence by the rightwing legal community, via its judicial contingent, that used what is known as “subject-matter” jurisdictional (i.e., legal authority of a court to hear that case at all), quasi-jurisdictional, sovereign immunity, so-called “qualified immunity,” and other procedural rules—many of these entirely Court-created legal “doctrines,” others a de facto rewriting of constitutional provisions and federal jurisdictional or other procedural statutes—to deny threshold access to in order court to try to vindicate substantive constitutional rights.

Except, of course, in order to vindicate the specific constitutional rights that the ideological right really, really cares about. Like Second Amendment rights, Fifth Amendment property rights, and Fourteenth amendment equal protection rights if the person claiming a denial of equal protection of the law is white and is claiming “reverse” racial discrimination. People who claim violations of these rights may not win on what lawyers call “the merits” of their case—a legal term of art that means that there was a decision by the court on the substantive issue itself (e.g., was their a violation of a constitutional right?) rather than a refusal by the court to consider the substantive issue, and instead to dismiss the case on the stated basis of some jurisdictional or other procedural ground. But they usually will gain access to court in order to have their case decided on the merits—on the substantive constitutional claim.

Some of these “doctrines” are, by the Court’s acknowledgment, created by the Court itself, out of whole cloth. The Court, in other words, does acknowledge that it itself is, um, making law rather than just interpreting the law. Or at least it used to. Rehnquist occasionally unabashedly admitted on occasion that he and his colleagues were simply choosing what he said was a “better” policy. Roberts? Not so much.

But the fact remains that denial of threshold access to court is itself the usual mechanism by which rightwing judges and justices control the outcome of cases that claim violations of constitutional and statutory cases. Most of these court-written doctrines are so ill-defined, or so convoluted, that they are entirely malleable—elastic enough to apply in one case and to not apply, or be ignored, in others, depending on whether the constitutional right at issue is one that the Republican base loves or instead hates.

So, when I read the above quote in Lithwick’s article, I said to myself: Well, actually, these days judging has become exquisitely easy—unless, that is, the particular case, say, pits two large corporations, each of them represented by a high-profile, big-name lawyer, usually a partner at a mega law firm. Or pits the prosecutor’s office against some former CEO or CFO who is represented by a big-name lawyer, usually a partner at a mega law firm. Then, the judge, judges or justices must actually judge—as that word, used as a verb, is billed in middle school civics class and elsewhere.

Otherwise, judging is now simply a formula, one that has nothing to do with a fair reading of the Constitution or of statutes but that has absolutely everything to do with docket-clearing and with aggressively limiting access to court, at least to challenge the constitutionality of a statute, government policy or government act, by someone who is not claiming a Fifth Amendment “takings” violation, religious discrimination, “reverse discrimination, or violation of the Second Amendment right to bear arms—virtually the only constitutional rights that, according to the chief justice and colleagues Scalia, Thomas, and Alito believe trump states’ (and local governments’) rights to violate the constitutional rights of individuals.

An originalist/textualist interpretation of the Constitution’s Supremacy Clause seems to work well for litigants who invoke the constitutional rights at issue in those cases, but only ever so rarely for those who invoke any of the other constitutional rights that accrue to individuals—or that a textualist reading of the relevant parts of the Constitution would seem to suggest, but that apparently do not.

For people invoking those rights, there will always be some procedural flaw—in the way the lawsuit’s complaint was drafted; in legal “standing” to bring the case, or in some other “subject matter” jurisdictional or quasi-jurisdictional respect; or by virtue (so to speak) of the ever-metastasizing doctrines of sovereign immunity and “qualified” immunity. Or in whatever. The stated grounds are just formality, and fungible.

So, no, Justice Souter. And, no, Dahlia. While it’s true that judging never should be easy, these days it almost always is. I mean, how hard is it, really, to look at who the party who filed the lawsuit is; who his, her or its lawyer is—or whether or not that party even has a lawyer (self-representation being a crime inevitably punishable not just by dismissal of the lawsuit but by defamatory and demeaning diatribe); and to look at whether the case presents an opportunity to further Republican Party interests?

Not very.

Friday, June 11, 2010

Who Gamed the System This Time, Justice Alito?

“In District Attorney's Office for the 3rd Judicial District v. Osborne, last year's case, Justice Alito argued in a concurring opinion that guilty people could refuse to request DNA testing at trial, then prolong the appeal process (and stave off execution) by requesting DNA testing afterward. To find a right to post-conviction testing in the Constitution's protection of due process, Justice Samuel Alito wrote in his concurrence, ‘would allow prisoners to play games with the criminal justice system.’"
—Radley Balko, “Certain Knowledge” Why all crime-scene evidence should be DNA tested,” Radley Balko, in Slate

The case that the article is about is not Osborne, a case from Alaska, but one from Texas, and Balko was writing about it because the person requesting the DNA, Henry "Hank" Skinner, testing was 47 minutes away from execution last March when Justice Antonin Scalia gave him a last-minute stay and because the Supreme Court last month agreed to hear Skinner's case in the fall. Apparently with Scalia’s vote to hear the case.

Skinner is asking for access to crime-scene evidence and DNA testing that he and his lawyers say will prove his innocence. In Skinner’s case, it appears that it was the police investigators, the prosecution, the judge, the judge’s attorney buddy, and the governor who gamed the criminal justice system. Balko explains:
Skinner doesn't dispute that he was in the house when his girlfriend and her sons were murdered. He claims he was unconscious at the time, knocked out by a near-lethal mix of alcohol and codeine. Back in 1995, the evidence against him seemed formidable. He was present at the crime scene. He had smears of blood from two of the three victims on his shirt. Andrea Reed, Skinner's neighbor and ex-girlfriend, says Skinner came to her home shortly after the crime and first implicated himself, then told Reed a number of other implausible and contradictory stories about who committed the murders.

But Skinner has always maintained his innocence. In 1999, Northwestern University's Medill Innocence Project began looking into Skinner's conviction. As professor David Protess and his student journalists began interviewing witnesses and reviewing evidence, the state's case against Skinner started to unravel. Reed recanted her testimony and now says she was pressured by police investigators to implicate Skinner. Toxicology reports showed the amount of codeine and alcohol in Skinner's blood at the time of the murders would have likely have rendered him unconscious or put him in a hazy stupor. His defenders say he couldn't have killed three adults in that condition. The students also found that Busby had been stalked by an allegedly lecherous uncle named Robert Donnell, whom witnesses said had approached her at a party the night of her death. She left frightened, and he appeared to have followed her. Friends say Donnell had raped Busby in the recent past. Days after the murders, a neighbor saw Donnell cleaning and repainting his truck.

There are other problems with Skinner's conviction. His court-appointed attorney, Harold Lee Comer, was a disgraced former prosecutor who left office after pleading guilty to siphoning off asset forfeiture funds in a drug case. The judge, a friend of Comer's, appointed him to represent Skinner, then ordered Comer's pay in an amount roughly equal to what Comer still owed for his own criminal conduct. Worse, Comer had previously prosecuted Skinner on a minor assault and theft charge. At Skinner's sentencing trial, the prosecution argued that those two crimes were aggravating factors that should be considered in Skinner's sentencing. Comer didn't object.

Most of these flaws have been litigated, and the courts have found that none of them is enough to win Skinner a new trial. But the most troubling aspect of Skinner's case is the biological material collected from the crime scene. Law enforcement officials tested the small blood smears on Skinner's shirt, and those matched two of the three victims. But given that Skinner admits he was at the crime scene and says he awoke to find the victims' bodies, it isn't surprising that he'd have some of their blood on his shirt. The blood on the murder weapons has never been DNA tested. Nor has any material from the rape kit taken from Busby. The state also never tested skin cells taken from under Busby's fingernails, or a blood-stained windbreaker left at the scene that witnesses say matched one often worn by Donnell. "They only tested the material they thought would implicate Skinner," Protess told me via phone. "They fixated on their suspect, and once they thought they had enough for a conviction, they stopped."

But, as Balko says, that is not even the worst of it:
In 2000, on an episode of the Nancy Grace Show, Protess publicly challenged Skinner's prosecutor to test the remaining biological evidence, even offering to pay for the testing himself. "He agreed, and I actually sent him an e-mail complimenting him," Protess says. But when mitochondrial DNA testing of the hair Busby was clutching in her hand at the time of her death didn't match Busby or Skinner, the state halted the testing of any more evidence and has refused to run any tests since. As Skinner's execution neared in March, Texas Gov. Perry again declined to grant Skinner a stay so the evidence could be tested, even after a lab in Arizona offered to conduct the tests for free. Never mind that all of this comes amid continuing controversy over Texas' 2004 execution of Cameron Todd Willingham, a man many believe was innocent, as well as allegations that Texas Gov. Rick Perry subsequently undermined an investigation into the dubious forensic evidence used at Willingham's trial.

So I look forward to reading Justice Alito’s expressions of outrage when the Court decides Skinner’s case.

Will Alito suggest that the police investigator’s apparent subornation of perjury, the recent halting by the prosecutor of DNA testing of further evidence once DNA testing of a hair sample showed that the hair belonged to someone other than Skinner or the victim, and Perry’s failure to stay the execution so that the further DNA testing could be compelled by a court, amount playing Russian Roulette with the criminal justice system and with the state’s power to execute, for the purpose of political gain? I wait with bated breath to see.

And what about the allegations that Perry undermined an investigation into dubious forensic evidence—read: faked evidence—after another controversial execution?