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.

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.

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* 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.

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.

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?

Oh, But Justice Souter, These Days Judging Is VERY Easy

“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, in Slate

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 origianlist/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 whom the plaintiff is; whom his, her or its lawyer is, or whether or not the plaintiff 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.

While the World Develops Alternatives to Mega-Dependence on Oil

“I journeyed through Ecuador, where Chevron (CVX) faces a multibillion-dollar lawsuit for a legacy of contamination that environmentalists there regard as the Chernobyl of oil.…

The worst outcome of the mess in the Gulf would be the perpetuation of the conceit that error and greed can be regulated out of the worldwide oil industry.”
—Peter Maass, “To BP or Not To BP: Here’s why a spill-inspired boycott doesn’t make sense," in Slate

I first learned of the Chevron disaster in Ecuador when I read an article about it a few days ago. I was stunned—not that it had occurred but that I wasn’t aware that it had occurred. After all, I follow the news pretty closely; I have my web-browser opening page set to Yahoo News, I read The New York Times online every day (well, parts of it, anyway), and I listen regularly to NPR. Why didn’t I know about this?

Well, now I do. Thanks to the BP oil spill.

I’ve been dismayed at the punditry’s conventional wisdom that the BP oil spill is Obama’s Katrina, by which they mean, apparently, not just that his slowness to grasp the calamitous nature of the situation, and his absurd deference to BP, lowers the public’s confidence in Obama himself but also that it undermines confidence in the idea of government and government regulation. In other words, this reasoning goes, people will now conclude that the tea baggers and the Club for Growth are right (er, correct) that laissez-faire corporatism is good, because, well, the government allowed BP to do as it wished rather than actually regulating offshore drilling and BP, left alone, did such a good job.

Save the environment by removing the fig leaf of government control! What we need is more offshore oil spills, courtesy of the oil companies! Or something.

Actually, what the BP spill is likely to be is not Obama’s Katrina but rather the anti-government extremists’ Katrina. That’s because, unlike the healthcare-legislation debate, the global-warming-legislation debate, the financial bailouts, the economic stimulus legislation, and even the financial-industry-reform bill, the fact of the oil spill and its effects, and the failure of BP to have prevented it and then to contain it, are not subject to factual debate.

Nor can there be doubt about who its human victims are: most directly, the residents of the six gulf-coast states, each of those states teaming with antigovernment extremists. This is one situation whose truths cannot be distorted by Glenn Beck, Sarah Palin and Rush Limbaugh. Or by Mitch McConnell, Marco Rubio or Rand Paul—who tried but failed. There are some situations, however few, whose facts speak so loudly for themselves that they cannot be rewritten by demagogues. Or by the Chamber of Commerce and the Club for Growth.

So while Maass certainly is spot-on saying that the only way to significantly diminish the oil-caused calamities that recites—from destruction of major ecosystems to wars—is for the world to greatly reduce its dependence on oil, and is right when he says that error and greed cannot be regulated out of the worldwide oil industry, I think he’s wrong to degrade that role that government regulation can play in reducing the chance of devastating accidents and ensuring at least that technology is in place and available to staunch the oil flow.

But to have effect beyond (literally) our shores, this obviously would have to be done on an international level, through some international organization similar, perhaps, to the Geneva Conventions on armed conflict, combined with, say, the International Monetary Fund. An international organization that combines international law with a mechanism for enforcement, and that employs a small army of top engineers, could save ecosystems, wildlife, and livelihoods en mass while the world develops alternatives to its mega-dependence on oil.

Maass is right that, as the title of his article says, a boycott of this one oil company’s gas stations is just plain silly. But there are possible activist campaigns that would not be.

A Gap Not In Time But In Judicial Veracity

“Talk of judicial activism tends to focus on results, but the Guggenheim case shows that maybe we should talk a little bit more about method.”
—Doug Kendall and Elizabeth Wydra, “Torturing the Law: Jay Bybee models conservative judicial activism in the 9th Circuit,” by Doug Kendall and Elizabeth Wydra, in Slate

Ooh, yeah! Or, more precisely,“Finally!”

Bybee, as those who follow national legal-political issues know, is the former Bush administration assistant attorney general who as head of the Justice Department’s Office of Legal Counsel—the office charges with giving administration officials straight analysis of the law—co-authored, along with the infamous John Yoo, a legal memorandum that pronounced legal under United States and international law interrogation techniques used on terrorist suspects captured oversees that almost everyone familiar with relevant federal and international law believe constituted illegal torture.

The Bush administration eventually withdrew that memorandum, and Bybee is reported to have confided to friends that he regrets having signed that memo, which actually was written mostly by Yoo. Before the memo came to light, Bybee was nominated and confirmed for a seat of the Court of Appeals for the Ninth Circuit, the court that had federal appellate jurisdiction over cases from the three West Coast states, Montana, Idaho, Nevada, Arizona, Alaska, Hawaii and Guam.

In the Guggenheim case—specifically, Guggenheim v. City of Goleta—Bybee has, as Kendall and Wydra put it so succinctly, “managed to do what has eluded national property-rights advocates for decades: declare a rent control ordinance unconstitutional under the Fifth Amendment's Takings Clause.” And as the quote I chose to highlight at the opening of this piece, talk of judicial activism does tend to focus on results, but the Guggenheim case shows that maybe we should talk a little bit more about method, because it really is method—what lawyers know as procedural law—that the rightwing legal community, most significantly those on the Supreme Court and the lower federal courts—have used regularly to achieve the substantive results that want.

I recognized eons ago that the rightwing legal movement—i.e., the members of the rightwing bar group, the Federalist Society, including its large judicial contingent—has been using court-fabricated pleading, jurisdictional, quasi-jurisdictional, sovereign immunity (mainly a bizarre rewriting of the actual text of the Eleventh Amendment), and “qualified immunity” doctrines to quietly recreate constitutional and other federal procedural law in the image of the Republic Party’s political and ideological bases. But until now it seemed that a few law professors and I were the only ones did. So it’s really, really nice to finally see an article published on a widely-read media website that points out this concerted rightwing judicial strategy and calls that spade the spade that it is.

The political right has had a nearly three-decade-long free ride, because the general news media limits its reporting and discussion of legal issues and court opinions—including Supreme Court opinions—to hot-button culture wars issues and to court opinions decided on what lawyers call the “merits,” a legal term of art that means that the case was decided on the substantive issue that the case was about.

Usually, these procedural gimmicks are used to defeat access to a court decision on the merits when the party who filed the lawsuit is invoking a constitutional or federal statutory right favored by the ideological progressives. But, as Kendall and Wydra explain, last week, “Jay Bybee is a judge on the U.S. Court of Appeals for the 9th Circuit, but apparently being elevated to the federal bench hasn't stunted his creative powers. In [Guggenheim], Bybee has managed to do what has eluded national property-rights advocates for decades: declare a rent control ordinance unconstitutional under the Fifth Amendment's Takings Clause.”

And, as the Slate article authors illustrate, he did it by creating fictions of both law and fact. The Guggenheims had bought a mobile home park in 1997 that was subject to mobile home rent control laws enacted in 1979 and amended in 1987. The purchase price reflected the reduced value of the property because of the reduced rental profits resulting from the rent control plan. The mobile park was located in what at the time was an unincorporated part Santa Barbara County, but which in 2002 became incorporated as the city of Goleta. By state law, as part of the incorporation process, the new city’s charter provided that all existing laws pertaining to that area under Santa Barbara County law would become city ordinances at the moment of incorporation as the city of Goleta, and the effect of all those laws would “relate back” so that they had the same effect as they had, pre-incorporation.

The Guggenheims sued, claiming that the rent-control law violated the Fifth Amendment’s bar to a government “taking” of private property with just compensation. For decades now, the rightwing “property rights” folks—most of whom normally consider the filing of lawsuits anathema to the very concept of freedom (although they never explain why, exactly), and who sing the praises of states’ (and local governments’) rights to violate the constitutional rights of individuals, all the while styling themselves libertarians—have filed federal lawsuit upon federal lawsuit alleging that regulations such as zoning laws and environmental laws violate their Fifth Amendment rights under that Amendment’s “takings” clause because the regulations diminish the value of their real estate. It is, the claim, a “regulatory taking” without just compensation.

They have rarely succeeded in getting a favorable ruling on the “merits”—that is, on the substantive legal issue—and have never before been able to get a ruling holding that rent-control regulations constitute an unconstitutional “taking” under the Fifth Amendment.

As a June 3 article in The New York Times discussed, current Supreme Court nominee Elena Kagan, back in 1987 when she was a clerk to Justice Thurgood Marshall, wrote an angry memorandum urging her boss to try to overturn a conservative appeals court ruling that had questioned the constitutionality of a rent-control ordinance.” Kagan said that the appeals court judge who wrote the opinion “has flouted the opinions of this court and has reached a result that is sweeping in its implications. Although the decision does not invalidate the ordinance on its merits, it is an authorization for broad, wholesale attacks on rent-control regulation.” The Supreme Court refused to hear the case, allowing the ruling to stand, not on the merits”—not on the Fifth Amendment issue but instead on the basis of some procedural gimmick.

That has been par for the course. Court-fabricated procedural/jurisdictional/quasi-jurisdictional/soveright-immmunity/“qualified”-immunity gimmicks routinely bar people from access to court in order to vindicate individual constitutional rights—including challenging the constitutional of laws and government policies—that liberals value. And those procedural gimmicks are ignored, or new ones created ad hoc, in order to allow access to court by those who claim violations of individual constitutional rights that conservatives hold dear.

But in the Guggenheim case, Bybee fabricated, first, a legal fiction and then a fact in order to pronounce this rent-control law and, inferentially, all rent-control laws, because there was nothing unusual about this particular one, violative of the “takings” clause. Bybee fabricated the legal fiction that there was a momentary gap in time when the ordinance did not apply: that moment when the land ceased to be part of unincorporated Santa Barbara County and before it was a newly-incorporated city-and that therefore the city ordinance was a new ordinance. This, Bybee said, enabled the Guggenheims to avoid the statute-of-limitations bar to their challenging the initial ordinance more than two years after they bought the property.

And, allowing the Guggenheims to proceed with the lawsuit and obtain a ruling on the “merits,” Bybee fabricated a fact. Bybee claimed that the Guggenheims had, as a matter of fact, seen a diminishment of the value of their property since they purchased it; without a diminishment in value since they bought the property, there would, after all, be no “taking,” as a matter of fact, irrespective of the law. As Judge Andrew Kleinfeld, a conservative Reagan appointee, said in his dissent, the price the Guggenheims paid for the property in 1997 reflected the diminished value due to the rent-control ordinance.

The Guggenheims were claiming not a diminishment but the inability to reap a windfall from an end to the ordinance. They were, Bybee said, entitled to something that few others these days are entitled to: a ruling on the merits of their challenge to the constitutionality of a law or government policy or action. They were, Bybee said, entitled to a ruling on whether they were entitled to something not that they had lost but instead that they never had—a property whose value was based in part on an absence of an applicable rent-control regulation—because they were entitled to a ruling on the substantive constitutional issue of whether rent-control regulations violate the property owners’ rights under the Fifth Amendment’s “takings” clause.

And we all know that it does. Even if none other than self-styled constitutional originalist and textualist Antonin Scalia has said that the Framers had in mind only actual physical takings of property, not the diminishment of the value of the property through regulation. And Kendall and Wydra quote Scalia as having said exactly that.

Judicial activism, like beauty, is in the eye of the judicial beholder. As is access to court in order to have constitutional challenges decided on the merits.

D-Day.

D-Day. June 6, 1944. Just thinking about it right now. And wondering whether anyone else who wasn't alive then is.

Jim Joyce For the Supreme Court!

So John Roberts really does moonlight as an umpire! (Sorry. I couldn’t resist.)

The BP Oil Leak and Tea-Party/Business-Republican Politics

“The only good news from the oil spill is that when catastrophe strikes, even some hard-line conservatives, like Gov. Bobby Jindal of Louisiana, start begging for the federal government to act, and act big. It’s the crunch moment for government to make its case — as Obama belatedly started to do on Thursday. But words are no match for results. As long as the stain washes up on shore, the hole in BP’s pipe will serve the right as a gaping hole in the president’s argument for expanded government supervision of, for starters, Big Oil and big banks. It’s not just the gulf that could suffer for decades to come.”
—Frank Rich, New York Times, Sunday

I love Frank Rich. I agree with him almost always, and am thrilled that someone whose commentary will be read by millions, among them people who, well, matter, actually says what I would say if I wrote a column that is read by millions—among them people who matter.

And Sunday’s column was no exception. Well, except for that second-last sentence in what is the final paragraph of the column.

Rich is one of the few political commentators who recognize rote conventional wisdom for what it is: mechanical, formulaic, and often out-of-date pronouncements that echo from one to another to another pundit, without questioning, without independent analysis. So I was surprised that he accepts unquestioningly the presumption that the federal government’s failure to stem the tide of oil pouring into the Gulf is good news for the Tea Partiers and the more traditional “pro small-government/pro large-corporation” Republicans. There is, after all, a difference between a government’s inability to pull off an engineering feat of a perhaps-impossible nature after a crisis has arisen and the government’s ability to force the prevention of such crises in the first place. And that difference is what this oil-spill tragedy demonstrates, in high relief.

The art term, not the term of art.

The larger tenet of Reich’s column is an accurate one: “Obama,” he says, “was elected as a progressive antidote to [Bush’s] discredited brand of governance. Of all the president’s stated goals, none may be more sweeping than his desire to prove that government is not always a hapless and intrusive bureaucratic assault on taxpayers’ patience and pocketbooks, but a potential force for good.” But a prerequisite to government’s ability to competently act as a force for good—in this instance, a force for the prevention of immense harm to millions of people, many of them undoubtedly Glenn Beck, Rush Limbaugh and Sarah Palin aficionados, is that the government first be given the legal authority, the legal responsibility, and the actual means with which to do this.

Yes, most big-government-versus-small-government issues lend themselves to the irrational we-want-it-both-ways (“Keep your government hands off my Medicare!”) demagoguery. But not this one. Which is why this one is far more likely to kill the Tea Party movement than help it. As Rich notes, Rand Paul claimed in his victory speech after winning the Republican primary in a race for an open Senate seat in Tennessee earlier this month, his victory was a victory for the Tea Party.

But because, also as Rich mentions, Paul soon attributed the BP spill to mere accident—“Accidents happen”—rather than to premeditated negligence, and because a cascade of internal BP memos leaked to the New York Times, which reported on them on Saturday, detail in jaw-dropping fashion exactly how this particular accident happened, the Tea Party movement is likely to be, rather than enhanced by this situation, fatally wounded by it.

The stains that wash up on shore, the destruction of the fishing industry in the Gulf and the perhaps nearly as devastating impact on tourism, even on some of Florida’s gulf coast, the death of thousands of birds, and who knows what else, cannot logically be seen as an argument for failing to dramatically strengthen government oversight over mega-corporations and mega-industries that can cause such profound, extensive, undeniable, harm—immediate and long-term—to such a huge swath of the public and to the fundamental ecosystem.

The federal government is impotent to mitigate this disaster because it has not had what is should have had and what, hopefully it now will be given: a small separate agency staffed entirely with top-flight, well-paid engineers who can develop strategies that geared toward preventing such catastrophes and dealing expeditiously and proficiently with crises when they do occur. But the federal government was powerless to prevent this crisis not because of an inherent failure of government, by its very nature, to do so but instead because of the triumph of an ideology whose very goal was to render the government powerless and the oil companies and other huge industries all-powerful to determine so much for all of us.

If this calamity in the Gulf illustrates anything—and it does—it’s that libertarian ideology should not be limited to government imposition upon individual rights. BP, which will affect the quality of life for so many individuals for a long time to come, is not a government subsidiary. Not technically, anyway.

A Gap Not In Time But In Judicial Veracity

“Talk of judicial activism tends to focus on results, but the Guggenheim case shows that maybe we should talk a little bit more about method.”
—Doug Kendall and Elizabeth Wydra, “Torturing the Law: Jay Bybee models conservative judicial activism in the 9th Circuit,” by Doug Kendall and Elizabeth Wydra, in Slate

Ooh, yeah! Or, more precisely,“Finally!”

Bybee, as those who follow national legal-political issues know, is the former Bush administration assistant attorney general who as head of the Justice Department’s Office of Legal Counsel—the office charges with giving administration officials straight analysis of the law—co-authored, along with the infamous John Yoo, a legal memorandum that pronounced legal under United States and international law interrogation techniques used on terrorist suspects captured oversees that almost everyone familiar with relevant federal and international law believe constituted illegal torture.

The Bush administration eventually withdrew that memorandum, and Bybee is reported to have confided to friends that he regrets having signed that memo, which actually was written mostly by Yoo. Before the memo came to light, Bybee was nominated and confirmed for a seat of the Court of Appeals for the Ninth Circuit, the court that had federal appellate jurisdiction over cases from the three West Coast states, Montana, Idaho, Nevada, Arizona, Alaska, Hawaii and Guam.

In the Guggenheim case—specifically, Guggenheim v. City of Goleta—Bybee has, as Kendall and Wydra put it so succinctly, “managed to do what has eluded national property-rights advocates for decades: declare a rent control ordinance unconstitutional under the Fifth Amendment's Takings Clause.” And as the quote I chose to highlight at the opening of this piece, talk of judicial activism does tend to focus on results, but the Guggenheim case shows that maybe we should talk a little bit more about method, because it really is method—what lawyers know as procedural law—that the rightwing legal community, most significantly those on the Supreme Court and the lower federal courts—have used regularly to achieve the substantive results that want.

I recognized eons ago that the rightwing legal movement—i.e., the members of the rightwing bar group, the Federalist Society, including its large judicial contingent—has been using court-fabricated pleading, jurisdictional, quasi-jurisdictional, sovereign immunity (mainly a bizarre rewriting of the actual text of the Eleventh Amendment), and “qualified immunity” doctrines to quietly recreate constitutional and other federal procedural law in the image of the Republic Party’s political and ideological bases. But until now it seemed that a few law professors and I were the only ones did. So it’s really, really nice to finally see an article published on a widely-read media website that points out this concerted rightwing judicial strategy and calls that spade the spade that it is.

The political right has had a nearly three-decade-long free ride, because the general news media limits its reporting and discussion of legal issues and court opinions—including Supreme Court opinions—to hot-button culture wars issues and to court opinions decided on what lawyers call the “merits,” a legal term of art that means that the case was decided on the substantive issue that the case was about.

Usually, these procedural gimmicks are used to defeat access to a court decision on the merits when the party who filed the lawsuit is invoking a constitutional or federal statutory right favored by the ideological progressives. But, as Kendall and Wydra explain, last week, “Jay Bybee is a judge on the U.S. Court of Appeals for the 9th Circuit, but apparently being elevated to the federal bench hasn't stunted his creative powers. In [Guggenheim], Bybee has managed to do what has eluded national property-rights advocates for decades: declare a rent control ordinance unconstitutional under the Fifth Amendment's Takings Clause.”

And, as the Slate article authors illustrate, he did it by creating fictions of both law and fact. The Guggenheims had bought a mobile home park in 1997 that was subject to mobile home rent control laws enacted in 1979 and amended in 1987. The purchase price reflected the reduced value of the property because of the reduced rental profits resulting from the rent control plan. The mobile park was located in what at the time was an unincorporated part Santa Barbara County, but which in 2002 became incorporated as the city of Goleta. By state law, as part of the incorporation process, the new city’s charter provided that all existing laws pertaining to that area under Santa Barbara County law would become city ordinances at the moment of incorporation as the city of Goleta, and the effect of all those laws would “relate back” so that they had the same effect as they had, pre-incorporation.

The Guggenheims sued, claiming that the rent-control law violated the Fifth Amendment’s bar to a government “taking” of private property with just compensation. For decades now, the rightwing “property rights” folks—most of whom normally consider the filing of lawsuits anathema to the very concept of freedom (although they never explain why, exactly), and who sing the praises of states’ (and local governments’) rights to violate the constitutional rights of individuals, all the while styling themselves libertarians—have filed federal lawsuit upon federal lawsuit alleging that regulations such as zoning laws and environmental laws violate their Fifth Amendment rights under that Amendment’s “takings” clause because the regulations diminish the value of their real estate. It is, the claim, a “regulatory taking” without just compensation.

They have rarely succeeded in getting a favorable ruling on the “merits”—that is, on the substantive legal issue—and have never before been able to get a ruling holding that rent-control regulations constitute an unconstitutional “taking” under the Fifth Amendment.

As a June 3 article in The New York Times discussed, current Supreme Court nominee Elena Kagan, back in 1987 when she was a clerk to Justice Thurgood Marshall, wrote an angry memorandum urging her boss to try to overturn a conservative appeals court ruling that had questioned the constitutionality of a rent-control ordinance.” Kagan said that the appeals court judge who wrote the opinion “has flouted the opinions of this court and has reached a result that is sweeping in its implications. Although the decision does not invalidate the ordinance on its merits, it is an authorization for broad, wholesale attacks on rent-control regulation.” The Supreme Court refused to hear the case, allowing the ruling to stand, not on the merits”—not on the Fifth Amendment issue but instead on the basis of some procedural gimmick.

That has been par for the course. Court-fabricated procedural/jurisdictional/quasi-jurisdictional/soveright-immmunity/“qualified”-immunity gimmicks routinely bar people from access to court in order to vindicate individual constitutional rights—including challenging the constitutional of laws and government policies—that liberals value. And those procedural gimmicks are ignored, or new ones created ad hoc, in order to allow access to court by those who claim violations of individual constitutional rights that conservatives hold dear.

But in the Guggenheim case, Bybee fabricated, first, a legal fiction and then a fact in order to pronounce this rent-control law and, inferentially, all rent-control laws, because there was nothing unusual about this particular one, violative of the “takings” clause. Bybee fabricated the legal fiction that there was a momentary gap in time when the ordinance did not apply: that moment when the land ceased to be part of unincorporated Santa Barbara County and before it was a newly-incorporated city-and that therefore the city ordinance was a new ordinance. This, Bybee said, enabled the Guggenheims to avoid the statute-of-limitations bar to their challenging the initial ordinance more than two years after they bought the property.

And, allowing the Guggenheims to proceed with the lawsuit and obtain a ruling on the “merits,” Bybee fabricated a fact. Bybee claimed that the Guggenheims had, as a matter of fact, seen a diminishment of the value of their property since they purchased it; without a diminishment in value since they bought the property, there would, after all, be no “taking,” as a matter of fact, irrespective of the law. As Judge Andrew Kleinfeld, a conservative Reagan appointee, said in his dissent, the price the Guggenheims paid for the property in 1997 reflected the diminished value due to the rent-control ordinance.

The Guggenheims were claiming not a diminishment but the inability to reap a windfall from an end to the ordinance. They were, Bybee said, entitled to something that few others these days are entitled to: a ruling on the merits of their challenge to the constitutionality of a law or government policy or action. They were, Bybee said, entitled to a ruling on whether they were entitled to something not that they had lost but instead that they never had—a property whose value was based in part on an absence of an applicable rent-control regulation—because they were entitled to a ruling on the substantive constitutional issue of whether rent-control regulations violate the property owners’ rights under the Fifth Amendment’s “takings” clause.

And we all know that it does. Even if none other than self-styled constitutional originalist and textualist Antonin Scalia has said that the Framers had in mind only actual physical takings of property, not the diminishment of the value of the property through regulation. And Kendall and Wydra quote Scalia as having said exactly that.

Judicial activism, like beauty, is in the eye of the judicial beholder. As is access to court in order to have constitutional challenges decided on the merits.