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.

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 cliché-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.

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

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.

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.

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.