JUDGING CRIMES

Christopher L. Eisgruber (I don't mean to be rude, but with a last name like that, is the middle initial really necessary?) has written The Next Justice: Repairing the Supreme Court Appointments Process, a well-meaning, mildly interesting and thoroughly exasperating book. 

Eisgruber comes across as a likeable, intelligent guy aswarm with good intentions.  His basic theme is that the Supreme Court is perfect and everyone else needs to accommodate themselves to that.  The problem is, I'm not sure he understands that's his theme. 

I can't figure out who the book is written for.  Part of it is an introduction to (cue Sousa march) The Supreme Court, Paladin of Liberty, written for the semi-informed general reader.  But the concluding chapters are full of  (thoughtful, well-meaning) advice to the members of the Senate Judiciary Committee, a rather more specialized audience.  In the middle an entire chapter is composed largely of quotations from Supreme Court opinions.    Throughout, Eisgruber has smart, modest things to say. 

In short, there's an Atlantic Monthly article inside this book screaming to be let out.

Eisgruber gets real close to proposing a genuine solution to the contentious-yet-contentless confirmation hearing when he suggests that if a nominee refuses to answer certain carefully-calibrated questions, "skeptical senators would be well justified in voting against confirmation." 

This tiptoes right up to a genuine insight: confirmation hearings will become meaningful when the Senate, asserting its prerogatives as an institution, demands meaning.  If a nominee's refusal to answer means rejection, nominees will answer.  There's nothing mysterious about it.

But Eisgruber doesn't seem to realize what he's saying, because in the next chapter he tells us that "senators and the American public will have to give up the tantalizing but bogus concepts, such as 'judicial restraint,' that are now commonly invoked to evaluate nominees."  

Oh, I see.  Just reeducate everyone.  What is it that Bertolt Brecht, der Mann ohne (Redeeming) Eigenshaften, suggested to the East Germany government?  Why not just "dissolve the people / And elect another?" 

That's what's so exasperating about the book.  Eisgruber understands that political hardball will instantly end confirmation-hearing farces.  But he can't bring himself to recommend any course of action that genuinely challenges the status quo.   It's just not in his nature.  His talk about the American people giving up tantalizing concepts is just a word-processed way of drifting into irresolute silence.

It's as if Eisgruber - who, I'm sure, is the very soul of stability - has two personalities: the smart one who notices things and the conventional one who shushes the first.  And they took turns writing this manuscript.

An example: he says (several times) that Eisenhower was the last President who disregarded the ideology of his nominees, choosing justices based solely on perceived legal ability.  He also notes that two of Eisenhower's appointees, Brennan and Warren, were leaders of a Court that "rendered a series of ideologically charged decisions ensuring that no future presidential candidate [after Eisenhower] would be able to ignore the Court."   (He repeats that thought, too, in various phrasings.)

Elsewhere, Eisgruber notes that it's unlikely any future President will nominate someone from the opposing party (as both Eisenhower and Truman did), "given the Court's role and visibility in the post-Warren Court era". 

But he never ties together these various observations.   It's true that the Warren Court increased the Court's role and visibility, but that's just a polite way of saying it asserted vast new powers over the democratic branches of government, buying off Congress by giving it increased power over the states, and buying off state-court judges by giving them increased power over the other branches of their governments. 

Eisgruber notes the most obvious example of this process when he writes that for 20 years groups on both the right and the left "have cared above all else about what Supreme Court nominations will mean for the future of Roe and abortion policy in the United States."   After Roe v. Wade, there was no other way for abortion opponents to seek to change national policy.  By eliminating democratic change as an option, the justices practically insisted that all future vacancies on the Court would occasion intense political campaigns devoted to the issue.  The Court did that - it changed the nomination hearings into referenda on abortion.

The same is true of criminal law, the area of American life in which the Court has exerted the greatest influence in the past 50 years but a subject Eisgruber hardly mentions.  (Princeton men don't do criminal law, darling.   Their security guards take care of it.)

Starting during Eisenhower's second term, the Supreme Court took away a significant part of every local community's authority to order its own society.  The only way for local communities to regain the autonomy they enjoyed (and sometimes abused) in the early 1950s is to (1) ignore / work around the Supreme Court; or (2) attempt to influence the nomination and confirmation of Supreme Court justices.

Think of your favorite political cause.  The Supreme Court has left grubby fingerprints all over it, hasn't it?  You have to search hard for an unsmudged cause in modern America.  That's why I think confirmation hearings for Supreme Court nominees ought to be at least as contentious as congressional and presidential campaigns.  After all, in our post-democratic nation, members of Congress and Presidents don't have any power to make ultimate decisions about an ever-lengthening list of issues.

But although I think Eisgruber understands this, he's wholly committed to the Goodness and Rightness of all things Supreme Courtish.  The law operates like a religion (see post 332) and former Supreme Court clerks, who owe their careers to having been singled out by a justice, tend to be worshipful acolytes.  (See post 204.) 

So Eisgruber winds up saying, in consecutive paragraphs: "Unlike other federal courts, the Supreme Court has a discretionary docket.  The justices, in other words, have the power to choose which appeals they will hear.  ... The Supreme Court's docket ... require[s] the justices to make politically controversial judgments."  (My italics.) 

Freud would have made much of the juxtaposition of such  obviously contradictory sentences just a few lines apart.   (Page 28 if you're following along at home.)  It's necessary for Eisgruber's policy prescription ("try to make the best of it") to pretend that the justices have no choice but to nullify democratic choices.  But he knows that's just not true.  He's honest enough not to hide what he knows, but too successfully conventional to integrate it into his recommendations.  (See post 329.)

The late Meg Greenfield's last book, Washington, includes a taxonomy of Washingtonians that includes the Grown-Up Good Child - those handy, capable people who live to please powerful mentors.  Grown-Up Good Children prosper in  hierarchies - think of the former Supreme Court clerks that have gone on to become Supreme Court justices (Roberts, Stevens, Rehnquist, Breyer).  Greenfield put herself in that category, and I suspect Eisgruber belongs, too.   Grown-Up Good Children don't bite the hand that fed them.  

Then again, maybe it's simply the case that, after mature reflection, he approves of our reversion to a government of unaccountable elders.  After all, that's the way our ancestors did it in the Pleistocene, so evolutionary psychology supports it.  I mean, just look at street gangs, Mafia families and prestigious law firms.  You trying to tell me the similarities are coincidence?

John Ferling's book Adams versus Jefferson: The Tumultuous Election of 1800 is one of those books of serious popular history that requires you to first plough through a prolonged introduction designed to bring up to speed everyone who dozed through 10th grade history.  But once you get past the World Book-style pen portraits of the protagonists - and so long as you can tolerate the author's spendthrift use of derogatory adjectives to describe James Madison - you can find a lot of information and insight. 

While the judiciary as an institution is hardly mentioned, Ferling provides this extremely useful summary of the dominant political outlook of our third branch (well, third in the order in which it's mentioned in the Constitution, if in no other sense):

[A]s was true of most Federalists, [John] Adams was alarmed by signs that America was democratizing. Before political parties existed in the 1790s, Adams had published warnings about how partisan electioneering – what he called the "Cankerworm" that had brought down every previous republic – would corrupt the American political system.  When caught between powerful rival interests, democratic politicians inevitably would be driven to deceit, he had predicted.   Virtue and integrity would vanish.  Revenge and malice would prevail.  Voters would be duped and the press misled, pushing the system toward an unsavory end – a democratic tyranny in which the majority plundered the minority.  For Adams, the notion that government could realize the will of the people was disingenuous.  Society was divided into so many competing interests that a single popular will seldom existed.  Furthermore, while humankind was all one species, Adams insisted that "Man differs by Nature from Man almost as much as Man from Beast."  It was impossible that all could have their way or be fulfilled.  Instead, Adams favored a system in which the brightest and most virtuous men could be drawn into public life but then be insulated from the necessity to pander to the popular thirst.  If somehow the independence of good men could be preserved, so that they could govern prudently and judiciously, the result would be good government for the greatest number.

Those last two sentences come closer than anything else I can remember reading to describing the politics of the judicial branch. 

Most judges don't see it as a question of politics, I think.  At most, they might grudgingly admit that those two sentences capture something of their idealized self-image.  They might even say that they "strive" (a favorite judge's word) to achieve that ideal.

But the Federalist concept of good government is politics, all right.  It's big-picture politics, not the poll-tested where-we-stand-on-the-issues politics of "pander[ing] to the public thirst", but politics all the same.

All the tedious, predictable studies about "drifting" Supreme Court justices look at the issues between the parties and ignore the meta-politics of the Court itself.  Supreme Court judges "drift" in only one direction: toward greater concentration of power in "the brightest and most virtuous men" (and, grudgingly and only lately, women) in the name of preventing "democratic tyranny" - although the justices and their lower-court servants prefer the adjective "majoritarian."  (See post 54.)

The odd thing about Ferling's book is that he seems to think the Jeffersonian Republicans won the election of 1800.  For the first 28 years, that was true enough.  But looking back on it from the perspective of 207 years, it seems obvious that the Federalists are in charge.

That's a pretty provocative headline, isn't it?  But it's a common phrase, frequently found in the English-language media in Indonesia.  It's even used by legislators:

There remains a low rate of reform in the Supreme Court and the mafia still exists within its ranks, experts said Thursday.

Mahfud MD, a legislator from Commission III with the House of Representatives, said the court's reform process had failed because of judicial corruption and the court's mafia.

"If reform is measured by the process of cleaning out the mafia, then we must say the Supreme Court under [Chief Justice] Bagir Manan has failed to reform," he said.

In an effort to fight judicial corruption, the legislature created an oversight body called the Judicial Commission - which the Supreme Court, in a casually contemptuous display of what judicial power really means, declared the Commission unconstitutional.  (See post 161.)  The fatal flaw in the concept of constitutional government - the thing that prevents it from ever truly coming into existence - is that someone has to be the final arbiter. 

A law professor gave the principled explanation for the status quo (a duty law professors can generally be relied upon to perform):

Law professor with Airlangga University in Surabaya Jacob Elfinus Sahetapy said, "In order to see a full reform of the Supreme Court, the Judicial Commission must be reinforced so it can discipline corrupt judges".

"But the commission cannot interfere in judges' rulings ... internal supervision is needed.

It's a classic lawyer's way of processing information (I don't think it can be accurately termed "thinking"): first you establish categories, then you slot items into them.  The grid is constructed first, then imposed on reality.  The burden is on reality to conform to theory.  The underlying assumption of Elfinus's categories - that "disciplining corrupt judges" is somehow different from "interfering in judges' rulings" - isn't examined.  It can't be, or his comment would be nonsense.

But, to be fair, the professor also pointed out the fundamental problem of transparency:

Elfinus also said mafia practices were impossible to trace.

"And it's getting darker and darker inside the court, with no obvious reform."

How many Americans can say their judiciary's practices are transparent to outsiders?  Or even insiders?

Mahfud, the Indonesian legislator, referred to the fish rotting at the head:

"The case of Harini Wiyoso is an example and proved mafia practices still exist."

Harini Wiyoso was a lawyer for Probosutedjo, the step-brother of Indonesia's former President Soeharto. Harini tried to bribe Chief Justice Bagir Manan and several other judges in 2005.

This is a pretty cryptic reference, possibly because the Jakarta Morning Post, where all this comes from, didn't care to court a libel charge from Chief Justice Manan.  But here's some background:

In September 2005, Manan headed a panel of judges presiding over Probosutedjo’s appeal against his corruption conviction.  Controversy erupted when the KPK arrested Probosutedjo’s lawyer and five Supreme Court officials on suspicion of involvement in bribery. The lawyer said she had paid a bribe of Rp6 billion – of which Rp5 billion was intended for Manan – in order to have Probosutedjo’s conviction overturned. Probosutedjo admitted to paying the money, as well as another Rp10 billion to lower courts. Manan denied any involvement and appointed a new panel of judges to handle the appeal. Probosutedjo was subsequently jailed and the lawyer is now on trial. Manan has repeatedly refused to cooperate with officials investigating the case.

(In September, 2005, five billion Indonesian rupiah were worth just under half a million dollars.)

Naturally enough, lawyers in the underlying corruption case wanted to hear from the supposed chief beneficiary of the accused's largess:

[J]udges presiding over the ongoing corruption trial of Probosutedjo’s lawyer recently rejected the prosecution’s demand to summon Manan as a witness, even though the case is centered on allegations that he was to have received the lion’s share of the bribe.

So the Judicial Commission can't investigate judicial corruption because, under the Constitution, only the judiciary can investigate its own.  And the judiciary won't investigate it.  Which means ...?  You got it. 

I like one legislator's endorsement of the chief justice, evaluating him in the context of his judicial peers: "Bagir is the best of the ugliest."  Now there's something to carve on a tombstone.

Legislator Almuzamil Yusuf was less enthusiastic ...  "Judges in the Supreme Court must not be so over-confident as to think their prerogative to issue verdicts means they cannot be monitored. If that happens, it means the judges regard themselves as the absolute gods in the world of justice," he said.

Well, yeah.  But that's the point.  It's fun to be an absolute god.

Indonesia Corruption Watch produced a white paper titled Lifting the Lid "Judicial Mafia", the power of which is only slightly undercut by its use of an unidiomatic English typified by that title.  But the author strikes off a very evocative phrase: "justice market" (p. 5).

According to the paper, the corruption begins with the police and extends through the prosecutor's office, and many lawyers find it prudent to keep judges on a kind of retainer, paying monthly fees - which, I think (using a lawyer's classification system), ought to come under the category of "extortion" rather than "bribe." 

Another paper, the 2005 report of something called the IMF/Netherlands Program for legal and judicial reform in Indonesia, provides some history explaining how things got so bad.  It was different in the 1950s, when the Indonesian judiciary performed with a high degree of professionalism and integrity.   Then came The Year of Living Dangerously (the year, not the whitey-centric movie):

Weakened by regional rebellions, cold war interventions, political party conflict, and an increasingly active army with political ambitions, the Parliamentary government fell apart in 1957. President Soekarno assumed increasing political responsibility; under army pressure, in 1959 by decree he replaced the provisional parliamentary constitution of 1950 with the strong presidential constitution of 1945. In the new regime of Guided Democracy (1959-1966), characterized by high levels of political tension, concentration of authority in Jakarta, and street level political conflict, nearly all governmental institutions were rapidly shorn of their autonomy and mobilized for political use. During these years Indonesia’s prosecution and courts were undermined by political engagement and the rapid spread of corruption as they, like other government institutions, were liberated from effective oversight in a fortress government subject to few limits.

Under the New Order regime (1966-1998), following a coup in October 1965, the structural dimensions of Guided Democracy were maintained, but leadership and control were now vested principally in the army as the base of political authority. As it became clear that General (later President) Suharto had no intention of restoring the independence and authority of Indonesian judicial institutions, the condition of the prosecution, courts, and notariat quickly declined further, as the corruption begun under Guided Democracy accelerated along with economic growth. At the same time, the private legal profession grew exponentially during the economic boom of the late 60s onwards, diversifying as it multiplied into distinct classes of litigating advocates and commercial “consulting” or office lawyers. While it retained a number of honest senior and junior attorneys, the profession too was quickly and deeply corrupted, widening by degrees the “judicial mafia” that had begun to develop during the mid-1960s of judges, prosecutors, and advocates. No less was true of the quiet but unavoidable notariat. Over a period of about forty years, judicial corruption had become so imbedded that many judges, prosecutors, and private lawyers conceived it less as corruption than as normal interchange or perquisite or simply the way things were done.

A number of themes make their Linda Hunt-like supporting roles in that description: the corrupting effect of concentration of power, for instance.  And that talismanic phrase "judicial independence", although the major problem with the current Indonesian judiciary is precisely its independence from external control.  Then there's the 1960s vogue for using judicial power to further policy goals unrelated to the guilt or innocence of the accused.

Those themes are, perhaps, not unique to Indonesia's judiciary.

How corrupt is government in America?  If you ask Americans, the answer is: Not so clean.   Transparency International's Corruption Perceptions Index is a sophisticated statistical melding of various surveys intended to measure public perception of corruption in governments around the world.  In the latest edition (click on the "media pack" link), the United States ties for 20th place with Chile and Belgium, just ahead of Spain, Barbados, Estonia and Malta -- the last of which has been the scene of a long-running, fairly spectacular judicial corruption scandal.  (See post 71.)  

We're behind all the Western European nations except Spain and Portugal, and they're nipping on our heels at # 23 and # 26, respectively.  Well, Greece is in 54th place, but that dismal score tends to confirm the geographical point that, while Greece is the source of Western European civilization, it's not really part of Western Europe. 

In their most recent report, which focuses on corruption among judges and their staff, TI tried to tease out perceptions of corruption in the judiciary as opposed to the government as a whole.  After all, we all know that cops and lawyers can be paid off.  "Can judges and court staff take comfort from the hypothesis that respondents often think of lawyers and police when asked about judicial corruption, and not the actual arbiters of justice?  According to this special edition of the Global Corruption Barometer, the answer is 'no.'"  [page 12]

When asked specifically about corruption among judges, Americans rank their judges just slightly more corrupt than those of ... Greece.  (See post 215.)  We're only three places ahead of Romania, a nation that is constantly in the news for its corrupt judiciary.  We're behind Kenya, Colombia, the Philippines, South Africa and Italy.  [page 13]

How is that possible?  Well, methodological flaws provide one obvious explanation, although I would have to think that the semi-science of polling is probably more developed in the United States than anywhere else in the world.  That is, I'd be more inclined to suspect distortions in surveys conducted in, say, Colombia, with its American-sponsored low-intensity civil war, than those conducted in such a thoroughly market-segmented population as ours.   If so, that means the international comparison might be off, but not the percentage of Americans who perceive their judiciary as corrupt.

Another explanation for public perception of judicial corruption seems at first comforting, and that is: Americans have much higher expectations of their judiciary.  For instance, only 2% of citizens of the United States and Canada report paying bribes to judges, which is twice as high as the number of bribes reported in Western Europe (including poor old Greece) but much lower than the numbers in every other geographical region.  [Page 11, table 1]  So when Americans describe their judiciary as corrupt, they're not necessarily talking about corruption in the crude -- and filmable -- sense of cash in an envelope.

TI says the four problems most commonly identified in country studies of judicial corruption are the following:

1.  Judicial appointments  Failure to appoint judges on merit can lead to the selection of pliant, corruptible judges
2.  Terms and conditions  Poor salaries and insecure working conditions, including unfair processes for promotion and transfer, as well as a lack of continuous training to judges, lead to judges and other court personnel being vulnerable to bribery
3.  Accountability and discipline  Unfair or ineffective processes for the discipline and removal of corrupt judges can often lead to the removal of independent judges for reasons of political expediency
4.  Transparency  Opaque court processes prevent the media and civil society from monitoring court activity and exposing judicial corruption.  [Executive summary page 4]

All four of these problems are abundantly present in the American judicial system, though not always in the sense intended by TI.  Many details are much different here than in most Third World or Newly-Independent countries.

As for number 1, TI devotes a special section to the role of campaign contributions in American judicial campaigns [pages 26-31], and no one can seriously doubt that many contributions are the products of lightly-disguised extortion.  Judicial elections encourage gangster judges, allowing those so inclined to use their judicial power to run protection rackets: "Nice business you got here.  You must be proud.  What a shame that you got tangled up in that bet-the-company litigation.  Incidentally, I'm holding a fund-raising event next weekend."

Unfortunately, the only alternative to judicial elections that anyone in America has figured out is back-room political deals, in which wannabes pay for their nominations by contributing large sums of money to prominent politicians or otherwise making themselves politically useful.  (See post 235.)  The late Judge Richard Arnold, for instance, who since his premature death seems to have apotheosized into a reincarnation of Learned Hand ("the greatest judge never to serve on the Supreme Court"), lost two congressional races before taking a water-carrying job with Arkansas Governor Dale Bumpers, who then went to the U.S. Senate, from which post he could boost his aide into a federal judgeship. 

It doesn't make Arnold any less distinguished a judge to acknowledge that he acquired the opportunity to distinguish himself only by first paying considerable political dues.  Nor does it denigrate him or any other federal judge to say that the way we pick our federal judges is nothing fancier or more edifying than Andy Jackson's spoils system.  (See post 85 and post 165.)

As for number 2, whether or not federal judges are underpaid in any realistic sense doesn't matter: they have a Chief Justice of the United States telling them they're so drastically underpaid it's a "constitutional crisis."  New York's judges have apparently been driven insane by their low pay - they're seriously talking about filing suit against the legislature.  It must be said, however, that some of the state's non-lawyer magistrates are paid peanuts.  (See post 172.) 

As for number 3, dealing with judicial discipline – Well, it can be arbitrary and political, even if the politics involved are more refined than a simple question of which party one belongs to.  (See post 286 and post 287.)  Judges at the top of the heap are immune from ethical rules, provided only that they avoid getting convicted for major felonies.  (See post 198.)  Judges control the system for professional discipline of lawyers and use that to their advantage, suspending or even disbarring lawyers who expose judicial bribe-taking.  (See post 12.) 

And then we get to number 4.  The American judicial system is thoroughly opaque.  Every lawyer knows that newspaper accounts of judicial proceedings are generally uninformative to the point of being misleading.  You can read a lengthy article without ever finding out what actually happened.  Partly that's because journalists are ignorant or biased, partly that's because lawyers won't speak candidly about their cases because their job is to spin, but mostly it's because judges want it that way. 

The ever-entertaining New Jersey Supreme Court came right out and said it: "In an ideal world a free press would seek to foster fair trial rights by not circulating inherently prejudicial publicity at least during a time of trial."    That is, in an ideal world, a free press would not exercise its freedom.  Citizens would have no right to know what their government was doing (or failing to do) on their behalf "at least during a time of trial" and maybe the rest of time, too.   After all, what goes on in the courtroom is so extremely important to society that society needs to be kept in the dark about it.  (Think Dick Cheney and you get the idea.  Almost every practice of the Bush Administration that liberal intellectuals describe as trampling on the Constitution has its precedent in the judicial branch.  See post 261.)

But the most pervasive source of corruption in the American judiciary escapes TI's generalizing list, for the simple reason that our judicial system is so much more developed than those of most developing countries.  Judicial dependence in the sense intended by TI -- political bosses telling judges how to rule -- is hardly unknown in America, but I don't think anyone could seriously believe it's nearly as pervasive here as it is in many other countries.

Our judiciary is very independent.  But that, by itself, is neither a good nor a bad thing.  It depends on: Independent from what?  The biggest source of judicial corruption in America is judges' independence from democracy and from the law itself.  When "the law" -- and, in particular, "the Constitution" -- means nothing more than what a judge or group of judges says it means, we have passed from judicial independence to judicial autonomy.  We are returned in time to 1775, to an America ruled by a monarchy resisting the very idea of popular sovereignty.

Yesterday's end-of-term exercises in power politics – I mean, decisions from the Supreme Court are the subject of much predictable commentary about how "[t]he five conservative members of the Supreme Court continued to assert their influence" and "[t]he Supreme Court on Monday handed President Bush and the Republican Party two victories" and so on.

The cases decided yesterday (whether judges should permit voters to exert democratic control over political campaigns, whether school districts should be governed by elected school boards or by unelected judges) and the media reaction to them perfectly illustrate two more of the paired maxims of modern American jurisprudence.  Previously this blog described this pair:

• Judges have the authority to make basic decisions about the acceptability of violence in society.
• Judges have no responsibility for the consequences of their decisions about the acceptability of violence in society. 

That pair of maxims is right at the heart of the modern judicial project.  Post 281 can similarly be boiled down to another pair of maxims:

• Judges have a constitutional duty to protect against encroachment "the jury's traditional function of finding the facts". 
• Judges have a constitutional duty to prevent juries from hearing evidence relevant to their factual determinations.

Yesterday's Supreme Court decisions, and the media's what-did-you-expect reaction, illustrate a third paired set of maxims:

• The Supreme Court exercises awesome power in our society because it enforces the fundamental principles embodied in the Constitution.
• Supreme Court justices decide cases based on their political predilections.

Lawyers and judges find it easy to accept each of these pairs of maxims because they went to law school, and the purpose of law school is to teach students how not to think.  (See post 256.)  More specifically, law schools teach students to stop thinking and instead engage in scholastic reasoning from authoritative first principles, and the first of the first principles is the inerrancy of the Supreme Court. 

The fundamental premise of everything lawyers and lower-court judges do is that everything that the Supreme Court says is correct and authoritative - or, rather, authoritative and therefore correct.   It is no more possible for the Supreme Court to err than it was for the Bible to do so, in the worldview of Galileo's antagonists in the Vatican of the 17th century - or the Southern Baptist Convention of today. 

All lawyers are Supreme Court fundamentalists not only by training but also by practical necessity, because once you're caught inside the pyramid of judicial power, with the 9 justices sitting on top like the disembodied eye on the back of the dollar bill – or, come to think of it, where else have I seen disembodied eye in the last few years? – you have to accept the inerrancy of the Supreme Court for the same reason you had to give your lunch money to the school bully. 

The peculiar thing – the thing that resists explanation – is that people outside the pyramid, people who enjoy a freedom of action and speech that is denied to practicing lawyers and lower court judges, such as, say, reporters for the major dailies, accept the validity of the maxims without any apparent sense of cognitive dissonance. 

Why don't the reporters and editorial writers who complain about "Chief Justice John Roberts’s new conservative majority" follow the logic of their own observation?

Justice Souter said something extraordinarily revealing the other day, in the Court's latest (but only third- or fourth-lamest) sentencing decision.  (See post 280.)  He wrote: "The Sixth Amendment does not, of course, speak expressly to such a [sentencing] scheme, but that is not a sufficient reason to give it constitutional approval."

Constitutional approval?  Curiously enough, the Constitution uses that verb "approve" in Article I, setting forth the nation's legislative powers.  But by some unaccountable error, the Framers accidentally said that the power of approving legislation rested with the President, rather than with the Court.  When you study the thing closely through the clarifying lens of Supreme Court decisions, it's amazing how many typos can be found in the Constitution.

Note that immediately before using that phrase "constitutional approval", Souter pointed out that the Constitution doesn't actually say anything about the matter, one way or the other.  "Constitutional," in his usage, doesn't relate to the Constitution.  It's just a more formal way of referring to the Supreme Court.

No matter how many times the Supremes tell us that it's just too tacky to imagine them doing anything quite so infra dig as merely deciding cases (see post 7), it's very difficult to break the habit of thinking of the Court as a court.

It's easy to fall into the trap of thinking that Massachusetts v. EPA was a case about greenhouse gases, or that the recent death penalty cases out of Texas were cases about the death penalty in Texas.  In fact the Court's decisions had almost nothing to do with those particular subjects.  Almost nothing, because the subjects lent themselves to many pages of narrative prose, which in the military is called the deception strategy. 

In the run-up to the first Gulf War, the Marines spent many days practicing amphibious landings in front of CNN's cameras, while the Army, far inland, prepared its actual advance across the desert -- an attack that met little resistance because Saddam Hussein's troops were stationed to repel the Marines that their TV-viewing had conditioned them to believe would soon be splashing out of the waves. 

In the same way, the Supreme Court typically devotes many pages of its opinion to detailing the facts of a given case before announcing rules of universal application.  But the Court's disposition of the particular case is rarely more than an illustration of how the new rules work - and often enough it's not even that but a rarely-to-be-repeated anomaly.  (See post 228.)  Judging a Supreme Court case by its facts is like judging an instruction manual by the artistic quality of its line drawings.  The critique isn't invalid, exactly, but it misses the point.

To bring the analogy a little closer to home, the facts of a case decided by the Supreme Court might be compared to the affecting anecdotes that congressmen invite witnesses to tell during televised committee hearings.   Listening to a family farmer talk about the daily struggle to make ends meet on grandpappy's homestead is, admittedly, more enthralling than the details of cotton subsidies, but the two really don't have much to do with each other. 

The media, which likes stories, will report on the facts of a Supreme Court case while all but ignoring the actual decision rendered by the Court. 

The real point of the EPA case is summed up by Max Schulz at the Manhattan Institute: "It merely increases the power of the unelected judicial class to make the laws our elected representatives at all levels should be making."   That's not an effect of the ruling.  It is the ruling. 

The issue being decided was not whether greenhouse gases should be regulated, or even whether the EPA had fulfilled its duty under the law to decide whether or not they should be regulated (which is more or less what the Court actually said - in technical legal terms, the ruling was pretty much a writ of mandamus, except that a writ of mandamus would have been improper, so they couldn't call it that).  The issue was whether the power to make that decision should be exercised by judges or by elected officials.

With respect to greenhouse gases and the Bush EPA, the effect of the ruling is less than zero, since the EPA's front office will be restaffed in just another 20 months anyway, and even the least-competent Washington bureaucracy can stretch out any rule-making process that long.

For environmentalists, the prospect of our national environmental policy being administered by Bush's EPA until January '09 is pretty alarming.  I think they need to start worrying that it will be be administered by Bush's federal judges for the next half-century. 

If you devoted time to the project of inventing the most ridiculously inefficient system of environmental regulation imaginable, I don't think you could top the federal lawsuit, which after years of litigation can, at most, determine that an executive branch agency failed, long ago, to fulfill the legislative branch's will. 

The court can attempt to remedy that failure by ordering the executive branch agency to buckle down, and then for the next 10 or 20 years the focus of the litigation will shift to the question whether the executive fulfilled the judicial branch's will.

This type of litigation quickly begins to resemble a fractal generator, patterns endlessly subdividing into smaller patterns forever.  The original point is almost instantly lost.  Just think for a moment about how many consent decrees have been entered into in the past 30-40 years.  And now think about conditions inside American prisons, the quality (and racial composition) of our public schools, our society's treatment of the seriously mentally ill, and the way in which we treat children without families. 

I don't mean to imply that the whole experience of judges managing executive branch agencies by court order has been an unbroken record of utter failure.   Doubtless the record has been broken somewhere, and certainly some failures are sub-utter.   Nonetheless, as a broad generalization, I don't think I'm entirely out of line to suggest that judges are not ideal executive branch managers. 

For example, imagine if President Bush announced as his nominee to head the EPA a person who had no post-secondary education in any technical field relating to environmental science beyond biology 101, who had never supervised an organization with more than three employees, and who proposed to work at the agency only part-time. 

At least, if the President had done that, his appointee likely wouldn't go to work in the same black polyester dress every day.

In the Texas death penalty cases, the issue was similarly straightforward.  The Constitution specifically says that Congress has the authority to define the powers of federal courts.  The question before the Court was: should federal courts respect Congress when it exercises that authority?  The Court's answer was: You talkin' to me?  

One can oppose the death penalty – one can agree that Texas's administration of it is a  reflection of a brutally violent culture rather than a corrective to it (see post 62) – even that it deserves to be called all sorts of headline-worthy names such as "lethal injustice" – and still say, even if a bit tentatively or even plaintively: Maybe, I dunno.  Maybe the Court really should try to, you know, obey the law?

All you have to know about the real meaning of the Texas cases is summed up by Chief Justice Roberts (I've gently de-legalesed the following):

This Court had considered similar challenges to the same instructions no fewer than five times in the years before the state habeas courts considered the challenges at issue here. ...  Under the [governing statute], a state-court decision can be set aside on federal habeas review only if it is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."  When this Court considers similar challenges to the same jury instructions five separate times, it usually is not because the applicable legal rules are "clearly established." The Court today nonetheless picks from the five precedents the one that ruled in favor of the defendant and anoints that case as the one embodying "clearly established Federal law."

Of course the majority opinion (written by Justice Stevens) didn't really mean that the one case was clearly established federal law while the other four weren't.  All the majority meant was:  You can't stop us.

John Yoo isn't the sort of guy I would have pegged as an acolyte of William S. Burroughs, the gay junkie avant-grade novelist.  But then Burroughs was an enthusiastic - dare one say over-enthusiastic? - gun owner, and he did come from money, and he certainly favored a gray flannel look.  Reason's blog is probably right that his politics, to the extent they possessed any coherence, were libertarian-conservative.  Take a look at these quotes: many would sound incongruous coming from Wayne LaPierre, but by no means all of them.

So maybe it's appropriate, after all, that Yoo seems to have appropriated Burroughs' cut-up technique.   His book, War by Other Means: An Insider's Account of the War on Terror, reads as if a short memoir of his two-year visit to real life, random pages from his law review articles and a year's worth of Karl Rove blast-faxed talking points were cut up, sprinkled on a roll of butcher paper and then printed in the order in which they fell.  They were adorned with a not-exactly-complimentary lede from a New York Review of Books review ("[f]ew lawyers have had more influence on President Bush's legal policies in the 'War on Terror' than John Yoo") and dumped on an unprepared public.   The New York Times' review captures the weird shifts of tone in the book.

(Many of our best known and most influential lawyers, such as Antonin Scalia and Ruth Bader Ginsburg, hardly practiced law, but Yoo does them one better: he's never practiced the profession.  No wonder he's so confident in his legal opinions.)

But the thing about Yoo's views, and the "unitary executive", and all the rest of the Bush Administration's half-revealed legal doctrines, isn't how weird and far-out they are.  It's how familiar they should seem to lawyers.

I ran a Westlaw search for law review articles by Yoo that used the phrase "inherent power" and came up with 10 hits, and that's not even counting two articles by Professor Christopher Yoo that use the same phrase.  (Has anyone ever actually seen the two Yoos in the same room?)  John Yoo's whole theory (and for all I know, Christopher Yoo's theories, too) are wholly built on the foundation of inherent power.

Back in 1924, Felix Frankfurter and James M. Landis co-wrote an article in which they warned that "[t]he accumulated weight of repetition behind such a phrase as 'inherent powers' ... is a constant invitation to think words rather than things."  (37 Harvard Law Review at 1022-23) 

When you think things rather than words, you realize that "inherent power" simply means extra-constitutional power.  (See post 32.)  Power that's granted by the Constitution isn't inherent in the office, but - by definition - is power bestowed on the office by the Constitution,  a source external to it.  Only power that isn't conferred by the Constitution can be said to be inherent.

Most of the powers exercised by the United States Supreme Court are inherent in this sense.  Even the basic concept of judicial supremacy - euphemistically known as "judicial review", as if it occurred in the back pages of a highbrow magazine - isn't granted by the Constitution, but was assumed by the judiciary.  The power to make prospective rules of universal application, a core legislative function, was first assumed by courts only in the post-WW I era (sometimes with legislative acquiescence).  And it's really only since the 1960s that courts have discovered in themselves a power to refuse to enforce criminal laws.  

If these powers aren't inherent in the judiciary, then the judiciary's exercise of them is politically illegitimate.   Therefore - by the usual lawyer's technique of constructing syllogisms backwards, beginning with the conclusion - they must be inherent.

The Bushies' concept of executive power, I think, boils down to this: The executive branch has the same authority as the judiciary to begin exercising power and then claim it possessed it all along.  True, the Constitution doesn't grant the power, but that's because the power was latent, like secondary sexual characteristics in an infant, to be revealed in the fullness of time.

If you force yourself to think words rather than things, you can (apparently) believe this.  And that's the other way in which the Bush Administration's constitutional vision should be familiar to lawyers: its faith in the efficacy of editing reality. 

Our judiciary has committed us to Trials Without Truth, in Professor William Pizzi's phrase, just as our administration has committed us to a foreign policy based on the careful construction of an alternative reality.  Judges routinely conceal crucial information from juries, while the Bush Administration conceals crucial information from the public and Congress.

And not just from them.  One of the striking revelations of Rajiv Chandrasekaran's beautifully-written, scrupulously-reported Imperial Life in the Emerald City: Inside Iraq's Green Zone is the extent to which the neoconservatives' alternative foreign ministry inside the Pentagon deliberately concealed important information from the Americans charged with reconstruction. 

For example, Jay Garner was sent over to Iraq to organize the occupation government without having seen "any of the reams of postwar plans and memoranda produced by the State Department, or any of the analyses generated by the CIA, or even the unclassified report written by the military's own National Defense University based on a two-day workshop involving more than seventy scholars and experts."  In fact, Undersecretary of Defense Douglas Feith told Garner that no such studies existed.

Why?  Feith figured that, "without a clear blueprint for the political transformation, Garner would turn to [Ahmed] Chalabi and his band of exiles.  Feith would get the outcome he wanted [that is, Chalabi in power] without provoking a fight ahead of time with State and the CIA, both of which regarded Chalabi as a fraud."

(As it turned out, "fraud" may be the least of it: you may recall that Chalabi was accused of passing key American military intelligence to Iran, charges that the Bush Administration seems disinclined to investigate.)

Feith is another lawyer who's spent little time actually practicing law.  But his belief that you can produce optimal results by withholding relevant information from the decisionmaker puts him right in the mainstream of American legal thought. 

Admittedly, the following news story would get better traction in American media if San Francisco, the site of the American Bar Association's 2007 annual meeting, were substituted for Lahore:

Police stood ready in major cities to act against angry lawyers and succeeded in keeping the protests under control in all cities, except in Lahore, where they baton-charged lawyers breaking through police barricades, causing injuries to 40 and arresting about 25.

Aristotle divided the world of poetry into the comic, the tragic and the epic.  Here in America, lawyers, whenever they gather in large groups, show a strong preference for the comic.  The ABA's House of Delegates, for example, is reliably good for a laugh, although it's the same joke every year: the cosmic disparity between the delegates' self-importance and the utter indifference of everybody else in the world.

In Pakistan, however, it's not yet certain if we're in the midst of a tragedy or an epic.  The Sydney Morning Herald has a striking photo of tear-gassed suited lawyers bathing their eyes in a public fountain, dating from yesterday's second day of rioting.  The Morning Herald also provides some much-needed background for those of us coming late to the story:

The second day of clashes between police and lawyers on Saturday over the suspension of Iftikhar Chaudhary on March 9 prompted the President, Pervez Musharraf, to say conspirators were stirring up trouble.

The attempt to get rid of Justice Chaudhary has united disparate opposition parties against the President.

Justice Chaudhary's suspension fuelled suspicions that General Musharraf feared the independent-minded judge would oppose any move by him to retain his role as army chief, which constitutionally the President should relinquish this year.

Pakistan's English-language paper Dawn is all over the story, with at least six articles in today's edition.  Bloggers have picked it up, with Swaraaj Chauhan at The Moderate Voice providing an overview and a link to an extremely useful, short background article from the South Asia Analysis Group.  It should not be surprising that the story intertwines at least three familiar Pakistani themes: corruption; military dominance of government; and CIA / al Qaeda.  A long list of possible explanations - politics is not simple in Pakistan - is offered at Chowrangi.

Mayank Austen Soofi at Blogcritics tells President Musharraf how he can still save the situation.  (I like the name of Soofi's own blog, Ruined by Reading, and can recommend his compilation of sex tips from Jane Austen.)  (Come to think of it, isn't "Austen" an unusual middle name in New Dehli?)  And speaking of unusual names, Teeth Maestro lays it all out in a single breathless sentence:

There is no doubt in any ones mind that Chief Justice Iftikhar Mohammad Chaudhry was corrupt to some degree, and the all mighty and powerful (read Musharraf) actually believed that taking him out would have been an easy walk in the park, it would not be any more difficult then the coop he served up to roust the Pakistani hero Abdul Qadeer Khan, Musharraf I felt honestly believed if he could get away with Qadeer, Iftikhar was going to be more like easy play dead dogie style rampage.

"So," the Maestro adds, "he took a swipe at the Supreme Court."  My personal feeling is that Musharraf honestly believed it was going to be like easy play dead dogie style rampage, he's getting what he deserved.

What can you do if a state government enacts legislation that clearly - no apologies and no doubt - violates the first amendment?  Why, you wait until a court declares the legislation unconstitutional. 

But what happens if the unconstitutional legislation is enacted by a court?

That's not supposed to happen, given our separation of powers.  But, then, "[i]t will not be denied, that power is of an encroaching nature".  After distinguishing in theory between legislative, executive and judicial power, James Madison wrote in The Federalist that

the next and most difficult task is to provide some practical security for each, against the invasion of the others.

What this security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated[.]

The uselessness of parchment barriers is demonstrated by the practice, now universal among state supreme courts, of promulgating rules.  Modern lawyers' lives are so bound around by court-promulgated rules that most don't even know that court-made rules are a recent phenomenon, like zits on a preteen's nose.  Here's a useful short description of the sort of legislation courts enact these days, tracing the history of the practice all the way back to ...  1934.  Blackstone, it ain't.  The modern rules regime is as traditional as a tract home. 

Legislation is easily distinguished from adjudication.  One is forward-looking and of universal application.  The other is backward-looking, applying only to the parties actually before the court.  

A rule issued by a state supreme court is forward-looking, of universal application.  (One might quibble and say it's actually administrative rulemaking rather than legislation, but that just complicates the separation of powers analysis without producing a different result.)

A court that enacts legislation is acting in a legislative capacity.  That, I think, is self-evident.  It's when courts enact plainly unconstitutional legislation that things gets interesting.  Take, for example, Oregon's  Uniform Trial Court Rule 3.120.  It says that "parties, witnesses or court employees must not initiate contact with any juror concerning any case which that juror was sworn to try."  (Lawyers are defined as "parties" for purposes of this rule.  UTCR 1.110(1).)

We've learned recently that judges have a first amendment right to hit up lawyers for campaign contributions, even when those lawyers have cases pending in front of the judge.  (The Arkansas Supreme Court recently observed: "While a regulation limiting solicitation or acceptance of campaign contributions may seem to limit a judicial candidate's conduct rather than his political speech, precedent of the United States Supreme Court instructs otherwise."  [See the Simes decision on this list.]  It's that po-faced word "instructs" that gives the irony its bite.)

If the judge's solicitation of money is protected by the first amendment, how is it even possible to think that the Oregon rule is constitutional?  It prevents a lawyer or a party - a party, just a plain ordinary mossbacked Oregonian - from asking an ex-juror to talk about the only thing they have in common.  The rule is what is known - and here we really are talking Blackstone - as a "previous restraint" on speech, or what's generally called today a prior restraint, and those are prohibited except for reasons as compelling as the prohibition on publicizing troop movements in wartime.  

I don't think it's possible even to argue that the Oregon rule is constitutional as written.  It's not on the border.  It's way out there in the middle of Siberia, about as far from any border as it's possible to get. 

So what's a nice state like Oregon doing with rule like that on its books?

The explanation is one Madison would have no trouble understanding.  According to the Oregon judiciary's website, the rule is enacted by a single person - called, with the proper note of tribal subservience, "Chief."  Yes, the Oregon chief justice is personally credited with enacting the whole panoply of rules governing the practice of law in Oregon's trial courts. 

What trial judge is going to say that the chief justice's own personal rule is illegal?  There's no check.    There's no balance.   So a patently unconstitutional law is maintained in place by the people whose job it is to see that the law complies with the Constitution.

(I don't know of any other state that describes its rules as the accomplishments of the chief justice personally.  You could hardly ask for a more straightforward declaration that government by the judiciary has nothing to do with democracy.)

There's currently a proposal in Oregon to amend the ridiculous rule and it seems to have picked up a fair amount of support.  Here in New Mexico it's customary for the judge to tell the jurors they can stick around if they want, but don't have to.  Usually a few accept the invitation, frequently because they have questions of their own.  What they have to say can be extremely useful.

And it's not just useful in the sense of letting a lawyer know that scratching the interior of his ear with the barrel of his pen distracts from his opening statement, or that heavy sarcasm plays better among his lawyer buddies over drinks than it does on cross-examination of a trembling witness answering in a little tiny voice.  Jurors notice everything, but they often process it in a way that wouldn't even occur to lawyers, who tend to run like slot cars in a single track.

One woman I knew was a juror in a case tried by a fairly well-known attorney.  The judge ruled that a certain item of evidence was inadmissible and the lawyer spent the next half-hour trying to backdoor it, attempting various clever stratagems to get around the judge's ruling.  The jurors thought, I know the judge won't let it in, how come he doesn't get it?  They thought: What an idiot!  (His client didn't win.)

Then there was the parental-kidnapping case in which the husband admitted striking the wife, producing a gusher of a bloody nose.  There was the eyewitness testimony of the neighbor and photographs of blood spattered all over the white door.  There was basically no defense to the charge of battery, so defense counsel devoted her closing to other, winnable points, and the prosecutor hardly said more.  But the jury acquitted on that count.

The acquittal seemed to make no sense, especially since the same jury convicted on other, more complex and contested charges.  But then the prosecutor talked to the jurors after the trial was over and heard: "He didn't intend to hurt her, he just intended to kidnap the kid."   The verdict was actually perfectly logical, if you started from the (mistaken) premise that  "intent" means "motive."

These types of insights can't come from any source but the jurors.  Once their service is over, they and the parties and the lawyers are released from the magic spell of courtroom decorum.  They become ordinary American citizens again.  And American citizens are allowed to converse.

In Jeffrey Rosen's Atlantic Magazine interview (see post 218), Chief Justice Roberts strikes a certain note over and over: 

Roberts added, “I think the Court is also ripe for a similar refocus on functioning as an institution, because if it doesn’t it’s going to lose its credibility and legitimacy as an institution.” ...

“I think that every justice should be worried about the Court acting as a Court and functioning as a Court, and they should all be worried, when they’re writing separately, about the effect on the Court as an institution.” ...

He said that he had to emphasize the benefits of unanimity for individual justices, in order to influence what he called the “team dynamic.” “You do have to [help people] appreciate, from their own point of view, having the Court acquire more legitimacy, credibility; [show them] that they will benefit, from the shared commitment to unanimity, in a way that they wouldn’t otherwise,” he said.  ...

During his first term, he was surprised to find some justices talking openly about how to protect the legitimacy of the Court. His colleagues “are concerned about having new justices on the Court,” he said, and “don’t want the Court to seem to be lurching around because of changes in personnel.”  ...

Throughout its history, Roberts argues convincingly, the Court has best served itself—and the nation—when its individual justices have been willing to subordinate their own agendas in the interest of building judicial consensus and institutional legitimacy.

What is this "legitimacy" that Roberts goes on about?  I think Rosen gets close when he refers to the readiness of "the public to respect the Court as an impartial institution that transcends partisan politics."  "Legitimacy," for the Court - for any court, anywhere - is a measure of the people's willingness to obey it.  It's the court's ability to inspire obedience for reasons other than fear.

How does a court generate legitimacy?  Roberts thinks legitimacy is earned when each member of a court is prepared "to suppress his or her ideological agenda in the interest of achieving consensus and stability."  (No wonder Scalia is dismissive of his vision.)  As an example of legitimacy-building, Roberts cites the example of the late Chief Justice, for whom he clerked:

“I think there’s no doubt that [Rehnquist] changed, as associate justice and chief; he became naturally more concerned about the function of the institution,” Roberts said, pointing out that though Rehnquist had previously opposed the Miranda v. Arizona decision of 1966, which required the police to read suspects their rights, he wrote the opinion upholding Miranda in 2000. “He appreciated that it had become part of the law—that it would do more harm to uproot it—and he wrote that opinion as chief for the good of the institution.”

All of which sounds reasonable, doesn't it?  Certainly not cause for alarm and consternation.  Right?

Now switch gears.  Consider Dahlia Lithwick's disturbing, heartfelt article about Jose Padilla in today Washington Post.  She concludes:

Guantanamo Bay stays open for the same reason that Padilla stays on trial. Having claimed the right to label enemy combatants and detain them indefinitely without charges, the Bush administration cannot retreat from that position without ceding ground. The president is as much a prisoner of Guantanamo Bay as the detainees are. Having gone nose to nose with Congress over his authority to craft stripped-down courts, guaranteed to produce guilty verdicts, Bush cannot call off the trials. The endgame in the war against terrorism isn't holding the line against terrorists. It's holding the line on hard-fought claims to limitless presidential authority.

Having once asserted and then fought for claims of unchecked and unbalanced presidential power, the Bush administration can't back down without giving up the ground it has fought for.  More is at stake than just a concern with losing face, though doubtless that's part of it.  There's an overriding principle involved, but that principle has nothing to do with right and wrong, good and evil, justice and injustice.  It's simply power. 

A shocking thesis, I'm sure you agree.  But this is a law blog, so let's put aside the question whether there's any validity to it.  I want to compare it to what Roberts said.  Roberts said he admired Rehnquist for changing his views about Miranda - or, more precisely, changing his vote - "for the good of the institution."  Doesn't that mean that Rehnquist voted in a way that he believed was inconsistent with the Constitution?  That he valued something else - the institution - above the Constitution?

Should we be reassured that the Supreme Court is basing constitutional doctrine on the justices' concept of what is best for the Supreme Court?  Should we be comforted to think that, even if a new constitutional doctrine is pulled from thin air, without the least basis in the Constitution itself, at least the justices themselves "will benefit"?

Dahlia Lithwick writes in heated prose, expecting us to be horrified.  Chief Justice Roberts talks in reasonable, thoughtful terms to a thoughtful, reasonable law professor.  But the only difference in their messages is that one is talking about maximizing the power of the executive to act without regard to Congress, and the other is talking about maximizing the power of the judiciary to act without regard to Congress or the President.