JUDGING CRIMES

"Historians have long winced at the crude ways that literary scholars and others have wrenched writings out of their historical contexts for aesthetic and other present-minded purposes." 

That's from Gordon S. Wood's collection of book reviews (or, really, essays using book reviews as take-off points), The Purpose of the Past: Reflections on the Uses of History, which is far more entertaining than any description can make it sound.  It was an unlikely candidate for the books-on-tape treatment but I'm grateful the publishers made an exception for it, because it made the weekend drive to Jemez Springs most enjoyable.

In another essay, analyzing a self-described political theorist's tendentious use of history to score political points, Wood writes: "There is nothing wrong with this ransacking of the past by political theorists.  Lawyers and jurists do it all the time.  But we should never confuse these manipulations of the past for present purposes with doing history."

The use of that pretentious word "jurist" is one of Wood's few false steps.  Lawyers and judges do indeed ransack the past for present purposes all the time.   That's what "legal research" is.  You start with the conclusion of your syllogism, add the major premise - the facts of the case - and then start searching for some legal authority to insert into the middle.  An intellectually-honest creme makes for a better Oreo, but in a pinch almost anything will do.   (I hope you don't mind if I don't pursue the cookie metaphor to its all-too-apt conclusion.)

 But sometimes, I'm afraid, Supreme Court justices, who don't enjoy / suffer the peer-review process that keeps historians in touch with reality, confuse this kind of purpose-driven ransacking of the past with genuine history.  I think we can now officially say that Justice Scalia is, historically speaking, delusional.

His recent Giles v. California opinion guarantees a good ten years of litigation and hundreds of incompatible decisions from around the country, so that's good news for all us lawyers practicing criminal law: there will always be something to slot into the middle of any syllogism.  Better yet, this ensures a steady stream of future injustices, which will help sales of my next book.  (See this unnumbered post.)  So I don't mean to look the gift horse in the mouth, not that doing so would tell me anything anyway.

But viewed as history, Giles and its predecessor Crawford are ...  pathetic.  Not simply in the abusive sense of that word, but in the sense of being so far removed from adequacy that you can't help feeling rather churlish to point out their inadequacy, like pointing out the tuning problems of the elementary school orchestra.

Though, of course, the kids are cute.  And, more important, they're trying. 

It's not so much that the members of the Supreme Court are incompetent historians - that's not really a surprise - but that they are wholly unaware of it, as evidenced by the supposedly-erudite Justice Souter's incredibly  fatuous remark: "I am convinced that the Court's historical analysis is sound". 

 Here are some of the key elements of that sound historical analysis:

• The correct interpretation of the 6th amendment depends on an analysis of the original intent of the Framers, but the identity of "the Framers" is never established.  They aren't people but a vague abstraction.
  
• "The Framers" all thought exactly alike and had no disagreements about anything.
• "The Framers" anticipated the passage of the 14th amendment in 1868, which made the 6th amendment applicable to the states.
  
• Rid your mind of any concept of the Constitution as a democratic document, expressing the political will of the people, as expressed in Marbury v. Madison and Federalist 78 (the source of all the ideas found in Justice Marshall's Marbury opinion).  Rather, reconceive of the Constitution as a top-down directive, imposed by "the Framers" on the passive people, because that way only the Framers' views count, greatly simplifying the matter.
  
• To determine the original intent of "the Framers," it is vitally important to examine the fewest types of sources available.  For example, do not, whatever you do, look at trial transcripts, even though those are available in any law library and on the web.   That would only complicate things and might not lead to the result you prefer.
  
• Also, don't look at contemporary newspaper reports or read history books, much less original sources such as private papers.  Rather, look only at legal treatises (the opinions of self-publishing egotists) and appellate opinions (although there was essentially no right to appeal in the few federal criminal trials, and state appellate opinions weren't systematically collected until Mr. West got busy a hundred years later).  The great thing about these sources is that their authors were self-important elitists of the same kidney as modern Supreme Court justices, so their views are emotionally satisfying.
  
• To achieve an ideal result, it is essential to commit as many classic historians' fallacies as possible. 
  
• Giles, for example, relies almost exclusively on inferences drawn from the absence of evidence.  (We have no evidence that Julius Caesar washed behind his ears, so therefore the buildup of layers of dirt from Britannia and Gaul was just dreadful.)  
• Crawford anachronistically ascribed to 18th century folks the concerns of 21st century lawyers about the technical admissibility of hearsay, when as a matter of easily-verifiable historical fact lawyers had very little to do with criminal law as practiced in the 18th century, and most lawyers practicing in small towns had a level of formal education roughly comparable to that of jailhouse lawyers today.
• When it helps your argument, don't be afraid to make up evidence.  That's what Justice Scalia did when he ascribed to "the Framers" an obsession with Sir Walter Raleigh.  (Here it is again.) 
  

I could go on, and I probably will in later posts, but it makes me feel like an impatient high school teacher.  But then, because I'm a softy, I'd probably give my 10th graders a do-over rather than flunking them all.  I'd say: "But this time, people" - I don't know exactly why high school teachers have to call their students "people," but apparently it's in the standard contract -- "I want to see some evidence of effort."

In the Davis v. Washington decision of a couple years ago (see post 127), Justice Scalia's opinion for the Supreme Court contained a footnote explaining that suppression of evidence under the sixth amendment has no deterrent effect on police officers:

Police investigations themselves are, of course, in no way impugned by our characterization of their fruits as testimonial. ...  The Confrontation Clause in no way governs police conduct ...

That's a bit odd, because for the past 47 years the Supreme Court has been telling us that suppressing evidence under the fourth amendment has the effect of "deterring official misconduct and removing inducements to unreasonable invasions of privacy". 

So suppressing evidence under the fourth amendment affects police behavior in a way that suppressing evidence under the sixth amendment's confrontation clause doesn't.  Identical judicial actions produce opposite results. 

This is what I worry about: What if Scalia really believes it?

Have you ever seen late de Koonings?  Well, I haven't, since I live so far from New York.  But in reproductions, all the sometimes-hateful intensity of the earlier works is gone.  In the late paintings, the lines are loose, the colors simple - and many people have wondered whether the new style was the result of de Kooning's Alzheimer's (or alcohol-induced dementia) rather than artistic inspiration.

Comparing opinions like Davis to almost any of Antonin Scalia's opinions from the 1980s produces a disturbingly similar memento mori sensation.  The tight logic has come unwound, the careful use of language replaced by meaningless catchphrase: "testimonial statements are what they are".  That last phrase is lame coming from the mouths of losing football players, and they have the excuse of playing through repeated concussions. 

But then again, maybe there's a deeper meaning to Scalia's words.   Maybe he meant to imply that suppressing evidence under the fourth amendment doesn't affect police conduct, either.  But, no, I'm sorry - he's been a fairly enthusiastic fourth amendment suppressor recently.

The whole idea that suppressing evidence under the fourth amendment has any deterrent effect on cops has always struck me as more a matter of hope than experience.  After all, if after 47 years the rats still aren't pressing the right lever, wouldn't even the most die-hard behaviorist consider the possibility that the experiment is a failure?  (See post 6.) 

What percentage of officers ever learn of the existence of judicial orders denouncing their actions?   Of those that do, how many see any point in ploughing through page after page of lifeless prose to discover what the judge said about them?  And of those who do that, how many can recognize themselves in the judges' words? - that is, how many trust the judge's reconstruction more than their own memories, retroactively shaped as those have been by the need to defend one's actions? 

Furthermore, why wouldn't an officer say exactly what lawyers say all the time, that the judge is full of it? biased? clueless? chummy with / intimidated by the other side? so scared of getting reversed that he bases his rulings on his perception of the bias of the next court up the ladder? 

Besides, is it altogether rational for a person in any profession to follow the advice of someone with no training or experience in that particular profession?  

You wouldn't trust your car to a mechanic whose only training was reading books written by people who had never themselves worked on cars.  You wouldn't trust your health to a physician whose only knowledge of medicine came from reading the works of his predecessors, whose sole experience came from studying the written works of their predecessors.   I mean, that's so 14th century.   

But, nonetheless, the Supreme Court has told us that police officers will trust their lives to judges, changing their future behavior in response to the signals given by judges a year or two after the officer's previous behavior, and so it's true that they do so - or, rather, it's not open for debate, which inside the pyramidal hierarchy of our courts is even better than true.

Scalia's Davis opinion is magical thinking - the belief that words can control reality - and, I suspect, a symptom of a cerebral event, probably a small stroke, that's been kept from us.  But magical thinking is hardly unique to Justice Scalia.  In 1961, the Supreme Court announced the result of its experiment before beginning it, telling us what they were about to accomplish before attempting it.  Abracadabra, my Brethren.

A few weeks ago I suggested, at tedious length, that the patron saint of all that is twinkly, Irish and liberal about the American judiciary appeared in public badly underdressed at certain points during his long career.  (See post 337, post 338, post 339 and post 340.)  So, to even the score, it's time to turn attention to that lowering vulture of American judicial conservativism, the late Chief Justice.  But this time, as Louise Lasser said, with great pith.

In 1992, anti-abortion activists made a big swing at Roe v. Wade but - to the tremendous subsequent benefit of the religious right, which came within an eyelash of losing its defining issue - missed, thanks to the apostasy of Justices O'Connor, Kennedy and Souter, who voted just like all those suburban Republicans who are ideologically committed to banning abortion so long as there is no realistic possibility of it actually being banned. 

O'Connor, Kennedy and Souter - who were chicken-hearted enough to publish a "joint opinion", so no one of them could be blamed - argued that the Court's legitimacy (by which they meant the willingness of Americans to be dictated to) would suffer if it were to "surrender to political pressure" by overruling Roe v. Wade.

Rehnquist wrote a bitter dissent, alternatively mocking and deriding the three justices' professed devotion to the principle of stare decisis - that is, adherence to prior decisions.  Rehnquist's opinion goes on and on.  Here's a handful of representative snippets:

The joint opinion of Justices O'Connor, Kennedy, and Souter cannot bring itself to say that Roe was correct as an original matter, but the authors are of the view that "the immediate question is not the soundness of Roe's resolution of the issue, but the precedential force that must be accorded to its holding." ...

[It is] our duty to reconsider constitutional interpretations that "depar[t] from a proper understanding" of the Constitution. ...  Our constitutional watch does not cease merely because we have spoken before on an issue; when it becomes clear that a prior constitutional interpretation is unsound we are obliged to reexamine the question. ...

But this perceived dilemma arises only if one assumes, as the joint opinion does, that the Court should make its decisions with a view toward speculative public perceptions. If one assumes instead ... that the Court's legitimacy is enhanced by faithful interpretion of the Constitution irrespective of public opposition, such self engendered difficulties may be put to one side. ...

Fast forward eight years.  In his opinion declaring that the Miranda warnings are actually required by the Constitution's amendment V.V (see post 275) -  the one between V and VI that was omitted from so many copies for so many decades due to a printer's error back in Philadelphia in 1791 - Rehnquist wrote:

Whether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now.  ... 

We do not think there is such justification for overruling Miranda. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture. ...

So speculation about public opinion is utterly unacceptable as a tool of constitutional decision-making, while speculation about our national culture is A-OK.  Everyone clear on that? 

In abortion cases, it's wrong for justices to adhere to precedent unless convinced of the correctness of the original ruling.  In criminal cases, it doesn't matter whether the adherents agree with the adhesive in question.  

And, you know, that's clear enough, too, really.

(Here's part 1 of this epic.)

How can you tell when a judge is up to something?  One sure giveaway is the emotive adjective or adverb.  I always tell my students that the strongest argument is the quietest: "The Supreme Court just decided this issue last week."  You don't have to raise your voice or work on anyone's emotions on those rare occasions when the law has truly boarded up all the escape routes.

When federal judge Jerome Frank went on about the "satanic" police serving the "brutalistic" regime in Coney Island, it was because he couldn't carry the day by calmly setting forth the facts and the law.  The hysteria (or, if you're feeling generous, faux-hysteria) of his language was intended to justify the result he reached. 

As a federal judge, he had no authority to substitute his view of the facts for those of the jury and New York state judges, but he got around that by claiming the Nuremberg defense in reverse: I was only disobeying orders.   If he had discussed the facts calmly, as the federal district judge had done (see post 338), it would have been obvious that he wasn't, after all, faced with the same moral imperative as an Auschwitz prison guard.

When Noia's case was argued (and argued) before the Supreme Court, it fell to Justice Brennan to explain why a congressional statute that said "shall not" meant "may."   (See post 339.)  To do so he reached deep into his bag o' modifiers:

Our decision today swings open no prison gates. Today as always few indeed is the number of state prisoners who eventually win their freedom by means of federal habeas corpus.   Those few who are ultimately successful are persons whom society has grievously wronged and for whom belated liberation is little enough compensation. Surely no fair-minded person will contend that those who have been deprived of their liberty without due process of law ought nevertheless to languish in prison. Noia, no less than his codefendants Caminito and Bonino, is conceded to have been the victim of unconstitutional state action. Noia's case stands on its own; but surely no just and humane legal system can tolerate a result whereby a Caminito and a Bonino are at liberty because their confessions were found to have been coerced yet a Noia, whose confession was also coerced, remains in jail for life. For such anomalies, such affronts to the conscience of a civilized society, habeas corpus is predestined by its historical role in the struggle for personal liberty to be the ultimate remedy. If the States withhold effective remedy, the federal courts have the power and the duty to provide it. Habeas corpus is one of the precious heritages of Anglo-American civilization. We do no more today than confirm its continuing efficacy.

Pretty affecting, isn't it? -- so long as you keep yourself from remembering just exactly how society "grievously wronged" Noia: it allowed him to confess to a murder, a confession that the jury found to be voluntary and which was corroborated by the confessions of his two co-conspirators, and then it allowed him to choose not to appeal his resulting conviction. 

Fay v. Noia was a 6-3 decision, with Justice Black in the majority.  Harlan, Stewart and Clark dissented.  Six years later, however, the composition of the Court had changed with Thurgood Marshall replacing Clark and Abe ("Pete Rose") Fortas replacing Goldberg.  

When he wrote the majority opinion in Kaufman v. U.S., Brennan didn't need either Goldberg or Black, and so he could dispense with the cloak of humility.  Black dissented in Kaufman.  In response, Brennan wrote that habeas corpus "contributes to the present vitality of all constitutional rights whether or not they bear on the integrity of the fact-finding process."

The second part of that sentence is very important, for reasons given below.  But look again at the first part: have you ever seen anything so exquisitely devoid of meaning?  Just think for a moment about how you'd go about "contributing" the capacity to live, grow, or develop to an inanimate object.  The real significance of that  string of words becomes apparent only when you look at what it was written in response to.  In his dissent, Black had written:

Surely, it cannot be said of Kaufman, an admitted armed robber, that he is a person whom "society has grievously wronged and for whom belated liberation is little enough compensation."

Black was quoting Brennan's own words of six years earlier.  He was even using Brennan's rhetorical trick of starting his sentence with "Surely."  Brennan's response - that bit about contributing to the vitality of an abstraction - was his way of breaking the news that he hadn't meant a single word of his heart-tugging peroration in Fay v. Noia.  Whether or not Noia had been a "victim," one "whom society has grievously wronged", was entirely beside the point.

Because, according to Brennan, the accuracy of a verdict should not distract one from the real purpose of habeas corpus, which has nothing to do with justice to any individual.  Rather, its purpose is to provide a mechanism for enforcing constitutional rights "whether or not they bear on the integrity of the fact-finding process." 

That means: whether or not a criminal is truly guilty of killing or raping or robbing another human being.  It also means: whether or not the freed criminal will interpret his liberation as permission to kill, rape and rob some more.  It means: justice, either to the individual defendant or to his past and future victims, isn't the goal of our justice system.

The goal, for Brennan, was the concentration of power in the federal judiciary.  And if you think that's going too far, remember that Justice Brennan is also the judge who wrote that a federal judge has the "inherent power" to act as prosecutor, victim and judge in the same case.  That code phrase "inherent power" means power not granted by the Constitution, of course.  (See post 32 and post 261.)  

Brennan was committed to a vision of a nation ruled by judges.  Fay v. Noia and Kaufman v. U.S. reveal that he viewed any sort of intellectual dishonesty as a justified means to that all-worthy end.

I was inspired to set out on this epic by Christopher L. Eisgruber's (see post 333) description of Brennan: "his jurisprudence depended so thoroughly on functional considerations about the judiciary's role as a defender of vulnerable minorities and individuals".  

This is yet another example of Eisgruber's uncritical adoption of every received idea about the law.  (See post 329.)  The chief distinguishing feature of Brennan's jurisprudence was his utter contempt for the most vulnerable of individuals, those whose vulnerability was objectively demonstrated, a grossly disproportionate number of whom were members of minority groups: victims of crime.

What Eisgruber is referring to is Brennan's sentimental rhetoric in such cases as Fay v. Noia.  That rhetoric was, indeed, in tune with the received ideas of law professors of the era - that was why Brennan wrote like that. 

What Eisgruber overlooks, because it's impossible to reconcile with what his professors told him and he's unable to consider the possibility that his valued mentors could be wrong, is Brennan's occasional confession, in cases such as Kaufman, that he didn't mean a word of his own gushing stuff.  He wrote like that because it worked: it successfully manipulated those same unsophisticated professors and assorted naive journalists into accepting the judiciary's authority to shrug off attempts at control by what Brennan called "the political branches" -- his perjorative term for democracy.

In 1972, Noia was arrested for conspiracy to transport stolen Post Office bonds.  He told both the arresting officer and the judge that he was the Noia, but I haven't been able to find out what happened to him after that.

Caminito, Bonino and Noia all confessed to murdering Murray Hameroff.  They were tried together, and the jury found their confessions voluntary.  Noia chose not to appeal.  But after 14 years, Caminito got a federal judge to vacate his conviction, based on the judge's finding that the police acted "satanically" by questioning him "almost continuously" for 27 hours, leaving him alone in an unheated cell for 7 of them.  (See post 338.)

That last bit sounds like I'm being sarcastic, doesn't it?  Check it out: 222 F.2d at 699-701.  Caminito testified that he and Noia got together in the cells (this must have been during the "almost" rather than the "continuously" part) and agreed on a story to tell the cops.  (At 701, if you're following along.) 

After all, isn't that exactly what you would do if you were desperate for the torture to stop - sit down with your friend, talk it over, and make sure your confessions meshed in the details?  It's part of the ludicrousness of Jerome Frank that he flung around psychoanalytic lingo without first obtaining any concept of human psychology.

(His embrace of doctrinaire Freudianism, mid-50s incarnation, has this in common with his denunciation of the Brooklyn cops: both rest on the idea that other people are helpless puppets.)

Anyway, once Caminito got his conviction overturned, his buddy Bonino asked, "What about me?"  Four judges of the N.Y. Court of Appeals heaved a big sigh and said: "Since the United States Court of Appeals, Second Circuit, has held that the writ of habeas corpus must issue to his codefendant Caminito, because his confessions were inadmissible, the defendant Bonino should, in the interest of justice, receive a new trial with his (Bonino's) confessions excluded."  135 N.E.2d at 52.

Three judges, however, weren't so sure: "As to Caminito, the United States Court of Appeals drew factual conclusions widely different from those made by the jury and accepted by us as having reasonable basis in the record.  In reversing now as to Bonino, we are assuming, and acting on the assumption, that the Federal courts would similarly revise our interpretation of the record.  In our view, we have no right or duty to do so."  135 N.E.2d at 754 (Desmond, J., dissenting).

Okay, two down.  That left only Charles Noia, who confessed, was convicted, and never appealed.  A New York trial judge held: "That fraud and misrepresentation were employed to secure the alleged confession which is the only substantial evidence in this case has been authoritatively established in the United States Court's findings, in ruling on the Caminito writ of habeas corpus."  158 N.Y.S.2d at 686.

Of course, Jerome Frank said that Caminito's confession was involuntary, being the product of "brutalitarian" tactics (which isn't exactly the same as fraud - would you buy a used car from this man?).  He didn't talk about Noia's.  But the judge was right about the "authoritatively established" part.  It didn't matter whether the federal court was right, or even rational, because it had the authority, and that's the important thing in the legal system.

The state trial court judge thought it was intolerable to keep Noia in prison on the basis of "a manifestly unlawful conviction".  However, the Appellate Division pointed out that the trial judge's decision was, itself, manifestly unlawful: "No appeal was taken.  This being so, the court was without authority to grant the application."  163 N.Y.S.2d at 797.  The Court of Appeals affirmed, agreeing that as Noia had waived his right to appellate review, his only recourse was to ask the Governor for clemency.  148 N.E.2d at 142.

Naturally, Noia turned next to the federal courts.  The district judge dismissed his petition for habeas corpus (183 F.Supp. 222) but Jerome Frank's old court, the Second Circuit, reversed on a 2-1 vote.

When the majority ordered the writ of habeas corpus to be issued, ordering Noia's release from prison, it was acting on the authority of a statute that said:  "An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State ..." 

How to interpret that?  It depends on what the meaning of "shall not" is.

The dissenting judge - Leonard P. Moore, who succeeded to Frank's seat upon the latter's death - thought it meant something along the lines of "shall not", but he was voted down.  He characterized the majority opinion this way:

The doctrine now enunciated by the majority is that whenever a group of appellate judges wish to depart from previously settled principles, they may find that 'extraordinary circumstances' exist and that such a finding entitled them to ignore on an ad hoc basis all otherwise applicable principles.  (300 F.2d at 366.)

That's not unstrong stuff. 

Anyway, in January, 1963, 22 years after Murray Hameroff (who?) breathed his last, Charles Noia's case was argued for two days in the United States Supreme Court.  Really.  That's what the opinion says: "Argued Jan. 7 and 8, 1963."

It was a simple case, raising just a single issue: if a state court affirms a state conviction on strictly state law grounds, can federal judges ignore the state court's ruling a re-decide the case on federal law grounds?   There was a catch, though: the question was to be answered by federal judges.

The result of all that palaver was, I think, one of the Supreme Court's finest - in the sense of "most characteristic" - moments.   Justice Brennan wrote the majority opinion explaining that when Congress said federal courts "shall not" issue the writ when the petitioner had not pursued his state remedies, it meant "may." 

Brennan reasoned that, because the requirement that a state prisoner first present his federal claims to state court was originally developed in the federal courts as a matter of professional courtesy, therefore when Congress enacted a statute that flatly prohibited federal courts to issue the writ in any other circumstance, it didn't prohibit federal courts from issuing the writ in other circumstances.

It sounds like I'm being sarcastic again, doesn't it?  372 U.S. at 419-20.  And reiterated at 372 U.S. at 434-35.

To support his conclusion that night was day, Brennan relied on the Reviser's Notes to 28 U.S.C. § 2254, which in turn relied on Ex parte Hawk, 321 U.S. 114 (1944).   A few pages later, however, when considering a different point (whether a prisoner should be required to seek certiorari review of his state conviction), Brennan wrote:

It is also true that Ex parte Hawk, 321 U.S. 114, a decision cited in the Reviser's Notes to 2254, intimated in dictum that exhaustion might comprehend seeking certiorari here.  321 U.S., at 116-117.  But that passing reference cannot be exalted into an attribution to Congress of a design patently belied by the unequivocal statutory language.  

Unfortunately, Brennan neglected to explain to the rest of us how to distinguish between those situations in which such exaltation was appropriate and those in which it was not.

Brennan, who was a master of sentimental 19th-century prose style ("precious" was one of his favorite adjectives), prettied up his wine-into-water miracle with lots of flowery words, like these:  "We do well to bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum, in the Anglo-American jurisprudence: 'the most celebrated writ in the English law.'" (That last is, to my mind, rather like describing Delaware as the fairest of the states east of Maryland.)  

After quoting fellow Supreme Court justices that "'there is no higher duty than to maintain it undisturbed'" (none?), Brennan reached the high-water mark of habeas hyperbole:

These are not extravagant expressions.  Behind them may be discerned the unceasing contest between personal liberty and government oppression.  It is not accident that habeas corpus has time and again played a central role in national crises, wherein the claims of order and of liberty clash most acutely, not only in England in the seventeenth century, but also in America from our very beginnings, and today.

Note the only two choices: personal liberty or government oppression.  Which side are you on? 

Before you answer, recall that the Supreme Court is the government, and six of its members had just declared themselves free to disregard a statute enacted by Congress.  "Oppression," in Brennan's usage, was democracy when it interfered with the powers of government, specifically that of the courts.  The "personal liberty" he was talking about was that of federal judges. 

By the way, in case you'd forgotten about the "central role" habeas corpus has played in our national crises, Brennan helpfully dropped a footnote to remind us that after the Civil War was over, the Supreme Court ruled that during wartime civilians could only sometimes be subjected to martial law.  So next time we have a Civil War, we'll know.

Also, the Court once considered the case of men incarcerated for involvement in Aaron Burr's fantastic conspiracies of imperial dominion.  And during World War II the Court denied habeas petitions filed by condemned saboteurs who had been secretly landed by German submarines on American beaches. 

Brennan's final example was the Court's ruling, in the final months of World War II, that a Japanese-American woman who had succeeded in proving her loyalty could, after three years' incarceration, no longer be held indefinitely in a Utah camp (although Justice Douglas's opinion for the Court sidestepped the separate question whether she would be allowed to return to her California home).

Far from being "central" to the Second World War, the Civil War, and the run-up to the War of 1812, these legal disputes hardly even qualify as marginal.  It would be insulting the memory of Justice Brennan to suggest he believed a word of what he wrote.

Six years later he confirmed it was all eyewash.

It's infuriating that the Supreme Court considers itself too grand to explain its plans for us.  We just have to wait until they issue the press releases (called "opinions") justifying those plans after they're already put into action.   But from the PR point of view, there's little room to doubt that the justices are better-advised to preserve a silence that the shallow can mistake for profound or principled. 

Consider this object lesson in what happens when a justice tries to explain himself - and does so with unintended thoroughness.  It's from a Washington Post chat with Robert Draper, compiler of Dead Certain, the Bush Administration's weirdly-narcissistic collective self-portrait:

Alexandria, Va.: Given that John Roberts specifically has repudiated your claim that he recommended Harriet Miers for a Supreme Court nomination, why should we rely on the accuracy of anything else in your book?

Robert Draper: I don't blame Chief Justice Roberts for attempting to disassociate himself from an ill-advised recommendation. But two well-placed administration officials told me about Roberts' advice, and I'm confident in their veracity. By the way, his spokesperson's statement was parse-worthy: "Chief Justice Roberts did not recommend Harriet Miers to President Bush." I believe that's correct; according to my sources, Roberts didn't issue his recommendation directly to the president.

I try to think good thoughts about the new Chief Justice, and I'm sure Bush could have done much worse.  Roberts' dabbling in politics from the Court is a throwback to an earlier age, but seems mild enough as such Fortasizing goes.  The prospect of members of the Court selecting their own colleagues is a little more alarming - the last thing we need is an even more insular Court. 

But it's his indulgence in a not-false non-denial that serves as the clearest warning to the rest of us to keep on our toes.  The plan is for this Jack Armstrong to be Chief for a very long time.  But now we know his public words must be examined closely for what they don't say.

In 2003, Justice Kennedy issued an opinion thunderously denouncing the defiantly racist jury-selection policies officially adopted by the Dallas District Attorney's office of 1963.  (See post 57.)  If he had contented himself with that, we could all say: Better late than never.  But the point of his opinion was that stringent policies needed to be applied today to fix the injustices that had escaped the justices' attention a generation ago.

Shouldn't this be seen as an admission by the Court that for 40 years it failed in its duty to ensure equal justice under law in Dallas?  That idea wouldn't occur to most people in the legal world, I think, and especially not to the justices themselves.  They seem to perceive nothing peculiar about their institution's way of arriving late to the party and then announcing loudly that it's both the host and the guest of honor.

Justice Breyer recently called Brown v. Board of Education "this Court’s finest hour."  Given that he  "married into a well-established family of the British aristocracy", we can be sure that his Churchillian echo was intended.  A beleaguered democracy standing alone against Hitler, a court belatedly overturning its own evil decision of 58 years previously - well, I'll take Justice Breyer at his word, he sees a resemblance.  One of those Madonna-in-the-pancake things, I guess.

But what about those intervening 58 years?  Even if one assumes that the justices of 1896 didn't actually sell their souls to the devil - even if we assume they honestly didn't understand they were institutionalizing the racism of their class and genuinely thought they were fairly interpreting the constitutional phrase "equal protection" (big assumptions, I know, but Supreme Court justices tend to be sketchy about reality) - even on those heroic assumptions, the socially destructive effects of Court-approved racial segregation were plainly apparent long before 1954. 

Brown v. Board of Education was a remedy for the injustices of the preceding two generations.  Even apart from the most important point - that the Court itself was largely responsible for those injustices, by barring the courthouse doors against the oppressed - the slowness of the Court's response illustrates the generation-ago rule.  The Court always works in arrears.

Other examples are provided by some of the Court's most controversial decisions.  Its 1972 ruling that capital punishment was unconstitutional came at the end of a 21-year trend of fewer executions every year.  Its abortion ruling of the next year capped a similar trend toward liberalized state laws.  (Both decisions, of course, decisively ended those trends, with consequences still being felt today.  See post 270.)

And I don't think anyone can doubt that the Warren Court's "constitutionalization" of procedures in state criminal courts was a response to the use of the criminal law as a weapon of racial oppression, particularly but not exclusively in the Southern states.  But that systematized abuse was already apparent long before Miranda. 

I think the evidence is pretty strong that Justice Ginsburg hasn't thought seriously about criminal law since before the Civil Rights Act of 1964.  She's still acting on the shared assumptions of her generation and class - the well-to-do Upper West Side intellectuals of Bob Dylan's folk period.  Judging from her votes in criminal cases, I'm quite certain she sees all cops in terms of the legendary Southern lawmen of the day.  She quite sincerely wishes to right the wrongs of a generation or two ago.

Twenty or so years ago, America saw a wave of bizarre sex abuse prosecutions.  (In some instances the abuse alleged was almost as bizarre as the decision to prosecute.)  The Supreme Court stepped right up to the plate in 2004 and decided Crawford, a case that effectively prevents many child sex abuse cases from going forward - which, I think, was the point.  The Court was offering a remedy for the problems of a generation ago. 

Look around you.  Make a note of current social problems.  Future justices of the Supreme Court are assuredly doing so.  In twenty or forty years, when those same justices are too old and cosseted to have any reason to think about anything new ever again, they'll issue constitutional rulings in great clouds of self-righteousness to right the wrongs of 2007.

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.

You usually know when Justice Scalia is being funny.  He's one of those writers with the ability to laugh at his own jokes in print.  And his jokes are sometimes actually funny, although perhaps not quite as funny as he thinks them.  At the Supreme Court seminar I attended last December (see post 204) we were solemnly instructed always to laugh at the justices' jokes and never, ever to top them. 

(Can you imagine how excruciating it must be if Justice Ginsburg attempts a joke during your oral argument?  As if you didn't have enough to be anxious about, now you have to worry she might accurately evaluate the sincerity of your laughter.)

So I'm inclined to think Scalia wasn't trying to be funny a couple weeks back when he wrote this in a dissent:

The problem with the Court’s approach to determining which crimes fit within the residual provision is that it is almost entirely ad hoc. This crime, the Court says, does “involv[e] conduct that presents a serious potential risk of physical injury to another.” That gets this case off our docket, sure enough. But it utterly fails to do what this Court is supposed to do: provide guidance concrete enough to ensure that the [statute in question] will be applied with an acceptable degree of consistency by the hundreds of district judges that impose sentences every day.

This, mind you, from the same justice who wrote Crawford, announcing that whether hearsay violated the confrontation clause depended almost entirely on whether it was "testimonial", but "[left] for another day any effort to spell out a comprehensive definition of 'testimonial.'"  He did, it's true, add that statements made in response to police interrogations are always testimonial - but two years later he retracted that.  (See post 155.)  So Scalia started us off with an inadequate definition, and then took back part of it. 

So has Crawford "provide[d] guidance concrete enough to ensure that the [confrontation clause] will be applied with an acceptable degree of consistency" around the country?  As part of a research project I'm doing for the National Center for the Prosecution of Child Abuse, I've taken on the task of reading every new opinion construing Crawford - it averages about four every workday.  

There are, as of this evening, 3,911 cases in Westlaw trying to make sense of Crawford - a three-year-old precedent.  The number will be higher tomorrow at this time.  The decisions keep pouring out because no one really knows what Justice Scalia was trying to say.   They contradict each other on almost literally every point it's possible to disagree on, including several that I would have thought were beyond the capacity even of lawyers to find opposite sides to take.

And the author of that opinion lectures his colleagues about the crucial importance of providing concrete guidance for trial judges.  See what I mean?  If he were prone to ironic, self-deprecating humor, we'd have to think he was poking fun at himself.

(UPDATE: If you think that's too harsh, read this post on the Confrontation Blog, maintained by one of the Founding Fathers of the sixth amendment SP 2.  Tell me if you detect any concrete guidance there.  A belief that juries exist to be manipulated rather than informed, sure.  Paradoxical faith in judges even as they continue to disappoint the writer, no doubt.  Nostalgia for the day when Papa could whip his child without busybodies interfering, probably not consciously.  But concrete guidance??)

Then there's Scalia's opinion in Blakely, which inspired The Atlantic's Benjamin Wittes to write:

In the incoherence of its principle, the awesome scope of its impact, and its sheer contempt for so many different institutions in American life, Blakely stands out as the single most irresponsible decision in the modern history of the Supreme Court.

In Blakely, Justice Scalia went overboard with the italics (really, subtlety isn't his strong suit) to tell us that a convicted criminal's sentence may not exceed "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant."  Reading this, it's easy to fall into the trap of thinking that "solely" means something along the lines of "solely." 

Just a few paragraphs later, though, Justice Scalia tried to warn us against jumping to that conclusion: "Of course indeterminate [sentencing] schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion."  And that's hunky-dory.  The principle is clear, isn't it?  Factfinding by a judge is absolute verboten except when - "of course" - it's not. 

Justice Alito recently pointed out the way in which Blakely is like a personal ad: its self-description bears little resemblance to its reality.  (Although Alito didn't make that comparison explicitly, he got the point across.  Look at part III of his dissent here, beginning in the 7th paragraph.)

Westlaw counts 14,001 cases citing to Blakely.  You don't get those kind of numbers if you provide concrete guidance.  When people can figure out what you mean, 14,000 judges and 28,000 lawyers don't have any darkness to make stabs in.

Finally, look who joined that joker Scalia's dissent complaining that the Court's decision "is almost entirely ad hoc".  Why, bless my soul if it isn't Justice Ginsburg! - the author of the Cunningham opinion that struck down California's sentencing scheme based on - well, it's kind of difficult to say what her opinion is based on.  (See post 230.)   "Ad hoc" might be a little too formal to describe Justice Ginsburg's approach in Cunningham.  Ipse dixit, maybe?

There's an explanation for Scalia's and Ginsburg's hypocrisy - indeed, for why they wouldn't consider it hypocrisy at all, if someone had the inconceivable temerity to suggest as much to them.  The inspired new comic strip Retail - well, the name's not inspired - provided the explanation in a recent strip.  Company-man manager Stuart wonders how to persuade customers to buy more service plans.  Marla, our straining-to-remain-uncynical heroine, suggests that the store could start honoring the plans.  "Don't be naive, Marla," Stuart replies impatiently.  "We have to convince people with words, not actions." 

(The syndicate doesn't permit a link to the strip, since, after all, it's more important to control royalties than to develop readership.)

I'm not suggesting either Scalia or Ginsburg is capable of that much insight, much less that much candor, but their conception of words as the cheaper alternative to action is right in line with Stuart's.  Words are tools for getting what you want.  They have no other purpose, and therefore no other meaning.

Mike Luckovich recently published this cartoon, wondering whether President Bush can really veto reality.  Luckovich's blog recommends this David Ignatius column asserting that "only a visitor from another planet" could believe the President's recent praise for the "candor" of an Attorney General who seems almost cartoonishly incapable of telling the truth.  

In official Washington, many influential people believe - or act as though they believe - that meaning precedes reality, and that Rove-like spin isn't just a technique but a philosophy of life.  Ron Susskind famously described a conversation with a Bush advisor:

The aide said that guys like me were ''in what we call the reality-based community,'' which he defined as people who ''believe that solutions emerge from your judicious study of discernible reality.'' I nodded and murmured something about enlightenment principles and empiricism. He cut me off. ''That's not the way the world really works anymore,'' he continued. ''We're an empire now, and when we act, we create our own reality. And while you're studying that reality -- judiciously, as you will -- we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors . . . and you, all of you, will be left to just study what we do.''

This is by now a notorious quotation (although I think there's an element of validity to what the aide was saying: the water in the tank is altered by the elephant stepping into it).  Now flash forward to the spring of 2007, and the U.S. Supreme Court's annual spring ritual of releasing opinions, among them the recent Texas death penalty cases.   (See post 263.)  As described by Orrin Kerr over at the Volokh Conspiracy, one of the cases

considered whether the Texas courts had misapplied "clearly established" U.S. Supreme Court law in a death penalty case.  ... The majority wanted to grant relief, so they tried to make the law seem "clearly established" when it really wasn't. To do this, the majority had to get a little creative in what kind of U.S. Supreme Court law it thought could "clearly establish" the law. Of particular note, today's majority opinion by Justice Stevens twice cites a dissent Justice Stevens wrote in a 1988 case for authority that a particular view of the law was "clearly established."

  At the end of his dissent today, Chief Justice Roberts mocks the idea of getting clearly established law from a dissent. Here's the last paragraph:

      Still, perhaps there is no reason to be unduly glum. After all, today the author of a dissent issued in 1988 writes two majority opinions concluding that the views expressed in that dissent actually represented clearly established federal law at that time. So there is hope yet for the views expressed in this dissent, not simply down the road, but tunc pro nunc [that is, with retroactive effect]. Encouraged by the majority's determination that the future can change the past, I respectfully dissent.

But there is one sense in which last month's majority opinion was entirely accurate when it described Stevens' dissenting opinion of 19 years earlier as a source of "clearly established" law.  And that sense is this: a majority of the justices in 2007 said it was.

In the strictly-hierarchical judicial system, what five or more justices of the Supreme Court say is indisputably true, regardless of whether it has any basis in objective reality.  So therefore it's true that Stevens' dissent clearly established the law in 1988, even though it so clearly didn't.  When the Supreme Court acts, it creates its own reality. 

But was Roberts revealing himself to be part of the reality-based community, or did he use reality for the same reason a Neandertal used a given stick, because it was the handiest bludgeon with which to attack his enemy?