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."

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.

In its May 23, 1955 edition, Time Magazine ran this story:

Just about dinnertime, on May 11, 1941, a garment worker named Santo Caminito was picked up by New York police for the holdup-murder of Coney Island Merchant Murray Hameroff. Although Caminito had never been arrested before, the cops were sure they had their man. They set out to get a confession—and they did.

Santo Caminito was thrown into a bedless cell. His family and a lawyer retained by relatives were denied permission to see him. Relays of detectives questioned him for 27 hours, giving him almost no rest. To show Caminito how hopeless his cause was, the police worked a trick: a male detective and two women from the pickpocket squad, posing as witnesses to the crime, confronted Caminito and pretended to identify him as the driver of the getaway car. Caminito finally signed a confession (he later signed a second one) and was duly sentenced to life in prison after the confessions were used as evidence in court. Last week, after 13 years behind bars during which he appealed vainly in New York state courts, Santo Caminito won the right to a new trial. Said a U.S. Court of Appeals decision written by Judge Jerome Frank:

"The confessions obtained by these loathsome means were no more evidence than if they had been forged."

Reminder from Korea. Excoriating the police methods as "satanic," Judge Frank recalled some facts that Americans learned long ago, and of which they have been reminded by Communist brainwashings in Korea: "It has no significance that in this case we must assume there was no physical brutality. For psychological torture may be far more cruel, far more symptomatic of sadism. Many a man who can endure beatings will yield to fatigue.

"To keep a man awake beyond the point of exhaustion, while constantly pummeling him with questions, is to degrade him, to strip him of human dignity, to deprive him of the will to resist, to make him a pitiable creature mastered by a single desire—at all costs to be free of torment. Any member of this or any other court, to escape such anguish, would admit to almost any crime.

"Indeed, the infliction of such psychological punishment is more reprehensible than a physical attack: it leaves no discernible marks on the victim. Because it is thus concealed, it has, under the brutal-itarian regimes, become the favorite weapon of the secret police, bent on procuring confessions as a means of convicting the innocent."

Basic Difference. "The important difference is that in Russia the coercion of confessions is ... legal and avowed, while with us it is always illegal and secret.

That difference is basic. It means that we have a principle of justice on which we can rely to bring such coercion into disrepute and disuse . . .

"Recently, many outstanding Americans have been much concerned—and justifiably—with inroads on the constitutional privileges of persons questioned about subversive activities. But concern with such problems, usually those of fairly prominent persons, should not blind one to the less dramatic, less-publicized plight of humble, inconspicuous men (like Caminito) when unconstitutionally victimized by officialdom."

Concluded the decision: "The test of the moral quality of a civilization is its treatment of the weak and powerless."

If that's the test of the moral quality of a civilization, what should we conclude about the way the American civilization treated Murray Hameroff?  After all, it's hard to top a dead person in the weak and powerless competition. 

By the time Judge Frank got hold of Caminito's case, a jury of 12 people had found his confession voluntary, the seven judges of the New York Court of Appeals had found any error to be insubstantial, and a federal habeas corpus judge, while expressing  qualms, found no constitutional deprivation.  (See post 337.)  If you're counting, that's 20 people in a row who didn't notice the Satanism.  

Caminito testified that the phony identification had nothing to do with his decision to confess.  But you would only find that out if you read the district court opinion.  (See post 337.) 

Frank says first that Caminito was left alone for 7 hours in his cell, then that he confessed 27 hours after being arrested, and then that "[t]he police interrogated him almost continuously for 27 hours" -- which is where Time got the 27 hour figure.   (U.S. ex rel. Caminito, 222 F.2d 698)

Twenty, 27, what's the difference?  I certainly don't mean to make light of Caminito's experience.   Finding yourself suspected of murder inside a Brooklyn stationhouse in 1941 doubtless felt like waking up in hell.   So why did Frank find it necessary to tack on 7 hours?  And why did he use terms like "satanic", "totalitarian regimes", "psychological torture", "sadism", "brutalitarian", "secret police", "medieval," "evil", "criminal", "barbarism"?

I think it was because, as the district judge observed, the facts were known to the jurors "and they decided the issue in favor of the People after a complete, informative, detailed and conscientious charge." 

As the Time piece unintentionally reveals, Frank's hyperbole was effective at directing attention away from the real gist of his opinion, which was that the ordinary men and women who served on the jury just weren't up to the task of deciding whether a confession was voluntary or not. 

Luckily, Judge Jerome Frank possessed the moral sensitivities the occasion demanded.  You want dudgeon?  You got dudgeon!   (Should we assume he sent a copy of his opinion with a press release and 8x12 glossy to Time?  Or were its reporters avid readers of slip opinions in those days?) 

 Jerome Frank was an interesting fellow, perhaps the purest example of the judge who concludes, on the basis of his own lack of self-knowledge, that he's a genius.  (See post 317.)   He was someone who worried about the big issues without thinking about them.  That sounds harsh, but I challenge anyone to try to read his most famous book, Law and the Modern Mind.  It's like wading through dryer lint.  Here's a sample:

The essence of the basic legal myth or illusion is that law can be entirely predictable.  Back of this illusion is the childish desire to have a fixed father-controlled universe, free of chance and error due to human fallibility. ...

Here apparently is the reason why legal thinking is, in part, scholastic, why legal legal thinkers are still much given to Platonizing: Children are incipient, unsophisticated Platonists.  Not only lawyers, but all men in their approach to the law are still somewhat childish emotionally and therefore are prone to Platonizing - not, of course, in the crude manner of children ...

"Scholasticism" has survived in lawyerdom while it is on the wane among natural scientists because the emotional attitudes of childhood have a more tenacious hold on men when their thinking is directed towards the law than when they are thinking about the natural sciences, and not because lawyers have intellects inferior to the scientists.  If and to the extent that you are controlled by a childish emotional need for strict authority, to that your extent your thought-processes will be restricted and will retain something of the childish pattern.  The natural sciences, as we shall see, are not so easily as law converted into a father-substitute.  Hence in the natural sciences, authoritarianism is less potent and the aims of the child have been more rapidly abandoned.

It's possible Frank believed this stuff actually added up to something, but I'm inclined to think it never really got to that point with him.  His books, like his Caminito opinion, were jam-packed with quotations and references, as if he jotted down passages he liked into a commonplace book, and then when he felt the urge to write about a certain topic had his secretary pull out the quotes that seemed relevant.  My impression is that his  secretary pasted one quotation to a page in random order and he inserted short commentaries between them as necessary to fill up the white space. 

As if his spirit were anxious to provide me with an example of his technique, I opened his book at random and read: "There is a contrary minority view, which any dispassionate observer must accept as obviously the correct view" - followed by a long quotation from Pollock - followed by a footnote: "Pollock is clearly in error".  

The bullying, the self-contradiction, the phony erudition - Jerome Frank would have made a terrific headmaster in a farce about a British boarding school.

So Mr. Caminito's murder conviction was vacated in 1955 in a spasm of repugnance against the satanic practices of Brooklyn cops in 1941.  The U.S. Supreme Court denied New York's petition for certiorari.

And now the stage is set for the real intellectual dishonesty to begin.

On February 15, 1941, Murray Hameroff was shot and killed in front of his home on Stillwell Avenue in Coney Island.  Charles Noia confessed to police he was the triggerman.  His two accessories, Santo Caminito and Frank Bonino, separately confessed.  They were all convicted.  The jury recommended life in prison for them all.

Noia's judge, Peter J. Brancato, told the defendant during sentencing:

I can understand how the jury made its recommendation as to your two accomplices.  I had seriously considered not accepting the jury's recommendation in your case, but without your knowledge you had pleading for you an excellent lawyer.  I am referring to my wife, Mrs. Brancato.  Her last word to me as I left home this morning was a request that I accept the recommendation of the jury in your case as well as the other defendants, and I shall do so.

Noia, perhaps grateful he didn't get the death penalty, didn't appeal his conviction.  But his two accessories did.  They argued

that the trial court committed reversible error in refusing to charge as requested on the subject of illegal detention of defendants by the police without arraignment, in excluding evidence which would have shown that one defendant complained to the jail physician on the day following the arraignment that he had been beaten by the police, ... and in leaving it for the jury to decide whether the confessions were voluntary.  (People v. Bonino, 50 N.E. 2d 654)

In 1944, New York's highest court affirmed the convictions with a one-sentence order finding any errors to be insubstantial.

Fast forward 11 years.  Caminito filed a petition for federal habeas corpus, raising essentially the same issue.  Federal Judge James Thomas Foley heard the petition.  He had a peculiar resume, even for a judge:

Private practice, Troy, New York, 1935-1942
Secretary, Hon. William H. Murray, New York State Supreme Court, 1939-1942
U.S. Naval Reserve, 1942-1945
Secretary, Hon. William H. Murray, New York State Supreme Court, 1946-1949

What, exactly, did it mean to be a "secretary" to a trial court judge (because in New York "supreme" means "not supreme") in those days?   And how did it qualify Foley to become a federal judge?   Well, it was good enough for President Truman and the Senate.

Judge Foley wrote:

The issue of involuntary confession under force and threat was clear cut as far as Caminito was concerned.  He took the stand and under the guidance of an experience and eminent defense attorney, narrated in detail his story of police persecution, brutality, false identification, intimidation, physical and mental, that he said compelled admission and confession.  The detectives flatly contradicted these assertions and the ones mainly accused reiterated such denials in rebuttal.  The questions of food and physical punishment presented by the testimony were essentially and completely factual and peculiarly fitted to the province of the jury.  A cold record, as I try to keep in mind when I am forced to the task of appellate review, can give little indication of the demeanor of the witnesses, their attitude, their tone of voice, their hesitancy, their emotions, their frankness, which are of fundamental importance in the determination where the truth lies.  (U.S. ex rel. Caminito v. Murphy, 127 F.Supp. 689) (the boldface was added for reasons that will become clear in part 2 of this series)

In addition, Judge Foley observed that Caminito hadn't been beaten: he was photographed immediately after his confession; and he never complained either to the magistrate or to his first attorney.  Caminito's trial attorney "flatly stated that he did not claim there were any marks upon the person of Caminito."

Caminito testified at trial "that he did not confess after extreme physical punishment or a staged and spurious identification, but only after a discussion with Noia."  On cross-examination he testified that "statements made in the confession ... came from his own mind and were not instilled in his own mind by the police as part of the alleged fabrication under pressure."  (That last line is just as ambiguous in context: it's unclear if Caminito was referring to all the statements contained in his confession, or only to particular bits - such as, say, his name and address.)

Judge Foley admitted to feeling a little queasy about some of the things that the police apparently acknowledged they had done to Caminito and his co-defendants: "The holding of the defendants incommunicado, the sleeping on a hard bench without pillow or blanket in a cell probably not overheated, the failure to arraign without unnecessary delay as provided by law, the admittedly false identifications, the intensive questioning by relays of detectives ... would cause hesitation and suspicion on my part."

But, the judge added, "the same feelings must have been in the minds of the jurors and they decided the issue in favor of the People after a complete, informative, detailed and conscientious charge."

 So here we have a convicted murderer claiming that the cops mistreated him and the cops denying it.  The factual issue of the voluntariness of Caminito's confession was submitted to the jury, and the jury believed the cops.  Like Judge Foley, you may wonder if they were right to do so, but the whole point of a jury system is that juries get to decide which witness is the credible one.

Isn't it?

The scientist and science writer Bob Park recently published a column in the New Scientist containing this passage:

Richard Feynman described science as "what we have learned about how not to fool ourselves". Science depends on openness: we expose our scientific findings, including the details of how they were obtained, to the scrutiny of the scientific community. This sounds like a prescription for chaos, but the result is the opposite because it reinforces the idea that science is conditional - always subject to being replaced by better information. This can be frustrating to non-scientists, who ask why science can't make up its mind, but the alternative is dogma. Openness provides a mechanism for self-correction, setting science apart from other ways of knowing. Science is, in fact, the only way of knowing. Anything else is just religion, which is all about authority.

(The column is in the locked-down part of the website, so if you're not a subscriber you're going to have to trust me in a decidedly unscientific way.)

This is just one of the ways in which law is an anti-science (see post 129 and post 14), but it may be the most important for any attempt to understand the way in which our courts distort our society.  Law - or at least the opinions of judges - is all about self-deception.  That's the point.

That sounds so negative that it's likely to provoke defensiveness, so I'll put it a more abstract way: law is about preventing yourself from thinking about reality except in terms of legal categories.  The insistence on perceiving reality in terms of a priori categories is the defining intellectual technique of American law.  (See post 137.)  It's what law professors teach. 

So Professor Miller, victim of the  cheap shot in the previous post, would say that his point had nothing whatever to do with Michael Jones shooting people in the head.  The fact that Jones shot people in the head is, in fact, entirely immaterial to the question whether his conviction for shooting them should be upheld.  You have to focus on the legal problem, as defined by the a priori categories, and blot out your awareness of any broader reality.

(It really is unfair to single out Miller, since every other law professor and judge and most practicing lawyers  accept with equal intellectual passivity that this is a reasonable way for the rulers of a modern society to process information concerning the physical well-being of society's members, or rather that its reasonableness is not open to question.)  (The law meets Park's definition of a religion.  Law professors teach theology, judges enforce orthodoxy.)

This intellectual method means that the law is not open to new information.  Or, more precisely, new information is acceptable only insofar as it can be slotted into pre-existing categories.  The metaphor of a letterpress printer's drawer is pretty exact: who needs a character that doesn't already have its own little compartment?

A quote I've seen attributed to Catherine McKinnon, but which I can't find on the Web, says that the law doesn't prohibit rape, it regulates it.  I think that's true of all violent crimes.  Yet - and this is the critical thing - the people doing the regulating (judges) would deny that they're engaged in any such activity.  And they'd sincerely believe it, too, or at least profess to, as an article of faith.

Here's a line from the Supreme Court, almost as familiar to criminal law practitioners as a Coca-Cola jingle: "the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests."

But look at those familiar words more closely.  The issue, in practical terms, was whether certain relevant evidence should have been concealed from the jury.  (Only relevant evidence is affected by judge-made exclusionary rules.  If the evidence wasn't relevant, it would be inadmissible for that reason alone, and the prosecution would have no reason for even offering it - or the defense for objecting to it, except on the ground that trials are tediously long enough already.)  

Judges who decide to hide relevant evidence from the jury don't describe it to themselves in those words.  They tell themselves they're engaged in "deter[ring] police misconduct by preventing the introduction of evidence obtained through police illegality." 

Look at that sentence structure.  In real life, what's happening is that judges prevent the jury from hearing evidence.  They do so in hopes - specifically, the Supreme Court's hopes - that deceiving the jury will influence the behavior of people who aren't present and may never learn about it.   But in the way judges phrase it to themselves, the wish comes first.   It's the important thing.

The Supreme Court pulled a similar trick of self-deception, only a bit more subtly, in the sentence quoted above.  By "permissibility of a particular law enforcement practice", it meant: "admissibility of evidence obtained by a particular ..."  They weren't deciding what law enforcement practices to permit; they were deciding whether to allow the jury to learn what the cops found out when they engaged in one particular practice.   Judges Photo-Shop the portrait and call it plastic surgery.

That's just the beginning of the self-deception packed into that sentence.  Whenever judges use any form of the word "balancing", what they mean is: choosing.  The Court was telling judges to choose which of the two (and there is rarely more than two - the metaphor controls the variables) "interests" he or she considers more significant. 

What, you may ask, is a "legitimate governmental interest[]"?   When you're talking about a Terry stop frisk for weapons (see post 321 and post 314), the interest in question is the earthly existence of the police officer.   When a judge "balances" governmental interests, what he's really doing is deciding the marginal value of the officer's life. 

That sounds extreme, but only because we're so used to the euphemisms that blanket the facts, as Orwell said, "like soft snow, blurring the outline and covering up all the details."  Self-evidently, in every encounter the cop's life is at greater risk if the person he is confronting has a gun, knife or club.  The cop's safety is increased if he disarms an armed person. 

With me so far?  That's really all there is to it.  The cop's safety would be maximized if he patted down everybody he came into contact with.  So if judges actually control police conduct - which judges tell themselves they're doing - then when they tell cops they're not allowed to pat down people in certain circumstances, they mean that officers mustn't maximize their safety.  They must accept a greater than minimal risk of being injured or killed. 

If the judges are competent in their calibration of risk, they're imposing only a minor marginal increase in risk.  But a small risk spread over a large population - say, 675,734 sworn officers - becomes numerically significant pretty quickly, especially to those attending the funerals.

So when judges decide cases about frisks, they're asking themselves: How many murdered policemen is too few?  And how many is too many?  How many official funerals with long motorcades is just right?

Once you strip away the fuzzy language, you can see why judges use it so obsessively.  They want to distance themselves from what they're doing.  "This isn't just a gut feeling, you know - I've weighed it.  The scales don't lie."

But this is barely scratching the surface of the superstructure of deception and self-deception the Supreme Court has built over our criminal justice system.

A couple weeks ago the Supreme Court issued what might be the shortest opinion to come from its prolix clerks' word processors:

The Court is advised that the petitioner died in St. Louis, Missouri, on May 30, 2007. The judgment of the United States Court of Appeals for the Eighth Circuit is therefore vacated as moot.

The case, U.S. v. Claiborne, was slated to be yet another sentencing decision, possibly indeed the long-awaited occasion on which the Court actually caught the tail it's been chasing for so many years.  Maybe Justice Ginsburg would write two opinions disagreeing, haughtily, with herself!  (See post 230 and post 252.)  Here's a preview from Cornell's Legal Information Institute, explaining what the case was supposed to be about, and here's a news story explaining the pathetically violent way the case became moot.  (So if Claiborne hadn't received his below-Guidelines sentence, he would still be alive??)

The justices, exhausted from the hard labor of not deciding so many cases (see post 8 and post 202), are just about ready to knock off for their three-month vacations, so it's a sure bet that the Claiborne opinions (my prediction: at least five irreconcilable ones) were already written long before Claiborne died.  Now the Court will have to find another case (Professor Berman points out that there's no shortage of candidates) in which to issue those opinions.

It would be difficult, I think, to imagine a clearer illustration of the incoherence of the Court's function.   The justices are always reminding us that they don't decide cases.  They don't engage in the despised "error correction" - that is, merely ensuring that justice is done in the individual case.  (See post 7.)  On the contrary, they see their task as "provid[ing] guidance concrete enough to ensure that [sentencing statutes] will be applied with an acceptable degree of consistency by the hundreds of district judges that impose sentences every day."

But if the Court's job is to provide guidance to hundreds of judges hearing hundreds of cases every day, what difference does it make whether Mario Claiborne is alive or dead? - much less whether he deserved a lenient sentence.   The facts of a given case are rarely more than a deception strategy, a way of maintaining the pretense that the Court is a court even when it's exercising executive and legislative powers.  (See post 263.)

The Court's real job, in the justices' view (and in the view of most lawyers and lower-court judges, too, I think) is to uncover constitutional principles lurking in the parchment, obscured (until the very moment of the announcement) by the words thoughtlessly printed over them.   And the justices don't need a live defendant to do that.

So here we have the Court stymied in its ambition to announce its newest rule of universal application, one guaranteed to affect the fate of tens of thousands of Americans, because of the necessity of going through the motions of pretending to be deciding a specific case. 

But don't worry.  They'll just slap another defendant's name onto the top of the opinions they've already drafted and issue them next year, instead.

UPDATE: As reader Greg May points out, Professor Michael Dorf made the same basic point last week, with the difference that he analyzes it in conventional legal terms.  It seems to me that the law has nothing to do with it, because there is no law governing the Supreme Court.  An anonymous comment at Sentencing Law and Policy suggested there would be a due process problem if the Supreme Court simply released its already-written Claiborne opinion(s) with another defendant's name attached.  But the way our system works, nothing the Supreme Court does can be unconstitutional, unless and until the Supreme Court itself says so, at which point its new pronouncement will instantly, seamlessly replace it.  At that moment, every lawyer and judge in the country trying to accomplish anything within the judicial pyramid will have no choice but to agree that Oceania has always been allied with Eurasia.

The issue raised by the Claiborne case is simply this: no one but poor Mr. Claiborne and his family would have cared about his case if it had been about him.  The Supreme Court's decision to hear his case rather than any of the thousands just like it was arbitrary, in itself meaningless, or nearly so.  (There may have been some procedural wrinkle that made it more appealing to the clerks than other candidates.)  It was simply a vehicle for announcing a new rule of universal application - a new sentencing law, to control every federal case ... until the next time the Court returns to the task of cleaning up its mess, Cat in the Hat Comes Back-style.

Professor Dorf sees it as a legal issue.  I see it as a political issue.  We have a powerful government agency exercising extra-constitutional powers while pretending not to.   Legal doctrines seek to justify the exercise of power, and to many people's minds they actually succeed, but it's the exercise of power that counts.

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?