JUDGING CRIMES

Ronald Dworkin's work is routinely described with such daunting superlatives as "the most important systematic contribution to Anglo-American legal philosophy made since the mid-1960s" (hard to tell if that's intended as a compliment, and you have to pay money to view the concluding paragraph online, so I guess we'll never know), although it seems strangely unphilosophical to dye one's hair, as he appears to have done in this official photo.  That magisterial stare, and then that hair, like Caesar wearing a propeller beanie.

Now, far be it from me to be judgmental.  It's certainly no more ridiculous for a 76-year-old philosopher to have blond hair than it is for Robert Plant, at age 59, to be prancing around with a full head of ringlets. 

Well, no, I take that back.  It's more ridiculous, after all, since men who sing soprano have long been known for non-receding hairlines, according to this remarkably scary-looking hair doc.

 Anyway, Dworkin published a piece last summer in the New York Review of Books telling his readers that the conservatives on the Supreme Court spent the 2006-07 term "overruling, most often by stealth, the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed."  The doctrines being overruled "aimed at ... establishing a criminal process that is fair as well as effective."

No, really, I'm not kidding.  Click on the link if you don't believe me.  He really, honestly used those two adjectives to describe our criminal justice system.  Has anyone else done so, in your memory?

But then, if you examine the words closely, you'll see he didn't actually say that the doctrines succeeded in establishing a criminal process that was either fair or effective, only that the justices aimed to.  And then you can define the adjectives in various ways.  "Fair" can mean that a guilty-as-sin murderer has a 50/50 chance of walking.  What, after all, is fairer than a coin flip?

Still, I don't mean to be mean.  Dworkin only practiced law for four years, quitting while Barack Obama was still in diapers.  His practice was limited to Sullivan & Cromwell, and learning to practice law by working as an associate at a big New York firm is like learning how to sail by washing dishes on a cruise ship.  Criminal law is populated by people who are notably unconsoled by philosophy, and I'm sure it's far outside his interests.  He's a good liberal, so he knows the Court's criminal procedure decisions of the previous 45 years were Good Things.

But who were they good for?  The answer appears so obvious that at first it seems the only choice is between cynical wisecracks.  As the even-older Anthony Lewis wrote in an even-more-recent edition of the New York Review of Books, the new conservative Court is "hostile to ... the rights of criminal defendants". 

It's self-evident, isn't it, that protecting the rights of criminal defendants is good for criminal defendants?

At a micro level, dealing with one defendant at a time, the Supreme Court's method for protecting their rights has proved remarkably beneficial for certain individual defendants.  But on the macro level, looking at criminal defendants as a class, the picture is not nearly so clear.

Consider these drearily familiar statistics:

On December 31, 2006 —

    – 2,258,983 prisoners were held in Federal or State prisons or in local jails -- an increase of 2.9% from yearend 2005, less than the average annual growth of 3.4% since yearend 1995.
    – there were an estimated 501 prison inmates per 100,000 U.S. residents -- up from 411 at yearend 1995.
    – the number of women under the jurisdiction of State or Federal prison authorities increased 4.5% from yearend 2005, reaching 112,498, and the number of men rose 2.7%, totaling 1,458,363.

As we all know, that's a lot of prisoners.  Human Rights Watch says: "The country that holds itself out as the 'land of freedom' incarcerates a higher percentage of its people than any other country."  (Um, that's actually "land of the free.")  Even if, for the sake of accuracy, that ought to read "than any other country you could imagine yourself voluntarily choosing to live in," that's still pretty stunning.

I haven't looked hard enough to find prison population figures for 1961, but if you take a look at this chart you'll see 1961 is the base camp at the foot of Everest.  (You can find a more elegantly-presented version of the chart on page 43 of this pdf .)  Almost as soon as the Supreme Court began the federal takeover of criminal procedure in 1961, the prison population began climbing up to the sky.

If one looks only at the two variables - Supreme Court intervention in state criminal law and prison population - one would hardly be able to avoid the conclusion that the judiciary's policy has had a less-than-wholly-benign  effect on criminal defendants as a whole.

But surely that can't be right.  It must be a coincidence.  Right? 

In part, sure.  There are lots and lots of partial explanations for the weird growth of the prison population in America - which is, really, a very strange social development.  But to assert that the policy pursued by the courts isn't one of those explanations is to discount the importance of the courts themselves.  After all, if their policies don't have a real-world effect, why do they bother?

I don't think it's a coincidence at all.  And I think Dworkin actually suggests why not, though I suspect he didn't have this in mind when he talked about effectiveness and fairness.  The underlying idea of the whole judicial project since 1961 is that criminal law is a zero-sum game: that a detriment to the prosecution is a benefit to the defense, and vice versa.  Dworkin buys it: in his world-view, fairness and effectiveness in the criminal law are opposing values.  (Mind you, I'm pretty confident he hasn't actually thought about it, but that's what his second-hand rhetoric translates into.)

But life is far more complicated than that world-view allows.  What the courts have done since 1961 is decrease the risk of punishment.  Even if you're caught red-handed - hell, even if you take the police to the body - you might still walk.  Our democratic branches of government can't alter that, because the courts have decreed it to be required by the Constitution.  So our democratic branches alter a different variable - the severity of the punishment.  They increase the sentences.

This, I think, is a perfectly logical and, on the terms imposed by the Supreme Court, entirely reasonable course of action for Congress and state legislatures to pursue.  It's also socially destructive: we've raised a generation of young men who think it's normal for daddy to be in jail.  But which governmental institution first started spinning the top?

Still, I don't think we should criticize the elderly gents harumphing in the pages of the New York Review of Books  for failing to notice.  At their age, they have every right to hunker down behind their psychological defenses. 

A friend of mine once got himself elected district attorney in a border-South state.  On his first Monday in office, he asked for a rundown on the weekend's mayhem and was told: "Not much, just another stabbing down in N-----town." 

It was an eye-opening moment.  My friend discovered upon inquiry that for as long as anyone could remember the office had never treated Black-on-Black violence seriously: premeditated murders were pled down to manslaughter, manslaughter to battery, battery to disorderly conduct, domestic violence to sleep-it-off-in-a-cell. 

This was the early 1980s, which many of us (rather strangely) considered post-Dark Ages.  My friend changed the policy, as well as the workaday vocabulary of the office, and even managed to serve two full terms before being voted out.  But the attitudes he discovered in the woodwork of the DA's office were by no means unique, and they haven't remotely died out.  They've just camouflaged themselves.

(Really, check out that last link to Desiree Palmen's site.)

There's more than a trace of that attitude in the unthinking vaguely-liberal view that judges are "assisting minorities with positive measures" when they make it easier  for the violent to hurt others without risk to themselves.  (See post  325.)   Weren't the racist prosecutors in my friend's office equally assisting Black men who killed other Black men?  The underlying idea isn't very far from "life is cheap in the Orient."

Fifteen years ago, there was a much-publicized rape and murder in Santa Fe.  The unusual thing is that each offense involved a different victim.  This is how the Tenth Circuit described the basic events:

At approximately 3:00 a.m. on August 8, 1992, [pharmacist Chester] Radecki awoke to the sound of a woman screaming outside his bedroom window in Santa Fe, New Mexico. He looked out the window and heard more screaming and the sound of someone walking around outside. Shortly thereafter, Deputy Barela arrived nearby in a police car with lights flashing. Mr. Radecki left his home, got in his car, and drove to the scene.

When Deputy Barela arrived on the scene, a motorcycle lay on the side of the road. Eric Trujillo drove up in a tow truck. Deputy Barela detected a man in the bushes, and with his flashlight recognized him as Daniel Martinez. Martinez staggered out of the bushes. Martinez, who appeared to be intoxicated, told Deputy Barela and Trujillo that his girlfriend had run him off the road, causing him to wreck. Deputy Barela began to look around the area for other vehicles or injured persons.

Mr. Radecki arrived in a robe carrying a flashlight. He told Deputy Barela that he lived nearby, and that he had heard screams, as if a woman were being raped. Deputy Barela and Radecki explored the scene with their flashlights, with Martinez close behind. When Deputy Barela shined his flashlight on a car in the bushes, Martinez tried to grab Deputy Barela's nine millimeter semiautomatic pistol. The two men wrestled for control of the gun. Deputy Barela yelled to Radecki, "Hit him with your flashlight. Hit him. Get him off me."

It is unclear whether Radecki hit Martinez with his flashlight. In response to Deputy Barela's command, however, Radecki approached the struggling pair. At that point, Martinez wrested the gun away from Deputy Barela, who then fled to the bushes. Martinez turned and shot Radecki in the chest, killing him.

I'm not absolutely sure if fleeing to the bushes is a technique taught in the Academy.  Be that as it may, Martinez was acquitted of both the murder and the preceding rape - although the state paid half a million for supplying the gun that killed Mr. Radecki.

(Martinez learned the only lesson a violent thug could possibly learn from his acquittal: getting arrested isn't something to be feared.  Predictably, he almost immediately got himself arrested for an entirely unrelated offense, and this time the dice came up snake eyes.)

That's an extreme (and notorious) example, but in general Santa Fe juries are very reluctant to convict.  One reason, I'm convinced, is that the place is crawling with well-to-do, vaguely liberal newcomers.  Santa Fe County's population has tripled since 1960, which is pretty remarkable when you consider the cost of moving in - the average house costs  $81,300 more than the average for the state as a whole (and the latter figure, of course, is inflated by Santa Fe County's contribution).  The people who move to Santa Fe can afford their Land Rovers.

"Tolerance" can mean respecting the beliefs of others, but it also means "the allowable deviation from a standard".  When Santa Fe's newcomers serve on the juries that allow people like Daniel J. Martinez to indulge in their deviations from the standards of behavior established by the criminal law, it's in part because they perceive the violence as part of the cool indigenous culture with its unique traditions.  "You have to respect their customs, man.  You can't judge them by the same standards as us."

Which, of course, is much easier to say if you're living on three acres on the east side.

The very preposterousness of representing something as fantastically complex as human society in two dimensions is the great appeal of the right-left metaphor: any reasonable representation would be too complicated to serve the purpose of reliably identifying one's friends and enemies.  So we use the unreasonable but practical Byzantine system of Greens and Blues instead.

Our minds are so accustomed to thinking in terms of the left-right metaphor that most of our political discussion is conducted at the intellectual level of laundry sorting.  But the sorting itself is fascinating, because of course ideas don't come in colors.  How do we decide which viewpoint belongs in which basket? 

Genteel anti-Semitism - its genteelness consisted of a kind of plausible deniability (here's a modern example) - was a hallmark of the house intellectuals of the upper classes during the first half of the twentieth century.  Now the intellectuals who go in for that  kind of thing generally regard themselves as left-leaning.  So which is it, right or left?

The Progressives, such as Brandeis, were, at best, indifferent to civil rights (see post 197), while concern for racial equality has been a defining liberal position since the 1950s.  Does that mean Brandeis and the Progressives were conservative?  Or that the Civil Rights movement wasn't progressive?

Or take a look at the Socialist Party's 1912 platform.  Your average Republican today would find little to quarrel with the Socialists' demand for "a rest period of not less than a day and a half in each week" for factory hands, or "forbidding the employment of children under sixteen years of age."  Nor would "enactment of further measures for general education and particularly for vocational education in useful pursuits" raise many conservative hackles.  So should we conclude the GOP has gone Socialist?  Or was Eugene Debs a Republican?

George Will's column today, which sees the story of the Edsel as a metaphor for liberalism (the similarity is that he doesn't like either one), referred to "the liberal project of expanding government in the name of protecting incompetent Americans from victimization".  If that's what liberalism is all about, then certainly the enthusiastic enforcement of the criminal law is about as liberal as you can get.  What purer example exists of  protecting Americans from victimization?

And, indeed, if you ask the editorial page writers of the Wall Street Journal what they think of throwing People Like Us in jail for the type of crimes whose commission depends upon an ability to speak with apparent knowingness about arcane financials, you can expect a thundering denunciation of overreaching prosecutors.   Rudy Giuliani, in his U.S. Attorney days, was a frequent target.

But, of course, that's not how most people see it.  Representing the interests of the injured victim is, by and large, liberal only in civil suits.  In criminal prosecutions, the liberal position is on the side of the victimizer.  That was the whole initial premise, for instance, of Talk Left: The Politics of Crime.  (It's since developed into a more general political blog.) 

The same laundry-sorting can be seen in a Tony Mauro article from earlier this summer:

The case of Bowles v. Russell did not generate headlines at any point in its journey to the Supreme Court. And when it was decided by the high court Thursday, no justice spoke in angry dissent.

But the low-profile case offers as good a glimpse as any into the sharp conservative-liberal divide emerging this term.

Convicted Ohio murderer Keith Bowles lost the case on Thursday by a 5-4 vote, because he was two days late in filing a federal habeas appeal back in 2004.

After habeas relief had been denied and 30 days passed, federal rules of appellate procedure allowed for a 14-day extension to file an appeal. But inexplicably, the judge in the case, Donald Nugent of the Northern District of Ohio, gave Bowles 17 days to file instead of 14. Bowles appealed on the 16th day, and his appeal was rejected as untimely.

Now, I admit to feeling a passing twinge of sympathy for Mr. Bowles (a person who, according to the appellate opinion I can't find for free on the web, was too scared to fight the people he was angry at, since they were armed, so he stomped a stranger to death instead).  If a lawyer, through ignorance of the law, injures one who relies on him, why should the consequences be visited on the injured party rather than on the one committing professional malpractice?  (Because the lawyer in question is a federal judge, silly.)  

But the really interesting question is: what's so liberal about declaring a deadline non-jurisdictonal?  Think of the most liberal politician you can imagine, say, Ohio's own Dennis Kucinich.  Did he monopolize the YouTube debate with a rant about jurisdictional deadlines?  

I can see only two ways in which the opinion for the four dissenting justices was "liberal": (1) it would have permitted exceptions to a general rule, or in other words would give judges a power to nullify the law on an ad hoc basis, in the interests of justice;  and (2) it would have been a victory for a convicted murderer.  But it's difficult to see any ideological content in # 1 except insofar as it would produce # 2. 

But what, once you get down to it, is so liberal about handing a victory to a convicted murderer?  A clue is offered by Elvis Costello's put-down of a television newscaster: "She takes all the red, yellow, orange and green / And she turns them into black and white."  The very preposterousness of the equation (assisting a murderer = liberal) is the attraction (but not, for you Elvis fans, the Attraction).

You want to know how backward New Mexico Territory was in 1901?  Would you believe - as backward as Slate is today?  The territorial supreme court was filled with patronage hacks appointed from Washington (so, okay, it was thoroughly up-to-date and modern in some respects).  Here's how one of its opinions began:

On a conviction of rape, where there is no corroborating evidence, nor a single corroborating circumstance, and where none of the incidents testified to as attending the commission of the offense are within the domain of reasonable probability, the affirmance of the conviction would be to establish a dangerous precedent. We are of the opinion that there is not sufficient evidence on the part of the prosecution to justify this conviction. There should be some corroborating evidence or circumstance, however slight, or a reasonable probability of the truth of the assault, to justify a verdict of guilty. There is not, in the whole case, any corroborating evidence, nor a single corroborating circumstance, and the probability of the commission of the alleged offense is so far outside of the domain of reason that there was absolutely nothing for the consideration of the jury except the bare improbable statement of the prosecutrix.

("Prosecutrix" was the name used in rape cases to make clear who was the real victim.  Its usage died out only in the 1970s.   See post 139.)   The justices of the brand-new twentieth century didn't spare us their Olympian wisdom:

An outcry in such circumstances, if the prosecutrix were an unwilling participant, would have been intuitive and natural. It would have been the involuntary scream for assistance in impending danger. The outcry is not the result of consideration or deliberative thought. It is always impetuous, and in the feminine nature it is natural and immediate where there is a desire for assistance or protection. ... Surprise never paralyzes the feminine tendency to scream when danger seems imminent.

And, just in case you're still prepared to believe the justices had the slightest interest in providing justice to the woman, here's where they really strain to set you straight:

To constitute the crime of rape under our statute, there must be “resistance,” and it must be “forcibly overcome”; and this must appear by the evidence, to justify a conviction. It is not sufficient that the carnal act be violently accomplished, or that it be without her consent. The lack of consent may be mere reluctance, and a violent accomplishment of the carnal act without consent merely is hardly more than to say that the act was violently done.

Well, it could have been worse for the victim in the case: she could have been married to Justice McMillan, the author of the opinion.  (The case is Territory v. Mares, 65 P. 165.)

But it's not as if McMillan was uniquely contemptuous of the scream-prone gender: he cited cases from New York, Michigan, Nebraska, California, Iowa and Minnesota in support of his conclusion that a conviction for rape can never rest upon the mere testimony of the slut. 

"Slut" is used advisedly, because that's what McMillan meant.  He, of course, wouldn't have been so vulgar as to actually say what he meant, but he made it pretty clear: "there is some of the testimony of the prosecutrix too vulgar to be repeated. It indicates such a degree of familiarity with the depraved parlance of the street and the brothel that the conclusion is imperative that she had an experience of the world not limited to the single alleged incident." 

(So the same man able to contemplate with equanimity - well, perhaps with a sudden racing of his heart, a sweatiness of his palms, a constriction in his throat - the "violent accomplishment of the carnal act without consent" was offended by a woman's use of slang to describe what happened to her.  Is it necessary to add that she was of the lower class, being employed as a servant?  And are you surprised to learn she was also handicapped, being hearing-impaired?  See post 186.)

He quoted a New York judge who overturned a conviction for a shipboard rape: "In such cases, although the woman never said 'Yes'-nay, more, although she constantly said 'No,' and kept up a decent show of resistance to the last,-it may still be that she more than half consented to the ravishment."  (That's People v. Hulse, 3 Hill 309.)

But all that was well over a century ago.  That shipboard case dates all the way back to 1842.  It was the dark ages then.  There's no comparison to our enlightened selves, right?

Well, it's true that in the 1970s, during the first wave of feminism, American states dropped the rule that a rape conviction couldn't rest on the mere testimony of the victim.  The new rule was that if the jury believed the victim, that was good enough.  Specified varieties of corroboration were no longer required.  (The history can be traced in the nearly-lifelike prose of the annotation found at 31 A.L.R.4th 120.  If you don't know what that citation means, it means you've escaped an assault on your literary sensibilities.)

But now Slate - good old Slate, the online magazine founded by Michael Kinsley and home to Dahlia Lithwick - is standing athwart history, yelling Stop. 

In one of those pieces so wonderfully revealing that you can't help feeling a little embarrased for the author (David Feige), Slate has come out foursquare in favor of a return to 1901, if not to 1842.  Ostensibly writing about the Duke case, which I called 14 months ago (see post 102), Feige explains why all prosecutors are, by virtue of their profession, Rosemary's babies:

Mike Nifong [the disgraced DA] did what prosecutors almost always do when a complainant comes to them alleging a sexual assault: He took his complainant at her word and went full speed ahead with a prosecution. The fact is that few if any prosecutors wait for corroborating evidence or insist on more than one person's say so before initiating a sexual assault prosecution.

I honestly wouldn't have thought it possible that anyone, anywhere, would be so recklessly reactionary, so stridently anti-feminist, to actually come right out and call for a return for the good old days when men were legally authorized to rape women so long as they left behind no corroborating evidence.  But here's Feige, living down his name, bold enough to come right out and say that we need to get back to the nineteenth-century patriarch's view of male-female relations.

The article is well worth reading for its humor.  The funniest bit:

As Angela Davis explains in her book Arbitrary Justice: The Power of the American Prosecutor, young prosecutors too often see their goal as winning rather than doing justice. The culture of their offices and the adversarial nature of the criminal justice system push them in this direction. Over time, they move further toward, and eventually across, the line separating fair play from systemic manipulation.

No, not that Angela Davis.  This is Angela J. Davis, who acquired her intimate knowledge of the secret lives of prosecutors as a public defender.   Feige, a fellow public defender, appreciates her insight into the minds of that tribe of sub-humans - if "mind" isn't too strong a word to use to describe the mental apparatus of pod people utterly devoid of moral sense.

No, wait, there's an even better bit:

There are, of course, a few particularly egregious cases [of "prosecutorial misconduct"] that leave visible traces in appellate records. A 2003 study by the Center for Public Integrity found nearly 11,500 such cases. Of them, four out of five were shrugged off as harmless errors.

It's wonderful, really, attaching the label "particularly egregious" and then reasoning from that lighter-than-air premise that the roughly 9,200 judges who found the cases non-egregious must be moral defectives. 

But what I want to know is: why are lawyers helpless to prevent themselves from using that particular word?  "Egregious" is like a verbal tattoo, identifying the bearer as a member of the gang.  My guess is that it's actually a kind of scar produced by the trauma of law school.

The title doesn't mean "conservative."  I mean reactionary in the sense of "one who attempts to revert to past political conditions", which Nilkanth Sharma at the since-closed online collective IMC India says is a dictionary definition, although he doesn't specify which dictionary it's from.   

The New Dictionary of Cultural Literacy (via Answers.com) offers a less elegant formulation:  "An extremely conservative person or position that not only resists change but seeks to return to the 'good old days' of an earlier social order."  The first part of the definition just swaps one label for another, and the middle part is meaningless (resisting reactionary change isn't reactionary), but the last part gets to something close to the idea in Sharma's definition.

The American judiciary is reactionary in that sense.  And by "judiciary" I don't mean individual judges.   All American judges are conservative (no matter how some of them might kid themselves) in the sense that their job  is to enforce (and reinforce) existing power relationships.  (See post 256.)   The most basic point about the judicial system is that it serves the interests of the powerful - who else makes law?   But such status-quo conservatism is almost the opposite of reaction.   You don't serve the king by seeking the restoration of his predecessor.

No, I'm talking about the judiciary as a whole, not about judges as individuals.  The judiciary as an institution is reactionary in a way that, I'm confident, almost no judges are.

The deutsche Wikipedia offers one very useful term to describe political reaction: antidemokratisch.   Even before heads started to roll, 18th-century aristocrats worried about  "mobocracy."  The young David Hackett Fischer, in his first book, The Revolution of American Conservatism: The Federalist Party in the Era of Jeffersonian Democracy, describes Federalists tarring the Jeffersonians as "mobocrats."  The prologue to Sean Wilentz's The Rise of American Democracy: Jefferson to Lincoln cites James Kent deploring the destructive "democracy of numbers and radicalism" of the Jackson Era.

We're so used to using "democracy" as a synonym for "good" or "desirable" that it's almost hard to take in what those American patriots of the early 19th-century were saying.  But the Americans of the day got their drift: the Federalists evaporated as a political force almost as quickly as Perot's Reform Party.  (The Federalist viewpoint, however, lives on in the blogosphere.)

The fizzle of the Federalist Party didn't mean the anti-democrats lost all power.  James Kent - still better known today as Chancellor Kent - is remembered, at least among fellow judges, as one of the "giants of the law."   And the most influential Federalist following President Adams' defeat was, of course, John Marshall, the since-deified Chief Justice. 

Wilentz quotes a letter Marshall wrote the very morning of the day on which his duty as Chief Justice required him to swear in President Jefferson: "The democrats are divided into speculative theorists and absolute terrorists: With the latter I am not disposed to class Mr. Jefferson."  Not that he was ruling it out, mind you.

The anti-democratic principles of Marshall and Kent continue to influence us to this day.  Wikipedia reports that mobocracy (or its synonym, ochlocracy) "is sometimes employed as a pejorative term for majoritarianism."  Since 1963, the U.S. Supreme Court has used the word "majoritarian" 55 times, each time as a pejorative term for democracy.  "'Standing up to what is generally supreme in a democracy: the popular will,'" is what judges do, according to Justice Ginsburg, who was quoting Justice Scalia.

Ninth Circuit Judge Stephen Reinhardt wrote, in one of the many opinions he's gift-wrapped for the religious right (have leftists investigated the possibility that he's a mole?), that "It is the highest calling of federal judges to invoke the Constitution to repudiate unlawful majoritarian actions".  (What makes those actions "unlawful"?  A federal judge repudiated them.)

The idea that democracy needs to be prevented is right at the heart of the judicial project.  That's what it means when statutes or referenda are declared unconstitutional.  But it's also what it means whenever crucial evidence is suppressed: the people are not allowed to have this criminal statute enforced in this particular case, because something more important than the people's will is involved. 

Who decides what's more important than the people's will?  Here's a hint: not "certain of the lowest class in the community, who are alike destitute of property and principle, and may be emphatically stiled the rabble", as Jacob Bigelow, Jr., described by Fischer only as "one Federalist", put it in 1807.  (Was this the Jacob Bigelow?  Fischer doesn't say.) 

The anti-democratic spirit is one way in which the American judiciary, as an institution, is deeply reactionary.   Not conservative, but reactionary: pining for the political order of the ancien régime, in which the unreason of the mob was held in check by the firm hand of society's natural leaders.

There's another way in which our judiciary is reactionary, and now I'm talking about individual judges: They identify with strength, defined in survival of the fittest terms.   They daily display contempt for weakness.  What makes you think it's the government's responsibility to do for you what you failed to do for yourself?  "[U]nder the natural order of things society is constantly excreting its unhealthy, imbecile, slow, vacillating, faithless members".  If you're so weak as to allow yourself to become the so-called "victim" of a violent crime, consider yourself excreted.

A few months ago Christina Hoff Summers wrote an op-ed for my local newspaper  in which she criticized the "political fervor of the faculty" of the UNM law school.  ("Fervor" sounds a bit energetic to me, but maybe Summers has a fervor-inducing quality I lack.)  She reported that a "2004 study by the New Mexico Federation of College Republicans found that 100 percent of the full-time professors at the law school were registered Democrats."

The law school's dean responded with an op-ed piece of her own that said exactly the right things – that is, the things that a dean is obligated to say on such occasions.   (The dean didn't dispute that the faculty was 100% Democratic, though she didn't admit it, either.)

The interesting thing about the exchange of op-eds wasn't its entirely predictable content but the terms on which it was conducted.  Summers charged that the law school had a "strict 'liberals only' hiring policy."  She said the dean "and her faculty seem not to question the ethics of running a public, taxpayer-supported law school as if it were a re-education camp for the political left." 

The dean, in her riposte, insisted instead that "we hire professors who will challenge students to broaden their views and perspectives, to move beyond narrow thinking."

Both these statements seem to me false - for the same reason.  And before explaining why I should add that I don't think there's anything unique about the UNM Law School.  (Though I will say that from most angles its building is not nearly as hideous-looking as that picture.) 

There are few substantive differences between American law schools, U.S. News standings notwithstanding.   (The idea that reading a torts casebook within the moneyed walls of Yale imparts greater wisdom than reading the same casebook in the hallowed barns of the University of Northern South Dakota at Hoople is a fantasy cherished by those engaged in hocking their future to pay Ivy League student loans, for obvious reasons – the weird thing is that it's cherished by those at UNSDH, too.)

The actual teachers move around from law school to law school, and the curriculum is standardized.   Literally the same class will be taught at Syracue (# 100) one year and at USD (# 50) next year, if the heliophilic assistant professor plays his cards right.  The star professors make their contribution merely by gracing the campus, like rhododendrons.   So the generalizations I'm about to make are, I think, equally applicable to all American law schools.

The thing about American law schools is that they're conservative places.  Extremely conservative places.  All of 'em.

In the early 1980s, Duncan Kennedy made his scholarly name by criticizing "hierarchy" in the law.  Everyone listened to him because he was a professor at Harvard Law.  The irony was too thick for anyone to move their position even a fraction of an inch.  It was like swimming in a pool of Jell-O.

Law schools are in the business of teaching people to submit to hierarchy.  That's what they do.  It begins as the prospective lawyer chooses where to apply.  You literally can't begin your legal education until you figure out where you fit on the scale.   You're just wasting your money if you try to get above yourself.

Law professors teach obedience to arbitrary power - that's the meta-lesson of the narcissistically-misnamed "Socratic method."  (See post 188.)  All American law schools employ the "case method" – a 19th-century pedagogical tool that should not be confused with the case method of business schools.  Business students study reality.  Law students, by contrast, study words. 

Specifically, law students study the words of appellate judges as found in their published opinions.  The underlying assumption is that the proper study of law students is the exercise of power by the powerful.   The typical chronological arrangement of cases teaches that every day, in every way, the law is getting better - that the legal tradition cannot be improved upon, yet will improve itself.

As taught in law schools, the published opinions of judges are assumed to be accurate reflections of the judge's process of ratiocination, so that by studying what is written one can learn the way in which the problem was approached and resolved.  That, in turn, rests on the assumption that understanding the judge's reasoning will explain the result reached in the case. 

But those assumptions would make sense only if (a) all judges are honest and unswayed by emotion, antipathy toward disrespectful lawyers, ties of friendship, and so on; (b) all judges are always prepared to be completely open about what they are thinking and feeling; and (c) all judges have the literary skill necessary to translate that openness into prose.

Of course, no one actually believes any of those assumptions, much less all of them.  Which means that the case method is flattery directed toward judges.  It's a method for teaching students the insincere arts of the courtier - kissing up.

In all these mutually-reinforcing ways, law school is an institutionalized "disposition ...  to preserve what is established", an academic "philosophy based on tradition and social stability, stressing established institutions, and preferring gradual development to abrupt change".  And that, of course, is the dictionary definition of conservatism. 

Moreover, law school is vocational training.  Most law professors, I think, prefer to think in grander terms, but as a part-time teacher of paralegal students at something that until last year was called a Technical-Vocational Institute, I'm the last person to imply something negative by that term.  If a law school doesn't train its students to be functioning lawyers, it doesn't have much excuse for existing. 

But the vocation they're teaching is to serve the government - the existing power structure.  Many lawyers, like federal judges, like to pretend there's a difference between judges and "the government."  Judges do it to disguise from themselves their role in preventing democracy.  (See post 13 and post 39.)  Lawyers do it because they don't like to think of themselves as courtiers, fawning on the satrap of the moment.  But fawn is what lawyers do best.  If it please the court - I mean, Court.

Judges are the government.  They are the power structure.  Law schools  in America fulfill something of the role of France's École Polytechnique, training the next generation of technocrats.  They teach law students how to make themselves useful to the powerful, so that they can one day accede to power themselves.

There's more.  For four centuries now, law has been the only area of intellectual effort in which arguments from authority are treated seriously.  And not only are they treated seriously in American law, but they are the best arguments of all.  Law isn't a social science; it's pre-scientific.  You can't get much more conservative than outright retrogression.

Still more: you don't get to be a professor at a law school unless you yourself enrolled in a law school at the top of the school hierarchy, and then clawed your way to the top of the hierarchy of students.  "It is vastly easier for the graduate of a fourth-tier law school to become a partner at an elite law firm than it is to be hired as a tenure-track assistant professor at even a non-elite American law school."  (The peculiar thing is that the professor who wrote those words was deploring the inability of law professors to free themselves from received notions of hierarchy.)

You don't get to be a law professor, in short, unless you buy unquestioningly into the status quo, to the point where you're prepared to sacrifice your youth to rising within the existing power structures.  Instead of having sex, drinking, enjoying time with friends, reading for fun, going to concerts or ball games, you devoted the prime of your life to reading law books in a library carrel when you weren't cultivating established professors for purposes of future references.   Law professors are, by a process of self-selection enforced by hiring committees, people incapable of rebellion.  They are, in temperament, the most conservative people on the planet.

So Christina Hoff Summers is wrong.  Law faculties might be 100% Democratic, and they might be enthusiastic - nay, fervid! - about identity politics.  But that's only because those are safe, predictable, highly conventional things to do.  And the law school dean who says that her faculty challenges students to open their minds is wrong, too.  The faculty is training students to be conventional, to adapt to the status quo, to pay power the respect it demands - without first pausing to wonder whether it deserves it. 

Want to amaze your friends with your ability to predict the outcome of cases argued in the United States Supreme Court?  Now you, too, can master the arcane arts of American Kremlinology.  There are only a handful of rules to learn, and they fit snugly in just three categories.

The first category consists of gimmes - the easy cases, the ones that require no more thought than the justices themselves give to them.  The second category are the negative rules: the classic mistakes.  The third category contains the rules of prediction proper. 

(But all, it must be remembered, are subject to the 5% rule – even the gimmes.  In roughly 5% of cases, the justices will predictably depart from their settled patterns just to prove they can.  Grand jurors do the same thing.)

Category One: The gimmes.

Capital litigation.  Scalia and Thomas will always vote to uphold a death penalty.  (See post 131.)

Justice Ginsburg's magical thinking.  Justice Ginsburg is committed to the idea that any federal judge is, by virtue of that little ceremony involving pixie dust that traditionally concludes Senate confirmation hearings, superior to any state court judge.  She will always vote in favor of increased federal oversight of state criminal courts.  (See post 243.)  Except, that is, when she votes to slap down the Ninth Circuit, when a greater principle is at stake.  (See "cui bono", below.)

Ninth Circuit slapdowns.  Whenever the Supreme Court agrees to hear a Ninth Circuit decision in a habeas corpus case, it means the Ninth Circuit will be slapped down, usually by a unanimous opinion.  Most recent example: last month's Bockting decision, in which not one of the nine could find a good word to say about the Ninth Circuit.  This isn't because the Ninth Circuit is particularly "liberal" (see "the classic mistakes," below), but because it's so large.  Its judges know the numbers are on their side.  The Supreme Court can't - or, more accurately, can't be bothered - to review more a tiny percent of their decisions, so they don't have any incentive to do what the Supreme Court says.  They can make up the law as they go along.  As a practical matter, the Ninth Circuit is the Supreme Court in the far West.

Every year, the Supreme Court goes through the ritual of showing what it could do to the Ninth Circuit, if it wanted to.  The Ninth Circuit, you'll notice, is not intimidated.  Its judges know they're going to be reversed every time the Supreme Court grants certiorari in one of their habeas cases, but they'll have issued several dozen additional decisions by then.

Category Two: The classic mistakes.

Republican / Democrat.  (Note: Bush v. Gore is the 5% rule in operation.)  Newspaper reporters constantly make the mistake of assuming that because the Court is "turning right"- a turn it has been making since Clement Haynsworth - it will seek to accommodate Republican talking points.  But the justices consider it very vulgar to be seen doing partisan politics.  Not because that would be improper for members of the Court - if they did it, then by definition it wouldn't be improper - but because it's beneath the Court's dignity.  Being above the fray is the mark of the Court's superiority to democracy.  And if the Court weren't superior to democracy, what possible justification could it have for thwarting the people's will so often?

Right-left ideology.  This classic mistake is related to the last, but it's not the same.  While it's easy to guess the presidential votes of the justices - after all, they voted in public in 2000 - few of the cases heard by the Supreme Court are useful fodder for, say, the sort of questions used to vet prospective Iraq rebuilders during the heady first days of the occupation.  Most Supreme Court cases can be made to fit into the freeze-dried categories familiar from Heritage Foundation press releases only by trimming them of exactly those subtle and pseudo-subtle intricacies most calculated to excite the minds of Supreme Court clerks.

It's a category mistake to think of the world of the courtroom as part of the real world.  The courtroom is its own little biosphere.  Analyzing Supreme Court decisions with the template used to analyze congressional politics is like applying NBA rules to Nintendo.

The legal merits.  Unlike the first two, this classic mistake is most commonly made by lawyers, not journalists.  The legal merits of a case in the Supreme Court aren't necessarily irrelevant to the decision reached, but at most they serve as tiebreaker.  That's not a cynical remark.  The Court makes the merits meritorious.  Referring to the "merits" of the Supreme Court cases like referring to the artistic value of a canvas after stretching and prepping but before the first color has been added.  The Court doesn't decide cases on the merits; it decides cases and then tells us what the merits were.

The decision-making matrix

Now, as Mick Jagger said, we get down to the nitty-gritty.  Once you're sure you've avoided the classic mistakes, and you've put the gimmes to one side, you're ready to predict Supreme Court decisions.  It's a three-step process, as simple as A-B-C.

A.  Cui bono?  "Let Cassius's famous question, Who benefited? be asked about these people."  In the overwhelming majority of Supreme Court cases, this is the decisive consideration.  Just ask yourself these questions:

1.  What result would be best for the individual justice writing the opinion or the Court as an institution?  If the answer is clear, that is the result of Court will reach.  If the answer is unclear, proceed to the next question.

2.  What result would be best for the federal judiciary?  If the answer is clear, that is the result of Court will reach.  If the answer is unclear, proceed to the next question.

3.  What result would be best for judges generally, state as well as federal?  If the answer is clear, that is the result of Court will reach.  If the answer is unclear, move on to "status of the parties."

B.  Status of the parties.  If the cui bono decision-making matrix doesn't lead to a clear answer, the justices look to the respective social statuses of the parties.  Probably they don't do this quite consciously, but middle class, middle-aged, educated white male defendants do very well in the Supreme Court, as long as their victims are people the justices (and their clerks) find it less easy to identify with.  The important thing isn't the defendant's status per se, but his status relative to that of his victim.  (See post 102 and post 228.) 

When applying both A and B, keep in mind that judges are, by self-selection, people who enjoy wielding power.  In fact, "wield power" is a judge's job description.  It's not a bad thing that judging attracts people who find power attractive.  On the contrary, there are few things more useless than an indecisive judge.  But it means that the self-interest of judges will always bias them to favor the ruling that increases their own power, or the power of their institution.  That's the cui bono rule.  After all, you have to possess power before you can use power to do good.  So if you want to do the maximum good, you first have to maximize your power.  In fact, maximizing your power is the same as acting for the good of the Republic.  (See "Justice Ginsburg's magical thinking", above.)

The other side of the coin, however, is that people who like power tend to have little time for weaklings.  The conditions that manufacture "born victims" are well-understood but the psychology is of less than no interest to those in whom self-defeating behavior arouses revulsion rather than pity.

C.  Legal arguments.  This is where the lawyers come in.  We'd like to think we have greater influence than this placement suggests, but that's vanity talking.  I do believe we have a marginal influence in many cases, and a marginal influence will make all the difference in marginal cases.  But, as every lawyer knows, you can only play the cards you've been dealt.  Even your opportunities for cheating are seriously circumscribed.

Suitably modified to accommodate local conditions, these simple rules explain the inner workings of every other court in the country, too.

And now you know!

Here's a one-question quiz to determine whether or not you're a judicial liberal.   Which of the following three choices correctly completes the sentence?

Q.  The judiciary should closely examine the actions of the political branches, and should in proper cases go so far as to assume without further proof that the actions of the executive and/or legislative are unconstitutional, when those branches: 

a.  use the resources of government to intervene in private contractual relations between a landlord and tenant on the ground that the leased premises are unbelievably squalid.

b.  use the resources of government to intervene in private employment contracts when an employer compels employees to work in dangerous conditions.

c.  use the resources of government to intervene when one individual uses physical force to kill, rape, rob or injure another.

If you answered "c", you're a judicial liberal.  At least, that's the word from the news company owned by New York's  Mayor Bloomberg, head of the Forza America party.  Bloomberg (the news service, not the mayor) recently reported: 

President George W. Bush's two U.S. Supreme Court appointees proved as conservative as advertised in their first term, even if they fell short of controlling the outcome in some of the court's highest-profile cases.

Chief Justice John Roberts and Justice Samuel Alito voted during the just-ended term to ... limit the rights of criminal suspects. They consistently allied themselves with the votes, if not always the reasoning, of Justices Antonin Scalia and Clarence Thomas. ...

The Scalia-Thomas wing can point to victories in criminal law. Scalia wrote the 5-4 decision limiting the exclusionary rule, which sometimes bars prosecutors from using evidence found during an illegal search by police.

The assumption, plainly, is that the Scalia-Thomas wing votes in favor of the prosecution and for "limiting the exclusionary rule."  Oddly, however, the reporter didn't mention the stinging defeats suffered by the Scalia-Thomas wing in a couple cases in which the majority opinion was written by ... Justice Scalia.  (See post 127 and post 131.) 

It always seems a bit unfair to pick on Supreme Court reporters, because, after all, their job is to fit the news about the Court into one of the only two possible storylines (the Court is getting more liberal / the Court is getting more conservative).    Still, this particular Bloomberg reporter's tolerance for cognitive dissonance is impressive.  Perhaps he's auditioning for a job as White House spokesperson?

In fairness, the idea that liberals are defined by their hostility to the enforcement of the criminal law is accepted by no less an icon of the American left than Senator Kennedy, in a Washington Post op-ed in which he castigates Alito and Roberts for being conservative, pointing out in particular Alito's penchant for "ruling against individuals in Fourth Amendment cases". 

As to why revealing the truth about crime to juries hearing criminal cases - which is what Kennedy, or the staffer who actually wrote the piece, was referring to - should be considered a self-evidently conservative position ... Well, if you have to ask, you must  have flunked the quiz at the beginning of this post.

On Thursday the Supremes decided Hudson v. Michigan, in which a 5-4 majority concluded that the Constitution doesn't require suppression of evidence gathered following a violation of the knock and announce rule.  The reaction in the blogosphere seems generally hostile.  From the libertarian right, here's the Cato Institute's Mark Moller on "The Fourth Amendment as Legal Fiction", and from the defense bar left, here's Talk Left's T. Christopher Kelly on "No Remedy When Police Fail to Knock Before Executing a Search Warrant."

Orrin Kerr points out the amateurishness of Justice Breyer's dissent, while Professor Bainbridge takes the opportunity to make an excellent point about Justice Scalia's judicial technique, which I'll return to in some future post.  Norm Pattis points out how illusory is the prospect of obtaining money damages in a civil rights suit for a caved-in door - if, that is, the cops actually find what they're looking for.  A sober assessment can be found over at CrimProf Blog.

The decision got a lot of coverage in the papers.  The New York Times ran an initial piece telling us that it "signaled the more conservative tilt of the tribunal in recent months."  (That conservatism explains why the Cato Institute is so exercised.)  Linda Greenhouse's follow-up informed us that the ruling "left uncertain the value of the 'knock-and-announce' rule, which dates to 13th-century England as protection against illegal entry by the police into private homes."

Now, I love Linda Greenhouse as much as any other lawyer who secretly longs for a favorable mention  in the Times, but given that England didn't have a police force until 1829 I can't help scratching my head just a little about her history.   The knock and announce rule wasn't yet part of the fourth amendment in 1963, when the Supreme Court decided Ker v. California.  (Look at part III.)  In 1992, the famously conservative Massachusetts Supreme Judicial Court held: "Our knock and announce rule is one of common law which is not constitutionally compelled."  (Goggin, 587 N.E.2d at 787) 

It was only in 1995 that Clarence Thomas, the liberals' favorite justice, declared rather ambiguously that the knock and announce rule "is an element of the reasonableness inquiry under the Fourth Amendment."  So the fourth amendment that's "evaporating before our very eyes" is the 1995 version, not the one from the 13th century.   (Whew!)

There's a lot to be said about Hudson v. Michigan.  It goes right to the heart of the main question raised by the exclusionary rule, which is:  What's it for?  Is it to control the police, or to punish them, or to even the odds between prosecution and defense, or to protect the privacy (and door frame) of the homeowner, or to protect the purity of the courtroom from the taint of police officers executing a judge's warrant?  

Is it merely a reaction to the stupidly savage sentences imposed in drug cases (which are themselves in significant part a reaction to the way in which the exclusionary rule prevents convictions of guilty drug dealers)?  (See post 100.)  Is it best understood as a simple struggle for power between the judiciary and executive branches, and between the federal and state governments?  Does it reflect a judicial concept of the police as an occupying army that must be restrained by detailed rules of engagement?

And why do we lie to jurors?

Last fall the Wisconsin Supreme Court issued one of those opinions, very faddish these days, in which the court declares that the state Constitution has some secret meaning perceptible only by those with the shining.   (Though I have to admit that just making this stuff up is a lot easier than the amendment process.  And you avoid all that distateful voting stuff, too.  All those plebes.)  The concurring opinion by Justice N. Patrick Crooks includes this paragraph:

¶88     "New federalism" is a concept embraced by both liberals and conservatives. "For the conservative, state constitutionalism represents the triumph of federalism; crucial decisions about the apportionment of rights and benefits are decided by state courts responsive to local needs, rather than by a distant United States Supreme Court. . . ."   Stanley Mosk, State Constitutionalism: Both Liberal and Conservative, 63 Tex. L. Rev. 1081 (1985).  Clearly, "new federalism" represents the intersection of "conservatives' concern over federalism and states' rights" with "the liberals' concern over safeguarding individual rights."  Id. at 1092.

This is vacuously, smugly, and unconsciously foolish on so many levels one hardly knows where to begin.   Conservatives are uninterested in safeguarding individual rights?  Tell that to the NRA, which is all about nothing else.  (“When the Second Amendment is only as good as your mayor or your police chief says it is, the NRA must take action.”)  Tell it to the Institute for Justice, whose Minnesota chapter has a website announcing:

IJ-Minnesota will litigate in courts in Minnesota and around the country to establish greater protection of liberties under State Constitutions and strengthen rights under the Federal Constitution.

IJ-Minnesota protects the foundational rights of the American Dream: property rights, free speech, educational choice and economic liberty.

In case those code words aren't clear enough for you, the IJ's main website spells it out.  It's a libertarian outfit, ideologically opposed to the regulatory state.   The whole stage-managed uproar about Kelo v. New London was all about protecting constitutional rights.  And which political party adopted this platform, oozing as it does with concern for individual rights?

We stand for social and economic justice, which, we believe can be guaranteed to all citizens only by a strict adherence to our Constitution and the avoidance of  any invasion or destruction of the constitutional rights of the states or individuals. ...  We unreservedly condemn the effort to establish in the United States a police nation that would destroy the last vestige of liberty enjoyed by a citizen.

And then are we seriously to believe Justice Crooks that conservatives, such as - oh, I dunno, Antonin Sclia - never write opinions championing individual rights?  (See post 55.)   How confident can we be in his assurance that those right-wingers will never write opinions like Kyllo, Crawford and Blakely, which are all about enforcing the constitutional rights of individuals?

On the other side of the ledger, to suggest, as Justice Crooks does, that state courts are "responsive to local needs" is almost insulting to the state courts.  Other members of the Wisconsin Supreme Court have been at pains to say that the judiciary's task is almost exactly the opposite - to refuse to respond to local conditions - as in this passage from a 2003 opinion (joined by Justice Crooks) quoting a speech at Wisconsin's constitutional convention, back when orators still knew how to orate:

"It is the vitality of the representative system that the representative should thus forever look back from his own judgment to the will of his people, and thus anxiously ascertaining should faithfully execute the delegated will of those who chose him for his power and inclination to obey them. But that which is the vitality of political representation will be the corruption of the judiciary. . . .   Elect the judges by the people, for short terms, with the hope of reelection or promotion--sir, the judge will cease to be the representative of truth and right and justice alone; he will be the representative of the people and will represent the popular judgment, when there is one, not his own."

Besides, it's just not true that state courts can "respond to local conditions" by deciphering the messages hidden in the texts of their state constitutions.  The ratchet turns only one way.  They can further reduce the flow of truthful information to the jury, but they can't increase it.

Stanley Mosk, who wrote the original law review article, had the excuse that he was writing 21 years ago.  Crooks' only excuse is that he (or his clerk) was writing without thinking.  But how to explain the other justices joining his concurrence?